2024 PLP 39 (CLD)

RAJA RASHAD NASIM KHAN, CHAIRMAN.

The subject matter in the above captioned appeals is same. Therefore we intend to dispose of both the appeals through this common judgment.

2. In both the appeals, the appellants are the companies providing telecommunication services to the people of Azad Jammu and Kashmir.

3. Brief facts giving rise to both the appeals as stated are that the respondents issued an environmental protection compliance notice dated 17-01-2014 to the appellants. Notice was replied by the appellants vide letter dated 30-01-2014. The appellants were called for personal hearing vide letters dated 26-02-2014 and 18-03-2014. The appellants were heard by the agency on 15-05-2014. After hearing the appellants, minutes of the hearing were issued by the agency on 17-06-2014, whereby the agency has decided to issue EPO to the appellants. The appellants filed an appeal against the said minutes of hearing before Environmental Tribunal which is subjudice. During the pendency of the said appeal the agency has issued EPO on 21-07-2014 whereby, the appellants were directed to file complete case to the agency for approval/NOC for every site, beside submitting an undertaking not to undertake any activity such like this in AJ&K without Environmental Approval of the agency in future within 30 days (EPO) dated 21-07-2014.

4. It is further alleged that the powers to issue an EPO under section 15 of Act, 2000 can only be exercised by the Director General of the Agency, whereas, EPO dated 17.06.2014 being issued by the Assistant Director without delegation of any power under section 5(5), was coram non judice. Under section 11 of the Act, 2000 the filing of IEE and EIA is only required before commencement of a project. Whereas the appellants' project commenced prior to promulgation of Regulations, 2009, hence, submission of IEE and EIA is not the required under law. The appellants have not violated any law, rule or regulations. There is no adverse environmental effect of BTS Towers, nor any adverse environmental effect is pointed out by the respondents. The minutes of hearing and EPO are issued with mala fide intention and without lawful authority.

5. In Appeal No 2/2014 the appellants prayed that: By accepting this appeal with costs, the impugned decision dated 17-06-2014 passed by respondents be set aside while declaring the same as illegal, void ab-initio and passed without lawful authority.

6. Whereas in Appeal No 3/2014 the appellants prayed that: By accepting this appeal with costs, the impugned EPO dated 21-07-2014 passed by respondents be set aside while declaring the same as illegal, void ab-initio and passed without lawful authority.

7. The respondents Nos. 1 and 2 contested the appeals by filing Para-wise comments whereby, it is alleged that the appellants have no locus standi. The appellants filed the titled appeals on baseless and flimsy grounds. The EPO dated 21-07-2014 has been issued strictly in accordance with the provisions of the Act and exercising the authority provided under sections 7(c) and 15 of the AJ&K Environmental Protection Act, 2000. Section 11 of the AJ&K Environmental Protection Act clearly provide that; "No proponent of a project shall commence construction of operation unless he has filed with the Agency, an Initial Environmental Examination (IEE) or where the project is likely to cause an adverse environmental effect, an Environmental Impact Assessment has obtained from the Agency approval in respect thereof." The development interventions like installation of BTS Towers comes under the definition of development projects and are associated with some serious environmental and social issues like emission of radio frequencies by GSM dishes and antennas, exhaust gases, noise and thrill of Gen-set, intrusion into privacy and inconvenience for nearby residents due to supervisory staff etc.

8. It is further alleged that the stance of the appellants that they are not bound to obtain the Environmental Approval is without justification. The appellant No.1 Pakistan Mobile Communication (Mobilink) has complied with the Environmental Protection Order dated 21-07-2014 and has got NOC for almost all of their BTS sites therefore the EPO dated 21-07-2014 is withdrawn to the extent of appellant No.1. The rest of Appellants are bound to obtain NOC from agency for operation of BTS Towers in AJ&K. It is lastly prayed for dismissal of the appeals.

9. The learned counsel for the parties reiterated the grounds taken in their respective appeals and para wise comments, which have already been narrated in the preceding paragraphs, hence, the same are not repeated for the sake of brevity.

10. Arguments heard and record perused.

11. The perusal of record shows that the appellants have challenged the legality of impugned minutes of hearing dated 17-06-2014 in Appeal No 2/2014 whereas in Appeal No 3/2014 Questioned the validity of EPO dated 21-07-2014. The appellants prayed for setting aside decision/minutes of hearing dated 17-06-2014 and EPO dated 21-07-2014 while declaring the same as illegal, void ab-initio and passed without lawful authority.

12. As per the recordm, the appellants are the companies providing telecommunication services to the people of Azad Jammu and Kashmir under the name and style of "Mobilink". "Ufone", "Telenor", "Warid" and "Zong". The agency issued a notice to the appellants on 17.01.2014, the relevant portion of the notice is reproduced as under:- "Now, therefore, in continuation of pervious Notice, this Environment Protection/Compliance Notice is being issued, under section-15 of the Act, to give you another opportunity to furnish the Agency with complete details of BTS Towers and Gen-Set already installed in AJ&K under your respective network and file a composite case to the Agency for approval/NOC, beside submitting an undertaking not to undertake any activity such like this in AJ&K without environmental approval of the Agency in future. Non-compliance of this Notice would be considered as a deliberate contravention of sections 11 and 15 of the Act and thereafter, the Agency would be left with no other option but to sue you all in the Court of AJ&K Environmental Protection Tribunal, which may lead to imposition of fine/penalty on conviction besides sealing/seizure order by the Court."

13. This notice was replied by the appellants on 30.01.2014 with the assertion that they are not bound to file IEE or EIA. They are complying with the regulations and already paying huge amounts in lieu of obtaining NOCs for BTS and Gen-set development in AJ&K. The Agency after providing right of hearing to the appellants issued the minutes of meetings on 17.06.2014 whereby the hearing panel decided to issue EPO to stop all the functions of appellants in the territorial jurisdiction of Azad Jammu and Kashmir without environmental approval. Subsequently, the EPO was issued on 21.07.2014, whereby, the appellants were directed to furnish the complete details of BTS Towers and Gen-Set already installed in AJ&K under their respective networks and file a complete case to Agency for approvals/NOC for every site, beside submitting an undertaking not to undertake any activity such like this in AJ&K without environmental approval in future within 30 days of the order.

14. The contention of the appellants is that the powers to issue an EPO under section 15 of Act, 2000 can only be exercised by the Director General of the Agency, whereas. EPO dated 17.06.2014 being issued by the Assistant Director without delegation of any power under section 5(5), was coram non judice. This contention appears to be based upon misconception. The appellants have mistakenly considered the minutes of meetings dated 17.06.2014 to be an EPO under section 15 of Act, 2000. In fact, this document shows the intent of the agency to issue EPO to stop all the functions of the appellants-companies in the Azad Jammu and Kashmir, thus, the contention of the appellants is without substance.

15. The next contention of the appellants is that furnishing of IEE and EIA under section 11 of Act, 2000 is only required before commencement of a project. The appellants' project commenced prior to promulgation of Regulations, 2009, hence, submission of IEE and EIA is not the requirement of law. It may be stated here that Act, 2000 was promulgated on 11.10.2000. The very preamble of the Act says that: "Whereas, it is expedient to provide for the protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution, promotion of sustainable development, and for matters connected therewith and incidental there to".

16. These objects can only be achieved when all the projects. whether commenced prior to promulgation of Regulations, 2009 or thereafter, are brought within the spheres of the environmental laws. The law does not restrict the Agency to regulate the previous projects. Even otherwise, it is an admitted fact that Act, 2000 was promulgated in the year 2000 and the projects were commenced by the appellants after year 2000. Subsection (1) of section 11 of Act, 2000 postulates that: "No proponent of a project shall commence construction or operation unless he has filed with the Agency, an lEE or where the project is likely to cause an adverse environmental effect, an EIA, and has obtained from the Agency approval in respect thereof."

17. Thus, the requirement of furnishing an IEE and EIA was incorporated in Act, 2000 since its inception, whereas, Regulations, 2009 were framed to regulate the mechanism of filing of IEE and EIA. In this scenario, it cannot be said that the projects of the appellants, being commenced prior to promulgation of Regulations, 2009, do not require filing of IEE and EIA.

18. Now, a question arises that whether installation of BTS Towers and Gen-Set by the appellants are causing adverse environmental effect or not? This term has been defined under section 2(i) of Act, 2000 as follows:-

2. Definitions: (i) "adverse environmental effect" means impairment of, or damage to, the environment and includes:- (a) impairment of, or damage to, human health and safety or to biodiversity or property; (b) pollution; and (c) any adverse environmental effect as may be specified in the regulations"

19. Thus, an adverse environmental effect means impairment or, or damage to, the environment which also includes impairment of, or damage to, human health and safety or biodiversity or property; pollution and any adverse environmental effect as may be specified in the regulations. The BTS Towers are causing adverse environmental effect because the BTS towers release radio frequency radiations, herein after referred RF radiations. The biological effects resulting from animal or human exposure to RF energy have been considered by the Sindh High Court in the case reported as [PLD 2011 Karachi 132] in the following manner:- "After hearing the learned counsel, I have reached to the conclusion that there are many published reports in the scientific literature concerning possible biological effects resulting from animal or human exposure to RF energy. Biological effects that result from heating of tissues by RF energy are often referred to as thermal effect. It has been known for many years that exposure to high level of RF radiation can be harmful due to ability of RF energy to heat biological tissue rapidly. This is the principle by which microwave ovens cook food, and exposure to very high RF power can clearly result in heating of biological tissue and an increase in body temperature. The telecommunication products are being used worldwide by the individuals and industry make use of some form of electromagnetic energy in the shape of radio frequency of RF'. RF emission and associated phenomena can be discussed in terms of energy, radiation or fields. Radiation is defined as the propagation of energy through space in the form of waves or particles. Electromagnetic radiation can best be described as waves of electric and magnetic energy moving together i.e., radiating through space. These waves are generated by the movement of electrical charges such as in a conductive metal object or antenna. As a guideline on Environmental and Health Related effects of the Cellular Base Station Antennas, a report is posted as PTA website www.Pta.Gov.Pk which is an advisory report of Ministry of information Technology, Govt. of Pakistan which provides that negative impacts resulting from such an expansion of cellular networks can basically be categorized into three areas. The most obvious and visible of the negative effects of the rapid growth of base station towers is perhaps the aesthetic impact of the structure on environment. Currently each cellular operator has its own network configuration and planning process and therefore multiple antennas can be frequently seen in the urban areas that are in close vicinity of each other. One of the motives behind the encouragement of cellular infrastructure sharing mentioned in the Cellular Mobile policy of the Government was to reduce the environmental effects of rapidly forecasted growth of cellular base stations. There are other obvious advantages associated with the sharing of infrastructure e.g. Quick rollout and sharing of costs between operators etc. Worldwide in all the mature markets the need for such kind of sharing has been realized and several countries have system in place where either sharing is mandatory or a third party provides the necessary tower co-location to all the cellular mobile operators. Another relatively lower but still real threat is from the accidents that could occur invoking these base stations e.g. Tower crashes in event of storms and gusty winds. Sometimes when these high towers are located close to power lines there is a strong possibility of tower accident affecting the power supply. Same is the case for the cellular towers mounted on short towers on the roofs of buildings."

20. The International Association for Research on Cancer (IARC) has concluded that RF radiation from cell towers is a class 2B carcinogen, meaning that it is possibly carcinogenic to humans with increased risk of certain types like brain cancer. The Bio Initiative Report written in 2012 by a team of international scientists has stated that EMF exposure including exposure from masts and towers are health hazards. The threat from cell phone towers is more than that of cell phones due to the constant nature of activity of towers.

21. There are many biological effects of Mobiles towers on human beings. The British Medical Journal recently published a study which states that cell phone tower radiation affects brain in a distressing manner causing irritability, lack of concentration, lack of appetite and sleeping difficulties. It also concluded that lesser the closeness to a cell phone tower, the greater the risk. International Agency for Research on Cancer (IARC) which is part of the World Health Organization says radiation from cell phone handsets and mobile phone towers may cause a type of brain cancer called glioma. 10 or more years of incessant usage of mobile phones may result in a higher risk of acquiring glioma which affects the glial cells and acoustic neuroma (tumour on a nerve which affects hearing). Ipsilateral exposure on the part of the head where the mobile phones are usually held has the highest risk. Cell tower radiation can lead to an increase in mast cells, which can cause itching, pain, edema and erythema. It has also been reported that the RF radiation effect may be hereditary and can get passed on from one generation to another. Experiments conducted on mice revealed that signals from cell phone antenna resulted in the mice becoming less reproductive. DNA breaks in sperm cells caused by cell phone radiation can undergo mutation and lead to cancer.

22. Owing to excessive exposure to mobile tower/phone radiation, there is a greater risk of acquiring several types of cancer such as brain tumour, facial nerve tumours, salivary gland tumours, lymphoma, breast, blood, uveal melanoma, skin and testicular cancer. It also affects other aspects of human metabolism. RF exposure from cell phones and towers can affect patients carrying Pace Makers, Impulse Generators and Implantable Cardiovascular Defibrillators (ICDs) by causing electromagnetic interference (EMI) with the devices and thus disrupting their functioning.

23. The International Journal of Environmental Research and Public Health has published a new study which revealed that radio frequency electromagnetic radiation from cell phone towers can cause diabetes. After examining the effects of EMFs emitted by cell towers on the haemoglobin (HbA1c) of 159 elementary school students of the same nationality, gender, age, cultural, regional, and socio-economic status, Prof. Sultan Ayoub Meo of KSU's College of Medicine reported that the students having more exposure to high RF radiation generated by cell towers had higher levels of HbA1c than the students with low RF radiation exposure. A survey was conducted in France in 2002 on 530 people (270 men, 260 women) of various age groups living in various proximities from cell phone towers. Eighteen different symptoms (Radiofrequency sickness) were studied.

24. The radiation from the cell phone towers is a lethal poison that is slowly impairing people and its severity varies depending upon the proximity, age and sex. The effects are more acute among women than men and its severity increases as proximity to the tower decreases. The intensity of the symptoms is also dependent on age with particular symptoms more prevalent among youth while others are more rampant among elderly. Even though several countries have adopted much stricter radiation norms than the universal guidelines, organizations such as ICNIRP, WHO, FCC. etc. have not suggested stricter safe radiation norms claiming that the radiation from towers is non-hazardous. In this rate, the mobile industry is ought to become another cigarette industry, which constantly kept denying the harmful effects of smoking and now there are millions around the world who suffer from lung cancer and other long term effects of smoking. In fact, mobile tower/phone radiation is deadlier as one cannot see it or smell it, and its effect creeps up on people after a long period of exposure. Blissful ignorance and indifference only adds to this misery and people around the world, both users and non-users alike are absorbing this slow poison without knowing its fatal effect. Sufficient measures must be taken to abolish self-certification by the operators. Measurements should be executed by a trustworthy third party and continuous monitoring must be done. Defaulters must be penalized strictly to ensure the norms are followed explicitly. (With ref, Art., Kanimozhi. G, Hema Shruthi. G and Xiao Zhi Gao, Mobile Tower Radiation Impact on Biological Impairment, International Journal of Civil Engineering and Technology (IJCIET))

25. Environmental laws are made to provide for the protection, conservation, rehabilitation and improvement of the environment for the prevention and control of pollution and promotion of sustainable development. Right to environment that was not injurious to the health or welfare of the people and an environment that protects the present and future generations is prerequisite of the political and social justice and even more intrinsic to the right to life under Constitution of Islamic Republic of Pakistan as well as Azad Jammu and Kashmir Interim Constitution, 1974.

26. The right to life and liberty of person is guaranteed under Article 9 of the Constitution of Islamic Republic of Pakistan and Article 4 of Azad Jammu and Kashmir Interim Constitution, 1974. The language used in both the Articles is same, which reads as under: "No person shall be deprived of life or liberty save in accordance with law."

27. The word "life" has not been defined in the Constitution of Islamic Republic of Pakistan as well as Azad Jammu and Kashmir Interim Constitution, 1974 nor in Azad Jammu and Kashmir Environmental Protection Act, 2000 but its value is admitted and very exceptional as it covers all facts of human existence.

28. According to Oxford dictionary, 'life' means the ability to breathe, grow, produce young, etc. that people, animals and plants have before they die and that objects do not have. In Black's Law Dictionary, 'life' means that state of animals, humans, and plants or of an organized being, in which its natural functions and motions are performed, or in which its organs are capable of performing their functions.

29. The word "life" as used in Article 9, has been elaborated by the apex Court of Pakistan in the Mst. Shehla Zia's case [PLD 1994 SC 693] as under:- "Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. A person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighborhood or at a far-off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal by law he it municipal law or the common law."

30. In the above said case, with regard to the fundamental right to preserve and protect the dignity of man under Article 14, the Hon'ble apex Court of Pakistan further held that: "The fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the world. The Constitution guarantees dignity of man and also right to 'life' under Article 9 and if both are read together, question will, arise whether a person can be said to have dignity of man if his right to life is below bare necessity like without proper food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment. Such questions will arise for consideration which can be dilated upon in more detail in a proper proceeding involving such specific questions."

31. With regard to pollution the Hon'ble apex Court of Pakistan has also observed in the above said case that: "The concern for protecting environment was first internationally recognized when the declaration of United Nations Conference on the Human Environment was adopted at the Stockholm on 16-6-1972. Thereafter it had taken two decades to create awareness and consensus among the countries when in 1992 Rio Declaration was adopted. Pakistan is a signatory to this declaration. The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensus declaration had been sorted out. Environment is an international problem having no frontiers creating trans boundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations while dealing with environmental problems. Coming back to the present subject, it would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence. According to it if there are threats of serious damage, effective measures should be taken to control it and it should not be postponed merely on the ground that scientific research and studies are uncertain and not conclusive. It enshrines the principle that prevention is better than cure. It is a cautious approach to avert a catastrophe at the earliest stage. Pakistan is a developing country. It cannot afford the researches and studies made in developed countries on scientific problems particularly the subject at hand. However, the researches and their conclusions with reference to specific cases are available, the information and knowledge is at hand and we should take benefit out of it. In this background if we consider the problem faced by us in this case, it seems reasonable to take preventive and precautionary measures straightaway instead of maintaining status quo because there is no conclusive fording on the effect of electromagnetic fields on human life. One should not wait for conclusive finding as it may take ages to ford it out and, therefore, measures should be taken to avert any possible danger and for that reason one should not go to scrap the entire scheme but could eke such adjustments, alterations or additions which may ensure safety and security or at least minimize the possible hazards."

32. It is crystal clear from the above mentioned researches, article that exposure to radiations emitting from the cell phone towers causes impairment of, or damage to, human health, which falls within the definition of "adverse environmental effect". According to the case law titled "Messrs Rabbiya Associates v. Messrs Zong (China Mobile)" [PLD 2011 Karachi 132], RF radiations are very harmful for human which cause adverse environmental effect and such threat to life by air and noise pollution that is dangerous to human health and surrounding environment cannot be over looked. Thus, the version of the appellants that there is no adverse environmental effects of BTS towers is against the ground-realities.

33. Another question that whether Environmental Protection agency is competent to issue guidelines regarding installation of BTS towers or not?

34. Azad Jammu and Kashmir Environmental Protection Act, 2000 was promulgated in year 2000. Sections 5, 6, 7 and 32 deals with the Establishment of Azad Jammu and Kashmir Environmental Protection Agency, Function of the agency, Powers of the agency and Power to make Regulations respectively. For the sake of convenience relevant provisions of the above mentioned sections are reproduced as under:

5. ESTABLISHMENT OF THE AZAD JAMMU AND KASHMIR ENVIRONMENTAL PROTECTION AGENCY: 1) The Government shall, by notification in the official Gazette, establish the Azad Jammu and Kashmir Environmental Protection Agency, to exercise the powers and perform the functions assigned to it under the provisions of this Act and the rules and regulations made there under. 2) The Agency shall be headed by a Director General, who shall be appointed by the Government for a term of three years further extendible to another two years, however, for the first three years after the promulgation of this Act, the Government shall assign the powers and functions of Director General of the Agency in Ex-Officio capacity to any suitable officer already working in BPS-20. 3) The Agency shall have such administrative, technical and legal staff as the Government may specify, to be appointed in accordance with such procedure as may be prescribed. 4) The powers and functions of the Agency shall be exercised and performed by the Director-General. 5) The Director-General may by general or special order, delegate any of these powers and functions to staff appointed under subsection (3). 6) For assisting the Agency in the discharge of its functions, the Government may establish Advisory Committees for various sectors, and appoint as members thereof eminent representatives of the relevant sectors, educational institutions, research institutions and non-governmental organizations.

6. Functions of the Agency: 1) The Agency shall;- a) Administer and implement the provisions of this Act and the rules and regulations made there under; b) .................... c) .................... d) .................... e) .................... f) Ensure enforcement of the Environmental Quality Standards; g) Establish standards for the quality of the ambient air, water and land by notification in the official Gazette. Provided that; i. Different standards for discharge or emission from different source and for different areas and conditions may be specified; ii. Certain areas, with the approval of the Council, may exclude from carrying out specific activities, projects from the application of such standards; h) Co-ordinate environmental policies and programs nationally and internationally; i) Establish systems and procedures for surveys, surveillance, monitoring, measurement, examination, investigation, research, inspection and audit to prevent and control pollution, and to estimate the costs of cleaning up pollution and rehabilitating the environment in various sectors; j) Take measures to promote research and the development of science and technology which may contribute to the prevention of pollution, protection of the environment, and sustainable development; k) .................... l) Identify the needs for and initiate legislation in various sectors of the environment; m) Render advice and assistance in environmental matters, including such information and data available with it as may be required for carrying out the purposes of this Act; n) Provided that the disclosure of such information shall be subject to the restrictions contained in the proviso to subsection (3) of section 11; o) Assist the local councils, local authorities, Government Agencies and other persons to implement schemes for the proper disposal of wastes so as to ensure compliance with the standards established by it; p) Provide information and guidance to the public on environmental matters; q) Recommend environmental courses, topics, literature and books for incorporation in the curricula and syllabus of educational institutions; r) Promote public education and awareness of environmental issues through mass media and other means, including seminars and workshops; s) Specify safeguards for the prevention of accidents and disasters which may cause pollution, collaborate with the concerned person in the preparation of contingency plans for control of such accidents and disasters, and co-ordinate implementation of such plans; t) Encourage the formation and working of non- governmental organizations, community organizations and village organizations to prevent and control pollution and promote sustainable development; u) Take or cause to be taken all necessary measures for the protection, conservation, rehabilitation and improvement of the environment, prevention and control of pollution and promotion of sustainable development, and; v) .................... 2) (a) ................. b) .................... c) .................... d) .................... e) .................... f) ....................

7. Powers of the Agency: Subject to the provisions of this Act, the Agency may; a) Lease, purchase, acquire, own, hold, improve, use or otherwise deal in and with any property both movable and immovable; b) Sell, convey, mortgage, pledge, exchange or otherwise dispose off its property and assets; c) Fix and realize fees, rates and charges for rendering any service or providing any facility information or data under this Act or the rules and regulations made there under; d) Enter into contracts, execute instruments, incur liabilities and do all acts or things necessary for proper management and conduct of its business; e) Appoint with the approval of the Government and in accordance with such procedures as may be prescribed, such advisers, experts and consultants as it considers necessary for the efficient performance of its functions on such terms and conditions as it may deem fit; f) Summon and enforce the attendance of any person and require him to supply any information or document needed for the conduct of any inquiry or investigation into any environmental issue; g) Enter and inspect and under the authority of a search warrant issued by the Environmental Tribunal or Environmental Magistrate, search at any reasonable time, any land, building, premises, vehicle or vessel or other place where or in which, there are reasonable grounds to believe that an offence under this Act has been or is being committed; h) Take samples of any material, product article or substance or of the effluent, waste or air pollutant being discharged or emitted or of air, water or land in the vicinity of the discharge or emission; i) Arrange for test and analysis of the samples at a certified laboratory; j) Confiscate any article used in the commission of the offence where the offender is not known or cannot be found within a reasonable time: Provided that the power under clauses (f), (h), (i) and (j) shall be exercised in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), or the rules made under this Act and under the direction of the Environmental Tribunal or Environmental Magistrate.

32. Power to make Regulations: 1) For carrying out the purposes of this Act, the Agency may, by notification in the official Gazette and with the approval of the government, make regulations not inconsistent with the provisions of this Act or the rules made thereunder. 2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for; a) submission of periodical reports, data or information by any Government agency, local authority, or local council in respect of environmental matters; b) preparation of emergency contingency plans for coping with environmental hazards and pollution caused by accidents, natural disasters and calamities; c) appointment of officers, advisors, experts, consultants and employees; d) levy of fees, rates and charges in respect of services rendered, actions taken and schemes implemented; e) monitoring and measurement of discharges and emissions; f) categorization of projects to which and the manner in which section 11 applies; g) laying down of guidelines for preparation of Initial Environmental Examination and Environmental Impact Assessment and development procedures for their filing, review and approval; h) providing procedures for handling hazardous substances; and i) installation of devices in, use of fuels by, and maintenance and testing of motor vehicles for control of air and noise pollution;

35. It is plainly clear from the above provisions of Act, 2000 that Environmental Protection agency is competent to make guidelines to streamline the installation and operation of BTS towers within territory of Azad Jammu and Kashmir.

36. It is evident from the record that the appellant No.1 Pakistan Mobile Communication (Mobilink) has complied with the Environmental Protection Order dated 21-07-2014 and has obtained NOC for almost all of their BTS sites from agency. During the course of arguments, the learned AD legal EPA has produced attested copy of letter dated 14-06-2023 which shows the appellant No. 2 Pakistan Mobile Communication (Ufone) has also applied for issuance of NOC. Similarly it is necessary for the rest of the appellants Nos. 3 to 5 to obtain NOC from agency for operation of their BTS towers within territorial limits of AJ&K.

37. The nutshell of the above discussion is that there is no force in both the appeals. Consequently, both the appeals are dismissed with no order as to the costs. Copy of this judgment be annexed with other connecting file. Both the files be consigned to record. Order announced. MQ/1/(AJ&K)ET Appeals dismissed.