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Petitioner: DADEX ETERNIT LIMITED VS Respondent: Syed HAROON AHMED and others
Court Name: Sindh High Court Judge(s): Mushir Alam, Muhammad Ali Mazhar Title: DADEX ETERNIT LIMITED vs Syed HAROON AHMED and others Case No.: C.P. No, D-2059 of 2010 Date of Judgment:2011-03-09 Reported As: PLD 2011 Karachi 435 Result: Petition dismissed
JUDGMENT
JUDGMENT ' MUHAMMAD ALI MAZHAR, J.---This Constitutional petition is brought to challenge an order dated 29-6-2010, passed by the Environmental Tribunal the respondent No,3 in the Complaint No, 2 of 2010. The petitioner has prayed to pass the orders as under:-- (A) Declaring that the order of respondent No,3 is coram non judice in respect of the complaint; (B) Declaring that the petitioner has a right to fair trial and due process of law under Article 10A of the Constitution of the Islamic Republic of Pakistan; (C) Declaring that the respondent No,3 by constituting the commission has denied the fair trial, due process of law and fundamental rights of the petitioner; (D) Declaring that the respondent No,3 has acted outside its jurisdiction by admitting the registering the complaint as well as by continuing with the proceedings thereafter including the constitution of the ommission; (E) Declaring that the admission and registration of the complaint and all the proceedings thereafter including the constitution of the commission is of no legal effect; Declaring the impugned order as illegal and void; (F) Any other relief(s), which this Hon'ble Court may deem fit, just and proper may kindly be awarded to the petitioner in the light of foregoing submissions. 2. The barebones leading to the present controversy inter se the parties are that the respondent No,1 filed a complaint to the respondent No,3 against the petitioner under sections 11, 12, 13, 14 & 16 read with section 17 of the Pakistan. Environmental Protection Act, 1997, (hereinafter referred to as the PEPA), it was inter alia, contended that he is conscientious citizen of Pakistan, seriously concerned about deteriorating geological and atmospheric environment in Pakistan generally and
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in Karachi particularly. His younger brother was working as Maintenance Manager Services in the petitioner's company, which manufactures asbestos. 3. It was averred that petitioner's brother repeatedly complained to his employer that the method of manufacturing asbestos and disposing of its waste is spreading various types of cancers amongst the residents of the area. His brother late Fareed Ahmed worked in the asbestos factory for about seven years and succumbed to the tongue cancer on 22-5-2007 contracted during course of employment. 4. The respondent No,1 made a complaint to the Federal Secretary for Ministry of Environment. It was averred that the petitioner is one of the largest manufacturers of PVC pipes, used for sanitary purposes throughout Pakistan and abroad production of PVC pipes generates a highly hazardous air polluting material known as "asbestos", which resulted into a letter dated 7-9-2009 issued by the Pakistan Environmental Protection Agency Islamabad, directing EPA Sindh to take necessary action against the manufacturer and forward the report to the agency for further necessary action. The respondent No,1 prayed in the complaint to respondent No,3 that the manufacturer may be directed to clean the cuttings of PVC pipes and asbestos, which is spread almost in an area of 15 Miles in the Gadap Town, buried under a thin layer of sand only. Respondent also sought direction against the manufacturer to arrange Digital Rectal Examination (DRE) and PSA (Blood Test) of one million people, who are living around the factory. It was further asserted that the petitioner is avoiding to apply International standards as is required to save money at the cost of lives of hundreds of people living in the vicinity. Complainant also claimed the compensation on account of death of his brother. 5. Petitioner has strongly urged that the respondent No,1 has filed the complaint with mala fide intention. It was refuted that petitioner is not adhering the provisions of the PEPA, or that petitioner uses the prohibited "asbestos" spreading cancer amongst the residents of the area as well as the employees of the factory. Petitioner denies the cause of death of the respondent No,1 brother was due to the usage of asbestos in its manufacturing process. 6. It was further averred that the respondent No,3 has wrongly and without application of judicious mind assumed the jurisdiction, admitted and registered the complaint vide order dated 18-2-2010 and arbitrarily initiated an inquiry against the petitioner. The respondent No,2 submitted its report before the respondent No,3, exonerating the petitioner. According to the petitioner respondent No,3 instead of accepting the Inquiry Report, in colourable exercise of its powers jurisdiction held vide order dated 6-4-2010 that report is not comprehensive and since the matter is technical in nature, therefore, a Commission may be constituted to examine the core issue: Learned Tribunal further directed the parties to give the names of the consultants who could be appointed as members of the commission. 7. On 7-5-2010, the petitioner argued the question of maintainability of the complaint and submitted its written a'rguments, whereupon the respondent No.3 adjourned the proceedings to 14-5-2010 for orders. 8. Learned counsel for the petitioner argued that the impugned order is coram non judice and violative of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 inasmuch as the petitioner is denied fundamental right of fair trial. According to Mr. Jamsheed, learned counsel for the petitioner, the complaint, does not disclose any violation of section 17 of the PEP Act therefore, the Tribunal has no jurisdiction to entertain the complaint. It was further argued that section 14 of the PEP Act, deals with handling of hazardous substances, which includes asbestos in the list of prescribed hazardous substances of Unnotified Hazardous Substance, Rules 2003', hence the learned Tribunal has no jurisdiction to hear and adjudicate the case where the subject-matter relates to possible contravention of section 17 of the PEP Act if any. It was urged that cognizance if any could be taken by the Environmental Magistrate under section 24 of the PEP Act as the
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purported violation, if any, fall under sections 14 and 15 of the PEP Act. Mr. Jamsheed, learned counsel for the petitioner further invited our attention to an order passed in C.P. No,D-1681 of 2010, (at page No,359), wherein the Tribunal was directed to decide the question of jurisdiction, before proceeding further in the matter. On the strength of this order,.The petitioner moved an application under section 21 of the PEPA Act which was, dismissed. In support of his arguments, the learned counsel relied upon the case cited as Nasir Abdul Qadir v. The State and others 2003 SCMR 472, Allah Din and others v. The State and another, 1994 SCMR 717. First mention case relates to the Suppression of Terrorist Activities (Special Courts) Act. In both the cases honourable Supreme Court held that question of jurisdiction has to be determined on the basis of F.I.R and other material produced by the prosecution at the time of presentation of challan and the Court on the basis of such material would decide whether cognizance was to be taken or not. Cited cases are distinguishable. The respondent No,3 Tribunal has been established under a special law, cognizance was taken on the complaint of an aggrieved person, under section 21 read with section 17 of the PEP Act, prima facie it appears that that the respondent No,3 has rightly exercised its powers and jurisdiction. 9. Another case relied upon is 1987 CLC 182 (Malik Muhammad Hasan v. Assistant Commissioner, Quetta and others), pertains to sections 4, 5 and 9 of Civil Procedure (Special Provisions) Ordinance (I of 1968). It has been held that the Tribunal is bound to act within four corners of statute, which created it. Such Tribunal would not have inherent jurisdiction nor could it travel beyond limits specified by the statute. Exercise of powers by Tribunal, not conferred on it by law, 'would be nullity in law': There is no cavil to proposition as expounded in the cited case. In another case cited as Digital Radio Paging Limited v. Pakistan Industrial Credit and Investment Corporation and others 2003 CLD 1612, the learned Single Judge of this Court held that when Special Tribunal is constituted under a statute, its jurisdiction depends upon the specific provisions of the statute. Where conditions required for invoking the jurisdiction of Tribunal are not available then remedy lies to Civil Court under section 9, C.P.C. 10. Qazi Abdul Hameed Siddiqui, the learned counsel for the respondent No,1, supported the impugned order. It was argued that the petitioner is manufacturing products using a form of asbestos known as chrysotile as basic major ingredient. It was argued that Asbestos in all its forms is banned in many countries being carcinogenic. Learned counsel for the respondent No,1 has drawn our attention to the literature generated by United Nations Environmental Protection Agencies and World Health Organization filed along with the counter affidavit. The learned counsel took us through extract of BBC News World dated 21st July, 2010, according to which asbestos is banned and restricted in more than 52 countries. It is further mentioned in the paper that according to WHO, white asbestos is a known cause of human cancer including mesothelioma. WHO declared that 125 million people encounter white asbestos in the workplace, and the International Labour Organization (ILO) estimates that 100,000 workers die each year from all asbestos related diseases. In the US it is legal but the industry has paid out an estimated $70 billion in damages in litigation costs. Use of asbestos is confined to automobile and aircraft brakes, gaskets and a few other products. The American Public Health Association (APHA) has joined the World Federation of Public Health Organizations (WFPHA), the International Commission on Occupational Health (ICOH) and the International Trade Union Confederation (ITUC) is calling for a global asbestos ban. Finally, he concluded that there is no illegality or irregularity in the order of the Tribunal and the petition is liable to be dismissed with cost. 11. Mr. Abdul Maroof, Deputy District Public Prosecutor for respondent No,2 argued that the petition is not maintainable. According to him, under subsection (4) of section 21 of the Act, the Tribunal has the same powers as are vested in the Court of Session under the Code of Criminal Procedure, 1898, therefore, instead of filing writ petition, the petitioner should have filed Revision under section 439-
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A, Cr.P.C., which is equally efficacious and alternate remedy. He further argued that the averments of the complaint do make out a case under section 11 of the Act and, section 14 ibid has no applicability in the matter. 12. Mr. Mian Khan Malik, the learned D.A.-G. Represented the respondent No,4, argued that the petitioner has filed this petition without availing an alternate and equally efficacious remedy under section 439-A, Cr.P.C., therefore, the petition is not maintainable. 13. Mr. Adnan Karim, learned Additional Advocate-General Sindh contends that as per clause (b) of subsection (3) of section 21 of the PEP Act, the Tribunal cannot take cognizance of any offence triable under subsection (2) ibid, except on a complaint in writing by the Federal Agency or any Government Agency or local council and or by an aggrieved person, who has given notice of not less than thirty days to the Federal Agency, or the Provincial Agency concerned of the alleged contravention and of his intention to make a complaint to the Environmental Tribunal. He supported the order of the Tribunal and argued that before instituting the complaint, the complainant in compliance to section 21(3)(b) of the PEP Act had approached the Pakistan Environmental Protection Agency, which issued letter dated 7-9-2009 to the Director-General EP Sindh. ' We have heard the arguments and perused the record. 14. Environmental Protection Act has been . Promulgated to provide protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution and promotion of sustainable development. In the definition clause, (section 2 of the PEP Act), the term "environmental impact assessm ent", "hazardous substance", "hazardous waste", "industrial waste", "pollution" and "person" have already been defined. 15. Bone of contention roams around the interpretation and implication of section 21 and section 24 of the PEP Act. On examination of the scheme of both the sections, the Legislature by necessary intendment has bifurcated the jurisdiction and powers of "Environmental Tribunal" and "Environmental Magistrates". Subsection (2) of section 21 of the Act, is clear manifestation that all contravention punishable under subsection (1) of section 17 shall exclusively be triable by an Environmental Tribunal, subsection (4), confers criminal jurisdiction, as are vested in Court of Session under the Code of Criminal Procedure, 1898 while under subsection (5) thereof, in exercise of appellate jurisdiction under section 22 ibid, the Environmental Tribunal is bestowed powers as an appellate court in terms of the Code of Civil Procedure, 1908. 16. Under section 24 of the PEP Act, all contraventions punishable under subsection (2) of section 17 ibid are exclusively triable by a Judicial Magistrate of the first class, especially empowered in this behalf by the High Court. Section 17 of the PEP Act; relates to penalties. Subsection (1) thereof, provides that whoever contravenes or fails to comply with the provisions of sections 11, 12, 13, or section 16 ibid or any order issued thereunder shall be punishable with fine, which may extend to Rupees one million, and in the case of a continuing contravention or failure, with an additional fine which may extend to Rupees one hundred thousand for each day during which such contravention or failure continues and where such contravention or failure continues while subsection (2) provides that whoever contravenes or fails to comply with the provisions of section 14 or 15 ibid, or any rule or regulation or conditions of any licence, any order or direction, issued by the Council or by the Federal Agency or Provincial Agency shall be punishable with fine, which may extend to Rupees one hundred thousand, and in case of continuing contravention, or failure with an additional fine, which may extend to rupees one thousand rupees for every day during which such contravention continues. The jurisdiction of taking cognizance and to commence the trial for offences mentioned in subsections (1) and (2) of section 17 of the PEP Act has been conferred upon different forums. In order to show the balance and bifurcation of powers and jurisdiction, it would be expedient to reproduce section 21 and section 24 of the PEP Act; as under:--
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21. Jurisdiction and powers of Environmental Tribunals.--- (1) An Environmental Tribunal shall exercise such powers and perform such functions as are, or may be, conferred upon or assigned to it by or under this Act or the rules and regulations made thereunder. (2) All contravention punishable under subsection (1) of section 17 shall exclusively be triable by an Environmental Tribunal. (Bold & italics added for emphasis) (3) An Environmental Tribunal shall not take cognizance of any offence triable under subsection (2) except on a complaint in writing by-- (a) the Federal Agency or any Government Agency or local council; and (b) any aggrieved person, who has given notice of not less than thirty days to the Federal Agency, or the Provincial Agency concerned, of the alleged contravention and of his intention to make a complaint to the Environmental Tribunal. (4) In exercise of its criminal jurisdiction, the Environmental Tribunal shall have the same powers as are vested in Court of Session under the Code of Criminal Procedure, 1898. (5) In exercise of the appellate jurisdiction under section 22, the Environmental Tribunal shall have the same powers and shall follow the same procedure as an appellate court in the Code of Civil Procedure, 1908. (6) In all matters with respect to which no procedure has been provided for in this Act, the Environmental Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908. ' An Environmental Tribuaal may, on application filed by any officer duly authorized in this behalf by the Director General of the Federal Agency or of Provincial Agency, issue bailable warrant for the arrest of any person against whom reasonable suspicion exists, of his having been involved in contravention punishable under subsection (1) of section 17: ' Provided that such warrant shall be applied for, issued, and executed in accordance with the provisions of the Code of Criminal Procedure, 1898: ' Provided, further that if the person arrested executes a bond with sufficient sureties in accordance with the endorsement on the warrant he shall be released from custody, failing which he shall be taken or sent without delay to the officer in charge of the nearest police station. (8) All proceedings before the Environmental Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code and the Environmental Tribunal shall be deemed to be a court for the purpose of sections 480 and 482 of the Code of Criminal Procedure, 1898. (9) No court other than an Environmental Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of an Environmental Tribunal extends under this Act, the rules and regulations made thereunder. (10) Where the Environmental Tribunal is satisfied that a complaint made to it under subsection (3) is false and vexatious to the knowledge of the complainant, it may, by an order, direct the complainant to pay to the person complained against such compensatory costs which may extend to one hundred thousand rupees. 24. Jurisdiction of Environmental Magistrates.---(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 or any other law for the time being in force, but subject to the provisions of this Act, all contravention punishable under subsection (2) of section 17 shall exclusively be triable by a Judicial Magistrate of the first class as Environmental Magistrate especially empowered in this behalf by the High Court. (Bold and italics marked by us) (2) An Environmental Magistrate shall be competent to impose any punishment specified in subsections (2) and (4) of section 17. (3) An Environmental Magistrate shall not take cognizance of an offence tribal under subsection (1) except on a complaint in writing by-- (a) the Federal Agency, Provincial Agency, or Government Agency or a local council; and
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(b) any aggrieved person. 17. Under section 23 of the Act, any person aggrieved by a final order or sentence passed by the Environmental Tribunal, may within 30 days from date of communication of order or sentence prefer appeal before a bench of not less than two Judges of the High Court. Section 23 of the Act, which reads as under:-- 23. Appeals from orders of the Environmental Tribunal.---(1) Any person aggrieved by any final order or by any sentence of the Environmental Tribunal passed under this Act may, within thirty days of communication of such order or sentence, prefer an appeal to the High Court. (2) An appeal under subsection (1) shall be heard by a Bench of not less than two Judges. 18. Learned counsel for the petitioner vehemently argued that the complainant should have lodged his complaint before the Environmental Magistrate and not to the Tribunal. 19. As discussed above, for the purposes of assuming jurisdiction, it is the substance of the allegations and charges made in the complaint and not the nomenclature or title of complaint that governs the jurisdiction in the matter. Though the complaint is titled under section 14 of the PEP Act also, it is settled proposition in law that misquoting any provision does not affect merits of complaint, provided it is cognizable under the law under different provision. The crux and gist of complaint clearly demonstrate that the complainant has lodged his complaint against the hazardous waste; it has nothing to do with the import or licence of handling of hazardous substance as provided under section 14 of the Act. 20. Under. Section 21 all contraventions punishable under subsection (1) of section 17 which includes sections 11, 12, 13 and 16 of the PEP Act 1997 are exclusively triable by the Environmental Tribunal. It is only in respect of offences under subsection (2) of section 17 cognizance could be taken by the Tribunal on complaint in writing by the Federal or Governmental Agency or local Council and or on the complaint of any aggrieved person who has given notice of not less than 30 days to the Agency or Local Council concerned of alleged contravention and disclosing his intentions to approach the Environmental Tribunal. 21. Section 11 ibid prohibits emission and discharge of any effluent or waste or air pollutant or noise in an amount, concentration or level which is in excess of the National Environmental Quality Standards (NEQS) or where applicable, the standards established under clause (g) of subsection (1) of section 6 of the PEP Act. 22. Section 12 ibid prohibits commencement of any project without obtaining Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA). Section 13 prohibits import into Pakistan of hazardous waste. And failure to comply with environmental protection order as may be passed by Federal or Provincial Agency in exercise of power under section 16 ibid could be taken cognizance under section 17(1) of the PEP Act, 1997 by the Environmental Tribunal. 23. The jurisdiction of Environmental Magistrate in terms of sub-section .(2) of section 17 is confined to the contravention or failure to comply with the provisions of section 14 or 15 or any rule or regulation or conditions of any licence, any order or direction issued by the Council or the Federal Agency or Provincial Agency, which contravention is punishable with fine, extendable to one Rupees hundred thousand, and in case of continuing contravention with an additional fine extendable to Rupees one thousand per day of such contravention. Section 14 of the PEP Act, lays down the conditions that no person shall generate, collect, consign, transport, treat, dispose of, store, handle or import any hazardous substance except under a licence issued by the Federal Agency and in such manner as may be prescribed. 24. The complainant in his complaint has not alleged that the petitioner is using any hazardous substance or material without a valid licence. Complainant has sought direction, in the public interest, against the petitioner to clean the cuttings of PVC pipes and asbestos, which is spread over an area of 15 miles in Gadap Town, which has been buried under a thin layer of sand only to
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befool the visitors and the residents of the area and to claim that necessary preventive measures have been taken. He has further alleged in his complaint that since substantial expenses would be incurred in preventive measure, which the petitioner is not mentally prepared to spend at the cost of life and health of common citizen in general and its employees in particular. 25. On reading the complaint it is clear, that the complainant has not challenged the import or handling by the petitioner of hazardous substance/material with or without licence but for the enforcement of NEQS within the contemplation of section 11 of the Act, which is exclusively triable by the Environmental Tribunal (Respondent No,3). 26. The diary sheet dated 6-4-2010 of the respondent No,3 reads as under:-- "Case called. Complainant Syed Haroon Ahmed is present in person along with his counsel Mr. Kazi Abdul Hameed Siddiqui, he has filed rejoinder to written reply filed on behalf of respondent No,1 and two separate applications under section 151, C. P.C. Notices of these applications have been given to other side and copies thereof supplied. Mr. Bahzad Haider; advocate is present on behalf of Messrs Dadex Eternit Limited. Sikandar Dada, Chief Executive/Chairman of Messrs Dadex Eternit Limited is called absent. However, Mr. Jam Asif Mehmood, advocate filed his Vakalatnama on behalf of Sikandar Dada, which is taken on record. He has also filed application for condonation of absence of Sikandar Dada, absence is condoned for today. Mr. Abdul Maroof, Dy. Distt. Public Prosecutor is present on behalf of EPA, Sindh. Arguments heard on application filed by the Sikandar…
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