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Petitioner: Asad Mahmood and 4 others VS Respondent: Government of Punjab through Chief JUDGMENT
Court Name: Lahore High Court Judge(s): Jawad Hassan Title:Asad Mahmood and 4 others vs Government of Punjab through Chief
JUDGMENT
Reported As: 2022 LHC 2838, 2022 CLD 1430 Result: Petition Disposed of Judgment JUDGMENT JAWAD HASSAN, J. Through this Environmental Public Intere st Litigation under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution "), the Petitioners have made multiple prayers challenging the establishment of Stone Crushing Unit(s) in District Jehlum without proper approval by the relevant Authorities. I. CONTEXT 2. Brief facts of the case are that the Petitioners are permanent inhabitants of Distri ct Jhelum and have approached this Court for protection of their fundamental rights of life and health guaranteed under Articles 3 & 4 of the Constitution. Their grievance is that Respondents No.13 to 20 are running illegal business of crushing limestone without any "No Objection Certificate" from the Environmental Protection Agency . The said act/action of aforesaid Respondents is not only creating nuisanc e but is also causing a great inconvenience to inhabitants of the area and the travelers as well. It is agitated in the petition that due to dust and pelting stones in the thickly populated and prohibited area, the environment of the area has been badly damaged. Furthermore, the owners of the crushing plants are stealing the stones from river, which resulted into damage of road, deep cliffs, etc. Therefore, keeping in view, the facts, enquiries and survey reports mentioned in this Petition, the Respondents be directed to take strict action in accordance with the applicable law . Hence, this Petition. II. PETITIONER'S SUBMISSIONS 3. Ch. Muhammad Nisar Ali, Advocate submitted that the Petitioners being inhabitants of District Jehlum filed this Petition against the functioning of stone crushing units run by the Respondents No.13 to 20 which is badly causing damage to the public health. He further submitted that Petitioners have filed this Petition seeking, inter alia, a writ of mandamus to the Respondents/State functionaries for the implementation of the law, policies, and for enforcement and protection of their fundamental rights guaranteed under Article 9 of the Constitution. He added that it is the
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fundamental right of every citizen to live in clean atmosphere and relied upon the landmark judgment of Hon'ble Supreme Court of Pakistan reported as "MS. SHEHLA ZIA AND OTHERS Versus WAPDA" (PLD 1994 SC 693). He further relied upon Suo Moto Case No.13 of 2009 (PLD 2011 SC 619) wherein it has been held that "right to life implies the right to food, water, decent environment, education, medical care and shelter, thus fundamental right cannot be snatched away or waived off pursuant to any agreement". He submitted that Hon'ble Supreme Court took suo moto action in NEW MURREE PROJECT (2010 SCMR 361), because of grave environmental hazards caused by destruction of 5,000 acres of forest which has adversely affecting the annual rainfall in Islamabad, with the result that the supply of water to the nearby dams was depleted. In 2010, the Supreme Court decided the case with directions that there is a need to sensitize the general public to fundamentals of sustainable development so as to achieve goal of healthy environment, not only for present population but also for the future generations. Lastly prayed that direction be issued to the Respondents to protect the inhabitants of the area from pollution of stone crushers. Learned counsel also relied on the judgments reported as "Human Rights Case No.318 of 1993" (2021 SCMR 512) and "Haji Mullah Noor Ullah v. Secretary Mines and Minerals and 3 others" ( 2015 YLR 2349 ). III. RESPONDENTS' SUBMISSION i. Submissions of Mr . Mujeeb-ur -Rehman Kiyani, AAG 4. Learned Law Officer objected to the maintainability of this Petition being premature because the issue relates to the environmental pollution and falls within the ambit of Environmental Protection Agency (EPA), which functions under the Pakistan Environmental Protection Act, 1997 (the "Act"). He also stated that the Petitioner has no locus standi to file this petition. ii. Submissions of Izhar-ul-Haq, Assistant Director,Environment Protection Department, Jehlum 5. Mr. Izhar-ul-Haq, Assistant Director by relying upon the report and parawise comments submitted that bold steps have already been taken by issuing notices to the owners of stone crushing units. Added that functional stone crushing units have been sealed hence there remains no threat to environment. iii. Submissions of Muhammad Aamir Shafiq, Assistant Director , Mines & Minerals, Jehlum 6. Mr. Muhammad Aamir Shafiq, Assistan t Director also objected to the maintainability of this Petition on the ground that the alternate remedies of filing appeal and revision under Rule 234 and 235 of the Punjab Mining Concession Rules, 2002 (the "Rules" ) are available to the Petitioners. Added that the Deputy Commissioner , Jehlum has already constituted a Committee to stop the operation of stone crushing plants and also to stop excavation work in the mining leases of sand from Mangla Dam Main Spillway to Old Railway Bridge Jehlum. iv. Submissions of Ch. Muhammad Hussain, Advocate for the Private Respondents. 7. Ch. Muhammad Hussain, ASC also vehemently objected to the maintainability of this Petition by stating that the Petitioners have no locus standi to file this Petition because they are not aggrieved persons. Added that the Petitioners are not residents of the area and that the stone crushing units are not functioning in the populated area, therefore, no fundamental right of the Petitioners has been infringed. Further subm itted that the Respondents had been crushing stones in their own property . Learned counsel further stated that freedom of trade and ease of doing business is a fundamental right of every citizen including the private Respondents, which is guaranteed under the Constitution. He relied on the judgment of this Court cited as "M.C.R. (Pvt) Ltd, franchisee of Pizza Hut v. Multan Development Authority and others" ( 2021 CLD 639 ). The relevant part of the judgment is reproduced as under: "28. Undoubtedly freedom of trade, business and commerce is a fundamental right guaranteed under Article 18 of the Constitution which states that every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. One of the basic purposes behind provision of this fundamental right is certainly to advance culture of socio-economic progress and to protect and promote business and trade activities and, at the same time, to encourage simplification of the process of establishing and carrying out new business ventures throughout the country because activities of business and trade create opportunities for the masses around and provide job options, financial stability and progress in the area." 8. He also relied on the judgments cited as "Constructor Association of Pakistan through Secretary General v. Pakistan Engineering Council (PEC) through Chairman and another" (PLD 2020 Islamabad 199), "M. Tariq
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Asad, Advocate Supreme Court v. Federation of Pakistan through Federal Secretary and 6 others" (PLD 2020 Islamabad 338), "Dr. Moinuddin Shaikh v. Federation of Pakistan through Federal Secreta ry, Water and Power , Islamabad and 10 others" (PLD 2019 Sindh 506), "Muhammad Gul v. Government of Khyber Pakhtunkhwa through Chief Secretary and others" (PLD 2019 Peshawar 184), "Sajjad Ahmad v. Government of Khyber Pakhtunkhwa through Chief Secretary and 8 others" (2020 CLC 360) and Chenab Flour and General Mills etc. versus Federation of Pakistan through Secretary Revenue Division etc. (PLD 2021 Lahore 343 ). 9. Arguments heard. Record perused. IV. DETERMINA TION BY THE COURT 10. This environmental public interest petition has been filed by the Petitioners being inhabitants of District Jehlum, in order to protect their rights provided under Articles 9 (right of life and liberty) and 14 (right of dignity) of the Constitution from the pollution and nuisance created by the business of crushing limestone. The Petitioners have alleged that the crushing plants in the thickly populated area are creating nuisance and inconvenience for the inhabitants of the area and travelers and are causing damage to the environment of the area because of dust, pelting stones and pollution. While the stance of the Respondents-EP A taken in report and parawise comments is that the department has taken steps against stone crushing units and environmental approvals of certain functional crushing units have also revoked and sealed by the Deputy Commissioner, Jhelum. The Respondents- Mines & Mineral Department objected to maintainability of this petition on account of availability of alternate remedies provided under Rule 234 and 235 of the Rules. In the report submitted by the said Department, it is stated that the Deputy Commissioner, Jhelum, has already constituted a committee to stop operation of stone crushing units and to stop excavation work in the mining leases of sand from Mangla Dam Main Spillway to Old Railway Bridge, Jhelum. Whereas the Respondents No.13 to 20 have taken specific stance that stone crushing units are installed which far away from the residential area as such the Petitioners have neither locus-standi to file this petition; nor they are aggrieved persons and their fundamental rights, as alleged, have been infringed. Locus standi of the Petitioners 11. Primarily , the Petitioners have invoked constitutional jurisdiction of this Court due to violation of their fundamental rights guaranteed under the Constitution. It is observed that in order to invoke constitutional jurisdiction of this Court, the Petitioners have to satisfy that they have locus standi being aggrieved persons as their rights were denied or were not given to them and also they have no alternate, adequate remedy of redressal of their grievance. The Petitioners have alleged that crushing plants in the thickly populated area are creating nuisance and inconvenience for the inhabitants of the area and travelers and are causing damage to the environment of the area because of dust, pelting stones and pollution. It evinces from the record that the Petitioners have only appended with this petition a decision of Ombudsman, Punja b dated 10.04.2021 according to which the Petitioners are not party to the proceedings. They have also annexed decision dated 20.02.2020 given by the office of District Magistrate, Mir Pur, which is also not related to the residential area of the Petitioners. Record further depicts that the Petitioners are the residents of District Jhelum while through C.M.No.2440 of 2021, they have annexed some photographs of dumping of stones and sand of some non-residential area are not cleared as to which area these photographs are related to. 12. Perusal of record reveals that the issue involved in this case relates to Mines and Mineral Department regarding granting of license for installing crushing units and that too is subject to approval of Environmental Protection Department. Under Rule 191 of the Rules of 2002, a lease is granted in accordance with the Rules of 2002 through an open auction conducted by a committee constituted under Rule 194 of the Rules which comprises representatives of Irrigation Department, Environmental Protection Department, Inspectorate of Mines and Forest Department. Moreover, a lease granted to successful bidder is also subject to approval by the environmental protection agency under the provisions of Environmental Protection Act, 1997 (the "Act") which has been enacted "to provide for the protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution, promotion of sustainable development and for matters connected therewith and incidental thereto" (Preamble).
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The Act has defined the "environment" and "pollution" as follows: "(x) "environment" means- (a) air , water and land; (b) all layers of the atmosphere; (c) all organic and inorganic matter and living organisms; (d) the ecosystem and ecological relationships; (e) buildings, structures, roads, facilities and works; (f) all social and economic conditions affecting community life; and (g) the inter -relationships between any of the factors in sub-clauses (a) to (f); (xxxiii) "pollution" means the contamination of air, land or water by the discharge or emission of effluents or wastes or air pollutants or noise or other matter which either directly or indirectly or in combination with other discharges or substances alters unfavourably the chemical, physical, biological, radiational, thermal or radiological or aesthetic properties of the air, land or water or which may, or is likely to make the air, land or water unclean, noxious or impure or injurious, disagreeable or detrimental to the health, safety , welfare or property of persons or harmful to biodiversity;" 13. Before passing any determination on the issue in hand, the Court consider it necessary , shorn of all legal niceties, to discuss the scheme and mechanism of the Act, including the environmental approvals under the Act, the responsibilities of the environmental authorities under the Act and remedies available under the Act. Framing of Environmental Laws 14. If we look at the scheme and mechanism of the Act, Section 11 of the Act prohibits discharge or emission of any effluent, waste, air pollutant or noise in excess of the Punjab Environmental Quality Standards or, where applicable, in excess of the standards for the quality of ambient air, water and land established under Section 6(1)(g)(i). Section 13 of the Act prohibits import of hazardous waste into Pakistan; Section 14 of the Act requires a person to obtain a license to generate, collect, consign, transport, treat, dispose of, store, handle or import any hazardous substance; and Section 15 of the Act regulates motor vehicles from which air pollutants or noise are being emitted in an amount, concentration or level in excess of the Punjab Environmental Quality Standards or where applicable, standards established under Section 6(1)(g) of the Act. VI. WHETHER MANDA TORY REQUIREMENT OF PRIOR PERMISSION HAS BEEN MET WITH? 15. In addition to above prohibitions and regulations, Section 12(1) of the Act requires any proponent of a project to file with the Environmental Protection Agency (the "Agency ") an Initial Environmental Examination ("IEE") or where the project is likely to cause an adverse environmental effect, an Environmental Impact Assessment ("EIA"), before commencing construction or operation of such project and to obtain respective approval in this respect. The Act has defined the above-underlined terms in its Section 2 as follows: (i) "adverse environmental effect" means impairment of, or damage to, the environment and includes- (a) impairment of, or damage to, human health and safety or to biodiversity or property; (b) pollution; and (c) any adverse environmental effect as may be specified in the regulations; (xi) "environmental impact assessment" means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formulation of environmental management and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed; (xxiv) "initial environmental examination" means a preliminary environmental review of the reasonably foreseeable qualitative and quantitative impacts on the environment of a proposed project to determine whether it is likely to cause an adverse environmental effect for requiring preparation of an environmental impact assessment; (xxxv) "project" means any activity , plan, scheme, proposal or undertaking involving any change in the environment and includes- (a) construction by use of buildings or other works; (b) construction or use of roads or other transport systems;
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(c) construction or operation of factories or other installations: (d) mineral prospecting, mining, quarrying, stone-crushing, drilling and the like; (e) any change of land use or water use; and (f) alteration, expansion, repair , decommissioning or abandonment of existing buildings or other works, roads or other transport systems, factories or other installations; (xxxvi) "proponent" means the person who proposes or intends to undertake a project; 16. Under Section 12(2) of the Act, the Agency is required to review IEE and accord its approval, or require submission of an EIA by the proponent; or review EIA and accord its approval subject to any conditions, or require that EIA be re-submitted after modifications, or reject the project as being contrary to environmental objectives. In addition, under Section 12(3) of the Act, every review of EIA has to be carried out with public participation. Under Section 12(4) of the Act, the Agency is required to communicate its approval or otherwise within a period of four months from the date IEE or EIA is filed complete in all respects in accordance with the prescribed procedure, failing which IEE or EIA shall be deemed to have been approved, to the extent to which it does not contravene the provisions of the Act and the rules and regulations made thereunder . However , under Section 12(5) of the Act, the Provincial Government is authorized to extend this period of four months in particular cases if the nature of the project so warrants. 17. In addition to above, the Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000 (the "Regulations ") provides a list of the project requiring IEE in its Schedule I and the list of the project requiring EIA in its Schedule II. Schedule I of the Regulations provides the following projects for IEE approval: "D. Mining and mineral processing 1. Commercial extraction of sand, gravel, limestone, clay, sulphur and other minerals not included in Schedule II with total cost of less than Rs.100 million 2. Crushing, grinding and separation processes 3. Smelting plants with total cost of less than Rs.50 million" Similarly , Schedule II of the Regulations provides the following projects for EIA approvals: "C. Mining and mineral processing 1. Mining and processing of coal, gold, copper , sulphur and precious stones 2. Mining and processing of major non-ferrous metals, iron and steel rolling 3. Smelting plants with total cost of Rs.50 million and above" 18. In view of the above, any natural or legal person who proposes or intends to undertake a project, including the stone-crushing, is required to obtain IEE approval, which is a preliminary environmental review of the reasonably foreseeable qualitative and quantitative impacts on the environment of a proposed project to determine whether it is likely to cause an adverse environmental effect for requiring preparation of an environmental impact assessment. However, if such a project is likely to cause an adverse environmental effect, which includes pollution as well as the impairment of or damage to environment, human health, safety, biodiversity or property, or falls under Schedule II of the IEE/EIA Regulations, such person is required to obtain EIA approval, which is environmental study comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formulation of environmental management and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed. Accordingly , the businesses of crushing limestone or allied projects have to obtain these approvals in accordance with the above-listed requirements of law . Responsibilities of the Environmental Authorities 19. The Punjab Environmental Protection Council (the "Council ") has been established under Section 3 of the Act and its functions and powers have been listed in Section 4 of the Act. The Council coordinates and supervises enforcement of the provisions of the Act; approves comprehensive national environ mental policies and ensure their implementation within the framework of a national conservation strategy approved by the Punjab Government; approves the Punjab Environmental Quality Standards; provides guidelines for protection and conservation of
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species, habitats, and biodiversity in gene ral, and for the conservation of renewable and non-renewable resources; coordinates integration of the principles and concerns of sustainable development into national development plans and policies; and considers the Punjab Environment Report and gives approp riate directions thereon. Under Section 4(2) of the Act, the Council has power to direct the Agency or any Government Agency to prepare, submit, promote or implement projects for the protection, conservation, rehabilitation and improvement of the environment, the prevention and control of pollution, and the sustainable development of resources, or to undertake research in any specified aspect of environment. 20. On the other hand, the Provincial Environmental Protection Agency (the "Agency") has been established under Section 5 of the Act and its functions have been listed in Section 6 of the Act. The Agency has functions, among others, to administer and implement the provisions of the Act and the rules and regulations; take all necessary measures for the implementation of the environmental policies approved by the Council; prepare and publish an annual Punjab Environment Report on the state of the environment; prepare or revise, and establish the Punjab Environmental Quality Standards with approval of the Council after seeking public opinion in accordance with the prescribed procedure; ensure enforcement of the Punjab Environmental Quality Standards; establish standards for the quality of the ambient air, water and land; co-ordinate environmental policies and programmes nationally and internationally; establish systems and procedures for surveys, surveillance, monitoring, measurement, examination, investigation, research, inspection and audit to prevent and control pollution; and to take all necessary measure for the protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution and promotion of sustainable development. 21. In performance of its functions, the Agency has been specifically empowered under Section 6(2)(a) & (b) of the Act, to undertake inquires or investigation into environmental issues, either of its own accord or upon complaint from any person or organization, and to request any person to furnish any information or data relevant to its functions. Similarly, under Section 7(f) to (i) of the Act, the Agency has power to summon and enforce the attendance of any person and require him to supply any information or document needed for the conduct of any enquiry or investigation into any environmental issue; enter and inspect, subject to restrictions, any land, building, premises, vehicle or vessel or other place where or in which, there are reasonable grounds to believe that an offence under the Act has been or is being committed; and take samples of any materials, products, articles or substances or of the effluents, wastes or air pollutants being discharged or emitted or of air, water or land in the vicinity of the discharge or emission; and arrange for test and analysis of the samples at a certified laboratory. 22. Section 16 of the Act has empowered the Agency to issue the Environmental Protection Orders ("EPOs ") where the Agency is satisfied that the discharge or emission of any effluent, waste, air pollutant or noise, or any other act or omission (a) is likely to occur , or is occurring, or has occurred, in violation of any provision of the Act, rules or regulations or of the conditions of a license, or (b) is likely to cause, or is causing, or has caused an adverse environmental effect. However, before issuance of EPO, the Agency has to provide the person responsible for such act or omission, an opportunity of hearing. In an EPO, the Agency is authorized to direct such person responsible to take necessary measures within a specific period, including (a) immediate stoppage, preventing, lessening or controlling the discharge, emission, disposal, handling, act or omission, or to minimize or remedy the adverse environmental effect; (b) installation, replacement or alteration of any equipment or thing to eliminate or control or abate on a permanent or temporary basis, such discharge, emission, disposal, handling, act or omission; (c) action to remove or otherwise dispose of the effluent, waste, air…
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