2020 PLP 46 (CLD)

Brief facts are that appellant as professional medical practitioner was operating Al-Shifa Hospital and was also president of the Association of Private Hospital for Safety Measures Advancement and National Help (AHSAN) and was running the unit at Sujan Pur Road Basti Shah Hussain District Multan. On 18.10.2016 EPA Multan visited the appellant unit and framed SIR. The unit was found violating the Punjab Hospital Waste Management Rules, 2014 and accordingly opportunities of hearing were provided to appellant on 19.01.2017 and 22.06.2017 but he did not join the hearing process and on 20.11.2017 Environmental Protection Order was issued with the following directions to comply within thirty days: i. Ensure compliance of the Punjab Hospital Waste Management Rules, 2014 in letter and spirit. ii. Arrange for proper storage of infectious and domestic (non-infectious) wastes separately. iii. Treatment facility be adopted to treat infectious hospital waste through incinerator. iv. The record of incinerated waste be maintained. Otherwise Stop pollution causing activates of your unit".

2. Non-compliance status report was received in the EPA Punjab vide Assistant Director (Environment) Multan letter dated 19.01.2018 and implementation of directions order dated 09.02.2018 was issued. Subsequently Assistant Director (Environment) Multan on the directions of Director (P&C) Environmental Protection Agency regarding severe pollution caused by burning of hospital waste improperly and not complying with Punjab Environmental Quality Standards for treatment of liquid and disposal of bio medical waste by incineration, autoclaving, microwaving and deep burial; sealed the unit on 09.02.2018.Appellant filed Writ Petition No. 2132 of 2018 before Hon'ble Lahore High Court, Multan Bench against the sealing order. Assistant Director (Environment) Multan de-sealed the premises of unit on 13.02.2018 and the writ was disposed of vide order dated 13.02.2018. Deputy Director (Environment) Multan again stopped the operation of furnace vide impugned order dated 17.06.2019. Being aggrieved by the said order appellant filed Writ Petition No. 9446 of 2019 before the Hon'ble Lahore High Court, Multan Bench and the same was disposed of vide order dated 27.06.2019 with the following observations: "The Petitioner in person along with his learned counsel undertakes to comply with the directions issued by the respondent Department however, states that as the infectious waste by weight of tons is been accumulated on daily basis, which needs to be attended to therefore, provisionally the sealing of incinerator be set-aside by providing an opportunity to the petitioner to approach the Environmental Tribunal for challenging the order of sealing the same passed by the respondent Department.

2. In view of the above. the incinerator is provisionally orderred to be de-sealed for one month, so as to enable the petitioner to approach Environmental Tribunal to seek appropriate remedy as per law. Further matter shall be regulated by the orders of Environmental Tribunal, if any appeal is filed. With this direction, the instant constitutional petition stands disposed of". In view of the aforesaid observations appellant has filed instant appeal before this Tribunal against impugned order dated 17.06.2019.

3. Learned appellant counsel maintained that appellant was running his unit in a bona fide manner in accordance with environmental laws and had established a modern furnace to burn hospital waste generated by the member hospitals of his association and that public sectors hospital in Multan were without any facility of incineration. He further maintained that the impugned order was passed malafidely and with ulterior motives as appellant's unit was earlier de-sealed by the order of Hon'ble Lahore High Court Lahore but after lapse of more than one year, new SIR was framed on 12.06.2019 and without providing any opportunity of hearing, impugned order was passed and the same was violate of principles of justice. It was further maintained that in presence of order dated 13.02.2018 passed by Hon'ble Lahore High Court, the resurrection of implementation order dated 09.02.2018 was not appreciable since EPA had no locus standi to implement it vide the impugned order dated 17.06.2019 and that implementation order dated 09.02.2018 after de-sealing of the unit by the EPA had lost its efficacy and had become immune to further legal course and prayed that the impugned order being illegal, unlawful and against the facts of the case was liable to be set aside.

4. Learned Law Officer argued that appellant was running his illegal business without observing the Punjab Hospital Waste Management Rules, 2014 as burning through furnace could not be taken as alternate to the incinerator. It was further maintained that appellant was not observing the prescribed Rules and Regulations for collection, transportation, dumping and disposal of hospital waste and was running his unit without any Environmental approval from the EPA and that impugned order had been passed in accordance with the environmental laws/Regulations and was liable to be maintained by dismissing the appeal.

5. Perusal of record reveals that appellant did not challenge the Environmental Protection Order dated 20.11.2017 before any legal forum and as its legitimacy is intact it has attained finality. Appellant has himself undertaken before the Hon'ble Lahore High Court in Writ Petition No. 9446 of 2019 to comply with the direction issued by the department as is apparent from the order dated 27.06.2019.Compliance of instructions contained in the EPO dated 20.11.2017 is thus binding on him. Implementation order dated 09.02.2018 however does not provide any legal foundation to pass the impugned order since it has been acted upon and exhausted on 13.02.2018 before the Hon'ble Lahore High Court in Writ Petition No. 2132/2018.Fresh SIR dated 12.06.2019 recommends for proceeding under delegation notification dated 18.09.2017 under section 16 of Punjab Environmental Protection Act, 1997 but nothing on record is available to provide basis to pass the impugned order which has thus been passed in violation of section 16 of the Punjab Environmental Protection Act, 1997 and delegation notification dated 18.09.2017, therefore it is not sustainable in the eyes of law and is hence set aside by partially allowing this appeal. Considering the undertaking of appellant on 07.06.2019 before the Hon'ble Lahore High Court in Writ Petition No. 9446 of 2019 and finality attained to EPO dated 20.11.2017, appellant is given thirty (30) days time from the date of the order to comply with the directions issued to him vide EPO dated 20.11.2017. In case of non-compliance after lapse of stipulated time. EPA would be at liberty to proceed further in accordance with law. MH/7/PET Order accordingly.