Muhammad Zahoor, etc VS Chief Commissioner, etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.4478 of 2021 Muhammad Zahoor and others Versus The Chief Commissioner, Islamabad Capital Territory and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 30.05.2022 Ms. Kalsoom Rafique, Advocate for the petitioners, Mr. Husnain Haider Thaheem, Advocate for respondent No.3/C.D.A., Mr. Habib Ullah Khan, Advocate for respondent No.8.

Through the instant writ petition, the petitioners seek a direction to respondents No.1 to 3 to prevent the violation of the provisions of the Pakistan Environmental Protection Act, 1997 (“PEPA”) by respondents No.4 to 9 (“private respondents”) in Sector B-17, Islamabad.

2.Learned counsel for the petitioners submitted that the petitioners are residents of A- Block, Sector B-17; that the private respondents have established asphalt plants, tar-coal units and are indulging in the burning of tires; that the said activities are causing environmental hazards which in turn are causing health problems to the residents of the area; that initially the Pakistan Environmental Protection Agency (“the Agency”) issued notices to the private respondents but despite the same, at present, the asphalt plants, tar-coal units are still functioning and the activity of burning tires is also taking place; that due to ongoing operations at the asphalt plants and tyre burning at tar-coal plants, life in the vicinity has become unbearable; that due to emissions at these plants the air quality of the nearby area has become hazardously polluted; that the Agency is not taking concrete steps to implement their own

order; that the families of the petitioners have become ill due to pollution; that the air is so polluted that the pollutant particles not only get deposited on ceiling but also inside the houses; and that in order to safeguard the environment and human health, these plants warrant shutting down permanently. Learned counsel for the petitioners prayed for the petition to be allowed in terms of the relief prayed therein.

3.On the other hand, learned counsel for respondent No.8 submitted that the reports of local commission and that of the Agency’s monitoring team do not take into account the Chemical Analysis report of Environmental Testing Laboratory which shows the gaseous emissions from the plants are within the prescribed limit set by the Agency; that under the Basel Convention on the Control Of Transboundary Movements of Hazardous Wastes and their Disposal declared that the tyre burning / tyre Pyrolysis is an environmentally sound disposal mechanism; that within the scheme of PEPA, the Agency has not been empowered to shut down the plants; and that respondent No.8 has taken steps to mitigate the emissions. Learned counsel for respondent No.8 prayed for the petition to be dismissed.

4.I have heard the contentions of the learned counsel for the parties and have perused the record with their able assistance.

5.The petitioners had alleged that due to operations at the asphalt plants and burning of tyres at the tar-coal units owned by the private respondents, dust and gaseous emissions are causing environmental hazards and health problems to the residents of the area. The petitioners also maintained that a complaint in this regard was lodged with the Agency.

6.This Court, while admitting the instant petition vide order dated 17.12.2021, directed the Agency to depute a team of inspectors to visit the site and submit a report on whether the activities being carried out by the private respondents in the said area are causing the environmental hazards.

7.The Agency submitted its report dated 10.03.2022 before this Court, the crux whereof is that on the complaint of the residents, the enforcement team of the Agency passed Environmental Protection Order (“EPO”) dated 19.01.2021 and suspended the operational activities of the plants. The monitoring team of the Agency had re-inspected the site on 26.04.2021 and 03.05.2021 to ascertain the compliance with the EPO. During the site visit, the environmental monitoring team of the Agency observed that the plants of respondent Nos. 4 to 7 and 9 were shut down upon arrival of the Agency’s team while plant workers were present at the site and the condition of raw material showed that the plants were still running. Moreover, the plant of respondent No.8 was found functional. The Agency in its report highlighted the aspect of livelihood of the workers employed at these plants and explained that “only way to enforce the environmental laws is to direct these Asphalt plants to comply with all the provisions of PEP Act, 1997, Rules, Regulations and National Environmental Quality Standards (NEQS) by submitting Environmental Management Plans (EMP) and its compliance reports to the Pakistan Environmental Protection Agency.” The Agency had also sought dismissal of the instant petition with costs due to availability of alternate remedy to the petitioners for filing complaint before the Environmental Tribunal under Section 21 of the PEPA.

8.The submissions of the Agency with regard to currently functional status of the plants were disputed by the private respondents. Therefore, in order to ascertain the current status of the said asphalt plants, the learned Member, Inspection Team of this Court was appointed as Local Commission, to inspect the site in question at the time and date of his choosing and submit a report before this Court.

9.The learned Member Inspection Team visited the site on 16.04.2022 and submitted a detailed report wherein he had concluded that “...during the course of the instant process/proceedings and personal visit of the undersigned, it is established that all the Plants are functional and the noise, smoke, dust, chemical proliferation is massively damaging the human health of the residents settled nearby to the questioned plants.”

10.Under Section 6(1)(f) of the PEPA, enforcement of the National Environment Quality Standard is the function of the Agency. It is an admitted position that the Agency had taken cognizance of the matter and suspended the operation of the plants by issuing EPO dated 19.01.2021. Now, the reports submitted before this Court by the local commission and the Agency show that the plants are still operative. These operations are prima facie in violation of the EPO dated 19.01.2021. To check such a violation the PEPA has equipped and empowered the Agency with the statutory mandate to enforce its order. Where the Agency passes an EPO under Section 16(2) (a) of the PEPA directing a person to stop an activity which is violative of the environmental laws, rules or policies and the person does not comply with such an order, the Agency is empowered under Sections 16(3) and 17 of PEPA

to take appropriate action and impose a penalty and costs.

11.In the instant case, the Agency did not bring on record any follow-up measures which were required to be taken after passing of the EPO. Neither did the Agency take any action for the enforcement of the EPO nor did it prescribe any measures for mitigation of the hazardous emissions. The record shows that the Agency did not conduct any test of the air quality and did not prescribe special environmental standards to be followed by the plants in question. Now until such measures are taken and it is ensured that the emissions from the plants comply with the environmental standards, these plants cannot be allowed to operate at the cost of the safe habitat of the residents in the vicinity. The very act of tyre burning process itself may or may not be a prohibited activity under the environmental law but if the said activity takes place in close proximity of an area used for human dwelling, the said activity must comply with the standards set by the Agency to preserve ambient air. Under the proviso to Section 6(g) of the PEPA, the Agency can specify different standards for discharge or emission from different sources and for different areas. Since the Agency has already issued an EPO by suspending operations of the plants, as long as the said order holds the field, the private respondents cannot decide on their own to resume their operations on the basis of a chemical test report or a self-serving interpretation of an International Convention.

12.The Hon’ble Supreme Court in the case of D.G. Khan Cement Company Ltd. Vs. Government of Punjab (2021 SCMR 834) had observed that “Negative area in other words means an environmentally fragile area, which is a vulnerable

natural habitat and needs care and protection, till it recovers, if at all. Enlargement of an existing cement plant in a negative area attracts the well- established principle of international environmental law called the Precautionary Principle, reflected in Principle 10 of the Rio Declaration, 1992. The principle provides; where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." Another emerging environmental principle declared as Principle 5 of the IUCN World Declaration on the Environmental Rule of Law (2016) is in dubio pro natura i.e. “in cases of doubt, all matters before courts, administrative agencies, and other decision-makers shall be resolved in a way most likely to favour the protection and conservation of the environment, with preference to be given to alternatives that are least harmful to the environment. Actions shall not be undertaken when their potential adverse impacts on the environment are disproportionate or excessive in relation to the benefits derived therefrom.””

13.Now, taking guidance from the principle of dubio pro natura (when in doubt, in favour of nature) and precautionary principle referred to by the Hon’ble Supreme Court in the case of D.G. Khan Cement Company Ltd. Vs. Government of Punjab (supra), since there is likelihood of irreversible damage to the health of residents of the vicinity, the plants cannot be allowed to operate as long as the EPO dated 19.01.2021 is in the field. Therefore, it is directed that respondents No.4 to 9 shall immediately suspend their commercial operations. In the meanwhile, if the private respondents fail to comply with the

Agency’s said order dated 19.01.2021, the Agency shall proceed against the offenders in accordance with the procedure prescribed under Section 17 of the PEPA.

14.The instant petition is disposed of in the above terms. A compliance report shall be submitted by the Agency to this Court through Registrar within 20 days of the receipt of this Order.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*