Order Sheet
IN THE HIGH COURT OF SINDH, KARACHI
High Court Appeal No. 131 of 2014
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Date |
Order with signature of Judge |
1. For orders on CMA No.1746/2014 :
2. For orders on office objection and reply of advocate as at ‘A’ :
3. For Katcha Peshi :
4. For hearing of CMA No.1215/2014 :
Mr. Farooq H. Naek, advocate for the appellant.
M/S Abid S. Zuberi, Malik Naeem Iqbal and Ejaz Khattak,
advocates for respondent No.2.
Mr. Miran Muhammad Shah, Additional Advocate General Sindh.
Dates of hearing : 02.09.2014 and 15.09.2014
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This appeal is directed against the order passed by a learned single Judge of this Court on 29.04.2014 in Suit No.538/2014 filed by respondent No.2 against the appellant and respondents 1 and 3 to 7. Through the impugned order, C.M.A. No.4314/2014 filed by the plaintiff / respondent No.2 was allowed and all construction in relation to or touching upon the project in question was restrained and stopped forthwith. While allowing the said application, following observation was made in the impugned order :
“However, nothing in this order shall prevent KMC, as proponent, from submitting an EIA for consideration by the Agency. If such an EIA is submitted it must be accorded top priority. The Agency must deal with the EIA while acting strictly in accordance with law and adhering to the provisions of the 1997 Act and the 2000 Regulations including, in particular, as identified and explained herein above. If after such consideration, the EIA is approved (whether with or without conditions) KMC shall be at liberty to move appropriate application in this Suit for recall and vacation of the order made above.”
On 02.09.2014, Mr. Farooq H. Naek, learned counsel for the appellant, stated that the Pakistan Environmental Protection Act, 1997, was not in the field when the Suit was filed or when the impugned order was passed ; and, the aforesaid Act was superseded by the Sindh Environment Protection Act, 2014, which came into force prior to the passing of the impugned order. It was contended by the learned counsel that the impugned order is per incuriam inasmuch as the same was passed keeping in view the provisions of the Act of 1997 and by ignoring the provisions of the Act of 2014 which was the relevant law and was in the field on the relevant date. In view of the above, the learned
counsel requested that he may be allowed to make his submissions in the above context first. Mr. Khalid Javed Khan, learned counsel for respondent No.7, supported the above contention of Mr. Naek. At their joint request and with the consent of the learned counsel for the other respondents, the learned counsel were heard at length on 02.09.2014 whereafter the matter was reserved for orders.
During the course of hearing, it was conceded by the learned counsel for the appellant that after passing of the impugned order, the appellant applied for an EIA (environmental impact assessment) which was granted by the Agency / competent authority. It was also conceded by him that after the grant of an EIA in its favour, the appellant filed an application in the Suit for the recall and vacation of the impugned order, as observed therein by the learned single Judge. He stated that the said application is still pending as the EIA has been suspended by a learned Division Bench of this Court in Constitutional Petition No. D-4192/2014 filed by respondent No.2. While examining the matter in detail, we were of the tentative opinion that this petition has become infructuous in view of the above development. Since this aspect of the case was not argued before us, we deemed it necessary to afford an opportunity of hearing to the learned counsel for the appellant to satisfy us about the maintainability of this petition. We, therefore, directed the office to fix this matter for rehearing.
Mr. Farooq H. Naek, learned counsel for the appellant, reiterated his earlier submissions that the impugned order is per incuriam as it was passed in view of the provisions of the Act of 1997 without noticing that the said Act had ceased to exist and the Act of 2014 was in the field on the relevant date. Additionally, he submitted that as the impugned order, being per incuriam, is illegal, the entire superstructure built thereon is of no legal effect. He argued that even if the appellant has acted upon the impugned order by applying for and obtaining the EIA and by filing the application for the recall and vacation of the impugned order, such acts by the appellant will not cure the illegality and defect in the impugned order ; and, the same cannot be allowed to remain in the field.
On the other hand, Mr. Abid S. Zuberi, learned counsel for respondent No.2, contended that the Act of 2014 came into force on 20.03.2014 ; whereas, the appellant applied for IEE (initial environmental examination) on 11.03.2014 under the Act of 1997 ; the same was accorded by the competent authority on 18.03.2014 under the Act of 1997 ; and, the Act of 2014 was not in existence on any of the above dates. He further submitted that the Suit was filed by respondent No.2 challenging the IEE granted to the appellant under the Act of 1997, the construction that was being raised by the appellant in pursuance thereof, and that the EIA had not been obtained by the appellant. The learned counsel defended the impugned order by submitting that the same is not per incuriam in view of the above admitted position. He argued that now as the appellant itself has obtained the EIA and has also applied before the learned single Judge for the recall and vacation of the impugned order, there is no justification to pursue this appeal.
Perusal of the impugned order shows that it was held therein that the project in question required an EIA which had not been obtained by the appellant. It is an admitted position that after passing of the impugned order, the appellant applied to the Agency for the grant of an EIA which was granted in its favour ; and, after the grant of an EIA, the appellant has already moved an application in the Suit, which is pending, for the recall and vacation of the impugned order as observed therein. Though the order passed by the learned single Judge has been impugned through this appeal, however, by applying for an EIA and by filing the application in pursuance thereof for the recall and vacation of the impugned order, the appellant has in fact accepted the impugned order and has already availed the remedy provided therein. The question whether the injunction granted by the impugned order is liable to be recalled / vacated or not can only be decided now in the Suit on the said application filed by the appellant. The relief sought in this appeal for setting aside the impugned order cannot be granted as the very basis thereof, that is, the absence of an EIA, does not exist anymore. We are of the considered opinion that this appeal has become infructuous in view of the above noted admitted subsequent developments and the question of the impugned order being per incuriam or not is now merely academic. Accordingly, the appeal is disposed of along with the listed applications, as having become infructuous.
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