2018 PLP 506 (CLD)

AYESHA A. MALIK, J.--Through this Petition, the Petitioner has impugned order dated 21.7.2017 issued by Respondent No.1, Punjab Environmental Tribunal, Lahore.

2. The facts of the case are that the Petitioner was constructing a control poultry shed under the name of Chaudhary Protein Farm Control Shed at Chak No.8/11-L, Tehsil Chichawatni, District Sahiwal. A notice was issued to the Petitioner under section 21(3)(b) of the Punjab Environmental Protection Act, 1997 ("Act") on 1.3.2017 stating therein that construction of the poultry farm is illegal and in contravention to the provisions of the Act. The Petitioner responded to the show cause notice on 20.4.2017 denying all allegations. In the meanwhile, Respondent No.3, Assistant Director Environment, Sahiwal carried out a site inspection of the poultry farm and issued its report on 24.1.2017 in terms of which it was stated that the land on which the shed is being constructed is agriculture land on which commercial/industrial activity is being undertaken without any permission or conversion of the status of the land. It was also stated in the report that within 100 meters is a residential colony which is in violation of the requirements of the law which prescribes a minimum of 500 meter distance.

3. With respect to the environment approval, it was stated in the report that no environment approval has been sought, hence it was recommended that action be taken against the Petitioner. Notices were issued to the Petitioner by the Environmental Protection Agency ("EPA"), however the Petitioner did not respond. Another complaint was filed by Respondent No.4 before the Environmental Tribunal on 23.5.2017. The Environmental Tribunal took notice of the matter and ultimately issued the impugned order dated 21.7.2017. In terms of the impugned order, the EPA was restrained from granting any approval to the Petitioner with respect to the poultry farm until the matters in issue raised in the complaint were decided. One of the disputes pending before the Environmental Tribunal is with respect to the value of the unit as the Petitioner alleged that he was not required to take any environment approval since his unit fell under Regulation 3 read with Schedule 1 of the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000 ("Regulations"). Subsequent thereof the EPA in compliance with the order issued by the Environmental Tribunal on 19.7.2017 again carried out another site inspection to determine the construction cost of the unit. As per the report 90% of the work is completed and the unit has been converted from a control shed to a semi control shed to reduce cost. Consequently the estimated cost has been reduced from Rs.120,000,000/- to Rs.5,000,000/-. It was also stated in the report that measures should be adopted to prevent adverse effects on the environment which are likely to be caused by the operation of the poultry shed and that there should be some plantation as well to improve the environment of the area.

4. Learned counsel for the Petitioner argued that the Environmental Tribunal has no jurisdiction in the matter as it cannot hear the complaint directly when the matter is pending before the EPA. He also argued that no environmental approval was required as the cost of the project was less than rupees one million which is the basic cost for the purposes of an Initial Environmental Examination ("IEE"). So far as the Environmental Impact Assessment ("EIA") as per section 12 of the Act, it is also not required as the project does not fall under Schedule II of the Regulations. Therefore it was argued that the impugned order is without jurisdiction and illegal.

5. Report and parawise comments have been filed by Respondents Nos.2 and 3 and Respondent No.4. In terms of the arguments made by the Counsel, the Environmental Tribunal acted under the law and passed a restraining order on 21.7.2017 directing Respondent No.2 to refrain from issuing an environmental approval until the next date of hearing along with a direction to the Petitioner for not making his project functional. It was also argued that in terms of the Punjab Poultry Product Act, 2016 ("Poultry Act"), a poultry farm must be at least 500 meter away from nearby human settlement and that the Petitioner's poultry farm was in breach of this requirement. The Counsel argued that the Petitioner's farm is located in an agricultural area without any permission to do commercial/industrial activity and the same would cause an adverse impact on the environment. Further that the poultry farm is being constructed in violation of the Poultry Act.

6. The basic issue in the instant Petition is with respect to the jurisdiction of the Environmental Tribunal and the requirement of IEE and EIA as stipulated in section 12 of the Act read with the Regulations. For ease of reference section 12 of the Act read with Regulations 3 and 4 of the Regulations are reproduced below:

12. Initial environmental examination and environmental impact assessment.

(1) No proponent of a project shall commence construction or operation unless he has filed with the Provincial Agency an initial environmental examination or where the project is likely to cause an adverse environmental effect, an environmental impact assessment, and has obtained from the Provincial Agency approval in respect thereof. (2) The Government Agency shall: (a) review the initial environmental examination and accord its approval, or require submission of an environmental impact assessment by the proponent; or (b) review the environmental impact assessment and accord its approval subject to such conditions as it may deem fit to impose, or require that the environmental impact assessment be re-submitted after such modifications as may be stipulated, or reject the project as being contrary to environmental objectives. (3) Every review of an environmental impact assessment shall be carried out with public participation and no information will be disclosed during the course of such public participation which relates to (i) trade, manufacturing or business activities, processes or techniques of a proprietary nature, or financial, commercial, scientific or technical matters which the proponent has requested should remain confidential, unless for reasons to be recorded in writing, the Director General of the Provincial Agency is of the opinion that the request for confidentiality is not well-founded or the public interest in the disclosure outweighs the possible prejudice to the competitive position of the project or its proponent; or (ii) international relations, national security or maintenance of law and order, except with the consent of the Government; or (iii) matters covered by legal professional privilege. (4) The Provincial Agency shall communicate its approval or otherwise within a period of four months from the date the initial environmental examination or environmental impact assessment is filed complete in all respects in accordance with the prescribed procedure, failing which the initial environmental examination or, as the case may be, the environmental impact assessment shall be deemed to have been approved, to the extent to which it does not contravene the provisions of this Act and the rules and regulations made thereunder. (5) Subject to subsection (4) the Government may in a particular case extend the aforementioned period of four months if the nature of the project so warrants. (6) The provisions of subsections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed. (7) The Provincial Agency shall maintain separate registers for initial environmental examination and environmental impact assessment projects, which shall contain brief particulars of each project and a summary of decisions taken thereon, and which shall be open to inspection by the public at all reasonable hours and the disclosure of information in such registers shall be subject to the restrictions specified in subsection (3). Regulations 3 and 4

3. A proponent of a project falling in any category specified in Schedule I shall file an IEE with the Federal Agency and the provisions of section 12 shall apply to such project.

4. A proponent of a project falling in any category specified in Schedule II shall file an EIA with the Federal Agency and the provisions of section 12 shall apply to such project. In terms of section 12 of the Act, no project shall commence construction or operation unless it has obtained permission from the Provincial Agency 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 an adverse impact on the environment an EIA must be filed. Adverse effect on the environment has been defined in section 2(i) of the Act as follows:- 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 environment effect as may be specified in the regulations. In this case, the contention of the Petitioner is that he is not required to file any IEE or EIA as his project falls below rupees one million, as given in Schedule 1 of the Regulations. Schedule I provides that poultry, livestock, stud and fish farms with a total cost of more than rupees one million requires an IEE. However, irrespective of the requirement given in the Regulations Section 12 clearly mandates that an EIA is to be filed if there is an adverse impact on the environment. The question therefore is whether the poultry farm will have an adverse impact on the environment. In terms of the complaint filed by Respondent No.4, there are two major grievances which show that there is an adverse impact on the environment. The first is that the surrounding area is an agricultural area and the Petitioner has commenced construction of his project without any permission from the competent authority. The second grievance is that the poultry farm is 100 meter from a human settlement and will have an adverse impact on the environment and compromise the health and living conditions of the residents of the area. There is merit in both grounds however, the EPA did not consider any of the aspects of running a controlled or semi controlled poultry shed which will impact the environment. In terms of the information provided by the Respondents, poultry farms are a source of odor and smell as well as flies, rodent and other pests. These can give rise to diseases such as cholera, typhoid, malaria and dengue. Furthermore improper disposal of waste water can pollute the water and soil. The proponent of a project must provide a detailed dead bird management plan which should not adversely impact the environment. Unfortunately both the site reports relied upon failed to consider these aspects which are essential for the establishment of a poultry farm. The close proximity of the poultry farm from human settlement is a cause of great concern. Poultry facilities are undoubtedly a source of odor and smell which adversely affects the life and health of the people living in the vicinity. Flies, rodents and other pests are an additional menace to the local area, its health and well being. Their presence is mainly related to the manner in which the feed is managed and stored for which proper areas must be made and control mechanisms put in place to avoid flies and other pests. Furthermore water pollution and use of pesticides will damage the surface water and ground water and give rise to water borne diseases. Other serious impacts on the environment are the disposal of waste water and dead birds. Both issues call for proper measures to be adopted to ensure minimum impact on the environment. Under the circumstances the EPA must in the first instance look at the impact a project has on the environment, before it considers the cost of the project. In such cases section 12 of the Act is clear that the object of the assessment reports is to ascertain whether there is an adverse impact on the environment. This being mandatory in nature cannot be avoided.

7. In the case cited at Ms. Imrana Tiwana and others v. Province of Punjab and others (2015 CLD 983), a Full Bench of this Court held: 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 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. Review of EIA is not inter parties or an adversarial , exercise but are inquisitorial proceeding 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 experts. In this case the Petitioner commenced construction of his project without an approval from the EPA. The EPA made two site visits but failed to consider the nature of the project and its impact on the environment and instead recommended in a cursory manner, that measures be adopted to prevent an adverse impact on the environment. This direction was given without any mention of the probable causes of the impact on the environment. In this regard a bare review of the Poultry Act reveals that the establishment of a poultry farm has a direct bearing on the environment and therefore will impact the environment. Sections 12, 13, 14 and 15 set out the requirements for establishment of a poultry farm and call for bio-security measures, poultry waste management and reporting in case of poultry disease. All these requirements are directly related to the well being of the local inhabitants and the environment. These requirements directly impact the environment, hence the Petitioner was required to file an EIA prior to the construction of his project.

8. Furthermore, in this case the distance of the Petitioner's poultry farm is 100 meters from a human settlement which is in contravention to the requirement of section 12 of the Poultry Act which clearly stipulates that the poultry farm must be 500 meters from human settlements. This ground in itself was sufficient to restrain the construction of the poultry farm of the Petitioner as it is in contravention to the law. In such a situation, there are no remedial measures which can be adopted as the poultry farm is in close proximity to human settlement putting the health of the residents to risk and polluting the environment.

9. The other ground urged by the counsel for the Petitioner is with respect to the jurisdiction of the Environmental Tribunal on proceeding with the complaint of Respondent No.4. Section 21 of the Act provides for the jurisdiction and powers of the Environmental Tribunal. As per section 21 an Environmental Tribunal can take cognizance of any offence under section 17(1) on a complaint filed by the Provincial Agency or an aggrieved person, who has given notice of not less than 30 days to the Provincial Agency of the alleged contravention and his intention to complain before the Environmental Tribunal. Section 17(1) provides for the penalties imposed if a person contravenes any provisions of sections 11, 12, 13 or 16 or any other order issued thereunder. In this case the contravention alleged is of section 12 and the requirement of filing an IEE or EIA. In fact the Petitioner did not obtain any approvals from the Environmental Protection Agency or the relevant authority, to carry out commercial/industrial activity in an agriculture area. Respondent No.4 issued notice to the Director General, Punjab Environmental Protection Agency, Lahore clearly informing him that he will be filing a complaint before the Environmental Tribunal for redressal of his grievance. The complaint was then filed on 23.5.2017. Therefore as per section 21 of the Act, the Environmental Tribunal has jurisdiction to hear a complaint of an aggrieved person who has issued notice, as required, to the EPA.

10. Under the circumstances no case for interference is made out. Petition is dismissed. MWA/M-31/L Petition dismissed.