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Petitioner: Haji MULLAH NOOR ULLAH VS Respondent: SECRETARY MINES AND MINERALS and 3 others
Court Name: Balochistan High Court Judge(s): Muhammad Hashim Khan Kakar, Muhammad Noor Meskanzai Title: Haji MULLAH NOOR ULLAH vs SECRETARY MINES AND MINERALS and 3 others Case No.:Civil Revision Petition No,249 of 2011 C.P. No,422 and Civil Revision Petition
JUDGMENT
Reported As: 2015 YLR 2349 Result: Order accordingly Judgment JUDGMENT ' MUHAMMAD HASHIM KHAN KAKAR, J.---The instant Constitutional Petition No,422 of 2011, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, ("the Constitution") has been preferred against the orders dated 14th January 2010 and 7th May 2011, respectively, passed by respondents Nos.1 and 2, whereby the Prospecting License ("PL"), issued in favour of the petitioner, was cancelled and the appeal filed by him under Rule 70 of the Balochistan Mineral Rules 2002 ("the Rules of 2002"), was dismissed. Similarly, Civil Revision Petition No,249 of 2011 has been filed by the petitioner against the Orders and decrees dated 23rd February, 2011 and 31st May, 2011, respectively passed by the learned Civil Judge-III, Quetta and Additional District Judge-I, Quetta, whereby the plaint of the petitioner was rejected under Order VII Rule 11 of the Civil Procedure Code, 1908 (C.P.C.). Since common questions of law and facts are involved in both the aforesaid matters, therefore, the same are being disposed of through this common judgment. 2. The relevant facts for disposal of constitutional petition appear to be that the petitioner applied for grant of PL for limestone over an area of 94.73 acres near Brewery, District Quetta. His case was processed and the required No Objection Certificate ("NOC") was issued in his favour on 21st March 2009. The NOC issued by the then District Coordination Officer ("DCO"), Quetta, was, subsequently, suspended on the complaint of local inhabitants of the area vide order dated 28th April, 2009. The area in question was granted under a PL in favour of the petitioner for a period of two years by the respondent, subject to the condition that the petitioner shall get his suspended NOC restored from the DCO within a period of two months. Due to failure of the petitioner to get his .NOC restored, the respondent, while exercising powers under Rule 77(2)C .Of the Rules of 2002, cancelled the PL.
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3. As regard Civil Revision Petition No,249 of 2011, it may be noted that petitioner Mullah Noorullah filed a suit for declaration and permanent injunction against respondents Abid Lehri and Sher. Zaman Lehri, wherein he averred that he was granted PL by the Mines and Minerals Department in respect of the aforesaid area, as described in the facts of constitutional petition, however, the responderils started interference and encroachment over the granted area, thus, the aforesaid suit was filed. As stated above, the trial Court rejected the plaint of the petitioner under Order VII, Rule 11 of the C.P.C. And his appeal, met the same fate before the appellate Court, hence, this civil revision. 4. Besides submitting their counter affidavits in constitution petition, the official respondents also submitted a Survey Report ("SR"), prepared by Mr. Abdul Jabbar, Assistant Director (Tech:/Mont:) and Mr. Ain-ud-Din Agha, Assistant Director (Planning) of the Environmental Protection. Agency ("EPA"), Quetta on 28th January 2011, which reads as under: "SURVEY REPORT OF CRUSH PLANTS As per directives of the DirectorGeneral Environmental Protection Agency with reference of Deputy Commissioner, Quetta letter No, 119/GB dated 28th January, 2011, the Environmental Protection Agency Technical Team surveyed the following Crush plants situated on Western Bypass on 5-4- 2011. (1) Messrs Abdul Samad, Crush Plant (2) Messrs Al-Saadat, Crush Plant (3) Messrs Maqbool Shah, Crush Plant (4) Messrs Shalkot Crush Plant (5) Messrs Shandin Crush Plant (6) Messrs New Kakar Crush Plant (7) Messrs Mushtarika Crush Plant (8) Messrs Nasar Crush Plant ' All the above Crush Plants were in working position, no such necessary managements for controlling the dust pollution was taken. As per directives of the Environmental Protection Tribunal, Balochistan and imposing penalties, the Environmental Protection Agency, Balochistan issued conditional NOCs to: - (1) Messrs Abdul Samad, Crush Plant (2) Messrs Al-Saadat, Crush Plant (3) Messrs Maqbool Shah, Crush Plant (4) Messrs Shalkot Crush Plant ' But they did not comply with Environmental Laws and conditions of the NOCs. The Environmental Protection Agency, Balochistan Technical Team advise the owners of the Crush Plants to follow the precautionary measures should be strictly adhered to minimize any negative impact on vegetation, soil, groundwater ambient air quality in the area. ' The following Crush Plants are operational illegally and they never submit Environmental Audit Report to the Environmental Protection Agency, Balochistan for obtaining of NOCs. (1) Messrs Shandin Crush Plant (2) Messrs New Kakar Crush Plant (3) Messrs Mushtarika Crush Plant (4) Messrs Nasar Crush Plant ' In this continuation on 6th April, 2011 the Environmental Protection Agency, Balochistan Technical Team surveyed the following Crush Plants situated at Eastern Bypass Quetta:-- ' Messrs Al-Gallani Crush Plant Messrs Azad Crush Plant Messrs Kakar Crush Plant Messrs Abdul Wahab Crush Plant Messrs Al-Khair Crush Plant apply for obtaining of NOCs. The Technical Team strictly advise them to follow-up the Pakistan Environmental Protection Act, 1997.
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' On 12-4-2011 the Environmental Protection Agency, Balochistan Technical Team visited the following Crush Plants situated at Kuchlak: - (1) Messrs Malak Rauf Crush Plant (Ashraf Linkers) (2) Messrs Umar Khan Crush Plant (3) Messrs Abassen Crush Plant (4) Messrs Mujadadi Crush Plant (5) Messrs Sahibzada Crush Plant ' All the above Crush Plants were in working position, no such necessary managements for controlling the dust pollution was taken but better from the Western Bypass Crush Plants. As per directives of the Environmental Protection Tribunal, Balochistan and imposing penalties, the Environmental Protection Agency, Balochistan issued conditional NOCs to the aforementioned Crush Plants." 5. The parties have also produced copy of joint report on stone crushing plant site of western bypass, Quetta, prepared by Geological Survey of Pakistan, Quetta, in the year 2007 and it was observed:-- "The stone crushers installed at mountains of Chiltan Range in 1991 are adding the problem of dust pollution in the city. The present stone crusher plants installed along with Chiltan Range in different locations are emitting air dust, air pollutants and hazardous substances to some extent that is detrimental to the health of inhabitants of Quetta Valley. " 6. Natural substances are grouped in three major categories: Animals, Vegetable and Mineral kingdoms. Members of the animal and vegetable kingdoms comprise living things that need air, water and food to live and grow. In absence of these, they will soon die and their bodies would decompose. Ageing process affects living things and with the passage of time, they become old and finally expire even in presence and availability of life-sustaining environment. The air we breathe is a mixture of nitrogen and oxygen with minor constituents like carbon dioxide and tap gases. Pollutants are substances, which are not normally present in the air. Pollutants in the form of dust, smoke, industrial and automobile exhaust, gaseous and particulate matters, though not normally expected to be present, yet are found in the air. Nature and amount of such pollutants varies from place to place depending upon population, vehicular density and location of industrial units etc. Lungs are the major organs affected by the air pollution. The spectrum of functional and pathological reactions of the lungs to various exposures is wide. Chronic bronchitis and airways obstruction is the result of long term exposure to air pollution. Organic matters including dust can cause the allergic reactions producing allergic alveolitis. Inorganic dust may get deposited in the lungs and produce fibrosis. Exposure to dust may lower the lungs' defenses and clearing mechanism, resulting in infections, particularly tuberculosis. Such occupational exposures may also lead to lung cancer. Such hazardous effects on health are likely to be caused on account of the air pollution which is caused due to stone crushing. By stone crushing a lot of thick dust is generated polluting the environment. 7. The above effects of air pollution caused due to limestone crushing in populated and residential areas were noticed by a high-power committee, constituted by Director General, EPA. The SR submitted by the official respondents is also accompanied by a number of photographs, showing that no proper management measures were observed by the mines' owners in order to minimize air pollution, as evident from notices issued to the owners of Messrs Abdul Samad, Messrs Al-Sadat, Messrs Maqbool Shah and Messrs Shalkot, Crush Plants, to whom conditional NOCs were issued, the notice reads as under:-- "(1) Whereas the above crush plants were issued conditional NOCs by the Environmental Protection Agency to ensure the following requirements;
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(i) Compliance of the NEQS shall be ensured, Environmental Compliance Report should be submitted on biannually. (ii) Mitigation measures with regard to air pollution and effluents discharges will be strictly implemented. (iii) Dust collector should be in place to minimize the dust pollution at the. Crush Plant. (iv) That the mountain face/toe shall be utilized in such manner technique to avoid occurrence of any disaster/hazard of sliding. (2) Whereas during the visit of Technical Team of Environmental Protection Agency on 5-4-2011 and 12-4-2011 it was observed that the above crush plants are functioning without fulfilling the conditions of NOCs which is violation of section 12 of Pakistan Environmental Protection Act, 1997." 8. Similarly, notices were also issued to the owners of Messrs Shandin, Messrs New Kakar, Messrs Mushtarika, Messrs Nasar, Messrs Al-Gillani, M/s Azad, Messrs Kakar, Messrs Abdul Wahab, Messrs Alkhair, Messrs Al-Musbah and Messrs Adil, Crush Plants, which reads as under:-- "Whereas, during the visit of Technical Team of Environmental Protection Agency on 5-4-2011 and 6-4-2011 it was observed that the above crush plants are functioning in violation of the following legal requirements. (i) No NOC has been obtained from Environmental Protection Agency, Balochistan which is violation of Section 12 of Pakistan Environmental Protection Act 1997. (ii) No IEE/EIA report has been submitted to the Environmental Protection Agency, Balochistan which is mandatory in pursuance of Pakistan Environmental Protection Act, 1997 and EIA Regulation 2000, for grant of NOC. (iii) It was also observed that no mitigation measures were taken i,e, sprinkling of water, installation of canopy over the processing site and dust collector for pollution control during operation of the crush plants." 9. On 23rd September 2013 all the crushing plants were restrained from operating and QESCO was directed to disconnect the electricity supply to them by this Court. The said order was challenged before the Hon'ble Supreme Court of Pakistan by means of Civil Petition No,1695 of 2013 and the following order was passed:- "This petition for leave to appeal has been filed against the interim order dated 23rd of September, 2013 passed by the High Court of Balochistan in C.P. No, 422/11 where certain directions were given regarding environmental issues arising out of the stone crushing machines in Quetta city and the surrounding areas. The main issue before the High Court related to dispute of rights over mines between the parties. It is now stated on behalf of the petitioner that necessary safeguards for protection of environment have been taken. We have been informed that the main Constitution Petition is still pending adjudication. Such safeguards be placed before the High Court for its satisfaction. Let the High Court decide the question of environment as well as the main lis in the petition. ' With these observations, the petition is disposed of". 10. In the backdrop of what has been noticed hereinabove, we are called upon to decide the effects of unplanned stone crushing being carried out in the residential areas of Quetta city, upon the health of the people of the area. In the absence of any positive response from the Provincial Government, we also propose to indicate the safeguards for the health and safety of the people, while protecting the interests of the persons involved in the trade of stone crushing. It is regrettable that despite our insistence and observations made from time to time during the pendency of the proceedings, neither the Provincial Government, nor the concerned agencies have taken any positive steps on this court's directions and have rather adopted a callous attitude towards this important issue.
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11. Keeping in view the importance of the issue as well as the ground of discrimination taken by the petitioner that he has been singled out by the official respondents in spite of the fact that a number of stone crushing plants are located and operating in the adjacent areas, a list of stone crushers located in Quetta city was submitted and notices were also issued to the owners of the said crush plants. Similarly, the Advocate General was also directed to take notice on behalf of the Provincial Government to intimate the law prevalent and procedure followed for the grant of licences to stone crushers and to intimate the measures taken by the Provincial Government for safeguarding the health of the citizens and atmosphere in the locality. 12. Messrs H. Shakil Ahmed, Zafar Hayat Mullazai, Tahir Ali Baloch, Abdul Zahir Kakar and Rehmatullah Kakar, Advocates, appearing on behalf of the crush plant owners, have tried to justify the grant of licences and permissions in their favour by the appropriate authorities. It is submitted that the units, which are carrying on the business of stone crushing, have been carrying on their activities strictly in accordance with the terms and conditions prescribed by the Licensing Authority on the basis of the NOCs issued by the EPA, Balochistan. They have contended that their business was not in any way causing pollution, which could warrant action by the authorities or the Court. It is submitted that as they are carrying on their business in accordance with the permission granted, no direction can be issued, particularly when there was no complaint against them either by public or by concerned authority. They further submitted that the stone crushing plants are located mostly in hillocks, far away from areas inhabited by the villagers. Such crushing units are not concentrated in any single place and are scattered. As per their contention, they are carrying on tiny stone crushing industries, which are not causing any pollution. They also submitted that any adverse order or direction would prejudice the business of plants owners being carried on from several years. According to their version, in terms of the Constitution, every citizen has a right and freedom to carry on his business activity without any interference or hindrance, whereas any restriction or hindrance in this regard violates the provisions of Article 18 of the Constitution, which recognizes the right to freedom of trade, business and profession to be carried out by every citizen of Pakistan. 13. Though the ground of jurisdiction was not agitated by the learned counsel for the respondents at the time of arguments, yet a Court, prior to taking cognizance of a matter, is supposed to determine the question of its jurisdiction and any order passed without jurisdiction cannot be allowed to hold the field for a moment. The record reflects that the question of jurisdiction was initially agitated in the first round of litigation. In order to set the controversy at rest, it would be advantageous to reproduce herein below relevant portion of Section 29 of the Balochistan Environmental Protection Act 2012, which reads as under:-- "29(9)- No court other than Balochistan Environmental Protection Tribunal shall have orexercise any jurisdiction with respect to any matter to which the Jurisdiction of Balochistan Environmental Protection Tribunal extends under this Act, the rules and regulations made thereunder." ' It is manifest from bare reading of the aforementioned provision of law that the term 'no court' appearing in the said subsection does not include this Court, while exercising constitutional jurisdiction under Article 199 of the Constitution. In this behalf, it may be noted that this Court, in exercise of constitutional jurisdiction conferred upon it under Article 199, enjoys enormous power of judicial review. It is a fundamental principle of jurisprudence that Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded. This expansion of jurisdiction is for securing and safeguarding the rights of the people against the violation of the law. 14. The right to 'life' is the most fundamental right as enshrined in Article 9 of the Constitution. Such right includes all attributes of the life. The term 'life' means something more than mere animal existence. It is a fundamental right of every citizen to live with dignity. Living with dignity would include all those rights, which ensure a person's life as meaningful, complete and worth living. Right
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to life would also include right to live in peace, to sleep in peace and enjoy health free from pollution. Right to live is a fundamental right under Article 9 of the Constitution and it includes the right of enjoying pollution free air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of Laws, a citizen has the right to have recourse to Article 199 of the Constitution for removing that very thing, and polluted air is certainly one of them, for it is detrimental to the quality of life. The Hon'ble Supreme Court of Pakistan in the case "petition regarding miserable condition of the schools": In the matter of Constitutional Petition No,37 of 2012, decided on 22nd November, 2013-reported in 2014 SCM R 396, while interpreting Article 9 of the Constitution observed as under:-- "As far as Article 9 is concerned, the word "life" occurring in said Article has received interpretation in different contexts in a large number of cases decided from time to time and now it is well- settled that the word 'life' cannot be assigned limited meaning and its scope has been enlarged enough to encompass almost each and every aspect of human life." 15. Similarly, the Hon'ble Supreme Court, while interpreting the word 'life' used in Article 9 of the Constitution in the case of "Ms. Shehla Zia v. WAPDA", (PLD 1994 SC 693), held as under:-- "Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally."
16. It is true that the rapid growth of the economy and the industrialization is also the need of the mankind to have a decent, respectful and dignified life. The environmental changes are the inevitable consequences of industrial development in our country, but at the same time, it is equally true that the quality of environment cannot be permitted to be damaged by polluting the air to such an extent that it becomes a health hazard for the residents of the area.
17. It is not disputed that in Quetta City, about twenty one Enterprises are involved in the business of limestone crushing and allied matters. It is also not disputed that the member of such industries is mushrooming, which is not effectively controlled by the executive authorities as evident from the report of EPA and notices issued to the units' owners. Such industries are scattered all over and not located within specified places. The pollution caused on account of stones' crushing can also not be disputed. Emission of dust, smoke and gases from such crushing plants is acknowledged. The consequential effects of the dust, smoke and gases emitted from the conduct of the business are surely to affect the lungs and other major organs of the people involved in the business and living in the surrounding areas. Besides human beings, the animals and the vegetation including crops are likely to be affected unless protected. It is, therefore, the duty of the respondents to take measures and effective steps for regulating the conduct of the business as has been done in the sister provinces. The EPA has no doubt submitted that it has already taken measures by providing guidelines for observing proper arrangements to minimize the pollution, but it has been observed that the aforesaid guidelines/directives are observed more in breach than in compliance and that there is no machinery provided to check and insist the observance of the guidelines.
18. It has been specifically provided in the guidelines, prospecting licences and no objection certificates, issued by the office of the Director General, EPA, Balochistan and Director General,
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Mines and Minerals, Balochistan that the mines owners shall comply with all the environmental laws during the operation phase; that the proponent shall install its crush plants at the backside of the mountain; dust collector should be in place to minimize the dust pollution at the proposed site; the mountain facing should be kept intact in natural shape and the Mountain facing towards the city not to be cut and the trees plantation should be ensured around the project area. It is also by now settled that no stone crusher can be established within a distance of at least one kilometer from highways, habitats, mosques, schools and hospitals, but in fact the industries conducting stone crushing business are located just on the roadside of main Eastern and Western Bypasses in Quetta city near the habitats, mosques, schools and hospitals. The jaw crusher and conveyor system of the crashed stones are not covered anywhere. The rotary screens are not completely closed leaving space at the bottom for collection of sieved jelly. Conveyor belts are also stated to have not been covered. No suitable exhaust and venting system is provided. No trees are planted around the crushing plants for the purpose of minimizing the dust and improving aesthetic appearance/compliance. No provision is reported to have been made for controlling the noise caused by carrying on the stone crushing business. The inaction of the Provincial Government and lapses of the EPA to take effective measures has cast a duty upon us to issue appropriate directions for protecting the life of the people and ecology of the city.
19. It is also worth mentioning that Quetta is the single largest city of the country, which is surrounded all around by mountains i,e, Koh-e-Chiltan, Koh-eTakatu, Koh-e-Zarghoon and Koh- eMurdaar. The city is also out of range of the monsoon current, due to which rainfall is scanty and irregular. Quetta being a close valley, surrounded by three ranges of mountains, is facing acute problem of dust pollution, caused by NSW winds. Due to presence of the aforementioned mountains, the dust particles cannot travel, disperse beyond the valley and remained deposited in the vicinity. Air pollution is one of the most widespread mass induced hazards. Atmospheric mixing process makes it extremely mobile and many pollutants in the air are toxic and potentially harmful to human beings, plants and beauty of the cities. Clean air is vital for normal life. The air we breathe is invisible, odorless and tasteless. It is part of human life and is consumed at the rate of 20 kilograms (i,e, 42 lbs) per day. The air we breathe has always been contaminated to some extent by dust, smoke, gasses, mist, vapor and odors. The most serious issue of air quality in Quetta city is persistent excessive emission of dust from stone crushers in the ambient air. Quetta is an arid part of Pakistan with rainfall ranging as low as 20mm to 60mm. In the dry and low wind days, natural dust anthropogenic pollution, when generated in access, takes longer time to disperse. Over the last few years, average rainfall declined, which has co-relation with meteorological conditions, if dry air conditions prevail.
20. We are afraid that the photographs, produced by the…
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