Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 22.10.2013
Date of Decision: 07.11.2013
+ WP(C) No.3141 of 2012 CM No.6753 of 2012 (Stay)
MAHENDRA PANDEY & ANR. ....Petitioners
Through: Ms. Ruchi Kohli, Ms. Vidushi &
Mr. Yash Mishra, Advs.
Versus
SECRETARY, MINISTRY OF
ENVIRONMENT & FORESTS AND ORS. ....Respondents
Through: Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC & Mr. Vineet,
Adv. for the UOI.
Mr. Sandeeep Prabhakar, Mr. Amit
Kumar & Mr. Pratap Behra, Advs. for
R-3, 4 & 5.
+ WP(C) No.7034 of 2012
RANI GUPTA ....Petitioner
Through: Ms. Ruchi Kohli, Ms. Vidushi &
Mr. Yash Mishra, Advs.
Versus
SECRETARY, MINISTRY OF
ENVIRONMENT & FORESTS AND ORS. ....Respondents
Through: Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC & Mr. Vineet,
Adv. for the UOI.
W.P.(C) No.3141 of 2012 & connected matters Page 1 of 19
Mr. Sandeeep Prabhakar, Mr. Amit
Kumar & Mr. Pratap Behra, Advs. for
R-3, 4 & 5.
+ WP(C) No.103 of 2013
MIN MEC CONSULTANCY PVT. LTD. ....Petitioner
Through: Ms. Ruchi Kohli, Ms. Vidushi &
Mr. Yash Mishra, Advs.
Versus
SECRETARY, MINISTRY OF
ENVIRONMENT & FORESTS AND ORS. ....Respondents
Through: Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC & Mr. Vineet,
Adv. for the UOI.
Mr. Sandeeep Prabhakar, Mr. Amit
Kumar & Mr. Pratap Behra, Advs. for
R-3, 4 & 5.
+ WP(C) No.2765 of 2013
EPSILON PROJECTS PVT. LTD. ....Petitioner
Through: Ms. Ruchi Kohli, Ms. Vidushi &
Mr. Yash Mishra, Advs.
Versus
MINISTRY OF ENVIRONMENT &
FORESTS AND ORS. ....Respondents
Through: Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC & Mr. Vineet,
Adv. for the UOI.
W.P.(C) No.3141 of 2012 & connected matters Page 2 of 19
Mr. Sandeeep Prabhakar, Mr. Amit
Kumar & Mr. Pratap Behra, Advs. for
R-3, 4 & 5.
+ WP(C) No.3648 of 2013
DR. YASH PAUL SHARMA ....Petitioner
Through: Ms. Ruchi Kohli, Ms. Vidushi &
Mr. Yash Mishra, Advs.
Versus
MINISTRY OF ENVIRONMENT &
FORESTS AND ORS. ....Respondents
Through: Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC & Mr. Vineet,
Adv. for the UOI.
Mr. Sandeeep Prabhakar, Mr. Amit
Kumar & Mr. Pratap Behra, Advs. for
R-3, 4 & 5.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J.
The Environment (Protection) Act, 1986 was enacted by the
Parliament with a view to provide protection and improvement of
environment and matters connected thereto. Pursuant to the National
Environment Policy of the Government of India and in exercise of the
powers conferred upon it by sub-section (1), clause (v) of sub-section
(2) of Section 3 of the Act read with clause (d) of sub-rule (3) of Rule 5
of the Environment (Protection) Rules, 1986, the Government of India
W.P.(C) No.3141 of 2012 & connected matters Page 3 of 19
issued a notification dated 14.09.2006 inter alia directing that from the
date of publication of the said notice, the required construction of new
projects or activities or the expansion or modernization of existing
projects or activities listed in the Schedule to the notification entailing
capacity addition with change in process and/or technology shall be
undertaken only after prior environmental clearance is taken from the
Central Government or as the case may be from the State Level
Environment Impact Assessment Authority duly constituted by the
Central Government under sub-section (3) of Section 3 of the said Act
in accordance with the procedure specified in the said notification. The
Environment Impact Assessment (EIA), therefore, is now a statutory
requirement for a large number of developmental and industrial
activities. The person seeking to set up or expand a project, which
needs prior environmental clearance from the Central Government or
State or Union Territory Level Environment Impact Assessment
Authority, is required to submit an EIA report which it may prepare
itself or it may engage an EIA consultant for the purpose.
2. It was found by Government of India that EIA being submitted
for the purpose of obtaining Environmental Clearance were not up to the
mark and suffered several deficiencies such as (a) Improper/inadequate
scoping for the EIA (b) Consultants not having adequate understanding
for developing EIAs. (c) Poor quality of inputs to EIAs (d) No checks
on the competence of EIA Consultants (e) No liability of EIA
Consultants. A need, therefore, was felt for accreditation of consultants
so as to ensure submission of Quality EIA reports. An OM dated
02.12.2009 was, therefore, issued by the Government of India, Ministry
of Environment and Forests requiring for accreditation of EIA
W.P.(C) No.3141 of 2012 & connected matters Page 4 of 19
consultant with Quality Council of India (QCI) or National
Accreditation Board of Education and Training (NABET), so as to
ensure that good quality EIA reports are prepared by experts possessing
requisite facilities such as laboratories for testing of samples, qualified
staff etc. All the consultants/public sector undertakings working in the
area of Environment Impact Assessment were required to get
themselves registered under the scheme of accreditation and registration
of the NABET/QCI. It was further directed that QCI would put in place
a detailed procedure for registration of consultants, maintaining full
transparency in the procedure followed for accreditation . It was also
decided that no EIA/EMP report prepared by the consultants who are
not registered with NABET/QCI shall be considered by the Government
after 30.06.2010.
Vide OM dated 18.03.2010, the Government emphasized upon all
the individuals/firms and organizations, including Government
Associations, Universities and PSUs working in the area of EIA to apply
and get registered under the above-referred scheme. They were also
intimated that the detailed procedure in this regard was available on the
website of NABET/QCI. Vide OM dated 28.06.2010, 157 consultants,
who had applied to QCI for accreditation/registration, were permitted to
appear before the State Level Expert Appraisal Committee/State
Environmental Impact Assessment Authority (SLEAC/SEIAA) for
category ‘B’ projects and Expert Appraisal Committee (EAC) for
category ‘A’ projects, up to 31.12.2010. This was followed by OM
dated 01.11.2010 permitting 265 consultants to appear before the
aforesaid Committee/Authority. Vide OM dated 31.12.2010, the
Scheme was further extended till 30.06.2011 for those who had already
W.P.(C) No.3141 of 2012 & connected matters Page 5 of 19
applied up to 30.09.2010 and those who had not applied up to
30.09.2010 were debarred from appearing before the EAC/SLEAC. The
final Scheme for accreditation was prepared vide OMs dated 30.06.2011
and 30.09.2011.
3. The petitioners before this Court claim to be EIA Consultants,
who have not been accredited/registered with QCI/NABET. They are
challenging the validity of the OMs dated 02.12.2009, 18.03.2010,
28.06.2010, 01.11.2010, 31.12.2010, 30.06.2011 and 30.09.2011
primarily on the following grounds:
(i) an Authority in terms of Section 3(3) of the Act for the purpose of
exercising and performing the powers and functions of the Central
Government and for taking measures with respect to the matters referred
to in sub-section (2) of Section 3 can be constituted only by way of an
order published in the Official Gazette, whereas the OM dated
02.12.2009 has not been published in the Official Gazette;
(ii) the power to constitute the aforesaid authority cannot be delegated;
(iii) the powers of the Central Government cannot be delegated, except
by way of notification published in the Official Gazette;
(iv) even the rules to regulate environmental pollution in terms of
Section 6 of the Act can be made only by way of notification published
in the official gazette, whereas none of the impugned OMs has been
notified in the Gazette; and
(v) though the rule making power of the Act under Section 25 of the Act
cannot be delegated, the impugned OMs have the effect of delegating
such powers to QCI/NABET.
4. The NABET/QCI in the meeting of the Accreditation Committee
held on 7.10.2012 inter alia rejected the application of Min Mec
W.P.(C) No.3141 of 2012 & connected matters Page 6 of 19
Consultancy Pvt. Ltd., petitioner in WP (C) No.103/2013, for
empanelment. The Committee also decided that a fresh application will
not be entertained for a period of one (1) year from the date of the
decision. The aforesaid petitioner, therefore, is also challenging the
decision of the Accreditation Committee rejecting its application for
empanelment and debarring it from submitting a fresh application for a
period of one (1) year from the date of the decision.
5. In its meeting held on 10.1.2012, the Accreditation Committee
rejected the application of Shri Environmental Technology Institute, a
proprietorship concern of Rani Gupta, petitioner in WP (C)
No.7034/2012, for accreditation on the ground that only one in-house
expert was recommended by the assessors and, therefore, the
organization does not meet the requirement of the Scheme which
stipulates having three in-house experts. The petitioner in the aforesaid
writ petition is assailing the aforesaid decision of the Accreditation
Committee.
6. M/s. Epsilon Projects Pvt. Ltd., petitioner in WP (C)
No.2765/2013, applied for accreditation on 12.7.2010. It appears that
the aforesaid application was found to be incomplete and certain
information/clarification was sought from the applicant, from time to
time and the reply furnished by it was considered. The application,
however, still remained incomplete in certain aspects and, therefore,
vide communication dated 27.12.2011, processing of the said
application was suspended, to be taken up as and when necessary
information/clarifications were submitted by the applicant, meeting all
the requirements of the Scheme. A mail in this regard was also sent to
the aforesaid petitioner on 29.12.2011. This was followed by a final
W.P.(C) No.3141 of 2012 & connected matters Page 7 of 19
opportunity notice dated 1.6.2012 requiring the said petitioner to submit
the requisite information by 16.6.2012. The petitioner responded to the
aforesaid communication vide e-mail dated 14.6.2012. The said e-mail,
however, landed in the junk mail box of the NABET.
7. Sections 3, 6, 23 & 25 of the Environment (Protection) Act, 1986
to the extent they are relevant read as under:
“ GENERAL POWERS OF THE CENTRAL
GOVERNMENT
3. Power of Central Government to take measures to
protect and improve environment. – (1) Subject to the
provisions of this Act, the Central Government, shall have the
power to take all such measures as it deems necessary or
expedient for the purpose of protecting and improving the
quality of the environment and preventing controlling and
abating environmental pollution.
(2) In particular, and without prejudice to the generality of the
provisions of sub-section (1), such measures may include
measures with respect to all or any of the following matters,
namely:--
.... …. …. …. ….
(xiv) such other matters as the Central Government deems
necessary or expedient for the purpose of securing the effective
implementation of the provisions of this Act.
3) The Central Government may, if it considers it necessary or
expedient so to do for the purpose of this Act, by order,
published in the Official Gazette, constitute an authority or
authorities by such name or names as may be specified in the
order for the purpose of exercising and performing such of the
powers and functions (including the power to issue directions
under section 5) of the Central Government under this Act and
for taking measures with respect to such of the matters referred
to in sub-section (2) as may be mentioned in the order and
W.P.(C) No.3141 of 2012 & connected matters Page 8 of 19
subject to the supervision and control of the Central
Government and the provisions of such order, such authority or
authorities may exercise and powers or perform the functions or
take the measures so mentioned in the order as if such authority
or authorities had been empowered by this Act to exercise those
powers or perform those functions or take such measures.
.... …. …. …. ….
6. Rules to regulate environmental pollution. – (1) The
Central Government may, by notification in the Official
Gazette, make rules in respect of all or any of the matters
referred to in section 3.
.... …. …. …. ….
23. Power to delegate. – Without prejudice to the provisions of
sub-section (3) of section 3, the Central Government may, by
notification in the Official Gazette, delegate, subject to such
conditions and limitations as may be specified in the
notifications, such of its powers and functions under this Act
[except the powers to constitute an authority under sub-section
(3) of section 3 and to make rules under section 25] as it may
deem necessary or expedient, to any officer, State Government
or other authority.
.... …. …. …. ….
25. Power to make rules. – (1) The Central Government may,
by notification in the Official Gazette, make rules for carrying
out the purposes of this Act.”
8. A conjoint reading of the aforesaid provisions would show that an
authority to exercise the powers and perform the functions of the Central
Government under the provisions of the Act can be constituted only by
way of a notification published in the Official Gazette, such an authority
is required to function subject to the supervision and control of the
Central Government and the power to set up such an authority cannot be
delegated by the Central Government to anyone including any officer,
W.P.(C) No.3141 of 2012 & connected matters Page 9 of 19
State Government or other authority. Another statutory requirement is
that the Rules in terms of Section 6 and/or Section 25 can be made by
the Government only by way of a notification in the Official Gazette
and the rule making power of the Government cannot be delegated.
9. The first contention of the petitioner was that by directing
empanelment with NABET/QCI the Central Government has set up an
Authority in terms of Section 3 (3) of the Act and this having been done
without issuing a notification and publishing the same in the Official
Gazette, is illegal. The learned ASG, on the other hand, contended that
the Central Government has not at all set up an Authority to exercise its
powers and perform its functions under the Act and, therefore, the
question of issuing a notification and publishing it in the Official
Gazette does not arise.
A perusal of the Scheme for accreditation would show that
NABET, a Constituent Board of the QCI developed a voluntary
accreditation scheme with inputs from various stakeholders, including
experts in the field and launched it in August, 2007. The said Scheme
was reviewed by the Ministry of Environment and Forests in the year
2009, which desired its updation, incorporating the learnings since
launching of the scheme. The same was done and an updated version of
the scheme was uploaded on the website of QCI in January, 2010.
In their counter affidavit the respondents have categorically stated
that the aforesaid Scheme was prepared by the Union of India along
with QCI/NABET pursuant to the provisions contained in the
Environment (Protection) Act, 1986 and the Rules framed thereunder
and the Notification dated 14.9.2006. Though initially the Scheme was
prepared by NABET, once it was reviewed by the Government was
W.P.(C) No.3141 of 2012 & connected matters Page 10 of 19
updated as per its requirement and then adopted by the Government, by
way of directing empanelment in its terms, the said scheme, in my view,
became the Scheme of the Government. It is the OM dated 2.12.2009
issued by the Government of India and not any direction issued by
NABET/QCI which has made accreditation/registration with
NABET/QCI mandatory. It is a decision of the Government and not of
QCI/NABET that no EIA/EMP report prepared by the consultants who
are not registered with NABET/QCI shall be considered after 30.6.2010.
Therefore, the Scheme, though prepared by QCI/NABET, is now a
Scheme of the Government. It is not necessary for the Government to
itself prepare a Scheme; it can very well adopt a Scheme, framed by
another agency, if found to be suitable for its purposes, and in that
event, the Scheme would be of the Government and not of the agency
by which it was initially prepared.
In any case, it is only an order constituting an Authority for the
purpose of exercising and performing the powers and functions of the
Central Government which is required to be published in the Official
Gazette but neither the OM dated 2.12.2009 nor the subsequent as OMs
impunged in these writ petitions constitutes such an authority nor has
the Central Government delegated its powers and functions under the
Act to QCI/NABET. The challenge to the aforesaid OMs on the ground
of contravention of Sections 3 (3) and 23 of the Act is, therefore, wholly
misplaced.
10. Though Section 6 of the Act empowers the Central Government
to make Rules in respect of all or any of the matters referred to in
Section 3 and Section 25 of the Act empowers the Central Government
to make Rules for carrying out the purposes of the Act and the Rules can
W.P.(C) No.3141 of 2012 & connected matters Page 11 of 19
be made only by way of notification published in the Official Gazette,
none of the OMs impugned in these petitions have been issued in
exercise of the Rule making power of the Central Government. Sub-
section (1) of Section 3 of the Act empowers the Central Government to
take all measures which it deems necessary or expedient for the purpose
of protecting and improving the quality of environment and preventing
controlling and abating environmental pollution. As rightly contended
by the learned ASG, it is in exercise of the aforesaid statutory power of
the Central Government that the OM dated 2.12.2009 and subsequent
OMs making it mandatory for EIA consultants to be empanelled with
QCI/NABET have been issued. It is only the statutory rules made in
terms of Section 6 of the Act in respect of the matters referred to in
Section 3 of the Act which are required to be published in the Official
Gazette. The Central Government may, if it so decides, make statutory
rules in respect of any of the matters referred to in Section 3 of the Act
but, it is not obligatory for the Central Government to exercise all those
powers only by way of statutory rules. If the Government decides to
make rules in respect of any of the matters referred to in Section 3 of the
Act, that can be done only by way of a notification published in the
Official Gazette but if the Government does not want to give the status
of statutory rules to its decisions, it would not be obligatory for it to
notify such decisions in the Official Gazette. The use of the expression
“may” in Section 6 of the Act makes it quite clear that the option lies
with the Central Government either to make rule or to issue executive
instructions with respect to the measures taken by it for the purpose of
protecting and improving the quality of environment and preventing
controlling and abating environmental pollution.
W.P.(C) No.3141 of 2012 & connected matters Page 12 of 19
11. I also do not find any merit in the contention that by directing
empanelment with QCI/NABET in terms of the Scheme framed by the
said organization, the Central Government has delegated its statutory
powers to the said organization. While empanelling/registering a
consultant or rejecting its application seeking empanelment/registration,
QCI/NABET acts as an agency of the Central Government. Considering
that the application for empanelment/registration has to be considered
strictly in terms of the Scheme approved by the Central Government, it
cannot be said that entrusting the task of empanelment/registration to
QCI/NABET amounts to delegating the powers and functions of the
Government under the Act to the said organization. It is very much
open to the Central Government to withdraw the impugned OMs at any
point of time and entrust the work of empanelment to some other agency
or to undertake the task itself.
12. The objective of the Scheme is to ensure that the EIA reports
submitted to the Experts Appraisal Committees (EACs) are of the
desired quality and standard and are prepared by persons who are duly
qualified to prepare such reports and have access to the infrastructure
required for the purpose. In WP (C) No.202/1995 titled T.N.
Godavarman Thirumulpad Vs. Union of India & Ors., the Hon’ble
Supreme Court vide its order dated 6.7.2011 noticed various
deficiencies in the reports submitted by the experts undertaking
environmental impact assessment and emphasized on the need to put in
place a regulatory mechanism in this regard. It was directed that till the
time such mechanism is in place, the Government should prepare a
panel of accredited institutions from which alone the project proponent
should obtain the rapid EIA, and that too on the terms of reference to be
W.P.(C) No.3141 of 2012 & connected matters Page 13 of 19
formulated by the Government. It is for this purpose that the impugned
OMs have been issued for accreditation of ETA experts. Considering
the objective behind such empanelment, no exception to the aforesaid
mechanism devised by the Central Government can be taken.
I, therefore, find no merit in the challenge to the impugned OMs
issued by the Central Government from time to time.
13. The Scheme of empanelment has been assailed by the petitioner
on the ground that it debars individuals from being empanelled with
QCI/NABET. Clause 3.1 of the Scheme is relevant and reads as under:
“ 3.1 Eligibility
Only organizations will be considered for accreditation.
These can be government, public sector or private
organizations which could be proprietary firms, partnership
firms or companies (Pvt. & Public Limited), bodies registered
under Society Acts, under Section 25 of Companies Act,
Research Institutes and the like.
Universities including IITs, CSIR labs, other labs and/or
research based organizations conducting EIA studies can also
apply for accreditation.
Accreditation will not be applicable for individuals as
EIA consultants.”
It would, thus, be seen that while providing for accreditation of
proprietorship firms the Scheme also excludes the individual consultants
from its ambit. A proprietorship firm is nothing but a trade
name/professional name adopted by an individual. In fact, a
proprietorship firm is not a legal entity and it is the individual, whose
proprietorship concern it is who can sue and be sued as a legal person.
W.P.(C) No.3141 of 2012 & connected matters Page 14 of 19
Since the intention of the Scheme is not to exclude proprietorship firms,
clause 3.1 to the extent it excludes individuals as EIA consultants needs
to be struck down being in conflict with the main clause which enables
accreditation of proprietary firms.
14. A perusal of the decision taken by the Accreditation Committee in
its meeting held on 17.10.2012 would show that the application of M/s.
Min Mec Consultancy Private Limited, petitioner in WP (C)
No.103/2013 was rejected on the grounds that (i) it had taken up more
assignments than it could handle with the resources available with it and
(ii) in case of EIA of Nirma Cement Plant it had omitted to take into
consideration important factors such as existing wetland and other
environmental issues. The Committee felt that taking up more EIA
assignment than capacity of the organization could result in
compromising site activities relating to collection of primary data and
omissions in reflecting the critical environmental issues correctly in the
EIA reports and the omission in case of EIA of Nirma Cement Plant was
too serious to allow a consultant to operate in the field of EIA
preparation. The petitioner has failed to show how the aforesaid
decision of the Accreditation Committee can be said to be arbitrary or
unreasonable so as to warrant interference by the Court in exercise of
writ jurisdiction under Article 226 of the Constitution of India. It is for
the experts and not for the Court to decide whether a particular
consultant is suitable for being empanelled with QCI/NABET or not.
The Court cannot interfere with such a decision taken by an expert body,
unless it is shown that such decision is wholly arbitrary, perverse or
without jurisdiction. No such case has, however, been made out by the
petitioner. It is for the experts and not for the Court to take a view as to
W.P.(C) No.3141 of 2012 & connected matters Page 15 of 19
whether the resources available with a particular applicant are sufficient
to handle the assignments taken by it or not. Similarly, it is for the
expert body to take a view as to the nature of an omission by the
consultant while preparing a report on environment impact assessment.
This is not the case of the petitioner that the aforesaid decision of the
Accreditation Committee is in violation of the Scheme approved by the
Central Government. Therefore, no interference with the aforesaid
decision of the Accreditation Committee is called for.
15. During the course of arguments it was pointed out by the learned
counsel for the petitioners that while rejecting the application of M/s.
Min Mec Consultancy Private Limited, the Accreditation Committee
also directed that a fresh application will not be entertained for a period
of one (1) year from the date of its decision. It is not the case of the
respondents that the Scheme of accreditation prepared by QCI/NABET
and approved by the Central Government provides for a cooling off
period of one (1) year before a fresh application seeking accreditation is
made. Therefore, in my view, it was not open to the Accreditation
Committee to direct, while rejecting the application of M/s. Min Mec
Consultancy Private Limited, that no fresh application of the said
consultant would be entertained for a period of one (1) year from the
date of its decision. Therefore, though the earlier application submitted
by M/s. Min Mec Consultancy Private Limited for accreditation with
QCI/NABET stands rejected, it is open to the said petitioner to file a
fresh application seeking accreditation in terms of the Scheme approved
by the Central Government.
16. As regards rejection of the application of Shri Environmental
Technology Institute, clause 7.1 of the Scheme provides that the
W.P.(C) No.3141 of 2012 & connected matters Page 16 of 19
applicant must have, at least, three in-house experts – one eligible EIA
Coordinator who together with another two eligible FAEs should cover
the core functional areas. The Scheme also prescribes the qualifications
and experience of the experts in Appendix-1 to the Scheme. The
decision of the Accreditation Committee would show that only one in-
house expert was recommended by the assessor meaning thereby that
only one of them fulfilled the norms prescribed in the Scheme. Since it
was obligatory for the applicant to have, at least, three in-house experts,
the applicant in this case was clearly ineligible for empanelment under
the Scheme. However, before rejecting the application, an opportunity
ought to have been given to the applicant to engage experts in
prescribed number, and only in the event of her failure to do so, the
application could have been rejected. In my view, rejecting an
application, without giving an opportunity to the applicant to remove the
deficiency/meet the shortfall, if any, will not be a fair approach to the
matter on the part of the State.
17. As regards the case of M/s. Epsilon Projects Pvt. Ltd., admittedly,
the response by the aforesaid Company to the last notice dated 1.6.2012
was not considered by the Accreditation Committee, the same having
landed up in the junk mail box. The aforesaid petitioner cannot be
penalized for its e-mail landing in the junk mail box of the respondents.
The respondents, therefore, are required to consider the application of
the petitioner afresh after giving an opportunity to it to submit the
deficient documents in a time bound manner.
W.P.(C) No.3141 of 2012 & connected matters Page 17 of 19
Conclusion:
18. For the reasons stated hereinabove WP (C) Nos.3141/2012,
103/2013 and 3648/2013 are hereby dismissed with no orders as to
costs.
WP (C) No.2765/2013 is disposed of with a direction to the
respondents to give an opportunity to the said petitioner to submit the
deficient information/documents in a time bound manner and then
decide its application within four (4) weeks of submission of the
deficient documents/information.
WP (C) No.7034/2013 is disposed of with a direction that the
petitioner shall be given an opportunity to meet the shortfall in the
number of in-house experts, in a time bound manner and if this is done,
her application would be considered in accordance with the provisions
of the Scheme and an appropriate decision shall be taken within four (4)
weeks of meeting the shortfall.
It is directed that henceforth no application for empanelment on
account of any shortfall/deficiency shall be rejected without giving an
opportunity to the applicant to remove the deficiency/meet the shortfall
as the case may be, in a time-bound manner.
It is also directed that it shall be open to a person whose
application for accreditation is rejected by the Accreditation Committee
to apply afresh after complying with all the requirements laid down in
the Scheme and there shall be no cooling off period for this purpose.
W.P.(C) No.3141 of 2012 & connected matters Page 18 of 19
It is further directed that an application submitted by an individual
seeking empanelment even in his personal name, shall not be rejected on
the ground that the applicant is an individual.
NOVEMBER 07, 2013 V.K. JAIN, J.
BG/ b’nesh
W.P.(C) No.3141 of 2012 & connected matters Page 19 of 19
% Judgment reserved on: 22.10.2013
Date of Decision: 07.11.2013
+ WP(C) No.3141 of 2012 CM No.6753 of 2012 (Stay)
MAHENDRA PANDEY & ANR. ....Petitioners
Through: Ms. Ruchi Kohli, Ms. Vidushi &
Mr. Yash Mishra, Advs.
Versus
SECRETARY, MINISTRY OF
ENVIRONMENT & FORESTS AND ORS. ....Respondents
Through: Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC & Mr. Vineet,
Adv. for the UOI.
Mr. Sandeeep Prabhakar, Mr. Amit
Kumar & Mr. Pratap Behra, Advs. for
R-3, 4 & 5.
+ WP(C) No.7034 of 2012
RANI GUPTA ....Petitioner
Through: Ms. Ruchi Kohli, Ms. Vidushi &
Mr. Yash Mishra, Advs.
Versus
SECRETARY, MINISTRY OF
ENVIRONMENT & FORESTS AND ORS. ....Respondents
Through: Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC & Mr. Vineet,
Adv. for the UOI.
W.P.(C) No.3141 of 2012 & connected matters Page 1 of 19
Mr. Sandeeep Prabhakar, Mr. Amit
Kumar & Mr. Pratap Behra, Advs. for
R-3, 4 & 5.
+ WP(C) No.103 of 2013
MIN MEC CONSULTANCY PVT. LTD. ....Petitioner
Through: Ms. Ruchi Kohli, Ms. Vidushi &
Mr. Yash Mishra, Advs.
Versus
SECRETARY, MINISTRY OF
ENVIRONMENT & FORESTS AND ORS. ....Respondents
Through: Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC & Mr. Vineet,
Adv. for the UOI.
Mr. Sandeeep Prabhakar, Mr. Amit
Kumar & Mr. Pratap Behra, Advs. for
R-3, 4 & 5.
+ WP(C) No.2765 of 2013
EPSILON PROJECTS PVT. LTD. ....Petitioner
Through: Ms. Ruchi Kohli, Ms. Vidushi &
Mr. Yash Mishra, Advs.
Versus
MINISTRY OF ENVIRONMENT &
FORESTS AND ORS. ....Respondents
Through: Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC & Mr. Vineet,
Adv. for the UOI.
W.P.(C) No.3141 of 2012 & connected matters Page 2 of 19
Mr. Sandeeep Prabhakar, Mr. Amit
Kumar & Mr. Pratap Behra, Advs. for
R-3, 4 & 5.
+ WP(C) No.3648 of 2013
DR. YASH PAUL SHARMA ....Petitioner
Through: Ms. Ruchi Kohli, Ms. Vidushi &
Mr. Yash Mishra, Advs.
Versus
MINISTRY OF ENVIRONMENT &
FORESTS AND ORS. ....Respondents
Through: Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC & Mr. Vineet,
Adv. for the UOI.
Mr. Sandeeep Prabhakar, Mr. Amit
Kumar & Mr. Pratap Behra, Advs. for
R-3, 4 & 5.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J.
The Environment (Protection) Act, 1986 was enacted by the
Parliament with a view to provide protection and improvement of
environment and matters connected thereto. Pursuant to the National
Environment Policy of the Government of India and in exercise of the
powers conferred upon it by sub-section (1), clause (v) of sub-section
(2) of Section 3 of the Act read with clause (d) of sub-rule (3) of Rule 5
of the Environment (Protection) Rules, 1986, the Government of India
W.P.(C) No.3141 of 2012 & connected matters Page 3 of 19
issued a notification dated 14.09.2006 inter alia directing that from the
date of publication of the said notice, the required construction of new
projects or activities or the expansion or modernization of existing
projects or activities listed in the Schedule to the notification entailing
capacity addition with change in process and/or technology shall be
undertaken only after prior environmental clearance is taken from the
Central Government or as the case may be from the State Level
Environment Impact Assessment Authority duly constituted by the
Central Government under sub-section (3) of Section 3 of the said Act
in accordance with the procedure specified in the said notification. The
Environment Impact Assessment (EIA), therefore, is now a statutory
requirement for a large number of developmental and industrial
activities. The person seeking to set up or expand a project, which
needs prior environmental clearance from the Central Government or
State or Union Territory Level Environment Impact Assessment
Authority, is required to submit an EIA report which it may prepare
itself or it may engage an EIA consultant for the purpose.
2. It was found by Government of India that EIA being submitted
for the purpose of obtaining Environmental Clearance were not up to the
mark and suffered several deficiencies such as (a) Improper/inadequate
scoping for the EIA (b) Consultants not having adequate understanding
for developing EIAs. (c) Poor quality of inputs to EIAs (d) No checks
on the competence of EIA Consultants (e) No liability of EIA
Consultants. A need, therefore, was felt for accreditation of consultants
so as to ensure submission of Quality EIA reports. An OM dated
02.12.2009 was, therefore, issued by the Government of India, Ministry
of Environment and Forests requiring for accreditation of EIA
W.P.(C) No.3141 of 2012 & connected matters Page 4 of 19
consultant with Quality Council of India (QCI) or National
Accreditation Board of Education and Training (NABET), so as to
ensure that good quality EIA reports are prepared by experts possessing
requisite facilities such as laboratories for testing of samples, qualified
staff etc. All the consultants/public sector undertakings working in the
area of Environment Impact Assessment were required to get
themselves registered under the scheme of accreditation and registration
of the NABET/QCI. It was further directed that QCI would put in place
a detailed procedure for registration of consultants, maintaining full
transparency in the procedure followed for accreditation . It was also
decided that no EIA/EMP report prepared by the consultants who are
not registered with NABET/QCI shall be considered by the Government
after 30.06.2010.
Vide OM dated 18.03.2010, the Government emphasized upon all
the individuals/firms and organizations, including Government
Associations, Universities and PSUs working in the area of EIA to apply
and get registered under the above-referred scheme. They were also
intimated that the detailed procedure in this regard was available on the
website of NABET/QCI. Vide OM dated 28.06.2010, 157 consultants,
who had applied to QCI for accreditation/registration, were permitted to
appear before the State Level Expert Appraisal Committee/State
Environmental Impact Assessment Authority (SLEAC/SEIAA) for
category ‘B’ projects and Expert Appraisal Committee (EAC) for
category ‘A’ projects, up to 31.12.2010. This was followed by OM
dated 01.11.2010 permitting 265 consultants to appear before the
aforesaid Committee/Authority. Vide OM dated 31.12.2010, the
Scheme was further extended till 30.06.2011 for those who had already
W.P.(C) No.3141 of 2012 & connected matters Page 5 of 19
applied up to 30.09.2010 and those who had not applied up to
30.09.2010 were debarred from appearing before the EAC/SLEAC. The
final Scheme for accreditation was prepared vide OMs dated 30.06.2011
and 30.09.2011.
3. The petitioners before this Court claim to be EIA Consultants,
who have not been accredited/registered with QCI/NABET. They are
challenging the validity of the OMs dated 02.12.2009, 18.03.2010,
28.06.2010, 01.11.2010, 31.12.2010, 30.06.2011 and 30.09.2011
primarily on the following grounds:
(i) an Authority in terms of Section 3(3) of the Act for the purpose of
exercising and performing the powers and functions of the Central
Government and for taking measures with respect to the matters referred
to in sub-section (2) of Section 3 can be constituted only by way of an
order published in the Official Gazette, whereas the OM dated
02.12.2009 has not been published in the Official Gazette;
(ii) the power to constitute the aforesaid authority cannot be delegated;
(iii) the powers of the Central Government cannot be delegated, except
by way of notification published in the Official Gazette;
(iv) even the rules to regulate environmental pollution in terms of
Section 6 of the Act can be made only by way of notification published
in the official gazette, whereas none of the impugned OMs has been
notified in the Gazette; and
(v) though the rule making power of the Act under Section 25 of the Act
cannot be delegated, the impugned OMs have the effect of delegating
such powers to QCI/NABET.
4. The NABET/QCI in the meeting of the Accreditation Committee
held on 7.10.2012 inter alia rejected the application of Min Mec
W.P.(C) No.3141 of 2012 & connected matters Page 6 of 19
Consultancy Pvt. Ltd., petitioner in WP (C) No.103/2013, for
empanelment. The Committee also decided that a fresh application will
not be entertained for a period of one (1) year from the date of the
decision. The aforesaid petitioner, therefore, is also challenging the
decision of the Accreditation Committee rejecting its application for
empanelment and debarring it from submitting a fresh application for a
period of one (1) year from the date of the decision.
5. In its meeting held on 10.1.2012, the Accreditation Committee
rejected the application of Shri Environmental Technology Institute, a
proprietorship concern of Rani Gupta, petitioner in WP (C)
No.7034/2012, for accreditation on the ground that only one in-house
expert was recommended by the assessors and, therefore, the
organization does not meet the requirement of the Scheme which
stipulates having three in-house experts. The petitioner in the aforesaid
writ petition is assailing the aforesaid decision of the Accreditation
Committee.
6. M/s. Epsilon Projects Pvt. Ltd., petitioner in WP (C)
No.2765/2013, applied for accreditation on 12.7.2010. It appears that
the aforesaid application was found to be incomplete and certain
information/clarification was sought from the applicant, from time to
time and the reply furnished by it was considered. The application,
however, still remained incomplete in certain aspects and, therefore,
vide communication dated 27.12.2011, processing of the said
application was suspended, to be taken up as and when necessary
information/clarifications were submitted by the applicant, meeting all
the requirements of the Scheme. A mail in this regard was also sent to
the aforesaid petitioner on 29.12.2011. This was followed by a final
W.P.(C) No.3141 of 2012 & connected matters Page 7 of 19
opportunity notice dated 1.6.2012 requiring the said petitioner to submit
the requisite information by 16.6.2012. The petitioner responded to the
aforesaid communication vide e-mail dated 14.6.2012. The said e-mail,
however, landed in the junk mail box of the NABET.
7. Sections 3, 6, 23 & 25 of the Environment (Protection) Act, 1986
to the extent they are relevant read as under:
“ GENERAL POWERS OF THE CENTRAL
GOVERNMENT
3. Power of Central Government to take measures to
protect and improve environment. – (1) Subject to the
provisions of this Act, the Central Government, shall have the
power to take all such measures as it deems necessary or
expedient for the purpose of protecting and improving the
quality of the environment and preventing controlling and
abating environmental pollution.
(2) In particular, and without prejudice to the generality of the
provisions of sub-section (1), such measures may include
measures with respect to all or any of the following matters,
namely:--
.... …. …. …. ….
(xiv) such other matters as the Central Government deems
necessary or expedient for the purpose of securing the effective
implementation of the provisions of this Act.
3) The Central Government may, if it considers it necessary or
expedient so to do for the purpose of this Act, by order,
published in the Official Gazette, constitute an authority or
authorities by such name or names as may be specified in the
order for the purpose of exercising and performing such of the
powers and functions (including the power to issue directions
under section 5) of the Central Government under this Act and
for taking measures with respect to such of the matters referred
to in sub-section (2) as may be mentioned in the order and
W.P.(C) No.3141 of 2012 & connected matters Page 8 of 19
subject to the supervision and control of the Central
Government and the provisions of such order, such authority or
authorities may exercise and powers or perform the functions or
take the measures so mentioned in the order as if such authority
or authorities had been empowered by this Act to exercise those
powers or perform those functions or take such measures.
.... …. …. …. ….
6. Rules to regulate environmental pollution. – (1) The
Central Government may, by notification in the Official
Gazette, make rules in respect of all or any of the matters
referred to in section 3.
.... …. …. …. ….
23. Power to delegate. – Without prejudice to the provisions of
sub-section (3) of section 3, the Central Government may, by
notification in the Official Gazette, delegate, subject to such
conditions and limitations as may be specified in the
notifications, such of its powers and functions under this Act
[except the powers to constitute an authority under sub-section
(3) of section 3 and to make rules under section 25] as it may
deem necessary or expedient, to any officer, State Government
or other authority.
.... …. …. …. ….
25. Power to make rules. – (1) The Central Government may,
by notification in the Official Gazette, make rules for carrying
out the purposes of this Act.”
8. A conjoint reading of the aforesaid provisions would show that an
authority to exercise the powers and perform the functions of the Central
Government under the provisions of the Act can be constituted only by
way of a notification published in the Official Gazette, such an authority
is required to function subject to the supervision and control of the
Central Government and the power to set up such an authority cannot be
delegated by the Central Government to anyone including any officer,
W.P.(C) No.3141 of 2012 & connected matters Page 9 of 19
State Government or other authority. Another statutory requirement is
that the Rules in terms of Section 6 and/or Section 25 can be made by
the Government only by way of a notification in the Official Gazette
and the rule making power of the Government cannot be delegated.
9. The first contention of the petitioner was that by directing
empanelment with NABET/QCI the Central Government has set up an
Authority in terms of Section 3 (3) of the Act and this having been done
without issuing a notification and publishing the same in the Official
Gazette, is illegal. The learned ASG, on the other hand, contended that
the Central Government has not at all set up an Authority to exercise its
powers and perform its functions under the Act and, therefore, the
question of issuing a notification and publishing it in the Official
Gazette does not arise.
A perusal of the Scheme for accreditation would show that
NABET, a Constituent Board of the QCI developed a voluntary
accreditation scheme with inputs from various stakeholders, including
experts in the field and launched it in August, 2007. The said Scheme
was reviewed by the Ministry of Environment and Forests in the year
2009, which desired its updation, incorporating the learnings since
launching of the scheme. The same was done and an updated version of
the scheme was uploaded on the website of QCI in January, 2010.
In their counter affidavit the respondents have categorically stated
that the aforesaid Scheme was prepared by the Union of India along
with QCI/NABET pursuant to the provisions contained in the
Environment (Protection) Act, 1986 and the Rules framed thereunder
and the Notification dated 14.9.2006. Though initially the Scheme was
prepared by NABET, once it was reviewed by the Government was
W.P.(C) No.3141 of 2012 & connected matters Page 10 of 19
updated as per its requirement and then adopted by the Government, by
way of directing empanelment in its terms, the said scheme, in my view,
became the Scheme of the Government. It is the OM dated 2.12.2009
issued by the Government of India and not any direction issued by
NABET/QCI which has made accreditation/registration with
NABET/QCI mandatory. It is a decision of the Government and not of
QCI/NABET that no EIA/EMP report prepared by the consultants who
are not registered with NABET/QCI shall be considered after 30.6.2010.
Therefore, the Scheme, though prepared by QCI/NABET, is now a
Scheme of the Government. It is not necessary for the Government to
itself prepare a Scheme; it can very well adopt a Scheme, framed by
another agency, if found to be suitable for its purposes, and in that
event, the Scheme would be of the Government and not of the agency
by which it was initially prepared.
In any case, it is only an order constituting an Authority for the
purpose of exercising and performing the powers and functions of the
Central Government which is required to be published in the Official
Gazette but neither the OM dated 2.12.2009 nor the subsequent as OMs
impunged in these writ petitions constitutes such an authority nor has
the Central Government delegated its powers and functions under the
Act to QCI/NABET. The challenge to the aforesaid OMs on the ground
of contravention of Sections 3 (3) and 23 of the Act is, therefore, wholly
misplaced.
10. Though Section 6 of the Act empowers the Central Government
to make Rules in respect of all or any of the matters referred to in
Section 3 and Section 25 of the Act empowers the Central Government
to make Rules for carrying out the purposes of the Act and the Rules can
W.P.(C) No.3141 of 2012 & connected matters Page 11 of 19
be made only by way of notification published in the Official Gazette,
none of the OMs impugned in these petitions have been issued in
exercise of the Rule making power of the Central Government. Sub-
section (1) of Section 3 of the Act empowers the Central Government to
take all measures which it deems necessary or expedient for the purpose
of protecting and improving the quality of environment and preventing
controlling and abating environmental pollution. As rightly contended
by the learned ASG, it is in exercise of the aforesaid statutory power of
the Central Government that the OM dated 2.12.2009 and subsequent
OMs making it mandatory for EIA consultants to be empanelled with
QCI/NABET have been issued. It is only the statutory rules made in
terms of Section 6 of the Act in respect of the matters referred to in
Section 3 of the Act which are required to be published in the Official
Gazette. The Central Government may, if it so decides, make statutory
rules in respect of any of the matters referred to in Section 3 of the Act
but, it is not obligatory for the Central Government to exercise all those
powers only by way of statutory rules. If the Government decides to
make rules in respect of any of the matters referred to in Section 3 of the
Act, that can be done only by way of a notification published in the
Official Gazette but if the Government does not want to give the status
of statutory rules to its decisions, it would not be obligatory for it to
notify such decisions in the Official Gazette. The use of the expression
“may” in Section 6 of the Act makes it quite clear that the option lies
with the Central Government either to make rule or to issue executive
instructions with respect to the measures taken by it for the purpose of
protecting and improving the quality of environment and preventing
controlling and abating environmental pollution.
W.P.(C) No.3141 of 2012 & connected matters Page 12 of 19
11. I also do not find any merit in the contention that by directing
empanelment with QCI/NABET in terms of the Scheme framed by the
said organization, the Central Government has delegated its statutory
powers to the said organization. While empanelling/registering a
consultant or rejecting its application seeking empanelment/registration,
QCI/NABET acts as an agency of the Central Government. Considering
that the application for empanelment/registration has to be considered
strictly in terms of the Scheme approved by the Central Government, it
cannot be said that entrusting the task of empanelment/registration to
QCI/NABET amounts to delegating the powers and functions of the
Government under the Act to the said organization. It is very much
open to the Central Government to withdraw the impugned OMs at any
point of time and entrust the work of empanelment to some other agency
or to undertake the task itself.
12. The objective of the Scheme is to ensure that the EIA reports
submitted to the Experts Appraisal Committees (EACs) are of the
desired quality and standard and are prepared by persons who are duly
qualified to prepare such reports and have access to the infrastructure
required for the purpose. In WP (C) No.202/1995 titled T.N.
Godavarman Thirumulpad Vs. Union of India & Ors., the Hon’ble
Supreme Court vide its order dated 6.7.2011 noticed various
deficiencies in the reports submitted by the experts undertaking
environmental impact assessment and emphasized on the need to put in
place a regulatory mechanism in this regard. It was directed that till the
time such mechanism is in place, the Government should prepare a
panel of accredited institutions from which alone the project proponent
should obtain the rapid EIA, and that too on the terms of reference to be
W.P.(C) No.3141 of 2012 & connected matters Page 13 of 19
formulated by the Government. It is for this purpose that the impugned
OMs have been issued for accreditation of ETA experts. Considering
the objective behind such empanelment, no exception to the aforesaid
mechanism devised by the Central Government can be taken.
I, therefore, find no merit in the challenge to the impugned OMs
issued by the Central Government from time to time.
13. The Scheme of empanelment has been assailed by the petitioner
on the ground that it debars individuals from being empanelled with
QCI/NABET. Clause 3.1 of the Scheme is relevant and reads as under:
“ 3.1 Eligibility
Only organizations will be considered for accreditation.
These can be government, public sector or private
organizations which could be proprietary firms, partnership
firms or companies (Pvt. & Public Limited), bodies registered
under Society Acts, under Section 25 of Companies Act,
Research Institutes and the like.
Universities including IITs, CSIR labs, other labs and/or
research based organizations conducting EIA studies can also
apply for accreditation.
Accreditation will not be applicable for individuals as
EIA consultants.”
It would, thus, be seen that while providing for accreditation of
proprietorship firms the Scheme also excludes the individual consultants
from its ambit. A proprietorship firm is nothing but a trade
name/professional name adopted by an individual. In fact, a
proprietorship firm is not a legal entity and it is the individual, whose
proprietorship concern it is who can sue and be sued as a legal person.
W.P.(C) No.3141 of 2012 & connected matters Page 14 of 19
Since the intention of the Scheme is not to exclude proprietorship firms,
clause 3.1 to the extent it excludes individuals as EIA consultants needs
to be struck down being in conflict with the main clause which enables
accreditation of proprietary firms.
14. A perusal of the decision taken by the Accreditation Committee in
its meeting held on 17.10.2012 would show that the application of M/s.
Min Mec Consultancy Private Limited, petitioner in WP (C)
No.103/2013 was rejected on the grounds that (i) it had taken up more
assignments than it could handle with the resources available with it and
(ii) in case of EIA of Nirma Cement Plant it had omitted to take into
consideration important factors such as existing wetland and other
environmental issues. The Committee felt that taking up more EIA
assignment than capacity of the organization could result in
compromising site activities relating to collection of primary data and
omissions in reflecting the critical environmental issues correctly in the
EIA reports and the omission in case of EIA of Nirma Cement Plant was
too serious to allow a consultant to operate in the field of EIA
preparation. The petitioner has failed to show how the aforesaid
decision of the Accreditation Committee can be said to be arbitrary or
unreasonable so as to warrant interference by the Court in exercise of
writ jurisdiction under Article 226 of the Constitution of India. It is for
the experts and not for the Court to decide whether a particular
consultant is suitable for being empanelled with QCI/NABET or not.
The Court cannot interfere with such a decision taken by an expert body,
unless it is shown that such decision is wholly arbitrary, perverse or
without jurisdiction. No such case has, however, been made out by the
petitioner. It is for the experts and not for the Court to take a view as to
W.P.(C) No.3141 of 2012 & connected matters Page 15 of 19
whether the resources available with a particular applicant are sufficient
to handle the assignments taken by it or not. Similarly, it is for the
expert body to take a view as to the nature of an omission by the
consultant while preparing a report on environment impact assessment.
This is not the case of the petitioner that the aforesaid decision of the
Accreditation Committee is in violation of the Scheme approved by the
Central Government. Therefore, no interference with the aforesaid
decision of the Accreditation Committee is called for.
15. During the course of arguments it was pointed out by the learned
counsel for the petitioners that while rejecting the application of M/s.
Min Mec Consultancy Private Limited, the Accreditation Committee
also directed that a fresh application will not be entertained for a period
of one (1) year from the date of its decision. It is not the case of the
respondents that the Scheme of accreditation prepared by QCI/NABET
and approved by the Central Government provides for a cooling off
period of one (1) year before a fresh application seeking accreditation is
made. Therefore, in my view, it was not open to the Accreditation
Committee to direct, while rejecting the application of M/s. Min Mec
Consultancy Private Limited, that no fresh application of the said
consultant would be entertained for a period of one (1) year from the
date of its decision. Therefore, though the earlier application submitted
by M/s. Min Mec Consultancy Private Limited for accreditation with
QCI/NABET stands rejected, it is open to the said petitioner to file a
fresh application seeking accreditation in terms of the Scheme approved
by the Central Government.
16. As regards rejection of the application of Shri Environmental
Technology Institute, clause 7.1 of the Scheme provides that the
W.P.(C) No.3141 of 2012 & connected matters Page 16 of 19
applicant must have, at least, three in-house experts – one eligible EIA
Coordinator who together with another two eligible FAEs should cover
the core functional areas. The Scheme also prescribes the qualifications
and experience of the experts in Appendix-1 to the Scheme. The
decision of the Accreditation Committee would show that only one in-
house expert was recommended by the assessor meaning thereby that
only one of them fulfilled the norms prescribed in the Scheme. Since it
was obligatory for the applicant to have, at least, three in-house experts,
the applicant in this case was clearly ineligible for empanelment under
the Scheme. However, before rejecting the application, an opportunity
ought to have been given to the applicant to engage experts in
prescribed number, and only in the event of her failure to do so, the
application could have been rejected. In my view, rejecting an
application, without giving an opportunity to the applicant to remove the
deficiency/meet the shortfall, if any, will not be a fair approach to the
matter on the part of the State.
17. As regards the case of M/s. Epsilon Projects Pvt. Ltd., admittedly,
the response by the aforesaid Company to the last notice dated 1.6.2012
was not considered by the Accreditation Committee, the same having
landed up in the junk mail box. The aforesaid petitioner cannot be
penalized for its e-mail landing in the junk mail box of the respondents.
The respondents, therefore, are required to consider the application of
the petitioner afresh after giving an opportunity to it to submit the
deficient documents in a time bound manner.
W.P.(C) No.3141 of 2012 & connected matters Page 17 of 19
Conclusion:
18. For the reasons stated hereinabove WP (C) Nos.3141/2012,
103/2013 and 3648/2013 are hereby dismissed with no orders as to
costs.
WP (C) No.2765/2013 is disposed of with a direction to the
respondents to give an opportunity to the said petitioner to submit the
deficient information/documents in a time bound manner and then
decide its application within four (4) weeks of submission of the
deficient documents/information.
WP (C) No.7034/2013 is disposed of with a direction that the
petitioner shall be given an opportunity to meet the shortfall in the
number of in-house experts, in a time bound manner and if this is done,
her application would be considered in accordance with the provisions
of the Scheme and an appropriate decision shall be taken within four (4)
weeks of meeting the shortfall.
It is directed that henceforth no application for empanelment on
account of any shortfall/deficiency shall be rejected without giving an
opportunity to the applicant to remove the deficiency/meet the shortfall
as the case may be, in a time-bound manner.
It is also directed that it shall be open to a person whose
application for accreditation is rejected by the Accreditation Committee
to apply afresh after complying with all the requirements laid down in
the Scheme and there shall be no cooling off period for this purpose.
W.P.(C) No.3141 of 2012 & connected matters Page 18 of 19
It is further directed that an application submitted by an individual
seeking empanelment even in his personal name, shall not be rejected on
the ground that the applicant is an individual.
NOVEMBER 07, 2013 V.K. JAIN, J.
BG/ b’nesh
W.P.(C) No.3141 of 2012 & connected matters Page 19 of 19