Supreme Court of Pakistan: The Division Bench of Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ., heard petition which arose from the Notification dated 08-03-2018 (“Notification”) issued by the Industries, Commerce and Investment Department, Government of the Punjab (“Government”), under sections 3 and 11 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 (“Ordinance”), introducing amendments in Notification dated 17-09-2002 to the effect that establishment of new cement plants, and enlargement and expansion of existing cement plants shall not be allowed in the “Negative Area” falling within the Districts Chakwal and Khushab.
Petitioner, owner of cement manufacturing plant in Kahoon Valley felt wronged by the Notification due to reasons stated below:
- the Provincial Government and its line Department lacked jurisdiction to issue the Notification and only Local Government under the Punjab Local Government Act, 2013 (“Act”) could exercise jurisdiction over matters relating to zoning and classification of land, land use, environment control, water sources and ecological balances;
- the respondents without a detailed scientific study about underground water levels acted with undue haste in issuing the Notification;
- the petitioner was not given the opportunity of hearing under section 3 of the Ordinance read with Articles 4, 9, 10A, 18 and 25 of the Constitution of the Islamic Republic of Pakistan (“Constitution”);
- the petitioner’s right to freedom of trade, business and profession under Article 18 of the Constitution was infringed; and
- the actions of the respondents unreasonably discriminated between the petitioner and other cement manufacturers similarly placed on the basis of materials and information that could not be termed as reasonable or intelligible differentia thereby violating Article 25 of the Constitution.
The Court first took up the question of whether the Provincial Government can declare an area to be a “Negative Area” under the Ordinance. The Court observed that zoning of areas into positive and negative is not absolute. The ban under the
Notification is not etched in stone but may be lifted if the Government is of the view that the valley, in this specific case, stands recharged with water and nature has become resilient to allow sustainable development. The Court held that zoning of areas for the purposes of the Ordinance is not absolute but is subject to change provided such change is necessitated by new circumstances. Hence, the prohibition under the Notification not to establish or enlarge an industrial undertaking in a negative area is not absolute.
The Court was of the view that insofar as the objection of the petitioner that the mandate of zoning of land belongs to the local government was concerned, suffice it to say that the matter involved a trans-district issue which could be dealt with by the Provincial Government exercising the authority conferred by the Ordinance.
Regarding the claim of the petitioner relating to infringement of Article 18 of the Constitution, the Court was of the view that the rights granted under Article 18 of the Constitution were “subject to such qualifications” that have been “prescribed by law”. The Ordinance forbids the setting up of any industrial undertaking except by the prior written permission of the Government. Placing an embargo on establishment and expansion of cement plants in the Negative Area to provide for organized and planned growth of industries in the Province in line with the objectives of the Ordinance does not offend Article 18 of the Constitution.
Next major question was whether the Notification was issued in public interest in line with the objectives of the Ordinance or not.
In 2016, the Secretary, Mines and Minerals Department had informed the Provincial Government that existing cement plants in the Salt Range were causing ecological harm to the area. In this backdrop, the Government decided to inquire into the matter and solicit expert advice. The Consultants found that groundwater table had gone down at an average of 64 feet at various locations, shallow wells (open/dug wells) had been found dried up and, therefore, further installation of new cement plants/expansion of existing cement plants could cause further depletion of groundwater resulting in greater problems for the local people and especially for agriculture. They were of the view that four valleys i.e. Kahoon, Vinhaar, Pail and Padhrar having important scenic and touristic value needed to be protected. The Government concluded that permitting the establishment of new and expansion of existing cement plants would be prejudicial to public interest.
Counsel for the petitioner, had argued that that the petitioner company proposes to expand the existing cement plant by installing a new “zero water” technology cement plant. However, Court found that there was no evidence brought on the record to establish the claim that the new cement plant technology is ‘zero-water’ or even the fact that the petitioner was currently manufacturing cement without any use of water. The Court also noticed that building ponds and storage tanks (a water management project) required an Initial Environmental Examination (IEE)/Environment Impact Assessment (EIA), which does not appear to have been done, casting doubts on legal sustainability of these ponds and storage tanks in the Negative Area. The Court stressed enough on the fact that enlargement of an existing cement plant in a negative area attracts the well established principle of international environmental law called the Precautionary Principle, reflected in Principle 10 of the Rio Declaration, 1992. The principle 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.”
Man and his environment each need to compromise for the better of both and this peaceful co-existence requires that the law treats environmental objects as holders of legal rights.
The Court further discussed importance of Water and Climate justice in context with the fragility of the Negative Area. Only by devising and implementing appropriate adaptation measures will it be possible to ensure water, food and energy security for the country. The goal of the Policy is to ensure that climate change is mainstreamed in the economically and socially vulnerable sectors of the economy and to steer Pakistan towards climate resilient development. The Notification, in the current facts of the case, is a climate resilient measure and in step with the National Climate Change Policy and the Constitution.
This Court and the Courts around the globe have a role to play in reducing the effects of climate change for our generation and for the generations to come. Through our pen and jurisprudential fiat, we need to decolonize our future generations from the wrath of climate change, by upholding climate justice at all times.
The Court finally dismissed the petition and rejected all the contentions given by the petitioner holding that Notification dated 08-03-2018 was in accordance with the provisions of the Ordinance and negative area can be planned and designed banning industrial activity within its bounds. The Petitioner company was not allowed to enlarge or enhance the capacity of its existing cement plant till such time that the Negative Area subsisted.[D. G. Khan Cement Company Ltd. v. Government of Punjab, C.P.1290-L/2019, announced on 15-04-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
For the petitioner(s): Mr Salman Aslam Butt, ASC.
For the respondent(s): Ms Aliya Ejaz, Asstt. A.G.
Dr. Khurram Shahzad, D.G. EPA.
- Nawaz Manik, Director Law, EPA.
- Younas Zahid, Dy. Director.
Fawad Ali, Dy. Director, EPA (Chakwal).
Kashid Sajjan, Asstt. Legal, EPA.
Rizwan Saqib Bajwa, Manager GTS.