2019 PLP 464 (CLD)

Through this appeal appellant has challenged the clause No.XXII of the Environmental Approval granted by EPA Punjab regarding the project "DRILLING OF EXPLORATORY WELL KHAUR NORTH-I ATTOCK FIELD BY PAKISTAN OIL FIELDS".

2. Arguments heard.

3. Appellant is a petroleum exploration and production company. Appellant filed IEE before EPA vide application dated June 13 2017 seeking approval under section 12 of PEPA 1997 (as amended in 2012) hereinafter called (Act) for drilling of exploratory well namely "Khaur North-I". Vide letter dated 20.06.2017 the application was forwarded to Assistant Director Environment Attock to furnish SIR. Site was inspected on 11.07.2017 and in the light of SIR appellant was directed to submit revised IEE report after submitting additional information specified in the letter. The same was done vide letter dated 11.08.2017. It is the case of appellant that after delay of 5 months vide letter date 08.01.2018 the appellant was informed that the application is in process before the Committee of Experts. On 27.10.2017 Committee recommended grant of Environment Approval after numerous correspondences. Vide letter dated 03.04.2018 respondent No. 1 communicated the approval of IEE to appellant subject to conditions stipulated therein. Impugned condition 5 (XXII) of Environmental Approval dated 30.4.2018 provides as under: "The proponent shall pay Administrative Penalty to be imposed by EPA, Punjab under administrative Penalty Rules, on account of violation of section 12 of PEP Act 1997. The proponent has constructed the unit before obtaining Environmental Approval from EPA, Punjab."

4. This condition is challenged through this appeal. The Tribunal has asked the learned law officer as to whether the EPA has notified Administrative Penalty Rules so far. The learned Law Officer frankly conceded that Administrative Penalty Rules have not been notified, however, draft rules are placed on the website of the Environment Protection Agency. The statement of the learned Law Officer is further augmented from the perusal of the impugned condition 5 (XXII) of the Environmental Approval dated 03.04.2018 where mere Administrative Penalty Rules have been mentioned without any date/year. This practice of Environment Protection Agency of placing the unapproved/un-notified Rules on website is misleading and unlawful under section 31 of the Act. Section 31 of the Act empowers the Environment Protection Agency (EPA) to make rules by notification in the official Gazette for carrying out the purposes of this Act. The Tribunal is of the considered view to ask the Environment Protection Agency to refrain from such unlawful practice of placing the unapproved un-notified rules, regulations and policies on website in contravention of the statutory provision of section 31 of the Act. If at all some public opinion is needed then the word "Draft" may be shown on such rules, regulations and policies while placing them on website to avoid inconvenience to the general public and stake holders.

5. Tribunal asked the registrar of the tribunal to check the Rules placed on the official website of the EPD. (https://epd.punjab.gov.pk/rules regulations). Registrar immediately downloaded the notification and produced before Tribunal. Submits that un-notified rules are available on official website of EPD.

6. The placing of this material (un-notified rules) on official website of EPA is misleading and this practice of EPA is unlawful under section 31 of the Act which empowers the EPA to make rules by notification in the official Gazette for carrying out the purposes of this Act. EPA should refrain from such unlawful practice of placing the unapproved, un-notified Rules, Regulations and Policies on its official website in contravention of the statutory provision of section 31.

7. In an identical matter Appeal No.11/2016 titled "Shah Nawaz v. EPA through DG", EPA issued show cause notice to the appellant for imposing Administrative Penalty on account of violation of section 12 of the Act. The author of the show cause notice was summoned and heard by the tribunal at that time and it was stated by him before tribunal that the rules have been framed by the EPA and sent to Printing Press Lahore for publication which might have been published in due course. Tribunal provided ample opportunities but the notification was not produced before tribunal. It was held by the tribunal that unless rules are published/notified no penal action can be taken against the appellant. Appeal was allowed on 20.9.2016.

8. In the instant case position is the same and rules have not so far been notified. The imposition of the impugned clause in the Environmental Approval is not justifiable. The appeal is allowed and clause No. 5 (XXII) is struck down from the Environmental Approval 03.04.2018. EPA of course can avail alternate mode to initiate action against the proponent found violating the environmental laws.

9. Copy of the order be transmitted to DG EPA for information with direction to get un-notified rules, regulations and removed policies from the official website of EPA forthwith. File be consigned. MH/3/PET Appeal allowed.