IN THE HIGH COURT OF GUJARAT AT AHMEDABAD. SPECIAL CIVIL APPLICATION NO of 2016

Transcription

1 C/SCA/5312/2016 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO of 2016 ========================================================== JAYESHKUMAR SOMABHAI PATEL & 11...Petitioner(s) Versus UNION OF INDIA...Respondent(s) ========================================================== Appearance: MR SHALIN MEHTA, SR.ADVOCATE with MR ANSHUL N SHAH, ADVOCATE for the Petitioner(s) No MR NILESH P SHAH, ADVOCATE for the Petitioner(s) No NOTICE SERVED for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 21/07/2016 ORAL ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) Though respondents are served, there is no appearance on behalf of the respondents. S.O to (R. SUBHASH REDDY, CJ) pirzada (VIPUL M. PANCHOLI, J.) Page 1 of 1 HC-NIC Page 1 of 1 Created On Thu Aug 11 18:03:54 IST 2016

2 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD (Dist. Surat) SPECIAL CIVIL APPLICATION NO OF 2016 In the matter of the Environment (Protection) Act, 1986 for challenging the notifications no. S.O. 141 (E) dt. January 15, 2016 and S.O. 648 (E) dt. 3 rd March 2016 issued by the Ministry of Environment, Forest and Climate Change of Government of India AND In the matter of Articles 14, 19 (1)(g) and 21 of the Constitution of India IN THE MATTER BETWEEN: AND AND 1. Mr. Jayeshkumar S. Patel Aqua-Air Environmental Engineers P. Ltd 403, Centre Point, Nr. Kadiwala School, Ring Road, Surat Dr. C. B. Upasani, Jyoti Om Chemical Research Centre Pvt. Ltd 60, Dakshinamurti Residency Opp. Sun Pharma Research Centre Atladra, Vadodara Mr. Malav Prafulbhai Dalwadi T R Associates C/605A Ganesh Meridian Opp. Kargil Petrol Pump S. G. Highway, Ahmedabad In the matter of Article 226 of the Constitution of India

3 2 4. Mr. Snehal B. Satyapathi Vasudev Associates G-203, Akash 3, Near Sahajanand complex 132 ft ring road Naranpura, Ahmedabad Mr. Pradeep Joshi Green Circle Inc. Green Empire (Anupushpam) Above Axis Bank Near Yash Complex Gotri Road, Vadodara Mr. Gaurang Parmar Eco-Care Solutions , 3 rd Floor Dwarkesh Complex, Sun Pharma Road Atladara, Vadodara Mr. Darshan J. Parekh Akshar Consultants 704 & 813, Sakar - 5 Near Mithakhali Railway Crossing Off Ashram Road Ahmedabad Mr. Suresh Tulshibhai Moradia Earthcare Enviro Solutions Pvt. Ltd B-1/106, 304 & 308 Puspraj Apartment Nr. CNG Pump & Sandesh Press Khatodara, Surat Mr. Sudhir Verma RAAS Envirocare 93/94, Matri Mandir Society ISKCON Road Off Gotri Road, Vadodara 10. Ms. Seema Abhale Prakruti Environmental Engineers 1, Utkanth Society, B/h. Alkapuri Club, Alkapuri, Vadodara Mr. Dilip C. Thakkar Sunrise Environment Consultant TF-4, Third Floor Krishna Arcade Near BSNL Office Naroda, Ahmedabad

4 3 12. Ms. Balu T. Patel Nature Enviro Care Survey No. 274/4 Opp. Gujarat High Court Building B/h Satyamev Complex Near Car Box S. G. Highway Ahmedabad Petitioners Versus Union of India Through Secretary Ministry of Environment, Forests & Climate Change Indira Paryavaran Bhavan, Jor Bagh Road, New Delhi Respondent TO, THE HON'BLE CHIEF JUSTICE AND OTHER HON'BLE JUDGES OF THE HIGH COURT OF GUJARAT THE HUMBLE PETITION OF THE PETITIONERS ABOVENAMED MOST RESPECTFULLY SHEWETH THAT:- 1. The Petitioners are citizens of India and are entitled to fundamental rights as enshrined in Part III of the Constitution of India. The Petitioners are Environmental Consultants & Engineers and thereby contribute substantially to save the planet. Preparing and certifying Environmental Impact Assessment (EIA) Reports for Project Proponents for obtaining Environmental Clearance is the source of livelihood of the Petitioners. 2. The Petitioners are carrying out their consultancy activities through their respective firms/companies as mentioned in

5 4 the cause title. The Petitioners are EIA Coordinators/Functional Area Experts of their respective EIA Consultant Organizations. 3. Sec. 3(3) of the Environment (Protection) Act, 1986 empowers the Central Government to constitute authorities for taking measures for protection and improvement of the environment. Accordingly an Expert Appraisal Committee (EAC) at the Central Level and State Expert Appraisal Committees (SEACs) at the State level were constituted for issuance of Environmental Clearance for new projects or for the expansion/modification of existing projects. One of the functions of the authorities mentioned hereinabove is to appraise and evaluate the Environmental Impact Assessment (EIA) and Environment Management Plan (EMP) Reports prepared by the EIA Consultant Organizations for issuing Environmental Clearance (EC) Certificate before any construction work or preparation of land by the project management for any new projects or activities or expansion and modernization of existing project or activities as mentioned in the schedule of the notification dt. 14 th September A copy of the said notification is annexed herewith as Annexure A. 4. It is pertinent to note that the evaluation/comments by the abovementioned authorities, as the case may be on the

6 5 reports submitted by the EIA Consultant has no bearing on the Environmental Clearance Certificate issued by the Respondent through EAC or SEACs/SEIAAs mentioned hereinabove. Thus even if the report submitted by the EIA Consultant is not of the quality as desired by the Respondent, EAC or SEACs/SEIAAs would issue Environmental Clearance (EC) Certificate based on their own evaluation and judgment. On the other hand, even if in the opinion of the Respondent, the EIA report submitted by the Consultant is of the highest quality, the EC Certificate may be denied by the EAC or SEACs/SEIAAs. 5. Quality Council of India (QCI), an autonomous non-profit organization, as the National Accreditation body in association with the Government of India and the Indian industry and the National Accreditation Board for Education & Training (NABET), a constituent board of QCI were constituted. NABET proposed a scheme for accreditation of EIA Consultant Organizations. A copy of the Scheme for Accreditation of EIA Consultant Organizations mooted by the NABET is annexed herewith as Annexure B. 6. The Respondent issued an Office Memorandum dt. 18 th March 2010, making it mandatory for all EIA Consultants to have accreditation from NABET/QCI on or before 30 th June As per the said memorandum an EIA Report certified by non-accredited EIA Consultants would not be

7 6 entertained after 1 st July A copy of the said memorandum is annexed herewith as Annexure C. 7. The Respondent issued another office memorandum dt. 28 th May 2010, wherein EIA Consultants having no accreditation with QCI as per the memorandum dt. 18 th March 2010 were prohibited from appearing before EAC for any purpose. A copy of the said memorandum is annexed herewith as Annexure D. 8. The Petitioners submit that the Quality Council of India (QCI) working under the Respondent has no role to play in issuance of Environmental Clearance (EC) to the Project proponents. The entire process of EIA/EMP Reports, involving various stages, wherein no role is played by the QCI is described as under: i) Introduction - prepared by the Chartered Accountant or Project Proponent as pre-feasibility report. Hence Quality Council of India has no role on this subject. ii) Topography of the project Site - obtained from Survey of India/ National Remote Sensing Agency. Hence Quality Council of India has no role to play in this matter. iii) Project and Process description and Pollution Control Measures obtained from Industrial Research and Development Institute of Govt. of India. The Environmental Impact Assessment and Environmental

8 7 Management Plan Booklet for prior Environmental Clearance is developed based on the process developed by the Industrial Research Centers like Council of Scientific and Industrial Research (CSIR), Sponge Iron India, National Mineral Development Corporation (NMDC), Leather Institute, Central Drug Research Institute (CDRI), etc., which is the basic tool for the impact assessment, based on their emission, discharge and solid waste generation and the impact on the environment is assessed. Hence the Quality Council of India has no role to play in the above mentioned process since the process is developed for direct industrial use. iv) Baseline environmental data, which includes air, water, soil and noise analysis reports prepared by Ministry of Environment and Forests (MoEF) / NABL recognized Lab. The Environmental Impact Assessment Report contains the monitoring of air, water, soil and noise and subsequent analysis report of the surrounding areas, i.e. 10 km radius of the project site. The analytical labs were already accredited by the Ministry of Environment and Forests or by NABL which is having the authority on the subject for accreditation. The Quality Council of India has no role on this subject. The air, water, soil and noise analysis reports will remain the same both in the absence and presence of the Quality Council of India.

9 8 v) The Ecologist is having a major role in EIA Reports, since this will indicate how much effect will be there on the flora and fauna. In this context Quality Council of India has no role to play in the EIA Reports prepared by the environmental consultants. Further the Impact Assessment on the surrounding areas by ISST3, ISC3 Model is calculated on software developed by Lakes Environmental Software (U.S EPA AERMOD) and will predict the pollution load on the surrounding area where no role is to be played by Quality Council of India. vi) Environmental Management Plan - prepared as per the guidelines of the Central Pollution Control Board and State Pollution Control Board. Sector specific guidelines are published by the Central Pollution Control Board. Hence no role is played by Quality Council of India in the above mentioned process. The above facts clearly indicate that the QCI/NABET has no role to play in this Environmental Impact Assessment and Environmental Management Plan Reports, submitted for prior Environmental Clearance. The unnecessary burden put by the Respondent on the Environmental Impact Assessment Consultants and Project proponents would increase the financial burden and administrative delay. Hence the structuring of statutory bodies like Quality Council of India in Environmental Impact

10 9 Assessment is vague since it has no role to play in Environmental Impact Assessment Reports. 9. NABET, the sole accrediting agency created by the Respondent itself has no adequate infrastructure, manpower or expertise to grant accreditation to the applicant Environmental Consultant as per the accreditation scheme. Earlier, the Respondent through the office memorandum dt. 18 th March 2010 insisted on the Environmental Consultants obtaining accreditation on or before 30 th June As per the said office memorandum the final EIA/EMP Report prepared by the non-accredited Consultants would not be entertained after 1 st July Pursuant to the said memorandum, many EIA Consultants applied for accreditation much before the deadline set therein. However, NABET failed to adjudicate the accreditation applications of such EIA Consultants within the stipulated period mainly due to its own shortcomings on account of infrastructure, manpower and expertise and then to absolve itself from the responsibility of granting accreditation to the Applicant Consultants, issued another office memorandum dt. 28 th June 2010, allowing 157 Environmental Consultants to appear before SEACs and EAC and also to certify EIA/EMP reports who had applied for accreditation irrespective of their competence and expertise. The said memorandum dt. 28 th June 2010, a copy of which is annexed herewith as Annexure E, grossly

11 10 violates the Right of Equality of the Petitioners guaranteed under Article 14 of the Constitution as the Respondent has permitted those consultants who have merely applied for accreditation irrespective of their eligibility to appear before the environmental authorities and to certify EIA/EMP reports, whereas the Petitioners are not being permitted for the same despite having the required qualifications and expertise. The inadequate infrastructure and lack of expertise at the level of NABET, the sole accrediting agency functioning under the Respondent forced the Respondent to further extend the date again vide office memorandum dt. 30 th June 2011 from the first extended date of 31 st December 2010 to 30 th September A copy of the office memorandum dt. 30 th June 2011 is annexed herewith as Annexure F. It is evident from the said notification that NABET could not grant accreditation to EIA Consultants who applied before 30 th June 2010 till 30 th June 2011 despite the fact that the no. of applications seeking accreditation was a meagre The abovementioned office memoranda were challenged by various Environmental Consultants before this Hon ble High Court and other High Courts of the country, wherein the present Respondent and NABET were made the Respondents. The Hon'ble Gujarat High Court in SCA 10311/2012, SCA 4979/2012, SCA 4974/2012, SCA 9680/2013, SCA 9679/2013 and in other cognate matters

12 11 has already stayed the operation of the abovementioned office memoranda as interim relief. A copy of the order dt of the Hon ble Gujarat High Court in SCA 10311/2012 granting ad-interim injunction and of the order dt staying the operation of the impugned office memoranda till further order are annexed herewith as Annexure G and Annexure H respectively. The Hon'ble Karnataka High Court in Writ Petition nos /2012, the Hon'ble Kolkata High Court in W.P. no (W)/2012, the Hon'ble Orissa High Court in W.P. no /2012 and the Hon'ble Punjab High Court in CWP no /2012 have also stayed the operation of the impugned office memoranda as interim relief. Copies of some of the interim orders of the abovementioned High Courts are annexed herewith as Annexure I (Colly). The Respondent has preferred a transfer petition before the Hon ble Apex Court to get all matters transferred from various High Courts to the Supreme Court being numbered as Transfer Petition (Civil) of 2014 and having a cause title Nand Kishore and Ors. Etc., of which no cognizance is yet taken by the Hon ble Supreme Court. 11. To circumvent the injunction orders granted by the High Courts of various states the Respondent issued a notification no. S.O. 648 (E) dt. 3 rd March 2016, making accreditation of the Environmental Consultants mandatory

13 12 with NABET, which is nothing but utter disrespect of the orders of the Hon ble High Courts. A copy of the notification no. S.O. 648 (E) dt. 3 rd March 2016 is annexed herewith as Annexure J. 12. Earlier for mining of minor minerals in an area less than 5 hectares, EC was not required. However, as per the law laid down by the Hon ble Apex Court, obtaining EC from the Respondent is mandatory even for mining of minor minerals in an area less than 5 hectares. To pave the way for making EC mandatory for mining of minor minerals in an area less than 5 hectares, the Respondent issued a draft notification no. S.O (E) dt. 22 nd September 2015 whereby a new category of projects, B2 was created. The Respondent invited suggestions and objections from the stake holders. A copy of the said draft notification is annexed herewith as Annexure K. As per the said draft notification, it was proposed to establish another authority at the district level as District Level Environmental Impact Assessment Authority (DEIAA) in addition to earlier authorities already established as Expert Appraisal Committee (EAC) at Central Level and State Expert Appraisal Committees (SEACs) at State level vide notification dt. 14 th September Upon receiving suggestions and objections from the stake holders, the Respondent issued notification no. S.O. 141 (E) dt. 15 th January 2016, a copy of which is annexed herewith

14 13 as Annexure L. As per the said notification, the District Level Environmental Impact Assessment Authority (DEIAA) was established under the chairmanship of the District Magistrate or District Collector. DEIAA, having District Collector/District Magistrate as the chairperson was empowered to issue EC for category B2 projects, i.e. mining of minor minerals. Through the said impugned notification, only QCI/NABET accredited consultants are permitted to prepare EIA and EMP reports for the project proponents. It is pertinent to note that in the draft notification dt. 22 nd September 2015 (Annexure K), no such conditions were mentioned by the Respondent. 14. The Petitioners by way of the present petition under A. 226 of the Constitution challenge the notifications no. S. O. 648 (E) dt. 3 rd March 2016 and S.O. 141 (E) of 15 th January 2016, whereby the Petitioners are precluded from working as Environmental Consultants and appearing before the EAC, SEACs and DEIAAs thus affecting their livelihood, on the following grounds amongst other grounds which are taken without prejudice to one another and which may be argued at the time of hearing. GROUNDS A. That the impugned notifications no. S.O. 648 (E) dt. 3 rd March 2016 and S.O. 141 (E) of 15 th January 2016 issued by

15 14 the Respondent prohibiting the Petitioners from carrying out Environmental Impact Assessment (EIA) and/or Environmental Management Plan (EMP) Reports for their clients or from representing their clients before statutory authorities are violative of fundamental rights of the Petitioners as guaranteed under Article 14, 19(1)(g) and 21 of the Constitution. The impugned notifications are also contrary to law, reason, justice and equity. B. The imposing of unreasonable restrictions by the Respondent on the Petitioners for carrying out the profession of their choice through the impugned notifications is outside the scope and authority of the Respondent. C. It is submitted that the right of the Petitioner to carry on their activities as Consultants is protected under Article 19(1)(g) of the Constitution and the impugned notifications are in clear violation of Article 19(1)(g) of the Constitution.. The said rights can be curtailed only by imposing reasonable restrictions/regulations. Even assuming that the Respondent has found the need to control the activities of the Consultants to improve the standard of environment Impact Assessment in the Country by prescribing accreditation, the same cannot be thrust on the Petitioners in the absence of a rule making power under the statute. The impugned notification in the present case is neither

16 15 issued in exercise of powers under Section 3(2)(v) of the Environment (Protection) Act, 1984 nor under Rule 5(3) of the Environment (Protection) Rules Act. None of these two provisions vest any authority or power with the Respondent to regulate or restrict the working of the Petitioners as EIA Consultants in any manner. Hence in the absence of an enabling provision, the impugned notifications issued without legal authority are unreasonable, illegal and ultra vires the rule making powers of the Government. D. Through the impugned notification, the Respondent has taken away the very right of the Petitioners to employ the employees of their choice. The Respondent has no authority in law to dictate the qualifications and experience of the employees to be appointed by the Petitioners. In no other professional service does the regulatory authority impose conditions of appointing an employee with a particular period of experience. It is also pertinent to note that as per the scheme of accreditation, the Environmental Consultant must possess either a minimum Bachelor s degree in Engineering/Architecture/Environmental Planning/Town Planning or a Master s degree in Science/Economics/ Management and a minimum 7 years of experience, whereas the application made by the Environmental Consultant for accreditation would be scrutinized and evaluated by members of State Level

17 16 Expert Appraisal Committees (SEACs), having minimum qualifications of a Bachelor s Degree in Engineering with 4 years of experience or a Master s degree in Science with 5 years of experience. E. Imposing unreasonable restrictions through the impugned notifications also amounts to violation of Article 14 of the Constitution as the Petitioners are precluded from appearing before EAC, SEACs or DEIAAs representing their clients. Implementation of the notifications certainly amounts to discriminating against the Petitioners on the mere ground of accreditation despite having the same or better qualification than accredited EIA Consultants. There is also no nexus between the accreditation and the quality of EIA reports, nor is the EIA report prepared by the EIA Consultants binding on the Respondent. F. The accreditation scheme is formulated by NABET, which is a non-statutory organization devoid of any legislative force and hence is not binding to the Petitioners. G. The high level committee comprising of Hon ble Mr. Justice A. K. Srivastava, Retd. Delhi High Court Judge as one of the members and other experts to review various Acts administered by Ministry of Environment, Forest & Climate Change, Government of India in its report has also criticized the accreditation scheme, which is made mandatory by the Respondent under the impugned

18 17 notifications. Relevant part of the Para 9.2 of the report is reproduced hereunder for ready reference. The process of enlisting of such consultants should be revamped exhaustively and NEMA should develop objective parameters to enlist and empanel the consultants in a manner to focus upon the competence, technical knowhow and expertise and experience for such empanelment. The present system of borrowing the list from Quality Council of India and National Accreditation Board for Education and Training (NABET) is marred with multiple controversies. Even exceptionally high quality research and education institutions often do not qualify to be enlisted as consultants in the current process. H. The Respondent no. 1 by mandating accreditation of the Petitioners and other EIA Consultants with the QCI/NABET has in effect accepted and adopted the Scheme framed by such agencies. Even assuming that the Respondent has powers to impose restriction by prescribing accreditation, such powers cannot be delegated to an external agency such as the QCI/NABET, which is admittedly not a creation of any statue or Act of the Parliament as any other professional bodies such as the Bar Council of India or the Medical Council of India. Further vesting of such unfettered powers with external agencies will lead to arbitrariness and favoritism. Hence the impugned notification is liable to be quashed on this ground also.

19 18 I. The act of the Respondent of granting monopolistic right to NABET for accrediting Environmental Consultants without inviting tenders is also against the concept of a welfare state and in violation of democratic principles. The Hon ble Andhra Pradesh High Court in the matter of P MOHAN RAO V/S GOVERNMENT OF ANDHRA PRADESH, as reported in 2009 AIR(AP) 1066, held that - [11]... The contention of Sri N. Subba reddy, learned Senior Counsel appearing for the 4th respondent, that this Court should not interfere merely because it is lawful to do so, does not, therefore, merit acceptance. It is no doubt true that the executive power of the State, under Article 162 of the constitution of India, extends to matters with respect to which the Legislature of the state has the power to make laws. It must, however, be borne in mind that the extent of executive power under Article 162 is subject to the provisions of the Constitution which include Part III thereof. As award of works, or entering into contracts, by religious institutions, through private negotiations, and not by the tender process, except in exceptional cases, is arbitrary, irrational and unreasonable, it would fall foul of Article 14 of the Constitution of India and would be required to be set aside. Contracts being entered into through private negotiations is unreasonable enough to satisfy the wednesbury test. Mere incantations that the government had examined the matter from different angles would not suffice, in the absence of details thereof being furnished. As no prescribed policy, giving preference to other State/central Government undertakings, exists, the mere fact that the work was awarded to a Central Government undertaking would not justify upholding the impugned G. O. The plea that the 4th respondent had incurred large amount of money in making the film, in preparation of the audio and video CDs and that this court should, therefore, exercise its discretion not to interfere must also be rejected. The furtive method adopted by the 4th respondent, in procuring a contract through private negotiations behind the back of those interested and anxious to compete, is not justified. There are many environmental consultant organizations, including the present Petitioners, which have

20 19 infrastructure, expertise and qualifications to act as accrediting agencies and are willing to compete with NABET if opportunities and a level playing field are provided by the Respondent. It is pertinent to note that the QCI/NABET is charging hefty fees from the Applicant Consultants for accreditation, making it a commercial activity but does not pay any amount to the Respondent. A copy of the information received under the Right to Information Act, 2005 is annexed herewith as Annexure M. J. The impugned notifications have the capability to eliminate small Environmental Consultants, who are otherwise qualified and competent to provide consultancy to their clients to the fullest satisfaction of even EAC and SEACs but lack huge investment capacity and who have been preparing EIA Reports by taking the help of third parties in some of the fields, albeit without compromising on the quality of the report. This certainly contravenes the spirit and provisions of the Competition Act, The impugned notifications are discriminatory in nature, which heavily lean towards and favour already established and financially fat consultant organizations. K. The Petitioners submit that the impugned notifications and the accreditation scheme limit the scope of the Environmental Consultants only in the area for which in-

21 20 house Functional Area Experts (FAE) are employed, thereby violating the right of the Petitioners to carry out their own profession by hiring the FAEs on contract basis and on need basis. The imposition of the mandatory conditions to have the in-house Functional Area Experts (FAEs) would deprive young talent and new entrants from practising the business of their choice and would thus be violative of Article 19(1)(g) of the Constitution. It would also violate the fundamental right of the young but talented Environmental Consultants having professional degrees to represent their clients before the Environmental authorities, thereby violating the right to life as enshrined in Article 21 of the Constitution. Imposing conditions to the effect that only those consultants having experience of the required no. of years (7 years in case of EIA Coordinator) would be eligible to represent their clients before the Environmental authorities is unreasonable and unacceptable in a democratic country like India. It is akin to saying that a person having a law degree and registered with the Bar Council as an advocate would not be entitled to represent a client before the judicial authorities if (s)he does not have 7 years experience or a person having a degree in medicine and registered with the Medical Council would not be allowed to treat patients if he/she has less than 7 years of experience!

22 21 L. The Respondent making the accreditation mandatory as per the accrediting scheme designed by QCI/NABET itself is full of flaws. There is no gradation of the Environmental Consultants as per the present scheme and all consultants are classified only as accredited or non-accredited. In almost all accrediting scheme like NAAC for the Universities, there are grades that are given and the Universities are not prohibited from conferring degrees. It is the students who are given an option to choose which University they want to enroll in as per their grades (Marks) and the grade of the University. The present accrediting scheme does not give this flexibility to the project proponents by placing a blanket ban on nonaccredited consultants from carrying on their business. M. The restrictions imposed by the impugned notifications also violate the fundamental rights of the project proponents as their right of being represented through the Environmental Consultants of their choice is being violated. The impugned notifications dt. 15 th January 2016 and 3 rd March 2016 along with the accreditation scheme of the Respondent mandate the representation of the Project proponents before EAC, SEACs and DEIAA through Environmental Consultants having a particular period of experience only. N. There are no justifiable and valid grounds for imposing conditions for the accreditation of EIA Consultant

23 22 Organizations as provided in the impugned notifications dt. 3 rd March 2016 and 15 th January 2016 as the quality of EIA/EMP reports prepared by the EIA Consultant has no relevance on environmental issues as the said report prepared by the EIA Consultants is otherwise being evaluated by the Expert Appraisal Committee (EAC) or State Expert Appraisal Committee (SEAC) or DEIAA before granting Environmental Clearance. Even without getting accreditation, the Petitioners are contributing substantially towards environment protection. The competence of the Petitioners to prepare the EIA/EMP reports of the highest quality is evident from the fact that almost all reports prepared by the Petitioners have been accepted by the concerned authorities and the ECs were granted to the project proponents based on the reports submitted by the Petitioner Consultants, though not accredited. A summary of the projects handled by a few Petitioners in last 5 years, i.e. from the issuance of office memorandum, making accreditation mandatory and EC granted is annexed herewith as Annexure N. O. Empowering District Collector/District Magistrate to grant EC for B2 category projects is in violation of the settled principle of Nemo debet causa sua. Rule 10 of the Gujarat Minor Mineral Concession Rules, 2010, which is reproduced hereunder for easy reference empowers the District Collector to grant lease for minor minerals and the

24 23 same authority would issue EC for mining minor minerals from the mines/area leased by it. RULE 10 : Grant of quarry lease (1) On receipt of an application for the grant of a quarry lease under Rule 6, the Competent Authority after making such enquiries as it deems fit, may grant the quarry lease over a part or the whole of the area applied for, to the applicant. When an application is refused or grant with reduced in area, the Competent Authority shall communicate the reasons of its refusal or, as the case may be, reduction in area, in writing to the applicant. In case where there are more than one applicant for the same land or the land has been distributed, it shall communicate the reasons of refusal in writing to the applicants to whom such lease is not granted within seven days of granting the quarry lease or leases for the same land: Provided that before granting the quarry lease in the Schedule Area, the Competent Authority shall obtain the recommendations of the concerned Gram Sabha where the area of quarry is situated. Rule 2 (ii) "Competent Authority" means (a) The Commissioner, who shall have jurisdiction in whole of the State of Gujarat in the matters pertaining to granite under these rules; (b) District Collectors or, as the case may be, District Officer of Geology and Mining, who shall have jurisdiction within their respective Districts in the matters pertaining to minor mineral, except granite, under these rules; Explanation. The District Officer of Geology and Mining shall include the Geologist or the Assistant Geologist, (iii) "Commissioner" means Commissioner of Geology and Mining, Gujarat State; P. Making accreditation mandatory for Environmental Consultants for representing their project proponent clients in the impugned notifications despite interim injunction granted by this Hon ble Court and other Hon ble High Courts on the operation and implementation of the impugned office memoranda, making accreditation mandatory, amounts to utter disrespect of the

25 24 Constitutional Courts, which cannot be termed otherwise than as contempt. The Respondent, despite making an application before the Hon ble Apex Court for transfer of all matters pertaining to accreditation, and instead of waiting till final adjudication by the highest Court of the land, has inserted a mandatory accreditation clause in the impugned notification, which was not published in the draft notification dt. 22 nd September 2015 (Annexure - K), which speaks volumes about the mala fide intention and foul play of the Respondent. It is neither expected from the Respondent, being a government instrumentality, nor desirable for a healthy democracy that it indulges in tactics of hitting below the belt! Q. The Hon ble Karnataka High Court in the Writ Petition no of 2016 has already stayed the impugned notification S. O. 648 (E) dt. 3 rd March 2016 while granting interim injunction in favour of the Environmental Consultants. A copy of the order dt. 21/3/2016 of the Hon ble Karnataka High Court is annexed herewith as Annexure O. 15. In view of the aforesaid facts and circumstances of the case, it is a fit case for this Hon ble Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India by issuing a writ of Certiorari or any other appropriate writ or direction against the Respondent to withdraw the notifications no. S.O. 648 (E) dt. 3 rd March 2016 and S.O. 141 (E) dt. 15 th January 2016 and further to

26 25 quash and set aside the impugned decision of making accreditation mandatory for Environmental Consultants for preparing/certifying EIA/EMP reports and/or for representing clients before the Environmental authorities. On the aforesaid facts and circumstances the Petitioners have a strong prima facie case and the balance of convenience is also in their favour. If this Hon ble Court does not exercise its jurisdiction, the Petitioners would be in great and irrevocable difficulties which may not be compensated in terms of money because of the fact that if the Petitioners, who are sufficiently qualified and experienced to work as Environmental Consultants are not permitted to prepare/submit EIA/EMP Reports and/or to represent their clients before the EAC and SEACs, they would lose their livelihood. 16. The Petitioners are residents of the State of Gujarat, hence the Hon ble High Court has the jurisdiction to hear the present application under its extraordinary jurisdiction. 17. The Petitioners have no alternative and efficacious remedy except to approach this Hon ble Court by way of the present petition. 18. The Petitioners have not filed any petition pertaining to the subject matter herein either in the Hon ble Supreme Court of India or in this Hon ble High Court or any other High

27 26 Court except for challenging various office memoranda issued by the Respondent. 19. The Petitioners crave leave to add, amend or alter the present petition if required in the interest of justice. 20. In view of the aforesaid premises, the Petitioners pray that- (A) This Hon'ble Court may be pleased to issue a writ of Certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned notifications no. S. O. 648 (E) dt. 3 rd March 2016 and S.O. 141 (E) dt. 15 th January 2016 issued by the Respondent. (B) This Hon ble Court may be pleased to declare the accreditation scheme of the Respondent as illegal being ultra vires the Articles 14, 19(1)(g) and 21 of the Constitution. (C) Pending hearing and final disposal of the present petition, this Hon'ble Court would be pleased to stay the operation and execution of the notifications no. S. O. 648 (E) dt. 3 rd March 2016 and S.O. 141 (E) dt. 15 th January 2016 issued by the Respondent. (D) An ex-parte ad-interim relief in terms of prayer (C) may please be granted by this Hon'ble Court.

28 27 (E) Such other and further reliefs as this Hon'ble Court may deem fit and proper. AND FOR THIS ACT OF KINDNESS THE PETITIONERS SHALL AS IN DUTY BOUND FOREVER PRAY. Place: Ahmedabad Dated: (Dr. Nilesh P. Shah) Advocate for Petitioners A F F I D A V I T I, Darshan Parekh s/o Jitendrabhai Parekh, having residence at 24/229, Nidhi Apartments, Near Pragati Nagar Bus Stand, Naranpura, Ahmedabad do hereby solemnly affirm and say that what is stated in paragraphs 1 to 13 is true to my knowledge, what is stated in paragraphs 14 to 19 are legal submissions and paragraph 20 is the prayer clause. Solemnly affirmed at Ahmedabad on this th day of March DEPONENT