2011 PLP 1280 (CLD)

Leaned counsel for the appellant has moved an application for de-sealing of BTS Tower situated/located at Children Park, Sangla Hill Dist. Nankana Sahib on the ground that even the limitation period of filing the appeal had not expired when the department without any notice sealed BTS Tower of the appellant. We have gone through the Environmental Protection Order dated 24-12-2010 wherein the appellant was directed to stop operation of diesel generator being operated without obtaining the Environmental Approval causing severe vibration and noise pollution in the residential area. Without waiting for the period of limitation to expire, the complainant department sealed the BTS Tower instead of sealing the generator on 9-2-2011. Learned ADPP has produced photocopy of the proceedings allegedly taken by DO(E) and Inspector EPA which shows that the Mobilink Tower was sealed instead of diesel generator. This report is not signed by any official of the Environment Department. Learned counsel for the applicant/appellant states that he is prepared to remove the generator from the site if the BTS Tower is desealed. This is a fair and reasonable request which is granted and it is ordered that the department will immediately de-seal the BTS Tower and the appellant will simultaneously remove the diesel generator from the site. (Sd)/- (Sd)/- Khawaja Muhammad Afzal Ch. Khalil (Chairperson) (Member Tech.) I respectfully do not agree with the order passed by Hon'ble Chairperson and passed the following order. The relevant facts for deciding the application for de-sealing the B.T.S. Tower are as follows: The Environmental Projection Order was issued to the applicant Pakistan Mobile Communication Ltd. with the following directions to comply within 10 days of issuing the EPO. Stop operation of Diesel Generator being operated without obtaining environmental approval and causing severe vibration and noise pollution in Residential area. Show cause why proceedings under section 21(3)(a) and other allied provisions of the Act should not be initiated for establishment of BTS tower and Diesel Generator in violation of section 12 of the Act. The period of ten days were provided to the applicant to adopt above mentioned remedial measures, failing, warned to stop the operation of the pollution generating activities. The period of ten days were expired on 5-1-2010 as EPO allegedly received by the applicant on 27-12-2011. The applicant preferred to file an appeal before this Tribunal on 26-1-2011 wherein notice was issued to the respondent Director-General EPA on 18-2-2011 and case was fixed for 24-3-2011 for further proceedings. The Environmental Protection Agency during the pendency of above appeal sealed the tower on 9-2-2011 whereafter applicant on 10-2-2011 filed the instant application which was fixed for 11-2-2011 on which date Tribunal pleased to issue notice to the respondent DG-EPA for 2-3-2011 along with the main appeal. The applicant not waited for fixed date and preferred to file Writ Petition No.3107 of 2011 in the Hon'ble Lahore High Court, Lahore and the same was disposed of vide order dated 15-2-2011 in following manners:-- "

2. In view of the fact that the matter is already fixed on 2-3-2011 this petition appears to be premature. However, in view of the urgency expressed by the learned counsel for the petitioner, it is directed that the application for de-sealing of BTS tower shall be decided as expeditiously as possible." Keeping in view the above direction, the applicant on 17-2-2011 moved an application for early hearing of the instant application, upon which record was summoned and fixed for 18-2-2011. On 18-2-2011 Hon'ble Chairperson along with member Technical accepted the application and directed the respondent department to de-seal the BTS Tower. Respectfully, I do not agree with the order dated 18-2-2011 upon the following reasons: (i) Learned counsel for the applicant wrongly contended before this Tribunal that even the limitation period of filing the appeal had not expired, when the department without any notice sealed BTS Tower. In fact, EPO dated 24-12-2010 allegedly received by the appellant on 27-12-2010, hence period of limitation for filing appeal was expected to be expired on 27-1-2011 whereas applicant filed appeal on 26-1-2011 and the Tower was sealed on 9-2-2011: i.e. much after the expiry of limitation period. Therefore, contention of learned counsel for the applicant amounts to misconception. (ii) EPO dated 24-12-2010 bears the direction to stop the operation of pollutions generating activities. This amounts to sufficient notice to the applicant. Hence again it is wrongly contended on behalf of learned counsel for the applicant that department without any notice sealed BTS tower. (iii) The record reveals that said BTS tower is situated in the children park of residential area. This aspect of the matter cannot be decided without hearing the final arguments in detail. Therefore, prima facie de-sealing the BTS Tower at this stage may cause adverse environmental effect and irreparable loss to public at large in the children park and adjacent area. The balance of convenience, therefore, lies in favour of public at large and not in favour of applicant. (iv) By sealing the BTS Tower, the respondent department has rightly acted upon its own direction embodied in EPO, as no status quo was granted by this Tribunal to suspend the operation of impugned order. Due to the act of sealing the BTS Tower by the respondent Department the stay application Order XXXIX, rules 1 to 2, C.P.C. becomes infructious and moreover, no provision is provided in the Pakistan Environmental Protection Act to de-seal the unit prior to final decision. In my view the respondent has rightly sealed the BTS Tower and its de-sealing is not permissible at this stage. The matter regarding de-sealing has to be decided at the final hearing of appeal. Considering above observations, the application for de-sealing the BTS Tower is hereby dismissed. (Sd)/- Ms. Gulzar Butt (Member Legal) H.B.T./4/ET Application dismissed.