Firm seeks dismissal of appeal against EIA of Malir Expressway

Published October 2, 2022
Development work is under way at the Malir river.—PPI
Development work is under way at the Malir river.—PPI

KARACHI: A private firm undertaking the controversial Malir Expressway project has informed an environmental tribunal that the director general of the Sindh Environmental Protection Agency (Sepa) did not issue any ‘fresh’ Environmental Impact Assessment (EIA) approval in favour of the project.

In a rejoinder filed before the Environmental Protection Tribunal, M/s Malir Expressway Limited stated: “It is denied that there is any new approval or that the approval letter dated June 10, 2022 is illegal, an abuse of authority or interference in the process of legal proceedings.”

The response of the construction firm came on appellants’ contention that Sepa chief reissued the EIA approval of the controversial project despite the fact that a deputy director had earlier in April issued the same.

After taking the rejoinder on record, the tribunal’s head, retired Justice Nisar Ahmed Sheikh, fixed the matter on Oct 19 for hearing final arguments from the counsel for the appellants, the respondent construction firm and Sepa.

Says appellants, not the firm, relying upon technicalities

In the rejoinder, the construction firm maintained that the said letter was issued in continuation of the DG’s earlier approval of the EIA, which was evident from the communication letter dated June 6, 2022, the relevant note sheet and the reply to the memo of appeal signed by the Sepa chief.

It further maintained that the subsequent letter dated June 10 had not only been issued by way of abundant caution to be in line with the strict letter of the incumbent tribunal’s dictate in the case of Arif Belgaumi and to remove any doubts as to the impugned EIA approval dated April 6 being issued without the approval and dictate of the DG.

The company argued that the curable matters/defects must never be allowed in interrupt projects, especially when curative steps had been taken. It said allegations that Sepa acted in disregard to the law was absurd given that it had taken steps to comply with dictates of the tribunal by way of an abundant caution.

“Without prejudice, if the appellants are considering the same as a separate approval, it is worth mentioning that the appellants have failed to file any appeal against the same; any such relief stands hopelessly time barred,” the company argued.

The company also denied the appellants contention that it was trying to escape the consequences or that it gave any false undertakings or affidavits and also denied that the EIA was flawed, marred with misrepresentations and incorrect date.

“No such flaw, misrepresentation or environmental concern has been highlighted in the Appeal or the Rejoinder and instead the Appellants are attempting to build a case on illegal technicalities,” the firm said, alleging: “This in itself shows that the appeal is nothing more than a bid to harass the answering respondent from undertaking their project aimed at the public good and funded through the public funds.”

While also denying other objections by the appellants, the company said their appeal against the grant of EIA approval for the Malir Expressway project was liable to be dismissed forthwith with regard to exemplary costs in favour of the answering respondent.

The rejoinder, filed through the company’s representative Tanveer Ahmed Khan, stated that the tribunal had on Sept 15 granted the appellants limited permission to file a rejoinder to the reply filed by the M/s Malir Expressway Limited contents of which were only to “answer the latter of approval dated June 10, 2022 signed by the Director General, SEPA”.

The respondent firm denied that it had made any legally and factually incorrect statements for misguiding the tribunal or that any of the statements require correction.

Denying the appellants’ argument that their appeal was filed within the stipulated time, the respondent said the appeal was time barred. It also denied that there was any admission that the “date of communication” of the impugned approval was April 24, 2022.

The counsel admitted that the first public hearing scheduled on Nov 29, 2021 was postponed on the request of the answering company, and the same was rescheduled by Sepa after a significant delay on its part and not as a result of any delay caused by the answering respondent.

“Accordingly, the entitlement of deemed approval as provided under Section 17(4) of the SEPA Act would still be applicable and the EIA must be deemed to have been approved on 12.02.2022. In such circumstances, the appeal is barred by three months”, the company claimed.

It denied that the appellants’ objection of trying to narrowing the scope and purpose of the Sepa Act, saying its pleadings were based on plain language of the Act.

The company denied that there was a settled law that in the environmental matters the locus standi of the appealing party was not strictly applied, adding that Section 27 mandates that an appeal can be filed by an “aggrieved person”.

The company insisted that the appellants had failed to show how they were aggrieved persons, as not a single adverse impact of the environment was pleaded let alone how the appellants would be aggrieved should be the project achieve completion and road built.

It also denied to attempting to hide behind the technicalities saying that the situation was quite reverse as the appellants themselves were relying upon technicalities, which at best were curable defects.

Published in Dawn, October 2nd, 2022

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