2018 PLP 1454 (CLD)

United Feed Pvt. Limited has filed this appeal against EPO dated 08.04.2016 issued by the EPA. That EPO was based on complaint filed by respondent No. 3 to Muhammad Naeem Arif Principal of Muslim College, Billi Wala, Multan. It was alleged that the MEPA Rice Mills, now converted in poultry feed factory, is using animal intestines, creating havoc, bad smell amongst the 2000 students of the college and request was made to initiate action under environmental law against the unit. Upon receiving this complaint Zafar Rehman Inspector was deputed to visit the site and prepare SIR. He made inspection of the unit on 15.02.2016 and it was reported by him that there is violation of section 12 of the PEPA-1997. It was reported that Haji Muhammad Asghar established the factory under the name and style of MIPA Rice Mills. EPA Punjab took cognizance during construction phase for not taking environmental approval and issued EPO on 09.04.2014 with following direction. "Stop any further constructions of the unit and take necessary measures to regularize the violation of section 12 of the ACT ibid from the competent forum within 30 days."

2. EPO was received by the proponent of MIPA, Rice Mills on 18.09.2014 Non-compliance Report of the EPO was reported on 29.11.2014. It was further reported that Rice Mill converted into manufacturing unit of feed of chicks under the name and style of Messrs United Feeds (Pvt.) Ltd. and that too had not obtained environmental approval from the EPA. Report was forwarded for issuance for EPO to stop operational activities of the unit. It was due to severe pollution caused by huge quantum of stream causing odour nausea/vomiting within distance of 1-2 km generated during poultry feed manufacturing process to save environment and health of the community/students of Muslim College.

3. Report further clarified that the area is declared as negative area by the District Government Multan for establishment of Industrial Unit. The unit was reported in manufacturing the poultry feed by using Maize, Rice, Soya Beans and Sun Flower Beans with addition of certain minerals. Seeds were crushed in powdered form and cooked with the supply of steam from boiler. During this process to give the material the shape of grains, steam absorbs the smell of the gained material and such polluted steam is released in the atmosphere from of pipe of 12" dia and that huge volume of smell in the form of obnoxious steam is released into the ambit air making it polluted and degrading its quality to the extent of unfit for breathing for 2000 students and college management, directly suffering from tile polluted air. It was recommended that since the management of the factory had not made any arrangement to control the smell produced during the process therefore the present site not feasible for living point of view as it is causing unrest and discomfort to the surrounding community, posing serious threat to the life and health.

4. On the basis of that report EPO was issued on 8.4.2016 for following violations;- "i. You have not obtained Environmental Approval from EPA Punjab for the establishment of your Feed Mills, you have failed to comply with provisions of section

12. Hence violation of section 12 has been committed. ii. The area in which United Feed Mills has been made operational is negative area for establishment of industrial unit declared by City District Government, Multan i.e. industrial unit cannot be established in this area, (Notification No. DO(E&IP) / MN/ NEG.Area / 05 / 1020 dated 08.06.2011. iii. A huge volume for smell/odour in the form of obnoxious steam is being released into ambient air which makes the ambient air polluted and degrading its quality to the extent of unfit for breathing within circumference of 1-2 Km around the unit depending upon the wind speed and direction. This polluted air is potential source of vomiting/nausea in the citizens living thereby, in the surrounding communities and passing from the Multan-Bahawalpur Road. iv. The Muslim College Science and Commerce is located on the other side of the Bahawalpur Road opposite to the factory. The college has the students of more than 2000 and the students and college management are directly suffering from the smell/odour of the factory. v. You have not made adequate arrangements to control the smell/odour produced during the process." This EPO is impugned in this appeal. Non compliance of EPO was reported 20.04.2016 and instant appeal was filed on 04.05.2016. It was admitted for regular hearing on 26.04.2016.

5. During pendency of this appeal 2nd appeal No. 26/2016 was filed challenging order dated 06.06.2016 through which the unit of the appellant was sealed. On 20.6.2016, as an interim relief, unit was de-sealed subject to taking corrective measures. On 20.07.2017 2nd appeal was withdrawn on the statement of counsel for the appellant that EPA has withdrawn the order dated 06.06.2016 and grievance of the appellant had been redressed.

6. Learned counsel for the appellant submits that the unit is manufacturing poultry feed which is not included in the schedule 1 and 2 of IEE/EIA Regulations 2000 hence obtaining of environmental approval is not mandatory therefore violation of section 12 is not applicable. Further submits that corrective measures have been adopted and the compliance of the EPO has been made by the proponent by installing a pipe which dispersed the stream up-to the height of 50 feet. Submits that there are no standard of smell notified by the EPA to determine any violation. Argued that there is only one college on the Bahawalpur Road and there are number of industrial units situated there since its development and all the industries on the Bahawalpur Road cannot be removed for this college. Lastly argued that unit maintains best hygiene practices by use of best quality of ingredient like Maize, Rice, Soya bean, Canola Beans and vegetable oil etc. and prays for the acceptance of the appeal.

7. On the other hand learned Law Officer and learned counsel for the respondent No. 3 argued that the grievance of the appellant has been redressed as agency has withdrawn the order 6.6.2016 and no cause of action is left with the appellant to pursue this appeal. Submits that connected appeal was also withdrawn by the appellant on this ground. Argued that unit is causing adverse environmental damage in the area as reflected in the SIR. Firstly the unit was established as Rice Mill in a Negative Area without obtaining environmental approval from the agency. When agency took cognizance and issued an EPO, Rice Mill was converted into United Feed of manufacturing chicken feed and that too without obtaining environmental approval. Submits that Appellant himself admitted in memo of appeal, in ground V, that unit uses best quality ingredients like Maze. Soyabean Meal. Rice, Canola Meal, vegetable Oil etc therefore for storage of these ingredients/agricultural products the environmental approval was necessary from the EPA. 8 Term environment, as per the Act, includes: (a) air, water and land; (b) all layers of the atmosphere; (c) all organic and inorganic matters and living organisms; (d) the ecosystem and ecological relationships; (e) buildings, structures, roads, facilities and works; (f) all social and economic conditions affecting community life; and (g) Inter-relationships between any of the factors in sub-clauses (a) to (f)

9. PEPA prohibits discharge of any effluent or waste or air pollutant or noise in an amount: concentration or level which is in excess of the Environmental Quality Standards. One of its environmental examination, which needs to be done before a project is undertaken in order to assess the risks the project may pose to the environment. In an Indian Case, Bandhua Mukti Morcha v. Union of India and others 1984 SCR (2) 67 Justice Bhagwati noted to this effect that: "Strict adherence to the adversarial procedure can sometimes lead to injustice.... it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring necessary material before the Court for the purpose of securing enforcement of their Fundamental Rights."

10. The landmark public interest environmental litigation is considered to be Shehla Zia v. WAPDA PLD 1994 SC

693. This case is important for quite a few reasons. Firstly, the honorable Supreme Court broadened the right to life (Article 9) to include the right to clean environment and made the following observation: "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." Secondly, the honorable Court observed that a balance needs to be struck between the rights of the citizens and the economic progress and prosperity of the country. Thus, the Court highlighted that a "policy of sustainable development" shall be adopted. Thirdly, the Court gave weight-age to expert opinion and the importance of research in technical matters. Lastly, the Supreme Court introduced the precautionary principle in the Pakistani jurisprudence. This was adopted from the Rio Declaration albeit it is not binding. The said Principle 15 of Rio Declaration provides: "...Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation."

11. In recent case of Ali Steel Industry v. Government of KPK 2016 CLD 569 reiterated the constitutional nature of the environment rights: 'Right to environment that is not harmful to the health or well being of the people and an environment that protects the present and future generations is an essential part of political and social justice and even more integrated to the right to life and dignity under our constitution'

12. The court reaffirmed the importance of environmental justice and need to use precautionary and preventive measures to ensure the protection of rights under Articles 9 and 14 of the Constitution of Pakistan. Even though the KPK Environmental Protection Act 2014 did not extend to PATA the court held that no illegality was found with respect to the sealing of the premises or the direction of stoppage to the petitioner. The court stressed on the duty to combat environmental degradation.

13. In terms of section 12 of the Act no project shall commence the construction or operation unless it has obtained permissions of the EPA after having filed either an IEE or EIA. The regulations provide for the instances when an IEE is to be filed, however section 12 clearly mandates that if a project has adverse effect on the environment an EIA must be filed. In this case the contention of the appellant is that he is not required to file IEE or EIA as his project does not find mention in Schedule 1 of the Review of IEE and EIA Regulations 2000. The contention of the appellant is not correct. The project does fall in the schedule 1 as the project involve repacking, formulation or ware house of agricultural products. Firstly the unit was established as Rice Mill without obtaining environmental approval from the agency. When agency took cognizance and issued an EPO, Rice Mill was converted into United Feed of manufacturing chicken feed and that too without obtaining environmental approval. Appellant himself admitted in memo of appeal in ground V that unit uses best quality ingredients like Maze, Soyabean Meal, Rice, Canola Meal, vegetable Oil etc. This involves storage. repacking and formulation of agricultural products therefore environmental approval was necessary from the EPA.

14. According to SIR area is declared as negative area by the District Government Multan for establishment of Industrial Unit. The unit is involved in manufacturing the poultry feed by using agricultural products creating adverse environmental effect. EPA must look at the impact of the project has on the environment. This is mandatory and cannot be avoided.

15. In 2015 CLD 983 Ms. Imrana Tiwana Case Hon'ble Lahore High Court observed that EIA is nature's first man made check post, nothing adverse to the environment is allowed to pass through. It is for this reason that environmental assessment is an onerous function. It was further held that it is through the tool of EIA that EPA gets to regulate and protect the environment and as a result the life, health, dignity and well being of the people who inhabit the environment. Environmental assessment is therefore a substantive exercise as every step in this process cautiously guards the fundamental rights of the people. It was held that review of EIA in not inter parties or an adversarial exercise but are inquisitorial proceedings carried out under the public gaze and open to public scrutiny. The review process is incomplete without effective public participation and technical advice of the expert. 17(sic.) This Google Satellite Map view of the site depicts real picture. How there can be a balancing interest between right to development and the right to life of the current as well as future generation. Anyone can see the difference across the road in this map.

18. Appellant did not obtain any approval from the Environmental Protection Agency on two occasions. He started Rice Mill without approval and Agency took cognizance and issued an EPO. Then appellant started the current business and that too without environmental approval. Unit of the appellant has to go through the nature's first man-made check post of IEE and EIA. This is mandatory and cannot be avoided especially when in the SIR there are allegations of damage to the environment. This tribunal finds no illegality in the act of the agency taking cognizance and issuing impugned EPO. This appeal has no merits and is dismissed. HBT/4/PET Appeal dismissed.