Private Limited And Others vs The State Of West Bengal And Others
2022 Latest Caselaw 3782 Cal

30.06.2022
Sayandeep
Item No. 04
  Ct. No. 05




                               W.P.A. 11523 of 2022

                            Pacific Scientific Consultancy

                             Private Limited and Others

                                       Versus

                          The State of West Bengal and Others.



                    Mr. Kalyan Bandyopadhyay,

                    Mr. Durga Prasad Dutta,

                    Mr. Souvik Sen,

                    Mr. Sumanta Ganguly.

                                   ... for the petitioners.

                    Mr. T.M. Siddique,

                    Mr. Prantik Gorai.

                                   ...for the State.



               1.   The petitioners are aggrieved by a decision dated

               14th June, 2022 contained in a Minutes of a Meeting

               of   The    State   Environment         Impact   Assessment

               Authority (SEIAA) deferring the application of the

               petitioner no. 1 for Environmental Clearance. The

               petitioner had applied as a Project Proponent (PP) for

               a project in consonance with the business carried on

               by the petitioner no. 1 of consultancy on energy

               safety audit, ecological study, bio monitoring and

               solid waste management and environment-related

               study and research.
               2




2.   The reason given for deferment of the petitioner's

application is two-fold: i) the petitioner (described as

PP in the impugned order) did not submit the

conversion certificate; ii) A stay granted by the

Calcutta High Court on 28th April, 2016 is no longer

operative. The petitioners are particularly aggrieved

by the second reason given by the SEIAA for

deferring the petitioner's application. The essence of

the second ground for deferment is that the

petitioners must furnish a National Accreditation

Board    of   Education     and    Training      (NABET)

accreditation for acting as consultant for any project

submitted for environmental clearance. The PP /

petitioners were therefore requested to engage a

NABET      accredited     Environmental       Consultant

Organization for the project.


3.   According to learned counsel appearing for the

petitioners, the construction given by SEIAA to the

order of the Supreme Court dated 15th October,

2020 in Criminal Appeal No. 1375 of 2013 is

patently wrong. Counsel places other orders passed

by the Gujarat and Karnataka High Courts by which

the relevant office Memoranda and Notifications

requiring NABET accreditation were stayed by the

High Courts. Counsel also places relevant provisions

from the Constitution of India in this regard.
                 3




4.   Learned        counsel      appearing       for      the    State

respondents places an order of the Supreme Court

in Criminal Appeal Nos. 1375 - 1376 of 2013 passed

on 15th October, 2020 to submit that the earlier

order dated 28th March, 2018 in the same Criminal

Appeal has been continued.

5. The submissions of learned counsel appearing

for the parties indicate that the controversy revolves

around interpretation of the orders of the High

Courts in relation to the impugned Office

Memoranda/ Notifications requiring NABET

accreditation for acting as consultant for any project

for environmental clearance and the order passed by

the Supreme Court on 15th October, 2020. To put

the order in context, several notifications and Office

Memoranda were issued by the Ministry of

Environment and Forests including on 2nd

December, 2009, 18th March, 2010, 28th May, 2010,

28th June, 2010, 1st November, 2010, 31st December,

2010, 30th June, 2011 and 30th September, 2011

with regard to NABET accreditation for all

organisations working in the area of Environmental

Impact Assessment.

6. A Division Bench of the Gujarat High Court

passed an interim order staying the operation of all

the impugned Memoranda for a limited period of

time. A similar order was passed by a learned judge

of the Calcutta High Court in W.P. No. 13896 (W) of

2012 on 19th September, 2012. The Karnataka High

Court also passed an order dated 10th April, 2012

continuing an earlier interim order passed by the

Court on 18th January, 2012. Since the proceedings

before the different High Courts involved the same

set of office Memoranda, the writ petitions were

sought to be transferred to the Supreme Court. The

transfer petitions were dismissed by an order of the

Supreme Court dated 9th April, 2018.

7. An additional paragraph was added to the

earlier Memoranda by way of a Notification dated 3rd

March, 2016 of the Ministry of Environment, Forest

and Climate Change. The said paragraph - no. 13 -

empowered the NABET or Quality Council of India or

any other agency as notified by the Ministry to

prepare the Environmental Impact Assessment

Report and to appear before the concerned Expert

Appraisal Committee for environmental clearance.

8. This Notification of 3rd March, 2016 was stayed

by a Division Bench of the Gujarat High Court on 5th

April 2016. The order of stay was continued by a

recent order of the Division Bench of the Gujarat

High Court on 27th April, 2022. A challenge to the

Notification dated 3rd March, 2016 was also brought

before a learned Single Judge of this Court in W.P.

7365(W) of 2016. By an order dated 28th April, 2016

the Court, considering the interim orders passed by

the Gujarat High Court, held that the petitioners

were sufficiently protected since the Gujarat High

Court, order was in general terms. The Court also

gave liberty to the petitioners to seek interim orders

in the event the Gujarat High Court order is vacated.

9. This order dated 28th April, 2016 has been

referred to in the impugned decision of the SEIAA

wherein the Authority has held that the protection

given to the petitioner no longer subsists in view of

the order passed by the Supreme Court on 15th

October, 2020.

10. The order of the Supreme Court must therefore

be seen in context of the construction given by the

SEIAA. The order dated 15th October, 2020 passed in

Criminal Appeal No. 1375-1376 of 2013 refers to an

earlier judgment passed in the same set of Criminal

Appeals and reported in Asian Resurfacing of Road

Agency Private Limited vs Central Bureau of

Investigation; (2018) 16 SCC 299. In paragraphs 36

and 37 of the said judgment, the Supreme Court

deprecated the frequency and duration of orders of

stay granted by the Courts in civil and criminal

proceedings. The Supreme Court commented on the

practice of proceedings being adjourned sine die on

account of stay and attempted to remedy the

situation by directing that in all pending cases where

stay against proceedings of a civil or criminal trial is

operating, the same will come to an end on expiry of

six months from the date of the judgment of the

Supreme Court. The Supreme Court also directed

that extension of such orders can only be granted by

a speaking order showing exceptional nature of the

case. This judgment was continued by the order

dated 15th October, 2020 where the Supreme Court

cautioned Magistrates all over the country to follow

the earlier order in letter and spirit and to set a date

for the trial.

11. As of today, the Office Memoranda and the

Notification of 3rd March, 2016 remain stayed. The

order of stay by the Gujarat High Court was

continued on 5th April, 2016 till further orders

including the order dated 27th April, 2022. The

matter has now been fixed on 11th July, 2022. If this

be the case, the interim order of stay granted by a

learned judge of this court on 28th April, 2016 in an

earlier writ petition filed by the petitioners also

subsists as on date. According to the SEIAA, these

interim orders granting stay of the impugned

Notifications have ceased to remain operative by

reason of the Supreme Court judgment in Asian

Resurfacing followed by the order of 15th October,

2020 passed in the same Criminal Appeal.

12. This Court is not inclined to accept the

construction given by SEIAA to the effect of the

Supreme Court order for the following reasons. First,

Asian Resurfacing was passed in a batch of Criminal

Appeals where the Supreme Court was concerned

with the prevalent situation of proceeding remaining

pending for an indefinite period of time by reason of

orders of stay granted by the High Courts. The

concern arose out of the pendency of corruption

cases where civil and criminal proceedings were

stalled and adjourned for an indefinite period of time

by reason of orders of stay. It was in these kinds of

cases that the Supreme Court thought it fit to direct

that stay orders would have a limited shelf-life.

Paragraphs 36 and 37 of Asian Resurfacing would

make this clear where the Supreme Court also

commented on legislative policy of ensuring

expeditious disposing of a trial without hampering

the same in any manner. The paragraphs entirely

deal with the detrimental effect of a stay order in

framing of charge or where the trial itself in civil or

criminal proceedings is interfered with. The focus of

the Supreme Court was on the Prevention of

Corruption Act, 1988 and the recommendations

made to the said Act for speedy disposal of a trial.

The consequent direction of the Supreme Court in

all the pending cases for restricting the duration of a

stay order to a limit of six months must hence be

seen in the particular facts of Asian Resurfacing.

The order of 15th October, 2020 was passed in the

same set of Criminal Appeals and only continued the

earlier order passed by the Supreme Court on 28th

March, 2018 which has been discussed above.

13. Second, stay of trial of civil or criminal

proceedings cannot be equated with stay of Office

Memoranda/Notifications. Apart from the obvious

differences, the orders of the Supreme Court were in

specific relation to pending civil and criminal

proceedings which were stalled due to the orders of

stay. In the present case, the impugned Notification

was stayed by the High Courts of different States

and there is no material on record to indicate that

the aggrieved party took any steps from January,

2013 onwards.

14. Third, Article 226(3) of the Constitution

provides for a remedy to a litigant who is at the

receiving end of an interim order or injunction or

stay to make an application to the High Court for

vacating such order. Article 226 (3)(b) further

mandates that the High Court shall dispose of such

applications within a period of 2 weeks from the date

on which it is received or from the date on which the

copy of such application is furnished, whichever is

later. The aforesaid provision hence acts as a

safeguard against indefinite continuation of ex-parte

interim orders as also the designated route which an

aggrieved party can take recourse to. Admittedly, the

respondents or the concerned Ministry have not

taken recourse to this provision or by way of any

application before the High Courts for vacating the

orders of stay. The SEIAA therefore, giving such

benefit to the respondents or the Ministry by a

construction of the orders of the Supreme Court is

totally out of context. The reasons shown in the

impugned decision of the orders of stay against the

Notifications not subsisting any longer is hence

without any basis. This Court is accordingly inclined

to accept the stand taken on behalf of the

petitioners.

15. It may also be mentioned that the document of

27th February, 2012 of the NABET issued to the

petitioner no. 1 shows that the petitioner has been

given conditional accreditation as indicated in the

contents of the document. The accreditation was

given for a period of 3 years starting from 21st

August, 2011. It is not clear whether this

accreditation was renewed after 2014.

16. Notwithstanding the above document or the

fact of renewal, this Court is of the view that the

deferment of the application made by the 1st

petitioner for the reasons contained in the impugned

Minutes dated 14th June, 2022 has no factual or

legal basis and hence cannot be sustained. The

impugned decision is accordingly quashed and the

State Environment Impact Assessment Authority is

directed to consider the petitioner's application

afresh and come to a reasoned order within a period

of 6 weeks from the date of communication of this

order.

17. WPA 11523 of 2022 is disposed of in terms of

the above.

Urgent Photostat certified copies of this

judgment, if applied for, be supplied to the

respective parties upon fulfillment of requisite

formalities.

(Moushumi Bhattacharya, J.)