The Supreme Court upheld the Lahore High Court refraining order to suspend Industries, Commerce and Investment Department of Punjab notification that had placed embargo over Nishat Group’ DG Khan Cement factory expansion in Chakwal district, declaring the vicinity as ‘Negative Area’ for industrial undertakings at the moment.
Three years ago, the department issued a notification under Sections 3 and 11 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963. The department has introduced an amendment in the Notification of September 2002. The notification reads as, “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.
Top court’s Justice Syed Mansoor Ali Shah has authored a 17-page verdict in the matter. As DG Khan Cement Company has assailed the LHC order. The judge ruled, “Zoning of the Province into positive and negative areas is a mean towards achieving organized and planned industrial growth without impinging on the social, environmental, ecological, civic and economic interests of the locals”.
Earlier, assailing the legality of the instrument before LHC in 2018, the cement company claimed the provincial government has no jurisdiction to issue the notification. The company’s counsel also made a point that it is the prerogative of local government under the Punjab Local Government Act, 2013 to exercise jurisdiction over matters relating to zoning and classification of land, land use, environment control, water sources and ecological balances.
Upon rejection of the writ petition against the Notification before LHC, DG Khan Cement Company’s lawyer invoked the top court jurisdiction saying his client owns and runs a cement manufacturing plant in Kahoon Valley in the Salt Range at Khairpur, District Chakwal. He opposed the Notification saying that the provincial department issued the Notification in haste without conducted a scientific study about underground water levels in the area. The counsel further alleged the concerned authorities didn’t provide an opportunity of hearing to the cement factory saying his client’s constitutional right to freedom of trade, business, and profession has also been infringed.
He contended that actions of the provincial Industries department 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 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” Supreme Court
The bench holds that zoning of areas for the purposes of the Ordinance is not absolute but is subject to change. “Hence, the prohibition under the Notification not to establish or enlarge an industrial undertaking in a negative area is not absolute”, the bench ruled.
The bench ruled that 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”.
The bench said that the cement company is not allowed to enlarge or enhance the capacity of its existing cement plant till such time that the Negative Area subsists. The bench uphold the LHC order in the matter and dismissed the appeal saying, “In these circumstances, we uphold the Notification.
