Pakistan Mobile Communication Ltd Vs Abrar Ahmed etc

2019 C L D 578

[Lahore]

Before Shams Mehmood Mirza and Jawad Hassan, JJ

PAKISTAN MOBILE COMMUNICATION LIMITED---Appellant

Versus

ABRAR AHMED and 4 others---Respondents

Intra Court Appeal No. 258328 of 2018, decided on 20th February, 2019.

(a)Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S. 5---Intra-Court appeal filed after limitation period-- -Condonation of delay---Certified copy of judgment received about two months after applying for the same---Perusal of record revealed that the impugned order was dated 13- 09-2018 whereas the present intra-court appeal was filed on 19-12-2018, as such there was a delay of about two months and sixteen days in filing the said appeal---Record also depicted that the certified copy of the impugned order was applied on 19-10-2018 which was issued on 18-12-2018 and on the next day sharp i.e. 19-12-2018 the intra-court appeal was filed without wastage of even a single day---Stance of the appellant that though impugned order was dated 13-09-2018 yet the same was made available in the month of December, 2018 was strengthened from the last page of impugned order which reflected on left side the date, 7th December, 2018---Appellant in such circumstances could not be held responsible for the delay in filing the present Intra-court Appeal, therefore, the application for condonation of delay was accepted.

(b)Punjab Environmental Protection Base Transceiver Station (BTS) Regulations, ----Regln. 1---BTS Tower Policy, 2013 [issued by the Punjab Local Government & Community Development Department through Notification No.SOTAX (LG) 3-4/03 (P-111) dated 12.08.2013], Clause 4---[Punjab] Environmental Protection Act (XXXIV of 1997), S. 12---Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, Reglns. 3 & 4 & Scheds. I & II---Punjab Environmental Protection Base Transceiver Station (BTS) Regulations, 2012 ('the 2012 Regulations') and 'BTS Tower Policy, 2013'---No retrospective effect---Base Transceiver Station (BTS) tower erected by a cellular company ('the appellant')---Requirement of obtaining NOC from Environment Protection Agency (EPA)--- Admittedly the BTS Tower in question was installed by the apellant and functi onal since the

year 2005---Regulations of 2012 were made by the Environment Protection Agency (EPA) in the year 2012 and the BTS Tower Policy in the year 2013 which were not applicable to the BTS tower of the appellant because they could not be of retrospective effect---In the BTS Tower Policy, 2013 it was mentioned in Clause-4 that for the already installed BTS Towers, the cellular company shall have to bring it in conformity with technical specification provided in the same and in such regard the appellant had already filed application to the concerned EPA---Installation of BTS tower did not fall in Schedule I read with Regulation 3 or Schedule II read with Regln. 4 of the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, therefore, there was no requirement at the relevant time for the appellant to seek NOC from the EPA for installation of BTS tower---Appellant had now at present stage filed an application to the EPA along with all the requirements including fee etc. for NOC which was still pending---Single Judge had erred in law while holding that the appellant's tower lacked the requirements of the BTS Tower Policy, 2013---High Court directed that the EPA was to process the said application and decide the same within a period of two weeks positively; that in case of being aggrieved by the order likely to be passed by the EPA, either party, had the remedy of appeal under the [Punjab] Environmental Protection Act, 1997---Intra-court appeal was allowed accordingly.

Ahmad Amjad Meer for Appellant.

Nawab Saeed Ullah Khan, Asjad Saeed, A.A.G. and Muhammad Ashraf Azad for Respondents.

JUDGMENT

JAWAD HASSAN, J.---Through this Appeal, filed under section 3 of the Law Reforms Ordinance, 1972 (the "Ordinance"), the Appellant has called in question the legality of order dated 13.09.2018 passed in W.P. No.119325/2017 by the learned Single Judge -in- Chamber, whereby the constitutional petition filed by the Respondent No.1, seeking direction to the Respondents Nos.3 and 4 to remove the mono pole tower erected by the Respondents Nos.1 and 2, was allowed in the following manner:

"Neither the Respondent's tower fulfills the requisite requirements nor the concerned authorities have yet issued it NOCs for operating the tower in a residential area, therefore, in the absence of these pre-requisite permissions, operation of BTS tower would be illegal and this Court cannot perpetuate this illegality. The Respondent - company's applications seeking NOC from Respondents Nos.3 and 4 are already pending before them, therefore, the matter is referred to them with direction to decide the same strictly in accordance with rules, regulations and policy on the subject expeditiously and preferably within three months from the date of receipt of certified copy of this order. Till the decision of said application operation/working of the disputed BTS Tower is to remain suspended forthwith."

2.Learned counsel for the Appellant inter alia contended that the impugned order is against the law and facts; that the learned Single Judge-in-Chamber has dismissed the petition without taking into consideration the facts that the Respondent No.1 had no cause of

action and locus standi to file the petition as he was not an aggrieved person; that the policy on the basis of which the impugned order has been passed is inflict a defective policy because under the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") the Telecommunication is a Federal subject and the Province of Punjab had no legal competence to issue the said policy; that the policy of 2013 was not applicable to the case of the Petitioner and has its retrospective effects as admittedly the tower in question has been operating since 2005; that under the said policy the tower can be operated even in the residential area which fact has been overlooked in the impugned order; that there is no breach of the applicable environmental standards, as such the same is operating within the parameters defined under the Punjab Environmental Protection (BTS) Regulations, 2012 (the "Regulations"); that the writ petition before this Court was not competent as the Respondent No.1 had alternate remedy before the Environmental Protection Department (EPD); that t he matter has wrongly been referred to the Respondent No.3 regarding grant of approval of the BTS tower as in terms of section 12(4) of the Punjab Environmental Protection Act, 1997 (the "Act") the approval has already been granted by operation of law; that the area in question is still an industrial area as per the record of the Respondent No.2, as such the impugned order is liable to be set aside.

3.On the contrary, learned counsel for the Respondents vehemently opposed the arguments advanced by the learned counsel for the Appellant and prayed for dismissal of the Appeal on the ground that the impugned order has been passed strictly in accordance with law; that without necessary approval and NOCs from the concerned departments the BTS tower cannot be allowed to operate, particularly in a residential area, as such the impugned order does not call for any interference by this Division Bench.

4.We have heard the arguments of both the sides and perused the record.

5.Before deciding the Appeal on merits, it is to be noted that the Appellant had filed an application (C.M. No.2/2018) under section 5 of the Limitation Act, 1908 as the Appeal was filed after the limitation period, therefore, keeping in view this aspect of the matter, this Court on the very first date of hearing i.e. 24.12.2018 issued notice to the Respondent No.1 subject to the question of limitation.

6.The Appellant in the application for condonation of delay has taken stance that on 18.12.2018, the Appellant came to know that vide order dated 13.09.2018 the writ petition had been accepted with certain directions and observations. This was communicated to the appellant by the Respondent No.4 (the landlord of the leased premises) who had applied for issuance of a certified copy of the order on 19.10.2018, which was delivered to him by the office on 18.12.2018. It is thus transpires that although the judgment is nominally dated 13.09.2018, it was rendered in the month of December 2018 as appears to be the case from the date noted at the bottom-left side of the last page of the impugned order i.e. 7th December). In these circumstances, the Appellant was not in a position to apply for a certified copy of the judgment so as to file an Appeal, making the delay in filing the Appeal, if any, liable to be condoned by this Court.

7.The perusal of record reveals that the impugned order is dated 13.09.2018 whereas the

Appeal was filed on 19.12.2018, as such there is a delay of about two months and sixteen days in filing the Appeal. The record also depicts that the certified copy of the impugned order was applied on 19.10.2018 which was issued on 18.12.2018 and on the next day sharp i.e. 19.12.2018 the Appeal was filed without wastage of even a single day. The stance of the Appellant that the impugned order was although dated 13.09.2018 yet the same was made available in the month of December is strengthened from the last page of impugned order which reflects on left side the date viz: 7th December. It is also to be noted that certified copy of the impugned order was applied on 19.10.2018 whereas the office issued certified copy on 18.12.2018; meaning thereby that the impugned order was made available even in the office in the month of December. In this view of the situation, we feel no hesitation to hold that the Appellant cannot be held responsible for the delay in filing the Appeal, therefore, the application for condonation of' delay is hereby accepted.

8.Now adverting to the merits of the case, the specific stance of the learned counsel for the Appellant is that admittedly the BTS tower was installed and functional since 2005 and the Rules and procedure for complying with the Provincial Environment Quality Standards (PEQS) has been laid down in the Punjab Environmental Protection Base Transceiver Station (BTS) Regulations, 2012 (the "Regulations of 2012") in the year 2012 and the Policy for installation, operation and regularization has been set out in Notification No.SOTAX (LG) 3 - 4/03 (P-III) dated 12.08.2013 issued by the Punjab Local Government and Community Development Department in the year 2013 (the "BTS Tower Policy"), as such the same cannot have retrospective effect, therefore, the learned Single Judge-in-Chamber has erroneously relied upon the BTS Tower Policy.

9.We have gone through the whole record and found that admittedly the BTS Tower was installed and functional since 2005 (EPA and other Department's report and parawise comments). The Regulations were made by the EPA in the year 2012 for inter alia BTS Towers and the BTS Tower Policy in the year 2013 which are not applicable to the case of the Appellant because they cannot have retrospective effects. It is noted that Section 1 of the Regulations states that these Regulations shall come into force at once which were made on 05.12.2012 and cannot apply to the case of the Appellant retrospectively. In the BTS Tower Policy it is clearly mentioned in Clause-4 that for the already installed BTS Towers, the Appellant shall have to bring it in conformity with technical specification provided in the same and in this regard the Appellant has already filed application to the concerned EPA. At the time when the BTS Towner was installed, the Pakistan Environmental Protection Act, 1997 which is now the Punjab Environmental Protection Act, 1997 (2012) was applicab le but Section 12 of the same clearly states that the proponent of any project has to file the Initial Environmental Examination (the "IEE") or Environmental Impact Assessment (the "EIA") report to the EPA which are to be made as per Schedule I & II of the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000 (the "Regulations of 2000"). The installing of tower never fall in Schedule I read with Regulation 3 or Schedule II read with Regulation 4 of the Regulations of 2000, therefore, there was no requirement at that time to seek NOC from the Respondent No.3/EPA. It is to be noted here that the Appellant, during the course of arguments before the learned Single Judge has contended that it had filed an application to the EPA along with all the requirements including fee etc. for NOC which is still pending.

Therefore, it would be appropriate to issue direction to the Respondent No.3 to process the said application and decide the same within a period of two weeks positively. In case of being aggrieved by the order likely to be passed by the Respondent No.3, by either party, the remedy of Appeal is available under section 22 of the Act before the Environmental Tribunal and further remedy under section 23 of the Act before not less than two Hon'ble Judges of this Court.

10.In view of the above circumstances, the learned Single Judge has erred in law while holding that the Appellant's tower lacks the requirements of the BTS Tower Policy which was to be followed by it. Hence, this Appeal is hereby allowed and the impugned order is set aside.

MWA/P-4/L Appeal allowed.