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Petitioner: Abdul Qayoom and another VS Respondent: Sindh Environment Protection Agency JUDGMENT
Court Name: Sindh Environmental Protection Tribunal Judge(s): Nisar Muhammad Shaikh, Muhammad Arif Khan, Abdul Rauf Memon Title:Abdul Qayoom and another vs Sindh Environment Protection Agency
JUDGMENT
Reported As: 2023 CLD 946 Result: Order accordingly Judgment JUDGMENT NISAR MUHAMMAD SHAIKH, CHAIRMAN. This appeal under section 27(1) of Sindh Environmental Protection Act, 2014 (the Act, 20111 has been filed by appellants challenging the approval dated 06.04.2022 of Environmental Impact Assessment (EIA) accorded by respondent No.1-Sindh Environmental Protection Agency (the Agency) to respondent No.2-Malir Expressway Limited (Proponent) for construction of Malir expressway (Project). 2. The project is described to be a 90 feet wide with six-lane, dual carriageway of 38.75 kms, a direct route for heavy vehicles from industrial areas of Landhi and Korangi, starting from Jam Sadiq Bridge on Korangi road and running along the right bank of Malir river through districts Korangi and Malir, and terminating on Motorway (M-9) at Kathore near DHA city, outside Karachi. The proposed project also includes 5 interchanges, 2 flyovers, 4 underpasses, 4 cross drainage bridges, 8 cattle and 31 cross drainage culverts. This project is scheduled to be completed in 30 months. Its estimated total cost is PKR-27.5 billion out of which, around 77% is public's money in the shape of Government of Sindh's fund and that of the syndicate of Banks backed by Government of Sindh's guarantee. 3. We have heard arguments and also gone through written synopsis of arguments and perused record as well as R&Ps available in official file of the Agency including EIA report. 4. At the very outset, the respondent No.2 (Proponent) in its reply to memo of appeal, has raised some preliminary/legal objections, one of. which is that this appeal is not maintainable as appellants are not aggrieved persons. Learned counsel for respondent No.2 contended that this appeal is devoid of any material so as to claim any grievance as the appellants in their appeal
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have not mentioned as to how they are aggrieved persons to challenge EIA approval specially when they neither participated in public hearing nor filed any objections to EIA report and that the alleged objections filed with this appeal as annexure A-2 are at best, an anonymous letter which bears no signature of appellants therefore they cannot be treated as aggrieved persons under section 27(1) of the Act, 2014. The same reads as under: 27. Appeals to the Environmental Protection Tribunal.- (1) Any person aggrieved by any order or direction of the Agency under any Provision of this Act or the rules or regulations may prefer an appeal with the Environmental Protection Tribunal within thirty days of the date of communication of the impugned order or direction to such person. 5. On the other hand, learned counsel for appellants contended that the assertions of appellants made in paras 2 and 7 of appeal, that appellant No.1 is a concerned citizen, resident of district Malir and is directly affected by the project and that appellant No.2 being a scientist is very much concerned to environmental issues etc. and he attended public hearing and filed objections to EIA report and also sent reminders to respondent No.1, are not denied by concerned respondent No.1 in its parawise reply to this appeal and admittedly, the respondent No.1 had conducted public hearing and not respondent No.2. He further contended that appellants being residents of the project area, particularly appellant No.1 who resides in project impact zone, are aggrieved persons as is also affirmed on oath in the rejoinder affidavit filed by appellant No.2 who has already contested another appeal also, before this Tribunal as a concerned citizen. He also argued that it is well settled law that in environmental matters, locus standi is not strictly applied and that the language of Sindh Environmental Protection Act, 2014 and its Regulations of 2021, clearly show that the objections and appeals need not be brought only by the persons specifically aggrieved by the project and since the environment is a general concern to public trust, any person aggrieved may bring forward the case. He further argued that the appellants are also seriously aggrieved on the breach of various mandatory provisions of Environmental Law and therefore also, they have sufficient interest in the matter. In support of his contentions, he placed reliance on the cases reported as 1999 SCMR 2883, PLD 1969 SC 65, PLD 2014 Sindh 511, 2016 CLD 1011 and 2010 CLD 1555. 6. In rebuttal, learned counsel for respondent No.2 submits that the citations as relied upon by appellants counsel are inapplicable and do not support to their contentions and if their stance is adopted, it would render statutorily imposed precondition redundant as the appellants have failed to establish how they are aggrieved by the project or EIA approval and even, they have failed to show their personal interest in the matter. In support of his contentions, he also referred to para 13 of the same reported case already relied upon by appellants counsel i.e 1999 SCMR 2883, which is reproduced as under: "13. We may also refer to the following judgments of this Court in which the concept of locus standi has been dilated upon in relation to a Constitution petition and, inter alia, it has been held that for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ petitioner should have a right in the strict juristic sense, but it is enough if he discloses that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise ......" 7. It appears that the respondent No.1 who issued impugned decision of EIA approval, in his parawise reply to this appeal, has not denied the assertions of appellants made in paras 2 and 7 of their appeal, which is rightly pointed out by appellants counsel. It is also a matter of record that the present appellant No.2 in his same capacity i.e concerned citizen, has already contested as one of the appellants, before this Tribunal in the Appeal No. 09 of 2020 regarding Arif Belgaumi and others v. Sindh Environmental Protection Agency and another (2022 CLD 502), decided by this Tribunal vide order dated 09.11.2021. Such case was against the approval for development of Clifton
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Beach which was intended to be constructed by Cantonment Board Clifton (CBC) being a proponent of such project. As far as the citations relied upon by appellants counsel are concerned, the relevant passages from each, as referred to by him, are hereby reproduced one by one. In the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and 4 others (1999 SCMR 2883), the reference was made at para 12 to a well known treatise "Judicial Review of Administrative Action" (By de Smith, Woolf and Jowell), wherein the authors summarized the concept of locus standi in the context of 'sufficient interest' which also includes that: "A great variety of factors are capable of qualifying as sufficient interest. They are not confined to property or financial or other legal interests. They can include civic (or community) environmental and cultural interests. The interests can be future or contingent." In H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65), in connection with affected person, it was observed (page 69) that: "The English courts have consistently followed the practice that a person who is not a party to a suit or a proceeding may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal......" In Pakistan Defence Officers Housing Authority v. Federation of Pakistan through Secretary, Ministry of Environmental Protection and 6 others (PLD 2014 Sindh 511), it was held (para 21) about the party aggrieved by the breach of provisions of Environmental Law, that: "......Every suit in which a declaration is sought is not, and does not have to be, a declaratory suit under section 42. What DHA is aggrieved by is a breach of the provisions of the 1997 Act and the 2000 Regulations. Those are the terms on which the declarations are sought. Such declarations (i.e., on account of an alleged breach of statutory duty) are routinely sought from the Courts and if the plaintiff is found entitled, granted in my view, a suit of the nature filed by DHA ought not to be tested on the anvil of section 42... " In the above case, the High Court of Sindh also referred two judgments reported as PLD 2007 Kar. 293 and 2009 CLD 682, and observed (para 27, page 537) that in both these cases the petitioners were concerned citizens. Whereas in Feryal Ali Gauhar and others v. Environmental Protection Agency, Punjab and others (2016 CLD 1011-Lahore), the following portion of para 8 has been referred by learned counsel on the point that appellants have rightly availed alternate remedy before this Tribunal being aggrieved persons: "8. Apart from the above, section 22 of the Punjab Environmental Protection Act, 1997 runs as 'Any person aggrieved by any order or direction of the [EPA, Punjab] under any provisions of this Act may file an appeal to the Environmental Protection Tribunal, which is functioning at present in full strength with a Chairperson, Technical and General Members, after its establishment under the Punjab Environmental Protection Tribunal Rules, 2012. Therefore, when the petitioners have alternate efficacious remedy available with them, they ought to have approached the said forums instead of approaching this Court seeking invocation of extraordinary constitutional jurisdiction... ...." While the observations of this Tribunal recorded in the case of Syed Haroon Ahmed v. Messers Dadex Eternit Ltd. through Chairman and another (2010 CLD 1555), are as under: "16. An other objection taken by the respondent side is that the complainant is not an aggrieved person, therefore, he has no locus standi to file the instant complaint. In this regard, it may be noted that the complainant is brother of deceased. Furthermore the issue of environmental hazard raised by the complainant seems to be an issue of public interest, in which case principle of aggrieved person cannot be strictly applied... 8. Apart from above, we also find that the case of Ms. Imrana Tiwana and others v. Province of Punjab and others (2015 CLD 983) relied upon by learned counsel for the parties on some other point, was also filed by petitioners as concerned citizens of Lahore against the construction of a
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Signal free Corridor. It also appears from such case that in landmark Rio Summit 1992 which laid down the foundations for the global institutionalization of sustainable development, to which Pakistan is also a party, also emphasized inter alia in principle 10 of Rio Declaration that "Environmental issues are best handled with participation of all concerned citizens, at the relevant level....." In such circumstances, it appears that the concerned citizens like in this case, are not being prevented from placing their grievances before the competent courts or higher forums even if they are not direct affectees but they notice that environmental issues are handled wrongly or unjustifiably with illegality and irregularity etc. Accordingly, considering the submissions of contesting parties in the light of relevant record and the law, we are of the view that the appellants have had a right to approach this Tribunal as aggrieved persons being concerned citizens having sufficient interest and locus standi to be heard in the matter. 9. Next preliminary objection raised by respondent No.2 is that the appeal is not maintainable also on the ground that EIA approval is not appealable in terms of section 27 of Sindh Environmental Protection Act, 2014 which requires that an appeal can only lie against order or direction of the Agency and that the decision approving EIA cannot be termed to the an order or direction entitling any one to file appeal. In this regard learned law officer of respondent No. 1 also submitted that the appeal is bad in law and is not maintainable as against a decision which is not appealable. Whereas learned counsel for appellants submitted that when a decision rejecting an EIA is appealable then how a decision approving an EIA is not appealable and that respondent No.2 is narrowing the scope and purpose of the Act by reading it incorrectly. 10. On the above controversy, we find that in one of the above referred citations i.e 2016 CLD 1011, the petitioners called in question the decision of Environmental Protection Agency, Punjab through which the approval for construction of the project was granted. It was prayed in such petition to declare inter alia, the impugned decision of EIA as illegal and without legal effect Lahore High Court observed that "when the petitioners have an alternative efficacious remedy available with them, they ought to have approached the said forum." Such forum was also held to the Environmental Protection Tribunal. In support of above, the High Court also placed reliance on six other cases including the one reported as 2015 SCMR 1739 (which on some other points, has also been relied upon by both parties to this case), in which the Supreme Court also observed that the right of appeal and further remedies on the merits of EIA approval available under Pakistan Environmental Protection Act, 1997 have not been availed by objecting respondents. It is clear from above that the appeal against EIA approval is to be -filed before Environmental Protection Tribunal and accordingly such appeals are being filed since the enactment of Environmental Protection Act, 1997 and now under the Act, 2014 and no case has been cited to show if any appeal against EIA approval has ever been returned or not entertained or dismissed on the ground that impugned approval of EIA is not appealable. Even otherwise, in the impugned order titled as 'decision' in the format provided in Schedule VII of SEPA (Environmental Assessment) Regulations, 2021, the conditions imposed therein are the directions the copy of which was also supplied to appellants as is admitted by respondent No. 1. Thus the requirement of sections 27(1) of the Act 2014 stands fulfilled. 11. In respect of further preliminary objection, learned counsel for respondent No.2 argued that this appeal is also time barred as section 27(1) of the Act, 2014 provides 30 days time limit for filing an appeal against impugned order which was issued on 06.04.2022 but this appeal was filed on 13.05.2022 with a delay of seven days which is not condonable. He submitted that no doubt the period of 30 days starts from the date of communication of impugned order but section 27(6) of the Act, 2014 provides that the Agency shall maintain Registers for IEE and EIA containing brief particulars of each project and a summary of decisions taken thereon which shall be open for inspection of public. He emphasized that such Register must be construed as notice to the public.
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at least in this case where there is no address or name with whom to communicate, as the objections relied upon by appellants who did not even attend public hearing, are at the best of anonymous persons and the time against them ought to start from the date of EIA approval and accordingly, the approval order dated 06.04.2022 impugned on 13.05.2022 makes this appeal barred by time. 12. Learned counsel for appellants conversely submitted that the appeal is well within time as the period of 30 days commenced from the date of communication of impugned order dated 06.04.2022 which was admittedly communicated by respondent No. 1 to the appellants on 26.04.2022 and as such the appeal tiled on 12.05.2022 was within prescribed limit of 30 days of the communication of decision and such fact is not denied by concerned respondent No. 1 in his reply to paras 7 and 8 of appeal hence nothing more is needed to prove such fact. 13. It seems from record that in para 7 of memo of appeal the appellants asserted that they attended public hearing and raised multiple objections and along with other concerned citizens, submitted comprehensive written objections (Annex. A-2) on EIA report and then they also sent reminders (Annex. A-3) to respondent No.1 to provide information about the status of their objections and EIA review process but respondent No.1 did not reply to it. Whereas respondent No.1 in his parawise reply, has not denied the above assertions stating that public comments and suggestions were considered and eventually the project was approved in accordance with law. In para 8 the appellants claimed that when it was reported in newspaper (Annex. A-4) that respondent No.1 has accorded approval, they immediately approached respondent No. 1 for obtaining copy of EIA approval and also the decision made on their objections, and then respondent No. I supplied copy of approval on 26.04.2022 but did not supply decision on their objections. This too was not denied by respondent No. 1 in his parawise reply stating only that the copy of decision was provided to appellants. 14. A perusal of respondent No.1's official file/R&Ps also shows the participation of appellants in public hearing held on 09.03.2022 and their names are appearing respectively at Sr. Nos. 214 and 232 of attendance sheet available at page 48-90 in the official tile. The minutes of public hearing available at pages 150-162 of official tile show the names of those participants who put questions or raised objections and the name of appellant No.2 is also appearing at page 156 as one of the objectors. He raised many questions and queries as was recorded by the Agency. The written objections dated 09.03.2022 lying in official file at page 270-276 also bear the signatures of four persons/climate activists including appellants No.2 at its last page after para 9, which page is however missing from copy of such objections filed as Annex. A-2 to memo of this appeal. At page 386 of official file, there is an application dated 26.04.2022 moved by appellant party/NGOs on a letter head of Indigenous Rights Alliance. Karachi' and its simple copy is filed with this appeal as Annex. A-3 which was moved to D.G SEPA for providing a copy of decision made on the objections and EIA approval. 15. The above facts and circumstances of the case and available record, however support the stance of appellants to the extent that they participated in public hearing, raised objections on EIA report and also tiled written objections and after approval of EIA they were supplied copy of decision of EIA approval on 26.04.2022 against which they filed this appeal on 12.05.2022 and as such the appeal is well within time prescribed in relevant section 27(1) of the Act, 2014. 16. It is also argued by learned counsel for respondent No.2 that the EIA report filed by respondent No.2 before the Agency on 13.10.2021 being complete in all respect, shall he deemed to have been approved on 12.02.2022 on expiry of the period of four months in terms of section 17(4) of the Act, 2014. lie further argued that for the first time a public hearing of the EIA was scheduled on 29.11.2021 which was postponed at the request of respondent No.2 due to non-availability of its consultant but thereafter respondent No.1 caused significant delay and did not schedule another date of
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public hearing until 09.03.2022 to which the respondent No.2 did not object as the project being Government's initiative was in the larger interest of public. On the other hand, learned counsel for appellants contended that the claim of respondent No.2 for their entitlement under deeming clause is misconceived as respondent No.2 admits that at its request the first public hearing was postponed so it cannot claim benefit of its own fault of delaying review process and that it has acquiesced from claiming benefit of section 7(4) by not objecting to public hearing on 09.03.2022. In rebuttal, learned counsel for respondent No.2 contended that the benefit of deeming clause is unqualified and is not subjected to any acquiesce or waiver and the duty to conduct public hearing was of respondent No.1 so mere a single adjournment does not shift burden on respondent No.2. 17. It is an admitted position that respondent No.1 had scheduled public hearing to be held on 29.11.2021 and it was postponed at the request of respondent No.2. In this connection, official file shows that on 03.02.2022 the Agency issued a letter to Project Director (P.D) of respondent No.2 for his appearance before D.G of the Agency for personal hearing with explanation about the status of project and compliance of Environmental Law after the public hearing scheduled on 29.11.2021 was postponed. It was thereafter that public hearing was held on 29.03.2022. Such delay of more than three months from the first date of public hearing i.e 29.11.2021 to second date i.e 09.03.2022, was apparently due to the adjournment sought by respondent No.2 and then its further delay which resulted in personal hearing with explanation of P.D of respondent No.2 was also on their part as naturally, the fresh date of public hearing could not be fixed by respondent No.1 without consent of or consultation with respondent No.2. Accordingly the provisions of deeming clause in terms of 17(4) of the Act, 2014 are not attracted to be applied in this case. 18. On the other hand, appellants have also raised some argumentative preliminary objections on review process of EIA. On their first objection, learned counsel for appellants submitted that the consultation with Advisory Committee constituted under section 5(6) of the Act, 2014 vide notification of Government of Sindh dated 29.10.2018, is a mandatory requirement of law but the impugned approval was accorded without such consultation which is violation of law as the Advisory Committee and Experts Committee have to review the case and consider the reservation of community but the approval was granted without due process of law. In support of his submission he referred para 87 of the case reported as 2015 SCMR 1739 which is as under: "87. This was clearly not done in the present case. Further, section 5(6) of the Punjab Environmental Protection Act, 1997 imposed a mandatory duty on the Provincial Government to constitute Advisory Committees under the said Act. This committee is meant to assist the Environmental Protection Agency in evaluating the environmental impacts of the projects under consideration. The failure by the Provincial Government to constitute the said committee violated its statutory duty." 19. Whereas learned counsel for respondent No.2 submitted that though the function of Advisory Committees as prescribed under section 6(1)(b) of the Act, 2014 is to assist the Agency in preparing environmental policies for the approval of the Council, and not for any particular project, yet no provision of Environmental Law requires the approval of Advisory Committee prior to approval of EIA as the role of such committee is limited to only assist the Agency and no consequence has been prescribed if the advisory committee could not be consulted for assistance because such provision is not mandatory but is directory in nature as the Act or Regulations do not provide for invalidation of EIA approval in case the assistance of advisory committee could not be obtained. In support of his contentions, he relied upon the cases reported as 2021 SCMR 305 and 2021 SCMR 328. He further contended that the reliance of the counsel for appellants on the obiter observations of Supreme Court at para 87 in LDA case reported as 2015 SCMR 1739, is erroneous as at next paragraph 88 it was observed that "We would have struck down the EIA for these reasons but
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eventually decided against it." So, according to learned counsel, the Supreme Court used the word "these" instead of word "this" and such distinction clarifies that the reasons as referred at para 88 includes all that is said from paragraphs 1 to 88 and not only as said in paragraph 87, while the instant appeal does not involve any matter pertaining to Lahore Development Act, 1975 or doctrine of regulatory capture as discussed by the Supreme Court which is summed up by the words "these reasons". He therefore contended that the decision of Supreme Court cannot be read wrongly to mean that for the sole reason of non-consultation with advisory committee the Supreme Court would have struck down the EIA. He also contended that the appellants seek to strike down the approval through this Tribunal upon mere presumptions and apprehensions which was not done even by Supreme Court as is…
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