Ghulam Khan Vs DCO

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

W.P No. 595-A of 2010

JUDGMENT

Date of hearing____________________________ Appellant(s)/Petitioner (s)_______________________ Respondent (s) ________________________________ QALANDAR ALI KHAN, J:- The constitutional jurisdiction of this Court has been invoked under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, by the petitioner, Ghulam Khan, for issuance of the following directions;

(i)“Directing respondents to perform their functions within the parameters of their jurisdiction.

(ii)Direct them to ensure the right of petitioner to do lawful business, trade or profession without placing any illegal restriction upon the petitioner.

(iii)Calling them to struck down the operation of impugned orders and bring back the parties to original position and to restore the functioning of Poultry Farm.

(iv)Directing them not to interfere in the business of the petitioner.

(v)Directing them not to interfere in the jurisdiction of Tribunal constituted for this purpose and not to do anything for which not authorized in accordance with law.

(vi)To ensure the performance of their functions as may be appropriate for the enforcement of the fundamental rights of the petitioner conferred by the Constitution.”

2.The facts narrated in the writ petition would show that poultry farm in Kulharay Sharqi Baffa, constructed by the petitioner in April 2008, was forcefully evacuated and functioning of poultry farm was stopped on the direction of District Coordination Officer, Mansehra (respondent No.1), when, application moved by Aurangzeb (respondent No.5) to the Chairman Environmental Tribunal, Peshawar, was already pending adjudication, and not yet decided.

3.In other words, the main grievance of the petitioner was impugned action of the respondents during pendency of proceedings in the Environmental Tribunal on the application of respondent No.5, which, indeed, was the proper

forum for the purpose, according to the petitioner.

4.In para-wise comments, respondent No.1 contested the writ petition on several grounds, including the plea of violation of Environmental Act Regulation by not obtaining NOC by the petitioner before starting poultry farm, which, according to respondent, was constructed in the close proximity of residential area.

5.Meanwhile, the petitioner, was acquitted of the charge under Section 21(3) (a) of the Pakistan Environmental Protection Act 1997, by the Environmental Protection Tribunal, Khyber Pakhtunkhwa, Peshawar, vide judgment dated 04.07.2013. However, on the appeal of respondent NO.5 under Section 23 of Pakistan Environmental Protection Act 1997, the judgment dated 04.07.2013 was set aside by this Court vide judgment dated 19.03.2012, on acceptance of the appeal, and the petitioner was convicted under Section 17 of the Pakistan Environmental Protection Act 1997 and sentenced to pay a fine of Rs.100000/- to be

deposited by him within two months and in case of continuing contravention and failure, he was made liable to additional fine amounting to Rs.500/- for every day during which such contravention or failure continued.

6.When confronted with judgment of this Court dated 19.03.2012, the learned counsel for the petitioner candidly admitted that case of the petitioner was that proper forum for resolution of such like dispute was Environmental Protection Tribunal and that respondent No.1 had, as such, no authority to meddle in the affairs. The learned counsel further stated that the petitioner would be satisfied if directions are issued to respondent No.1 to act in accordance with law.

7.Notwithstanding the fact that judgment of this Court in the matter has vindicated stance of the respondents against the petitioner, nevertheless, all concerned are under a constitutional and legal obligation to always adhere to the letter and spirit of law, resisting the temptation of acting to the contrary in an arbitrary and capricious manner.

8.The writ petition is, accordingly, dismissed.

Announced:

JUDGE

JUDGE