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2017 Supreme(Del) 2950
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIBHU BAKHRU, J.
Mantec Consultants Pvt. Ltd. - Petitioner
Versus
Ministry Of Environment, Forest And Climate Change (I.A. Division) & Anr. - Respondents
W.P. (C) 7756 of 2016 & CM No. 32668 of 2016
Decided On : 21-08-2017
Advocate Appeared:
For the Petitioner: Mr. Suneet Bhardwaj
For the Respondents: Mr. Manish Mohan, Mr. Saksham Tyagi, Ms Manisha Saroha, Ms. Raveena Rai, Mr. Abhiram Naik, Ms. Pavitra Singh
The court emphasized the importance of considering the ambiguity in the ToR, the lack of rejection of the report by the Expert Appraisal Committee, and the factors influencing punitive measures as laid down by the Supreme Court in imposing a punitive measure.
Headnote:
EIA Report - Environmental Impact Assessment - ToR issued for 3 activities - 22.05.2012 - The court discussed the implications of the ToR issued for 3 activities, the preparation of EIA report for 13 activities, and the punitive measure imposed on Mantec for not obtaining a fresh ToR. The court highlighted the ambiguity introduced by clause (viii) of the ToR, the lack of rejection of Mantec's report by the Expert Appraisal Committee, and the failure to consider the factors influencing punitive measures as laid down by the Supreme Court.
Fact of the Case:
Mantec filed a petition to set aside an order debarring it from preparing EIA/EMP Reports and appearing before the authorities for a year. The order was based on the allegation that Mantec prepared an EIA report for 13 activities while the ToR was issued for 3 activities.
Finding of the Court:
The court found that the impugned order was set aside due to the ambiguity introduced by the ToR, the lack of rejection of Mantec's report by the Expert Appraisal Committee, and the failure to consider the factors influencing punitive measures as laid down by the Supreme Court.
Issues: Interpretation of the ToR, Punitive measure imposed on Mantec, Implications of clause (viii) of the ToR, Consideration of factors influencing punitive measures
Ratio Decidendi: The court held that the punitive measure imposed on Mantec was not sustainable as it did not consider the ambiguity introduced by the ToR, the lack of rejection of Mantec's report by the Expert Appraisal Committee, and the failure to consider the factors influencing punitive measures as laid down by the Supreme Court.
Final Decision: The impugned order was set aside and the petition along with the pending application was disposed of.
Vibhu Bakhru, J.
1. Mantec Consultants Pvt. Ltd. (hereafter ‘Mantec’) has filed the present petition under Article 226 of the Constitution of India for setting aside an order dated 23.08.2016 (hereafter ‘the impugned order’) passed by the Ministry of Environment, Forest and Climate Change (hereafter ‘MoEF’) rejecting Mantec’s representation, thereby reaffirming its earlier decision dated 09.02.2016, debarring Mantec from preparing any Environmental Impact Assessment ('EIA' in short)/Environment Management Plan ('EMP' in short) Reports and appearing before the Expert Appraisal Committee/State Expert Appraisal Committees/State Coastal Zone Management Authorities across the country for a period of one year. The order dated 09.02.2016 was issued on the ground that the EIA report prepared by Mantec was for clearance of 13 activities/projects at Kandla Port, whereas the Terms of Reference ('ToR' in short) issued by MoEF was only for 3 activities.
2. Mantec contests the allegation that it had expanded the ToR, essentially, on three grounds. First, it is stated that the notice inviting tender issued by Kandla Port Trust, respondent no.2 was in respect of 18 activities (subsequently reduced to 13) and, therefore, Mantec always believed that it was required to make report in respect of 13 activities. Second, that Mantec's report was considered by the Expert Appraisal Committee of MoEF in its 136th meeting wherein it was decided that the proposal shall be considered further and no objections were raised as to the activities covered by Mantec in its report. And third, that the ToR issued by MoEF specifically required Mantec to carry out Comprehensive Impact Assessment of the existing and future planned activities, which indisputably included the activities for which the notice inviting tender had been issued. It is Mantec's case that the above clearly establish that there were sufficient reasons for Mantec to proceed to make its report regarding the 13 activities as covered under the ToR. However, notwithstanding the same, even if it is assumed that Mantec had misread the ToR, the same was bonafide and thus, there would be no ground to blacklist/debar Mantec from preparing EIA/EMP Reports and appearing before the concerned authorities.
3. The relevant facts to address the controversy in the present petition are briefly set hereafter.
4. Mantec is a company engaged in providing a complete range of environmental and social impact assessment services. It is accredited by the Quality Council of India (QCI)/National Accreditation Board for Education and Training (NABET) for carrying out the aforesaid activities.
5. Kandla Port Trust (hereafter ‘KPT’), issued a notice inviting tender (NIT) for appointment of advisor for "preparation of integrated environmental impact assessment study report for all future proposals of Kandla Port Trust at Kandla". Mantec submitted its bid in response to the said NIT.
6. On 17./19.02.2011, Mantec’s bid was accepted and the contract for preparation of integrated EIA study reports was awarded to Mantec.
7. On 05.03.2012, Mantec made a presentation regarding the proposed projects before the Expert Appraisal Committee of MoEF, wherein, Mantec had covered 3 main water front projects and 5 additional projects. Based on the presentation, MoEF, by letter dated 22.05.2012, issued ToR to KPT for preparation of EIA/EMP report for development of integrated facilities within the existing Kandla Port at Kandla in Gujarat covering (i) setting-up of Barge Jetty at Tuna; (ii) development of Barge handling Jetty at Khori creek and; (iii) development of Oil Jetty to handle liquid cargo and ship bunkering at Old Kandla. Clause (viii) of the ToR required KPT to submit a Comprehensive impact Assessment for the existing and future planned activities.
8. Mantec prepared the EIA report for 13 activities (including the 3 activities specifically mentioned in the ToR) for clearance by MoEF. The report submitted by Mantec was considered b
