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Petitioner: SHAHEEN WELFARE SOCIETY, (REGD.) through General Secretary VS Respondent: ENVIRONMENTAL PROTECTION AGENCY, PUNJAB, LAHORE through Director- General and 7 others
Court Name: Environmental Tribunal Judge(s): Mansoor Akbar Kokab, Syed Zamir Hussain Title:SHAHEEN WELFARE SOCIETY, (REGD.) through General Secretary vs
ENVIRONMENTAL PROTECTION AGENCY, PUNJAB, LAHORE through Director- General and 7 others Case No.:Private Complaint under section 21 of Pakistan Environmental Protection Act, 1997 Date of Judgment:2005-03-25 Reported As: 2005 CLD 1267 Result: Order accordingly. Judgment ORDER A Private Complaint under section 21 of Pakistan Environmental Protection Act, 1997 (PEPA), has been filed by Messrs Shaheen Welfare Society (Regd.) Hussain Town, Kalashahkaku, Sheikhupura, Punjab, through its General Secretary Mr. Muhammad Anwar Khokhar, against six different Industrial Units arrayed as respondents Nos.3 to 8 in the said complaint, whereas respondents Nos.1 and 2 are Environmental Protection Department, Punjab, Lahore and the Director-General, Environmental Protection Agency, Punjab, Lahore respectively. According to the complainant, all the six Industrial Units have been playing havoc because of pollution by way of emission and discharge of waste water into a nearby "Nala Deg". Resultantly, the said Nala Deg, because of dangerous chemicals, had not only lost it's natural marine life, like fish and etc. but also has carried toxic obnoxious effect to such a great extent, whereby the underneath water table, usable for drinking water for the local inhabitants has been converted into injurious brownish mephitic liquid. The air-pollution is also attributed to all the Industries, specially the one listed at No.3 in the list of the respondents i.e. Ittehad Chemical, Kalashahkaku, which allegedly discharges obnoxious gases, hovering in the near vicinity, whereat the local inhabitants have dwelling houses. Allegedly, large scale spread of health problems and diseases like sore eyes, lingering fever, choking/suffocation, cough, body pain, rash over the skin and diarrhoea have been complained of. Without going into the merits pertaining to allegations and appended with the complaint, the prima facie evidence, the present order is to dispose of, the applications under section 265(k), Cr.P.C. moved by
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respondents Nos.3, 4 and 7 on the grounds inter alia that the respondents have been wrongly joined into one complaint, so cannot be charged collectively and the proceedings before the Tribunal, being of civil nature, attracts the rejection of complaint as being bad for multifariousness. It is pertinent to note that the said applications specially that of the respondent No.4 and the respondent No.7, bear references of specific provisions of Criminal Procedure Code and the Civil Procedure Code in their titles, simultaneously i.e. section 265(k), Cr.P.C. and Order I, rules 1 and 3, C.P.C., so to pose a serious question for the Tribunal to decide that what type of jurisdiction, this Tribunal assumes, while entertaining a complaint or a case falling within the preview of provisions of Environmental Protection Act, 1997. We acknowledge the assistance provided by the learned counsel for the complainant and the respondents for presenting a healthy legal debate on the issue underhand, based on purely legal question, which is pertaining to its Criminal Jurisdiction or Civil Jurisdiction in the light of enacted provisions and rules made thereunder. 2. Before proceeding further, we feel expedient to have some relevant references of provisions of law to be quoted hereunder: (a) Section 21 subsection (1) of Pakistan Environmental Protection Act (PEPA) provides the jurisdiction and powers of Environmental Tribunal. "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." The Tribunal is competent to take cognizance of contravention by an offender, punishable under subsection (1) of section 17 and such powers vest exclusively with this special Tribunal as no other authority, Court or special Court has so far been provided with the jurisdiction to entertain the complaints under section 17(1) of (PEPA). By virtue of section 21 subsection (3) of the Act different legal entities have been enlisted as competent to file the complaint in writing before the Tribunal, which specifically includes Federal Agency, Government Agency or Local Council. For any private aggrieved person (including personified legal entities), it has been made mandatory that before approaching to the Tribunal, a notice of not less than thirty days to the Federal or Provincial Agency should be served upon of the alleged contravention and of his intention to make a complaint to the Environmental Tribunal. In subsection (4) of same section, specific reference to the criminal jurisdiction has been made in following words: "In exercise of its criminal jurisdiction, the Environmental Tribunals shall have the same powers as are vested in Court of Session under the Code of Criminal Procedure, 1898 (Act V of 1898)." Whereas, under subsection (5), while exercising appellate jurisdiction, the reference of Civil Procedure Code, 1908, has been prescribed as under: "In exercise of the appellate jurisdiction under section 22, the Environmental Tribunals shall have the same powers and shall follow the same procedures as an Appellate Court in the Code of Civil Procedure, 1908." Subsection (6) is also felt necessary for quotation hereunder and so is made: "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." Section 17 is considered as the pivot for the workload of this Tribunal, providing jurisdiction for taking cognizance of violation of main provisions of substantive law, whereby some offenders are held responsible for being tried before the Tribunal. It is, reproduced hereunder: "Whoever contravenes or fails to comply with the provisions of sections 11, 12, 13 or section 16 or any order issued thereunder shall be punishable with fine which may extend to one million rupees, and in the case of continuing contravention or failure, with an additional fine which may extend to one
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hundred thousand rupees for every day during which such contravention or failure continues." However, apart from it, the Tribunal is also competent to hear appeals by virtue of section 22 of the said Act, which is also reproduced as under: "Any person aggrieved by any order or direction of the Federal Agency or any Provincial Agency under any provision of this Act, and rules and regulations, may prefer an appeal with the Environmental Tribunal within thirty days of the date of communication of the impugned order or direction to such person." 3. With reference to above quoted section 21 subsection (1), pertaining to jurisdiction and powers and Environmental Tribunals, the Tribunals shall exercise the powers and perform such functions, which have been conferred upon and are assigned to it by: (i) Provision of this Act i.e. Pakistan Environmental Protection Act, 1997 or (ii) the Rules and (iii) regulations made thereunder. The rules and regulations referred hereinabove also need some threadbare scan and examination because as per the Environmental Tribunals Rules, 1999, rule, 13, the application of Code of Criminal Procedure has been made mandatory to be applied to the proceedings before the Tribunal relating to trial of offences under section 17 of the Act. Such rule is reproduced hereunder: "The Code of Criminal Procedure, 1898 (Act V of 1898) shall apply to proceedings before the Tribunal relating to trial of offences under section 17." 4. Before commenting upon or to evaluate the effect of the said rule, two provisions of the Act are also found a place for quoting hereunder: 1. "Section 31, powers to make rules. The Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act including rules for implementing the provisions of the International Environmental Agreements, specified in the Schedule to this Act." 2. "Section 33. Power to make regulations. (1) For carrying out the purposes of this Act, the Federal Agency may, by notification in the official Gazette and with the approval of the Federal Government, make regulations not in consistent with the provisions of this Act or the rules made thereunder. (2) (a) 5. Reverting to the Environmental Tribunals Rules, 1999, the preamble of it is also quoted below to point out that in fact these are, the regulations framed under section 33 of Pakistan Environmental Protection Act, 1997 read with clause (k) of subsection (1) of section 6, framed by the Pakistan Environmental Protection Agency with the approval of Federal Government, whereas had (sic) been these rules (sic), the Federal Government would have framed itself by exercising above quoted provisions of section 31. The title of these Regulations as, "The Environmental Tribunals Rules, 1999", is in fact a misnomer and these being the regulations had rightly been so cited in its preamble, quoted hereunder: "S.R.0.(I)/2001 in exercise of the powers conferred by section 33 of the Pakistan Environmental Protection Act, 1997 (XXXIV of 1997), read with clause (k) of subsection (1) of section 6 thereof, the Pakistan Environmental Protection Agency, with the approval of the Federal Government, is pleased to make the following regulations namely." 6. Here comes a crucial question about the competency of Pakistan Federal Agency to promulgate the rules or regulations for the functioning of an Administrative Tribunal and also the question pertaining to eligibility of this Tribunal to examine the vires of the regulations/rules for the purpose of applicability and effectiveness. Second question is taken first. Undoubtedly, this Tribunal has got no statutory or Constitutional powers to declare certain provisions of law relevant to its scope and sphere of jurisdiction, as ultra vires, void ab initio or voidable. We are primarily guided by the
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citation, "PLD 2004 Supreme Court 696, Khawaja Ahmed Hassan v. Government of Punjab", wherein on page No.736, it is held: "The power of rule making is an incidental power that must follow and not run parallel to the present Act. These are meant to deal with details and can neither be a substitute for the fundamentals of the Act nor can add to them. The only requirement of law in such situation is to insist that the subordinate body charged with the duty of making rules must strictly confine itself within the sphere of its authority for the exercise of its subordinate legislative power and in each case it is the duty of the Courts in appropriate proceedings to be satisfied that the rules and regulations so made are: (a) by the authority mentioned in the Act and (b) that they are within the scope of the power delegated therein." 7. The learned Advocate, Mr. Jawad Hassan, appearing as amicus curiae presented the citation titled Boddington v. British Transport Police, House of Lord (1998 All. England Law Report, page No.203), wherein it was held that the defendant in criminal proceedings was entitled to challenge the lawfulness of subordinate legislation or an Administrative Decision made thereunder, where his prosecution was premised on its validity, unless there was a clear parliamentary intention to the contrary. In this case, Lord Browne Wilkinson agreed with his fellow Lord Irvine LC, who attached importance to the consideration that an invalid bye-law is and always has been a nullity. The bye-laws will necessarily have been found to be ultra vires, therefore, it is said, it is a nullity having no legal effect. However, he descended only on point of period between the doing of certain act and the declaration of its invalidity by the Court. But since that is not relevant to our case, because of different facts of our case than that of one before the. House of Lord, therefore, we are not to go any further into the descending subject. 8. Finally, we are to rely upon 1998 PTD 3855 before His Lordship Malik Muhammad Qayyum, J. (Lahore), who observed in the case, titled "Aruj Textile Mills Ltd. v. Federation of Pakistan." "The contention raised by the petitioner's learned counsel is unexceptionable. A reference to section 71 of the Sales Tax Act, 1990 shows that it is the Federal Government, which has been granted the power to prescribe special rules of the scope and payment of sales tax and other allied matters. There is nothing in the Sales Tax Act, 1990 which permits the Central Board of Revenue either to frame Rules laying down special procedure or amend the Rules framed by the Federal Government in that behalf. Even on general principle', it is the Authority which had issued first notification or taken first decision, which can amend or-vary the same. In this view of the matter, there is no option but to hold that the amendment in the Rules vide S.R.O. No.820(I)/97, dated 23-9-1997 is ultra vires the power of the Central Board of Revenue." 9. We conclude that. Rule 13, specifically suggesting rather making mandatory to follow the Criminal Procedure Code for a trial under section .17 of the Act, is in fact void ab initio and is not to be acted upon as a binding force upon the Tribunal. It is sufficed to promote the point under discussion, if the citation, "1993 Supreme Court Monthly Review page No.907", Mian Hakim Ullah v. Additional District Judge, Tribunal Noshera and 4 others", is cited as the said citation at page No.916 embodies the dictum of the worthy full Bench of. Supreme Court in words: "The fact that no rules have been framed by the Government for regulating the procedure before the Tribunal which has already been established, cannot make the operation of Act and functioning of Tribunal nugatory, specially when the Tribunal established under the Act has been conferred exclusive jurisdiction to try a particular class of disputes under the Act." 10. Now, the only provisions of the enactment itself, which remain in field, are the sections 21(4), 21(5) and 21(6) all quoted above. However, subsection (8) of the same section i.e. 21 is also felt to be referred herein, which provides that all the proceedings before the Environmental Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of Pakistan Penal
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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. This provision only renders the Tribunal to a status of "Court" for a limited purpose i.e. with regard to only few offences of the Pakistan Penal Code or the one referred to in sections 480 and 482 of Pakistan Penal Code, (to initiate contempt proceedings). This special provision is to be dealt with special circumstances therefor'e of no vital importance to resolve our present question in hand with regard to applicability of procedure in ordinary and general circumstances. 11. Subsection (4) of section 21 refer the powers ,f the Tribunal as being equivalent to the one vested in the Court of Session under the Criminal Procedure Code, whereas, subsection (5) and subsection (6) of the same section 21. refer to the powers as well as procedure in matters of appeals and for a matter with respect to which no procedure has been provided for in the Act. Both of them i.e. the appeals and the matters with respect to which no procedure has been provided for in the Act, specific directions to follow the Code of Civil Procedure, 1908 have been enunciated. In this vista: we can safely hold that applicability of Criminal Procedure Code has not been specifically provided by the Act to deal with any matter under trial or otherwise taken under adjudication. But now here comes the body language of section 17 and other some provisions of the same Act, wherein violation of offences or provisions of substantive law, specially as referred to in sections 11, 12, 13 and 16 of the Act have been referred to. It is all but nothing else than criminal terminology such as terms, "penalty", "contravention of substantive law", "punishment", "accused", "passing of sentence", "conviction", "offender", "previously convicted", "imprisonment for specific term", "confiscation", "compounding of offence", "bailable warrants of arrest" and "search warrants" etc. have been frequently expressed. 12. Such provisions of law constitute the Tribunal into dichotomy of personality. On the one hand it's a Tribunal of original jurisdiction to hold the trial and on the other hand, simultaneously, it possesses the powers to hear the appeals being an Appellate Authority of Environmental Agencies, either Federal or of the Provincial one. This dichotomy tends to lead into trichotomy simultaneously, when, with regard to particular matter of fact and law, a complaint is filed by the Agency for non-compliance of an E.P.O., while an appeal is also filed against that E.P.O., by the alleged pollutant and furthermore with regard to same matter, when a third person (aggrieved one) approaches this Tribunal after serving 30 days notice to the Agency/Environmental Department. This trichotomy leaves us in total chaos as to resolve the issues namely whether the appeal ,which is heard by application of Code of Civil Procedure, would be heard first or the complaints, which apparently, as per body language of section 17 are to be tried under the principle of criminal adjudication, while staying the 'private appeal. Moreover, the questions relating to consolidation of any two or, of the three and the amalgamation of all the three are also opened for resolution. Such material and root touching questions of procedural law, in fact, disturbs the basic requirements of Civil or Criminal adjudication, such as framing of issues, framing of criminal charge, grant of injunctive orders, either interim, or final, conviction or acquittal of the accused, criteria of burden of proof and also mens rea for conviction of an offender, inter alia, the joinder of causes of action or joinder of charges, if that case involves the number of alleged pollutants more than one. Naturally, for this, without prejudice to the enacted specific provisions of law as they are now, we are to fetch out the real intention of the legislature to keep abreast ourself with right course of procedure. 13. It is worth to have reliance upon PLD 2004 Supreme Court 694 Khawaja Ahmed Hassan v.. Government of Punjab, wherein Hon'ble Judges of the apex Court laid down the rules of construction observing that the first and primarily rule of construction is that intention of legislature must be found in the words used by the legislature itself. If the words used are capable of one construction only, then it would not be opened to the Court to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged
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object with the alleged object and policy of the Act. It is only, when such words are capable of two constructions with the question of giving effect to the policy of object of the Act can legitimate arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act, whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the later construction. It is only in Such cases that it becomes relevant to consider the misachieve and defect which the Act purposes to remedy and correct. 14. Undoubtedly, in our case of it is not a matter of mere construction of certain provisions of law but as observed hereinabove with reference to dichotomy and even trichotomy of Tribunal's powers and procedural as well as substantive legal propositions, to resolve the matter, we feel ourselves to be identified first as a "Tribunal" rather than a "Court" or "Special Court", constituted under a special enactment for specific purpose. The "Environmental Tribunal" as defined by section 2(xiii) means the Environmental Tribunal constituted under section 20. By virtue of provision of section 20(2), the Environmental Tribunal shall consist of a Chairperson and two Members to be appointed by the Federal Government. Out of two Members, one shall be a Technical Member with suitable professional qualifications and experience in the environmental field. We refer a Report of, "The Review of the Tribunals", by Sir Andrew Leggatt, March, 2001, who reports: "Choosing a Tribunal to decide a dispute should bring two distinctive advantages for users. First, Tribunals decisions are often made jointly by a penal of people, who pool legal and other expert knowledge, and are the batter for that range of skills. Secondly, Tribunals procedures and approach to over seeing preparation of cases and their hearing can be simpler and more informal than the Courts." Going through his lengthy report, other salient feature can be noted in concise from that the procedure should be so simple to ensure that most users ought therefore, to be capable of preparing and presenting their cases to the Tribunals themselves, provided they have the right kind of help and secondly, to enable direct participation of users is an important justification of establishing of the Tribunals at all. However, it also discusses the relationship of the Tribunal with the Department and such is deemed relevant to extent of Environmental Tribunal Establish under section 20 of PEPA, 1997 as while disposing of the complaints from the Department (EDP), specially under section 16, when an E.P.O. has been passed against an alleged polluter, who declined to obey directions made therein, or when the said polluter files an appeal against the E.P.O., the Tribunal is to act as a quasi-judicial Authority, vested with the powers of the Administrative Department under the relevant provisions of law as undoubtedly because of an appeal, the entire matter re-opens and becomes sub judice on filing of appeal (PLD 1965 Supreme Court page 1 at page No.14). In our matter, considering the given proposition, the provision of section 16 of the Pakistan Environmental Protection Act, 1997, equips the Federal Agency or Provincial Agency with the powers of immediate stoppage, preventing, lessening or controlling the discharge, emission, disposal, handling, act or omission, or to minimize or remedy the adverse environmental effect. This clearly connotes that while adjudicating an appeal or the corresponding complaint by the Department, this Tribunal is competent to get hold of those powers for exercise in the larger interest of justice in a judicial manner. Likewise, considering this proposition reversely, while trying the complaints of the Department or the appeal filed by the aggrieved person, the Tribunal is bound to adjudicate that whether the Administrative Department had exercised his above noted powers, at least quasi judicially to dispense justice in a summary way. This exercise is however, in negation of the provisions of _Criminal Procedure Code, as the rigidness of burden- of proof beyond shadow of doubt upon the shoulders of prosecution, (The Department/Agency in this Case) coupled with mens rea of the alleged pollutants is never excepted as neither the, intent of the legislature, nor, section 17 of the Act can serve the purpose of.the Act, as elaborately mentioned in the Preamble of
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that Act, in case the Tribunal is said to be vested with the only powers of acquittal or conviction of the offender. We may mention here that the Administrative Tribunals are made by the Federal Government, only to exercise the Judicial Powers of the State in detachment that of the Courts as the later work under the Constitution as a separate Judicial Entity, having its own hierarchy and system of dispensing justice, while the former are constituted for being users friendly with easy and summary procedure to provide speedy remedy in qausi-judicial manner. "The Administrative Law', Sixth Edition by S.P. Sathe at page No.249, reads as: "The word "Tribunal" is a Judicial Body entertaining matters of specialized nature, enjoys freedom to follow the simpler procedure, possess expertise in a particular branch of legislation and against whose decisions appeal my lie to a Court or higher Tribunal or there may not be any appeal at all. The Tribunal is independent of the Government and is separate from it." Undoubtedly, under section 20 of this Act, the Environmental Tribunal though constituted by . the Federal Government but qualifies to be a repository of elements vis-a-vis its independent IL functioning. 15. In the foregoing lines, we referred the Preamble f the Act; therefore, we feel it necessary to quote the same for advancement of this legal debate: "Whereas it is expedient to provide for the protection,…
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