Hafiz Muhammad Tahir Ashraf Vs Province of Punjab etc

PLJ 2021 Lahore 358 Present: JAWAD HASSAN, J.

Hafiz MUHAMMAD TAHIR ASHRAF ADVOCATE High Court--Petitioner versus PROVINCE OF PUNJAB, through Secretary EPO Punjab, and others--Respondents W.P. No. 37805 of 2020, decided on 31.8.2020.

Punjab Environmental Protection Act, 1997 (XXXIV of 1997)-- ----Ss. 12(3) & 22--Constitution of Pakistan, 1973, Art. 199--Writ of prohibition--Issuance of NOC--Construction of project--Specification of notification--Mandate of notification-- Pendency of complaint against issuance of NOC--Direction to--If any of the conditions laid down in the Environment Protection Order (the “EPO”) is violated then the Approval/NOC issued can be revoked/cancelled under Regulation 20 of the Regulations-- If the Petitioner has any grievance against the Impugned Decision or any other environmental issue, he has a remedy of filing an appeal under Section 22 of the Act before the Punjab Environmental Tribunal (the “Tribunal”)--Petition was disposed of.

[P. 359] A & B

Ch. Muhammad Asif Shahzad, Advocate for Petitioner.

Mr. Waseem Iqbal Butt, AAG (on Court”s call).

Sahabzada Muzaffar Ali, Advocate for Lahore Development Authority. Mr. Muhammad Nawaz Manik, Director (Law), Environment Protection Agency alongwith Faheem Nasim, Additional Director (EIA), Environment Protection Agency and Kashif Sajjan, Assistant (Legal), Environment Protection Agency. Date of hearing: 31.8.2020.

ORDER

The Petitioner, Hafiz Muhammad Tahir Ashraf, Advocate, has filed this writ of prohibition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) to restrain the Director General, Environment Protection Agency, Punjab (the “EPA”), the Respondent No. 5, “from issuing Operational Approval No Objection Certificate (the “NOC”) to Muhammad Ameen, the Respondent No. 12.

2.Learned counsel submits that the decision dated 11th of April, 2018 (the “Impugned Decision”) issued by Respondent No. 5, the Director General, EPA, Lahore, for grant of the NOC to construct the project known as “Installation of Incinerator” by the Respondent No. 12 under Section 12 of the Punjab Environmental Protection (Amendment) Act, 2012 (the “Act”) read with the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000 (the “Regulations”) is illegal because it does not meet specifications given in Notification dated 14th of May, 2010 (the “Notification”) issued by the then Administrator/District Coordinator Officer, Lahore. He further submits that the Petitioner has knocked the door of this Court to keep the environment of this city free from industrial pollution as per mandate of the Notification.

3.Arguments decided. Record perused.

4.Section 12 of the Act provides that no proponent of “a project” (i) shall commence construction or (ii) operation unless he obtains the necessary approval/NOC from the EPA and these NOCs are issued subject to the Regulations. Moreover, under Section 12(3) of the Act read with Regulation 10 of the Regulations all effected parties of the Environmental Approval/NOC are given an opportunity of hearing and once the EPA hears all the parties, under Regulation 12 of the Regulations it will examine the Environmental Impact Assessment (the “EIA”) Report and then decide the matter with certain conditions as prescribed under Regulation 17 of the Regulations. If any of the conditions laid down in the Environment Protection Order (the “EPO”) is violated then the Approval/NOC issued can be revoked/ cancelled under Regulation 20 of the Regulations. These conditions are given after obtaining undertaking from the proponent of the project, therefore, if the Petitioner has any grievance against the Impugned Decision or any other environmental issue, he has a remedy of filing an appeal under Section 22 of the Act before the Punjab Environmental Tribunal (the “Tribunal”). The Hon”ble Supreme Court of Pakistan in the case of Lahore Development Authority through D.G. and others versus Ms. Imrana Tiwana and others (2015 SCMR 1739) held that if the matter comes within the domain of the Tribunal then this Court cannot exercise its jurisdiction under Article 199 of the Constitution. This view was subsequently followed by this Court in the case of Feryal Ali Gauhar and others versus Environmental Protection Agency, Punjab and others (2016 CLD 1011).

5.In view of the above backdrop, as according to learned counsel, the Petitioner”s complaint dated 23rd of July, 2020 (attached with this petition as Annexure-E/page-45) is already pending before the Respondent No. 5, Director General, Environment Protection Agency, Punjab, which was filed pursuant to order of this Court dated 16th of July, 2020 passed in the (earlier) Writ Petition No. 32035 of 2020, it is directed that the said complaint shall be decided by the Respondent No. 5 strictly in accordance with law (the Act and the Regulations) as well as the above observations of this Court within the timeframe provided under the Act. In case the Petitioner has any grievance against the decision taken by the Respondent No. 5 on his complaint, he may file an appeal under Section 22 of the Act before the Tribunal and if the Tribunal is not functional at the relevant time then necessary steps will be adopted by the concerned authority/ hierarchy in this regard on immediate basis so that appeal of the Petitioner may be decided in timely fashion.

Disposed of.

(Y.A.) Petition disposed of