BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
…………..
APPLICATION NO. 116 (T
In the matter of:
1. Kalpavriksh
Through Neeraj Vagholikar
Flat No. 5, 2
Floor, Shri Dutta Krupa,
908, Deccan Gymkhana,
Pune – 411 004, Maharashtra
nd
2. Goa Foundation
Through Dr. Claude Alvares
G-8, St Britto’s Apts., Fiera Alta,
Mapusa, Bardez 403 507, Goa
3. Manoj Misra
C-603, Aashiyana Apartments
Mayur Vihar, Phase – I,
Delhi – 110 091
HC
) OF 2013
…..Appellants
Versus
Union of India
Through the Secretary
Ministry of Environment and Forests,
C.G.O. Complex, Lodhi Road,
New Delhi-110 003.
…….Respondent
Counsel for Appellants:
Mr. Raj Panjwani, Senior Advocate along with Mr. Rahul
Choudhary, Advocate.
Counsel for Respondent:
Ms. Panchajanya Batra Singh, Advocate with Mr. Salauddin
Khan, Advocate
1
JUDGMENT
PRESENT:
Hon’ble Mr. Justice Swatanter Kumar (Chairperson)
Hon’ble Mr. Justice U.D. Salvi (Judicial Member)
Hon’ble Dr. D.K. Agrawal (Expert Member)
Hon’ble Mr. B.S. Sajwan (Expert Member)
Hon’ble Dr. R.C.Trivedi (Expert Member)
Dated: July 17, 2014
JUSTICE SWATANTER KUMAR, (CHAIRPERSON)
Petitioner No. 1, ‘Kalpavriskha’ claims to be a reputed
environmental non profit organisation working since 1979.
Amongst other subjects, the key focus area of this petitioner is
stated to be research and advocacy on environmental governance
aspects of developmental infrastructure projects and activities in
the country. In legal and policy action this petitioner has given
inputs on content and implementation of laws, impacting
conservation and livelihoods under different laws. This petitioner
participated in the preparation of Draft of National Biodiversity
Strategy and Action Plan. Various investigation and research
projects have been undertaken by this Petitioner. The petitioner
claims to have raised various issues in the field of environment
and is also raising issues of public interest in the application in
hand. Similarly, petitioner No. 2, ‘Goa Foundation’ was founded in
the year 1986 by a group of Goan environmentalists, each fighting
his or her own individual environmental battles. The work of this
2
petitioner spans in different areas and fields, all related in some
way or another with the conservation of the Goan environment.
Petitioner No. 3, Mr. Manoj Mishra claims that he is a former
member of Indian Forest Services and retired as the Chief
Conservator of Forest, State of Chhattisgarh. He has been
involved in many civil society initiatives relating to the
conservation of environment. The said petitioner is the Convenor
of the ‘Yamuna Jiye Abhiyaan’, an awareness and advocacy
campaign for the revival of River Yamuna.
2. According to the petitioners, Ministry of Environment and
Forest (for short ‘MoEF’) is the nodal agency of the Central
Government with the primary objective of protecting the
environment and all its constituents, to conserve the natural
resources of the country and to undertake measures for
prevention and control of pollution. To meet these objectives, the
MoEF has made it mandatory for certain specified categories of
projects to obtain an Environmental Clearance prior to
commencing any project work. The decision whether or not to
grant Environmental Clearance to a project depends mostly on the
impact of the project on the environment as well as the potential
implications of the project on the people. The decision making
process surrounding the Environmental Clearance process is
complex, as it requires the consideration of several factors which
are spread across various disciplines and are not restricted only
to environmental considerations. The social impacts of projects
3
are equally crucial as projects often cause displacement of
thousands of persons along-with destruction of important
cultural, historical and religious sites and symbols. The MoEF for
taking decision in this regard relies upon the contribution of
various experts in the field of environment. The MoEF appoints
Expert Appraisal Committees (for short ‘EAC’) to assist it in this
decision making process. Members of the EACs represent various
areas of expertise and are expected to contribute towards a
holistic decision making process. The MoEF while exercising its
powers under Section 3(1) and 3(2)(v) of the Environment
(Protection) Act, 1986 (for short ‘Act of 1986’) and Rule 5(3)(a) of
the Environment (Protection) Rules,1986 (for short ‘Rules of
1986’) has issued several Notifications with regard to prohibition
and restrictions on the locations of industries and the carrying on
of processes and operations in different areas. In exercise of these
powers various notifications have been issued inter alia specifying
the projects which require Environmental Clearance under
different categories and the procedure for obtaining such
clearance.
3. In exercise of the above powers, the Central Government
framed Environment Clearance Regulations, 2006 vide
Notification No. S.O. 1533(E) dated 14
th
September, 2006. This is
also known as EIA Notification, 2006 (for short ‘the Notification of
2006’). The Notification of 2006, in Paragraph 7 stipulates four
stages in the process of obtaining Environmental Clearance. Stage
4
(1) is screening. At this stage the EAC or the State Expert
Appraisal Committee (for short ‘SEAC’) takes the decision whether
Environmental Impact Assessment (for short ‘EIA’) Report has to
be prepared for the proposed projects. Stage (2) is Scoping. At this
stage, the EAC for category ‘A’ projects and the SEAC for category
‘B’ projects determines detailed and comprehensive Terms of
Reference (for short ‘TOR’) addressing all relevant environmental
concerns for the preparation of an EIA Report in respect of the
proposed project or activity for which the prior environmental
clearance is sought. Then the detailed environment impact study
is carried out at proposed site by a team of experts from all the
relevant fields, addressing all the Terms of Reference and
thereafter a report, predicting all positive and negative impacts
and their magnitude is prepared. This is followed by preparation
of Environment Management Plan (for short ‘EMP’) which details
out various measures to be taken to minimise the impact to an
acceptable level. Such report along with EMP is submitted to the
MoEF. Stage (3) relates to Public Consultation and has two
components – 1) a public hearing, which is conducted by the
concerned State Pollution Control Board at the project site or in
its close proximity, explaining all the possible environment
impacts and measures proposed in EMP. This is done for
ascertaining the concerns of the locally affected persons. The
procedure prescribed for public hearing is described in Appendix
IV to the Notification and 2) obtaining written responses from
5
other concerned persons who have a plausible stake in the
environmental aspects of the project or activity. Lastly, Stage (4)
relates to Appraisal of the Project. Under para 7(i) of the
Notification of 2006, ‘appraisal’ has been defined as the detailed
scrutiny by the EAC or the SEAC of the application and other
documents like the Final EIA Report and the outcome of the
public consultations including public hearing proceedings,
submitted by the Project Proponent to the regulatory authority
concerned for grant of environmental clearance. In terms of the
Notification of 2006 read in conjunction with its Appendices, the
Project Proponent is expected to file documents and additional
information, including possible alternative sites for the project,
studies on the cumulative impact of the project due to proximity
of other projects and the impact of the project on the local
communities, disturbance to sacred sites etc. The EAC or the
SEAC concerned has to make categorical recommendations to the
regulatory authority concerned either for grant of prior
environmental clearance on stipulated terms and conditions, or
rejection of the application for prior Environmental Clearance,
together with reasons for the same. The Regulatory Authority will
be the MoEF or State Environment Impact Assessment Authority
(for short ‘SEIAA’) depending upon the category in which such
project falls. Appraisal of the project is one of the most important
steps to be taken in the entire process of grant or refusal of the
Environmental Clearance to a proposed project or activity.
6
Appendix V to the Notification 2006 provides the procedure for
Appraisal.
4. Appendix VI to the Notification of 2006 details the
composition of the sector/ project specific EAC for Category ‘A’
projects and the SEACs for Category B Projects. These committees
are to be constituted by the Central Government in consonance
with the qualification and experience stated under this very
Appendix. It is clear from the cumulative reading of the
Notification of 2006 along-with its Schedule and Appendices that
the recommendation made by the EAC or SEAC as the case may
be are critical in the whole Environmental Clearance process
thereby making it imperative that those who are Members of the
EAC are well qualified and experienced persons so as to further
the cause of environment and ensure appropriate consideration of
the applications for grant or refusal of Environmental Clearance of
projects. It is the case of the applicant that the MoEF had issued
various Notifications and in all of them, the Government had
stated that it would evaluate and assess an application for
Environmental Clearance in consultation with a Committee of
experts. The composition of the Committee of experts, as per the
Notification of 2006, includes persons from various disciplines
including eco-system management, air/water pollution control,
water resource management, ecologists, social sciences
particularly rehabilitation of project oustees and representatives
from other relevant fields.
7
5. While Paragraph 3 of Notification of 2006 deals with
Constitution of the SEIAA, Paragraph 5 of the same deals with the
Constitution of EAC and SEAC. Appendix VI to the Notification of
2006 provides the eligibility criteria for the Chairperson and
Members of EAC or SEAC. It is further averred by the applicant
that in the EIA Notification of 1992, a different criteria, relevant
for the purpose of considering Environmental Clearance
application was stated by MoEF. This criteria came to be varied in
the EIA Notification of 1994 to some extent, but in the EIA
Notification of 2006, dated 14
th
September, 2006, the criteria was
considerably varied. According to the applicant, this defeats the
very purpose, object and attainment of environmental protection
under the provisions of the Act and Rules framed thereunder. We
may refer to all the three relevant provisions of the three
Notifications to enable us to deal with the contentions raised by
the applicant.
EIA Notification
1992
(S.O. 85(E)
29.02.1992)
EIA Notification
1994
(S.O. 60(E), dated
27.01.1994)
FOR CHAIRPERSON
An outstanding and
experienced ecologist
or environmentalist
or technical
professional in the
relevant development
sector having
demonstrated
interest in
Environment
Conservation and
sustainable
development.
[PAGE NO 81 OF
THE WRIT PETITION]
The Chairman will be
outstanding and
experienced ecologist
or environmentalist
or technical
professional or wide
managerial
experience in the
relevant development
sector.
[PAGE NO 97 OF THE
WRIT PETITION]
EIA Notification 2006
(S.O. 1533 dated
14.09.2006)
The Chairperson shall be an
outstanding and experienced
environmental policy expert
or expert in management or
public administration with
wide experience in the
relevant development sector.
[PAGE NO 156 OF THE WRIT
PETITION]
8
FOR MEMBERS
1. Members with
M.Tech/Ph.D in the
relevant field and
long experience
including at least 8
years experience in
environmental
management in
relevant sectors:
2. Eco-system
Manager with
Systems Management
and Modeling
Experience.
3. Air Pollution
Control.
4. Water Pollution
Control.
5. Flora/Fauna
Survey and
Management.
6. Water
Resources
Management.
7. Land use
Planning/Biological
reclamation of
degraded lands.
8. Conservation
and Protection of
Aquatic Life.
9-10. Ecologists
(2).
11. Social
Scientist with
experience of
rehabilitation of
project oustees.
12. Specialist with
background of
economics and
project appraisal.
13-14. Subject area
specialists in relevant
development sector
(2)
15. Representative of
NGO Environmental
Action Groups.
16. Representative of
Impact Assessment
agency at
Centre/State.
Note: Experts
inducted will serve in
(i) Eco-system
Management
(ii) Air/Water
Pollution Control
(iii) Water
Resource
Management
(iv) Flora/Fauna
conservation and
management
(v) Land Use
Planning
(vi) Social Sciences
/Rehabilitation
(vii) Project Appraisal
(viii) Ecology
(ix) Environmental
Health
(x) Subject Area
Specialists
(xi) Representatives
of NGOs /persons
concerned with
environmental
issues.
[PAGE NO 96 OF
THE WRIT PETITION]
The Members of the EAC
shall be Experts with the
requisite expertise and
experience in the
following fields /disciplines.
• Environment Quality
Experts: Experts in
measurement/monitoring,
analysis and
interpretation of data in
relation to environmental
quality
• Sectoral Experts in
Project
Management: Experts in
Project Management or
Management of
Process/Operations/Facilities
in the relevant sectors.
• Environmental Impact
Assessment Process
Experts: Experts in
conducting and
carrying out Environmental
Impact Assessments (EIAs)
and preparation of
Environmental
Management Plans (EMPs)
and other Management plans
and who have wide expertise
and
knowledge of predictive
techniques and tools used in
the EIA process
• Risk Assessment Experts
• Life Science Experts in
floral and faunal
management
• Forestry and Wildlife
Experts 42
• Environmental Economics
Expert with experience in
project appraisal.
[PAGE NO 155 OF THE WRIT
PETITION]
9
their individual
capacities except
those specifically
nominated as
representatives.
[PAGE NO 81 OF
THE WRIT PETITION]
6. MoEF had issued the first Notification on 29
1992 while the second was issued on 4
third on 17
th
th
10
th
June,
May, 1994 and the
September, 2006. Variation of eligibility criteria
in these three Notifications according to the petitioners is not
only disadvantageous to the interest of the environment but
is also in contradiction to the qualifications provided in
Appendix VI to the Notification of 2006.
7. According to the applicant, the MoEF has failed to
appreciate the significance of the appraisal process as part of
the Environmental Clearance procedure under the
Notification of 2006 and has been appointing persons as
Chairperson and members of the EAC who do not have the
requisite expertise on the necessary issues of environmental
significance. Given the complex nature of environment issue,
it is essential that the EAC should have been composed of
people who are well versed with social and environmental
context of development related decision making. Since the
Notification of 2006 recognizes the need to obtain expert
opinion on the environmental impact of a proposed project,
before an Environment Clearance is granted to the project,
hence it requires the impact assessment agency to consult
with a Committee of Experts. The composition of the
Committee as laid down in both the Notifications of 1992 and
1994, reflected the inter-disciplinary approach required to
analyse the impact of a project. Under the Notification of
1992, the Chairperson/members had to be outstanding and
experienced ecologists or environmentalists or technical
professionals in the relevant development sector having
demonstrated interest in environment conservation and
sustainable development. The Notification of 1994 removed
the requirement for demonstrating interest in environment
conservation and sustainable development. Chairperson
could be an outstanding and experienced ecologist or
environmentalist or technical professional with wide
managerial experience in the relevant development sector.
The technical professional or any person with managerial
experience in the relevant development sector was no longer
required to have any relation with environmental
conservation or sustainable development. The Notification of
2006 modified the requirements even further with regard to
the Chairperson. The Chairperson now has to be an
outstanding expert with experience in environmental policy,
management or public administration with wide experience in
11
the relevant development sector. The words ‘environmentalist’
and ‘ecologist’ were entirely left out in this Notification and
the emphasis has shifted from environment to management
and public administration
8. According to the applicant, the result of this deletion and
change in qualification of the Chairperson of EAC has led to
conflict of interest. This conflict of interest has attained
serious dimensions in the working of the EAC, as persons
from either public administration or managerial posts are
being appointed as Chairperson of EAC. This is prejudicial to
the whole purpose of Environmental Clearance. With this
background, the grievance of the applicant further extends to
certain appointments of the Chairperson and members of the
EAC. The applicant states that he moved an application
under the Right to Information Act, 2005 on 27
th
2010 for seeking information with regard to the qualification
and appointments of the Chairperson and members of the
EAC. The replies to the said application and the file noting
furnished therewith shows that persons who were not
qualified to hold the position of the Chairperson and
Members of the EAC were being appointed.
9. According to the applicant on 14
th
12
September
June 2010, MoEF
reconstituted three EAC on River Valley and Hydro Electric
Projects; Thermal and Coal Mining Projects and
Infrastructure Building Construction Projects. One Mr.
Rakesh Nath was appointed as Chairperson of EAC on River
Valley and Hydro Electric Projects and another Mr. V. P Raja
for Thermal and Coal Mining Project. Representations were
filed on 19
th
June, 2010 by various groups against the above
two appointments but no response was received from MoEF.
10. It is the case of the applicant that these persons were
not best suited for the job and they do not have any special
qualification and experience vested in these persons to justify
their appointment as Chairpersons. Conflict of interest is
clear from the fact that Mr. V. P Raja who has been appointed
for the Thermal Project and Coal Mining Project is also the
Chairperson for Maharashtra Electricity Regulatory
Commission and his previous experience does not evidence
any exposure to ecological or social issues relating to thermal
power projects and coal mining, etc.
Conflict of interest also arises from the bias that such
members may have, as a result of their interests in private or
other sectors. Bias has to be inferred on a reasonable ground. In
other words, whether there is substantial possibility of bias
animating the mind of the member against the aggrieved party, is
to be examined with reference to the facts of the case, position
13
and participation of the member in the process in question (Dr. G.
Sarana v. University of Lucknow and others, (1976) 3 SCC 585).
The Supreme Court in the case of J. Mohapatra and Co. and
another v. State of Orissa and another, (1984) 4 SCC 103, held
that the possibility of bias cannot be excluded where the members
of the committee set up for selecting books for educational
institutions are themselves authors of the books which come up
for selection.
11. The applicant has placed great emphasis on the growing
conflict of interest in the appointment of members of EAC.
Highlighting the disadvantages of appointing persons from private
sector/industry or public administration to EAC, it has also been
averred that two persons namely Mr. P. Abraham and Mr. M.L.
Majumdar had to resign from the Chairpersonship of the
concerned EACs because they were on the Board of Power or
Mining companies; for the reason of conflict of interest. On the
above premises, the contention of the applicant before us is that
in order to protect the environmental interests, in order to avoid
conflict of interest in examination of such application and to apply
the settled principles of fairness, precautionary principle and
substantial and effective compliance to the provisions of the
Notification of 2006, it is necessary that Appendix VI to the
Notification of 2006, should be struck down as being contrary to
the Notification of 2006 and the provisions of the Act.
Furthermore, the eligibility criteria stated under the Notification of
14
1994 should be read and applied by MoEF for appointing
Chairperson and Members of the EAC or SEAC.
12. The respondent, particularly, the MoEF has raised a
preliminary objection to the maintainability of the writ petition
(application) as well as on merits of the case. On behalf of the
MoEF, it has been contended that Appendix VI to the Notification
of 2006, which prescribes qualifications for members and the
Chairperson of the EAC/SEAC is a subordinate legislation and no
jurisdiction has been vested in this Tribunal to entertain and
adjudicate upon vires of statutory provisions and subordinate
legislations within the ambit of Section 14 of the NGT Act.
Therefore, the application before the Tribunal is misconceived. It
is also contended that the validity of a regulation made under the
delegated legislation can be decided only in judicial review
proceedings before the court and not by way of appeal before the
Tribunal. Reliance in this regard is placed upon the judgement of
the Supreme Court in the case of PTC India Ltd. v. CERC, 2010 (4)
SCC 603.
13. The respondents have also raised a contention that the
Notification of 2006 has been issued on 14
th
September, 2006 that
is much prior to the coming into force of the National Green
Tribunal Act (for short ‘the NGT Act’) which came into force on
18
th
October, 2010. Hence, the provisions of Section 16 of the
NGT Act does not get attracted and the present application is
untenable.
15
14. On merits, it is the case of the respondents that the
notification in question was issued after due procedure and
challenge to the same after almost seven years is highly belated,
misconceived and frivolous. Further, challenging the jurisdiction
of the Tribunal in terms of Section 14 of NGT Act, the contention
is that there is no substantial question of environment and as
such the present application would not be maintainable, even if
the above objections are not accepted by the Tribunal.
15. In view of the above stated facts and the contentions raised,
the following questions arise for consideration of the Tribunal:-
(1) Whether the Tribunal has power of judicial review
wherein it can examine the validity and legality of notification
issued by the authorities in exercise of the power of
subordinate/delegated legislation?
(2) Whether the Notification issued under Environment
Clearance Regulations, 2006 (for short ‘Notification of 2006’)
in relation to prescribing the eligibility criteria for the
Chairperson and members of the EAC/SEAC Committee
would fall within the scope of Section 14 of the NGT Act?
(3) Will it be a substantial question relating to environment
(including enforcement of any legal right relating to
environment) and such question would arise out of the
implementation of the enactments specified in Schedule I of
the NGT Act?
16
(4) Whether the applicant cannot invoke the provisions of
Sections 16 and/or 14 of the NGT Act and thus this
application is not maintainable on the ground that the
Notification of 2006 was issued on 14
much prior to 18
th
th
September, 2006
October, 2010, the date on which NGT Act
came into force? It is only the order passed on/or after the
commencement of NGT Act that can be assailed before the
Tribunal?
(5) What directions, if any, can be issued in the present
case?
Discussion on issue no. 1: “Whether the Tribunal has power of
judicial review wherein it can examine the validity, and
legality of notification issued by the authorities in exercise of
the power of subordinate/delegated legislation.”
16. As far as this issue is concerned, it need not detain us any
further in view of the judgment of the Tribunal pronounced today
in the case of Wilfred J. and Anr. v. MoEF and Ors., Application
No. 74 of 2014 and Appeal No. 14 of 2014. The learned counsel
appearing for the MoEF had fairly stated that this Tribunal being
a judicial tribunal with the trapping of a court and keeping in view
the complex cases that come up for hearing before the Tribunal, it
will be appropriate for the Tribunal to exercise limited power of
judicial review, of course, as supplementary to the higher courts
and not supplanting them. According to her, still the question of
maintainability as discussed above would arise for consideration
of the Tribunal. This statement is in consonance with the law as
noticed in the case of Wilfred J. and Anr (supra).
17
In that judgement after considering the law at great length,
the Tribunal took the view that this Tribunal is a judicial Tribunal
having the trappings of a Court, with complete judicial
independence, being manned by the judicial and expert minds in
accordance with the procedure prescribed and keeping in view the
legislative scheme of the NGT Act and Rules framed thereunder.
For proper administration of environmental justice, the Tribunal
has to examine the correctness or otherwise of Rules and
Notification made in exercise of delegated legislation. The
Tribunal is vested with the power of judicial review to a limited
extent which it would exercise only as supplementing and not
supplanting to the jurisdiction of the higher courts in accordance
with law. In exercise of the power of judicial review, the Tribunal
can examine the validity, vires, legality and reasonableness of the
rules, provisions or notifications, made or issued in exercise of the
powers vested in the concerned Government or authority by way
of subordinate or delegated legislation, but only in relation to the
Acts enumerated in Schedule I to the NGT Act. This power of
judicial review would not extend to examination of provisions of
the NGT Act or the rules framed thereunder; NGT being the
creation of that statute.
17. For the reasons stated above and the fact that the matter is
squarely covered by the judgment of the Tribunal in the case of
Wilfred J. & Anr. (supra), we answer the question in the
affirmative and as detailed above.
18
Discussion on issue no. 2: “Whether the Notification issued
under Environment Clearance Regulations, 2006 (for short
‘Regulations of 2006’) in relation to prescribing the eligibility
criteria for the Chairperson and members of the EAC/SEAC
Committee would fall within the scope of Section 14 of the
NGT Act.”
and
Issue No. 3: “Will it be a substantial question relating to
environment (including enforcement of any legal right
relating to environment) and such question would arise out of
the implementation of the enactments specified in Schedule I
of the National Green Tribunal Act.”
18. As there is inter-relation between issue no. 2 & 3 and
common arguments have been addressed by the learned counsel
appearing for the parties, it will be appropriate for us to deal with
both these questions together.
19. Before we proceed to examine the merit of the contentions
raised by the Learned Counsel appearing for the parties on this
issue, we must notice a very important fact. As already noticed,
the whole challenge in the Application was to the prescription of
eligibility criteria and parameters for appointment of Chairperson
and members of the EAC/SEAC. This challenge was relatable to
the amendment of the Notification of 2006 which substituted or
superseded the Notification of 1994. Paragraph 4 of Appendix VI
to this Notification of 2006 was a matter of concern for the
applicants. The paragraph 4 of Appendix VI has to be read in light
of other paragraphs of the said Appendix. The relevant extract of
unamended Appendix VI reads as under:-
The Members of the EAC shall be Experts with the
requisite expertise and experience in the following fields
19
/disciplines. In the event that persons fulfilling the
criteria of “Experts” are not
available, Professionals in the same field with sufficient
experience may be considered:
• Environment Quality Experts: Experts in
measurement/monitoring, analysis and interpretation of
data in relation to environmental quality
• Sectoral Experts in Project Management: Experts in
Project Management or Management of
Process/Operations/Facilities in the relevant sectors.
• Environmental Impact Assessment Process Experts:
Experts in conducting and carrying out Environmental
Impact Assessments (EIAs) and preparation of
Environmental Management Plans (EMPs) and other
Management plans and who have wide expertise and
knowledge of predictive techniques and tools used in the
EIA process.
3. The Membership of the EAC shall not exceed 15
(fifteen) regular Members. However the Chairperson may
co-opt an expert as a Member in a relevant field for a
particular meeting of the Committee.
4. The Chairperson shall be an outstanding and
experienced environmental policy expert or expert in
management or public administration with wide
experience in the relevant development sector.
5. The Chairperson shall nominate one of the Members
as the Vice Chairperson who shall preside over the EAC
in the absence of the Chairman /Chairperson.
6. A representative of the Ministry of Environment and
Forests shall assist the Committee as its Secretary.
7. The maximum tenure of a Member, including
Chairperson, shall be for 2 (two) terms of 3 (three) years
each.
8. The Chairman / Members may not be removed prior
to expiry of the tenure without cause and proper
enquiry.
Vide Notification dated 11
th
October, 2007, certain
amendments were made in Appendix VI. Paragraph 2 of Appendix
was substituted while Paragraph 4 was omitted vide the said
Notification. Thus, after amendment/omission vide Notification
dated 11
as under:-
th
October, 2007, the relevant part of Appendix VI reads
20
“The Members of the EAC shall be Experts with the
requisite expertise and experience in the following fields
/disciplines. In the event that persons fulfilling the criteria
of “Experts” are not available, Professionals in the same
field with sufficient experience may be considered:
• Environment Quality Experts: Experts in
measurement/monitoring, analysis and interpretation of
data in relation to environmental quality
• Sectoral Experts in Project Management: Experts in
Project Management or Management of
Process/Operations/Facilities in the relevant sectors.
• Environmental Impact Assessment Process Experts:
Experts in conducting and carrying out Environmental
Impact Assessments (EIAs) and preparation of
Environmental Management Plans (EMPs) and other
Management plans and who have wide expertise and
knowledge of predictive techniques and tools used in the
EIA process.
• Risk Assessment Experts
• Life Science Experts in floral and faunal management
• Forestry and Wildlife Experts 42
• Environmental Economics Expert with experience in
project appraisal
Public administration or management
3. The Membership of the EAC shall not exceed 15 (fifteen)
regular Members. However the Chairperson may co-opt an
expert as a Member in a relevant field for a particular
meeting of the Committee.
4. [*****]
5. The Chairperson shall nominate one of the Members as
the Vice Chairperson who shall preside over the EAC in the
absence of the Chairman /Chairperson.
6. A representative of the Ministry of Environment and
Forests shall assist the Committee as its Secretary.
7. The maximum tenure of a Member, including
Chairperson, shall be for 2 (two) terms of 3 (three) years
each.
8. The Chairman / Members may not be removed prior to
expiry of the tenure without cause and proper enquiry.”
20. The real challenge by the Applicants was to paragraph 4 of
the unamended Appendix VI on various grounds that we have
afore-noticed. Either side argued the matter at great length and
on the premise that said paragraph 4 of Appendix VI was in force
and continued to be part of the rule book. It is only at the time of
21
dictating the judgment that it came to the notice of the Tribunal
that above said Paragraph 4 of the Appendix VI was omitted vide
Notification No. S.O. 1737(E) dated 11
after 11
th
th
October, 2007. Thus,
October, 2007, Paragraph 4 no longer remained part of
the Notification of 2006 and the entire challenge of the Applicant
falls to the ground in view of the subsequent omission of the said
paragraph. The Learned Counsel appearing for MoEF thus, was
notified of that position to which the counsel agreed. However,
learned counsel stated that the Ministry was passing
administrative orders for constituting EAC/SEAC including
nomination of the Chairperson for these Committees. As far as
challenge to paragraph 4 of Appendix VI is concerned, it has been
rendered infructuous and inconsequential.
21. As it is evident from the above referred paragraphs of the
amended Appendix VI, certain specific fields of expertise were
added in relation to risk assessment, life science (flaural and
faunal management) forestry and wild life, environmental
economics with experience in project appraisal and public
administration or management. Though, the challenge to
paragraph 4 does not subsist but the expression ‘public
administration or management’ in paragraph 2 is, according to
the applicant, still an offending requirement. According to them,
persons with experience in public administration or management,
without any reference to environment in particular, cannot be
appointed as members of EAC, much less as its Chairperson.
22
MoEF cannot by virtue of its administrative powers violate the
statutory provisions or act contra to the spirit of the legislation
and defeat the very purpose and object of the law. If persons
having experience only in the administrative and management
fields are appointed as members of the expert bodies who are to
examine or appraise and recommend grant and/or refusal of
Environmental Clearance in accordance with law, they would
hardly be able to contribute in arriving at a proper decision in
accordance with law. Furthermore, such persons can hardly be
appointed to the EAC/SEAC keeping in view the provisions of the
statutes, i.e. the Act of 1986 and the Notification of 2006. Such
expert body is expected to examine all the four stages afore-stated
and has to carry out the environmental impact assessment of the
project not only on environment simplicitor, but even on
rehabilitation, resettlements and the surroundings of the project
sites. Thus, it is a specialised job and it will be appropriate that
people with experience in the specialised field are appointed
rather than persons with experience of general administration or
management, whose contribution to such process would be
negligible and would not effectively serve the ends of environment.
22. The Appendix VI of the Notification of 2006 in turn refers to
paragraph 5 of the said Notification which provides for
composition of EAC’s and SEAC’s. The expression ‘shall consist of
only professional experts fulfilling the following eligibility criteria’
in Paragraph 1 of Appendix VI clearly suggests that it is only the
23
persons fulfilling the criteria according to Appendix VI, who would
be eligible for being considered as members of the EAC. This
essence of appointment as Members of the EAC certainly gets
diluted by amendment of Paragraph 2. The professionalism
referred to in Appendix VI has to be in the field of environment
and not in connection with non environmental sciences. Even the
amended Paragraph 2 has to be read in conjunction with
Paragraph 1 of Appendix VI. By virtue of omission of Paragraph 4,
the appointment of chairperson remains in vacuum as no specific
criteria has been provided in Appendix VI. It may be possible for
the MoEF to act by administrative order as a stop gap
arrangement, but certainly cannot make it as a permanent
feature. It must amend Appendix VI and provide the eligibility
criteria for the Chairperson of EAC/SEAC in accordance with the
Notification of 2006, the provisions of the Act of 1986 and in the
best interest of the environment. It will not be in the interest of
any of the stakeholders to leave such a significant appointment
(Chairperson) in vacuum, when eligibility of other appointments
are provided by exercise of subordinate legislation. Improper
exercise of administrative power for such a vital aspect of
Environmental Clearance is likely to give rise to arbitrariness.
This may even result in avoidance of the prescribed eligibility
criteria. Thus, we are of the considered view that it will neither be
permissible nor in the interest of the environment, or any of the
stakeholders, to appoint persons from only administrative or
24
management field, without having specific experience in the field
of environment. Therefore, under the legislative scheme of the
referred Acts, Notification of 2006 and Appendix VI to the said
Notification, an appointment contrary to or against the spirit of
these statutory provisions, would certainly lead to adverse
impacts on environmental issues, which are to be dealt with by
these specialized bodies in accordance with the provisions of the
relevant Acts. However, the contention of the Respondents as to
whether the Tribunal can examine the validity of such Notification
or not, and whether it falls within the ambit of Section 14 of the
NGT Act is a question that still remains to be answered.
23. Section 14 of the NGT Act reads as under:
“1. The Tribunal shall have the jurisdiction over all
civil cases where a substantial question relating to
environment (including enforcement of any legal right
relating to environment), is involved and such question
arises out of the implementation of the enactments
specified in Schedule I.
2. The Tribunal shall hear the disputes arising from
the questions referred to in sub-section (1) and settle
such disputes and pass order thereon.
3. No application for adjudication of dispute under
this section shall be entertained by the Tribunal unless
it is made within a period of six months from the date on
which the cause of action for such dispute first arose:
Provided that the Tribunal may, if it is satisfied that the
applicant was prevented by sufficient cause from filing
the application within the said period, allow it to be filed
within a further period not exceeding sixty days.”
The ambit and scope of Section 14 and its features came to be
discussed by the Tribunal in its judgment in the case of Goa
25
Foundation v. Union of India, (2013) 1 All India NGT Reporter 234,
wherein the Tribunal held as under:
“19. The Preamble may not strictly be an instrument for
controlling or restricting the provisions of a statute but it
certainly acts as a precept to gather the legislative
intention and how the object of the Act can be achieved.
It is an instrument that helps in giving a prudent
legislative interpretation to a provision.
In light of this language of the Preamble of the NGT
Act, now let us refer to some of the relevant provisions.
Section 14 of the NGT Act outlines the jurisdiction that is
vested in the Tribunal. In terms of this Section, the
Tribunal will have jurisdiction over all civil cases where a
substantial question relating to environment arises. The
Tribunal will also have jurisdiction where a person
approaches the Tribunal for enforcement of any legal
right relating to environment. Of course, in either of
these events, a substantial question arises out of the
implementation of the enactments specified in Schedule I
to the NGT Act. Section 15 of the NGT Act provides for
awarding of relief and compensation to the victims of
pollution and other environmental damage, restitution of
property damaged and restitution of the environment for
such area(s) as the Tribunal may think fit, in addition to
the provisions of Section 14(2) supra. Section 16 provides
for the orders, decisions or directions that are appealable
before the Tribunal. Any person aggrieved has the right
to appeal against such order, decision or direction, as the
case may be. This Tribunal, thus, has original as well as
appellate jurisdiction. This wide jurisdiction is expected
to be exercised by the Tribunal in relation to substantial
question relating to environment or where enforcement of
a legal right relating to environment is the foundation of
an application. In terms of Section 14(2) of the NGT Act,
the Tribunal shall hear disputes relating to the above
matters and settle such disputes and pass orders
thereupon.
20. The expression ‘civil cases’ used under Section 14(1)
of the NGT Act has to be understood in contradistinction
to ‘criminal cases’. This expression has to be construed
liberally as a variety of cases of civil nature could arise
which would be raising a substantial question of
environment and thus would be triable by the Tribunal.
P. Ramanatha Aiyar’s The Law Lexicon, 3
ed. 2012,
explains ‘civil cases’ as below:
rd
“In the short sense, the term ‘civil case’ means cases
governed by the Civil Procedure Code (5 of 1908). It is
26
used in a large sense so as to include proceedings in
income-tax matters...”.
21. The word ‘case’ in ordinary usage means, ‘event’,
‘happening’, ‘situation’, and ‘circumstance’. The
expression ‘case’ in legal sense means a ‘case’, ‘ suit’, or
‘proceedings’ in the Court or Tribunal. Civil case,
therefore, would be an expression that would take in its
ambit all legal proceedings except criminal cases which
are governed by the provisions of the Criminal Procedure
Code. The legislature has specifically used the expression
‘all civil cases’. Reference to Section 15 of the NGT Act at
this juncture would be appropriate. The legislature has
specifically vested the Tribunal with the powers of
granting reliefs like compensation to the victims of
pollution and other environmental damage, for
restitution of property damaged and for restitution of the
environment for such area or areas. Once Section 14 is
read with the provisions of Section 15, it can, without
doubt, be concluded that the expression ‘all civil cases’ is
an expression of wide magnitude and would take within
its ambit cases where a substantial question or prayer
relating to environment is raised before the Tribunal.
22. The contents of the application and the prayer thus
should firstly satisfy the ingredients of it being in the
nature of a civil case and secondly, it must relate to a
substantial question of environment. It could even be an
anticipated action substantially relating to environment.
Such cases would squarely fall within the ambit of
Section 14(1). Next, in the light of the language of Section
14(1), now we have to examine what is a substantial
question relating to ‘environment’. Section 2(1)(c) of the
NGT Act explains the word ‘environment’ as follows:
“‘environment’ includes water, air and land and the interrelationship,
which exists among and between water, air
and land and human beings, other living creatures,
plants, micro-organism and property.”
Section 2(m) defines the term ‘substantial question
relating to environment’ as follows:
“It shall include an instance where, --
(i) there is a direct violation of a specific statutory
environmental obligation by a person by which, -
(A) the community at large other than an individual or
group of individuals is affected or likely to be affected by
the environmental consequences; or
(B) the gravity of damage to the environment or property
is substantial; or
(C) the damage to public health is broadly measurable;
27
(ii) the environmental consequences relate to a specific
activity or a point source of pollution”.”
24. The jurisdiction vested in the Tribunal under Section 14,
which is a very wide jurisdiction, is in addition to the appellate
jurisdiction under Section 16 and the special jurisdiction under
Section 15 of the NGT Act. Under Section 14, it is not only that
Tribunal can try all civil cases where a substantial question
relates to environment and arises out of the implementation of the
enactments specified in Schedule I of the Act but also where
enforcement of any legal right relating to environment arises.
Section 14 specifically refers to a substantial question relating to
environment which itself has been defined and accepted in
Section 2(m) of the NGT Act. The definition under Section 2(m) is
an inclusive definition and thus, it has to be construed in a liberal
manner in order to give it a wider connotation. In the case
of Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. and Ors.1987 1 SCC 424, the Supreme Court
while dealing with the expression ‘includes’ stated that:
“All that is necessary for us to say is this: Legislatures
resort to inclusive definitions (1) to enlarge the meaning
of words or phrases so as to take in the ordinary, popular
and natural sense of the words and also the sense which
the statute wishes to attribute to it, (2) to include
meanings about which there might be some dispute, or,
(3) to bring under one nomenclature all transactions
possessing certain similar features but going under
different names. Depending on the context in the process
of enlarging, the definition may even become exhaustive.”
Touching upon the liberal construction of Sections 14 and
2(m) of the NGT Act, the Tribunal in the case of Kehar Singh v
28
State of Haryana, (2013) ALL (I) NGT REPORTER (Delhi) 556,
stated:
“13. The NGT Act has been enacted with the object of
providing for establishment of this Tribunal for the
effective and expeditious disposal of cases relating to
environmental protection and conservation of forests
and other natural resources including enforcement of
any legal right relating to environment and for giving
other contemplated reliefs and even dealing with matters
incidental thereto. The Tribunal thus, has original
jurisdiction in terms of Section 14 of the NGT Act. This
wide jurisdiction is expected to be exercised by the
Tribunal in relation to substantial questions relating to
environment or enforcement of legal rights relating to
environment, when it arises from the implementation of
one or more of the Acts specified in Schedule I to the
NGT Act. The pre-requisite for the applicant to invoke
original jurisdiction of the Tribunal, subject to other
limitations stated in Section 14 of the NGT Act, is that
the application must raise substantial question relating
to environment. This Tribunal, in the case of Goa
Foundation & Anr. v. Union of India & Ors., pronounced
on 18th July, 2013, on the scope of the expressions
‘substantial question relating to environment’ as well as
‘dispute', as referred to in Section 14 of the NGT Act,
held as follows:
“24. Section 2(m) of the NGT Act classifies
'substantial question relating to environment' under
different heads and states it to include the cases
where there is a direct violation of a specific
statutory environmental obligation as a result of
which the community at large, other than an
individual or group of individuals, is affected or is
likely to be affected by the environmental
consequences; or the gravity of damage to the
environment or property is substantial; or the
damage to public health is broadly measurable. The
other kind of cases are where the environmental
consequences relate to a specific activity or a point
source of pollution. In other words, where there is a
direct violation of a statutory duty or obligation
which is likely to affect the community, it will be a
substantial question relating to environment
covered under Section 14(1) providing jurisdiction to
the Tribunal. When we talk about the jurisdiction
being inclusive, that would mean that a question
which is substantial, debatable and relates to
environment, would itself be a class of cases that
29
would squarely fall under Section 14(1) of the NGT
Act. Thus, disputes must relate to implementation
of the enactments specified in Schedule I to the NGT
Act. At this stage, reference to one of the scheduled
Acts i.e. Environment Protection Act, 1986 may be
appropriate. The object and reason for enacting that
law was primarily to address the concern over the
state of environment that had grown the world over.
The decline in environmental quality has been
evidenced by increasing pollution, loss of vegetal
cover and biological diversity, excessive
concentrations of harmful chemicals in the ambient
atmosphere and in food chains, growing risks of
environmental accidents and threats to life support
systems. These were the considerations that
weighed with the legislature to ensure
implementation of the UN Conference on the Human
Environment held at Stockholm in June, 1972 to
take appropriate steps for protection and
improvement of human environment. The essence of
the legislation, like the NGT Act, is to attain the
object of prevention and protection of environmental
pollution and to provide administration of
environmental justice and make it easily accessible
within the framework of the statute. The objects and
reasons of the scheduled Acts would have to be read
as an integral part of the object, reason and
purposes of enacting the NGT Act. It is imperative
for the Tribunal to provide an interpretation to
Sections 14 to 16 read with Section 2(m) of the NGT
Act which would further the cause of the Act and
not give an interpretation which would disentitle an
aggrieved person from raising a substantial question
of environment from the jurisdiction of the Tribunal.
***
35. The expression ‘disputes’ arising from the
questions referred to in sub-section (1) of Section 14
of the NGT Act, is required to be examined by us to
finally deal with and answer the contentions raised
by the parties before us. The expression used in
sub-section (1) supra is the expression of wide
magnitude. The expression ‘question’ used in subsection
(1)
in
comparison to the expression ‘dispute’
used in sub-section (2) of section 14 is of much
wider ambit and connotation. The disputes must
arise from a question that is substantial and relates
to environment. This question will obviously include
the disputes referred to in Section 14(2). It is those
disputes which would then be settled and decided
by the Tribunal. These expressions are inter-
30
connected and dependent upon each other. They
cannot be given meaning in isolation or de hors to
each other. The meaning of the word ‘dispute’, as
stated by the Supreme Court in Canara Bank v.
National Thermal Power Corporation (2001)1 SCC
43 is “a controversy having both positive and
negative aspects. It postulates the assertion of a
claim by one party and its denial by the other”. The
term dispute, again, is a generic term. It necessarily
need not always be a result of a legal injury but
could cover the entire range between genuine
differences of opinion to fierce controversy. Conflicts
between parties arising out of any transaction
entered between them is covered by the term
‘dispute’.
36. The counsel appearing for the respondents,
while referring to this expression, relied upon the
judgment of the Supreme Court in the case of Inder
Singh Rekhi v. DDA , (1988) 2 SCC 338 to support
the contention that the dispute, as referred under
the Arbitration Act, 1940 arises where there is a
claim and there is a denial and repudiation of such
claim.
37. The judgment relied upon by the respondents is
not of much help to them inasmuch as the
Arbitration Act, 1940 operates in a different field
and the meaning to the expression dispute
appearing in that Act has to be understood with
reference to the provisions of that Act specifically.
The said Act is only intended to resolve the disputes
between two individuals arising out of a transaction
under the Arbitration law. However, the present
case, the NGT which relates to environment as
such. It is not individual or a person centric but is
socio-centric, as any person can raise a question
relating to environment, which will have to be
decided by the Tribunal with reference to the
dispute arising from such a question. It is not
necessary that such a question must essentially be
controverted by other person or even the authority.
The essence of environmental law is not essentially
adversarial litigation. To give an example, could any
authority or person deny the question relating to
cleanliness of river Yamuna? Any person could
approach the Tribunal to claim that the pollution of
Yamuna should be controlled, checked and even
prevented. None of the parties or authorities may be
able to dispute such a fact may even contend that
steps are required to be taken to control, prevent
and ensure restoration of clean water of Yamuna.
31
Thus, dispute as understood to be raising a claim
and being controverted by the other party is not
apparently the sine qua non to invocation of
Tribunal’s jurisdiction under the scheme of Sections
14 to 16 of the NGT Act. This approach is further
substantiated from the use of the expressions ‘cases
relating to environmental protection and
conservation of forests and other natural resources
including enforcement of any legal right relating to
environment and giving relief and compensation for
damages to persons and property and for matters
connected therewith or incidental thereto’ used in
the preamble of the Act
14. In the present case, the applicant has invoked the
jurisdiction of the Tribunal under Section 14 of the NGT
Act with regard to establishment of STP on a location
which, according to the applicant, is bound to create
environmental problems and would adversely affect the
public health. It will result in pollution of underground
water besides causing emission of obnoxious gases and
creating public nuisance, owing to being adjacent to
residential colony and religious places. Thus, it would
certainly involve a question relating to environment
arising from the implementation of Acts specified in
Schedule I to the NGT Act. Thus, the present case
indisputably falls within the jurisdiction of the Tribunal,
of course, subject to the plea of limitation.”
25. We have to examine the jurisdiction of the Tribunal with
reference to prevalent law of the land that right to clean and
decent environment is a fundamental right. Dimensions of
environmental jurisprudence and jurisdiction of this Tribunal,
thus, should essentially be examined in the backdrop that the
protection of environment and ecology has been raised to the
pedestal of the Fundamental Rights.
Right to clean and decent environment is a Fundamental
Right under Article 21 of the Constitution of India. The Supreme
Court in the cases of Virender Gaur and Ors v State of Haryana
and Ors, (1995) 2 SCC 577 and N.D. Jayal and Anr. v. Union of
32
India (UOI) and Ors, (2004) 9 SCC 362, has held that enjoyment of
life and its attainment, including, their right to live with human
dignity encompasses within its ambit the protection and
preservation of environment and ecological balance free from
pollution of air and water. Clean and healthy environment itself is
a fundamental right.
26. The jurisdiction of the Tribunal is thus, very wide. Once a
case has nexus with the environment or the laws relatable
thereto, the jurisdiction of the Tribunal can be invoked. Not only
the cases of direct adverse impact on environment can be brought
within the jurisdiction of the Tribunal, but even cases which have
indirect adverse impacts can be considered by the Tribunal. At
this stage, we may refer to the judgment of the Rajasthan High
Court in M/s Laxmi Suiting v. State of Rajasthan & Ors, Writ
Petition No. 8074 of 2010 decided on 1
st
October, 2013 wherein
the High Court of Rajasthan while transferring cases relating to
the enactments stated in Schedule I of the NGT Act dealt with the
length and width of the jurisdiction of the National Green
Tribunal. The Court also held as under:-
“Having regard to the ambit of right to life under Article
21 of the Constitution of India encompassing healthy
environment and to actualize the same and also taking
into account the large number of environmental cases
pending in the higher courts involving multi-
disciplinary issues, the Hon'ble Apex Court requested
the Law Commission of India to consider the need for
constitution of the 9 specialized environmental courts.
Consequently, on the necessary recommendation of the
Law Commission of India, a specialized Tribunal with
original and appellate jurisdictions relating to
environmental laws and equipped to handle multi-
33
disciplinary issues involving environmental cases was
set up vide the Act with the objective of expeditious
disposal of cases relating to environmental protection
and conservation of forests and other natural resources
including enforcement of any legal right relating to
environment. The National Green Tribunal Bill, 2009
followed which provided for establishment of the
National Green Tribunal consisting of Chairperson and
Judicial and Expert Members as The Central
Government would notify. A person either an expert in
physical sciences or life sciences or engineering or
having administrative experience in dealing with
environmental matters, was considered to be qualified
for appointment as Expert Member. The comprehensive
jurisdiction of the learned Tribunal commensurate to
the task entrusted was outlined as well. This Bill having
been passed by both the Houses of Parliament and on
receiving the assent of the President of India, was
integrated in the Statute Book as the National Green
Tribunal Act, 2010. The preamble thereof proclaims that
it has been enacted to provide for the establishment of a
National Green Tribunal for the effective and expeditious
disposal of cases relating to environmental protection
and conservation of forests and other natural resources
including enforcement of any legal right relating to
environment and for giving relief and compensation for
damages to persons and property and for matters
connected therewith or incidental thereto. The recital
following the preamble amongst others demonstrates
that in order to eventuate the resolutions adopted in the
aforestated conferences and to fructify the
comprehension of right to healthy environment as an
integrant of life envisaged under Article 21 of the
Constitution of India, the National Green Tribunal has
been set up to settle the disputes involving multi-
disciplinary issues relating to environment. Section 2(c)
defines “environment” as hereunder:-
“2(c) “environment” includes water, air and land and the
inter- relationship, which exists among and between
water, air and land and human beings, other living
creatures, plants, micro-organism and property;” The
'substantial question relating to environment' has been
defined in Section 2(m), which is extracted herein below
for ready reference:-
“2(m) “substantial question relating to environment”
shall include an instance where,-
(I) There is a direct violation of a specific
statutory environmental obligation by a person by
which,-
34
(A) the community at large other than an
individual or group of individuals is
affected or likely to be affected by the
environmental consequences; or
(B) the gravity of damage to the
environment or property is
substantial; or
(C) the damage to public health is broadly
measurable;
(II) the environmental consequences relate to a
specific activity or a point source of pollution;”
A bare perusal of Schedule-III authenticates the
amendments introduced in the legislations
contained in Schedule I of the Act pursuant to
Section 36 thereof. Section 33 of the Act in no
uncertain terms assigns an over- riding effect
thereof over any other Act inconsistent therewith for
the time being in force or any instrument having the
effect by virtue of any law and inconsistent
therewith. A plain reading of Section 14 of the Act
would irrefutably justify that thereby the learned
Tribunal has been conferred with the jurisdiction
over all civil courts where a substantial question
relating to environment including enforcement of
any legal right relating to environment is involved
and where such question arises out of the
implementation of the enactments specified in
Schedule I, the learned Tribunal is to hear the
dispute arising from such question and settle the
same and pass order thereon. Considering the ambit
and expanse of the definition of the expressions
“environment” and “substantial question relating to
environment” as engrafted in Section 2(c) and 2(m)
respectively, we are unable to persuade ourselves to
conclude that any constricted approach to scuttle
the otherwise attributed wide jurisdiction of the
learned Tribunal is either envisaged by the
Parliament or is intended. Not only the environment
includes water, air and land as defined and their
inter- relationship alongwith human beings, other
living creatures, plants, micro-organism and
property, the substantial question relating to
environment includes amongst others the
eventualities set out in clauses (i) and (ii) of section
2(m) of the Act. The definition “substantial question
relating to environment” as provided in section 2(m)
is an to limit inclusive one and by no means can be
ascribed a connotation the scope and sphere
thereof. Apropos the factual backdrop of the
35
legislation and the salubrious accomplishments
thereof as intended, any endeavour to muzzle the
legislatively intended contour thereof would be
antithetical thereto and cannot receive judicial
imprimatur. A purposive interpretation has to be
essentially provided to the relevant 14 provisions of
the Act so as to facilitate the wholesome
implementation of its enjoinments lest the same is
rendered otiose. The words contained in Section 14
delineating the jurisdiction of the learned Tribunal
therefor have to be assigned the desired flexibility
and amplitude to achieve the objectives thereof.
Section 16 by no means ousts or regulates or
circumscribes the ambit of Section 14. The reliefs
grantable by the learned Tribunal and enlisted in
Section 15 are also couched in compendious terms
with adequate discretion to the learned Tribunal to
mould the same within the framework thereof. The
reliefs contained in clauses (a), (b) and (c) of Section
15(1) therefore do not admit of literal interpretation
to circumvent the otherwise intended wide ambit
thereof. Though the Act does not contain any
provision in particular mandating transfer of any
pending case or proceeding otherwise within the
purview of the jurisdiction of the learned Tribunal to
it, having regard to the framework thereof and the
interplay of the relevant provisions, with the
Tribunal as the envisaged fora to settle the disputes
involving substantial questions relating to
environment, in our view, the non-existence thereof
(provision of transfer) is suggestive of
impermissibility of such transfer.
To reiterate, the Act has been given an overriding
effect.
Though
the
same
per
se
would
not
oust
the
jurisdiction of the superior courts contemplated
by the Constitution of India, the plea of inadequacy
or inefficacy of the remedy provided by the Act does
not weigh with us. The reference of Articles 323A
and 323B of the Constitution of India and the
enactments made thereunder ipso facto also do not,
in our estimate, outweigh the otherwise
unmistakable edict of the Act and the inbuilt
exclusion of the jurisdiction of the civil courts in
matters within the purview of the learned Tribunal
for its adjudication. The contention that this Court
is beyond the concept of civil court and thus, the
provisions of the Act do not apply to the proceeding
under Article 226 of the Constitution of India is to
be recorded only to be rejected. There is no
repugnance or conflict between the provisions of the
36
Act and the jurisdiction of the learned Tribunal
outlined thereby with that of the superior courts
under the Constitution of India. No ouster of the
writ jurisdiction of this Court as well is either
conceived of or intended. This, however, does not
detract from the necessity of transfer of the
proceedings also under Article 226 of the
Constitution of India to the learned Tribunal in view
of the avowed mission of the Act and for the
settlement of disputes relating to environment with
suitable reliefs as a corollary thereof. It has been
contended on behalf of the Board in its pleadings
that the facts involved pertain to water pollution due
to discharge of sewage and untreated trade effluent
by the industries involved. Not only these outrages
are due to conscious violations of the Act of 1974
and other environmental laws, remedial actions
taken by it (Board) form the subject matter of
challenge in the instant writ proceedings as well.
Accusation of environmental pollution and
ecological damage has been made. Having regard to
the definitions of “environment” “substantial
question relating to environment” as adverted and to
hereinabove, we are thus of the unhesitant opinion
that substantial questions relating to environment
and arising out of the implementation 16 of the
enactments amongst others the Act of 1974 is
involved in the proceedings in hand warranting
transfer of the cases to the learned Tribunal.
27. The jurisdiction of the Tribunal thus, would extend to all
civil cases which raise the substantial question of environment
and arise from the implementation of the Acts stated in Schedule I
of the NGT Act. There has to be thus, a direct nexus between the
cases brought before the Tribunal and a substantial question
relating to environment. The ‘cause of action’ as contemplated
under the provisions of the NGT Act would be complete only when
the stated three ingredients, i.e. firstly, civil cases, secondly,
concerns or raises a substantial question of environment or an
enforcement of a legal right relating to environment and lastly that
37
such question arises in regard to implementation of the Schedule
Acts, are fulfilled. In the case of Kehar Singh (supra), the Tribunal
unambiguously stated the principle that there has to be a direct
nexus or link between the case advanced by the applicant and the
substantial question relating to environment. It has to be a civil
dispute raising an environmental issue and arising from any/or
all of the Scheduled Acts.
28. However, the Tribunal may not have jurisdiction to
entertain and decide such proceedings even when above nexus is
established, as there is still another sine qua non for exercise of
the jurisdiction by the Tribunal, that is, it must arise or be
relatable to the implementation of the Acts specified in Schedule I
of the NGT Act. Thus the most significant expression in this entire
gamut of law is the expression ‘implementation’. The legislature
in its wisdom has specified different class of civil cases that would
fall within the jurisdiction of the Tribunal. The first class of cases
may per se raise a substantial question relating to environment
while others may relate to enforcement of legal right relating to
environment. These classes of cases must arise out of
implementation of enactment specified in Schedule I. Thus, now
we should examine the meaning of the word ‘implementation’.
The expression ‘implementation’ appears under different Acts even
under environmental laws. The Preamble as well as Section 22A
of the Air (Prevention and Control of Pollution) Act, 1981 uses the
word ‘implement’. In the Preamble, it is stated that, ‘whereas it is
38
considered necessary to implement the decisions’ while Section
22A states, ‘where the Board is competent to direct the person to
implement the direction in such a manner as may be specified by
the Court’. The Environmental (Protection) Act, 1986, in its
Preamble as well as Section 3 (2) (xiv) uses the word ‘implement’
and ‘implementation’ respectively. The expression ‘implement’
has been used in the Preamble while ‘implementation’ in Section 3
(2) (xiv) relates to whether the Central Government vested with the
power to take such measures in relation to matters as the Central
Government deems necessary or expedient for the purpose of
securing effective implementation of the provisions of the Act
under Article 243G(b) of the Constitution of India which vests
powers in the Panchayats and Authorities in relation to various
matters. The State can vest the Panchayat with the power to
exercise the Authority to implement the schemes for economic
development and social justice as may be entrusted to them
including those in relation to the matters listed in the Eleventh
Schedule.
29. The above provisions clearly show that the expression
‘implement’/‘implementation’ has been used differently in
different contexts. It will derive its meaning from the context in
which it has been used, but in every context this expression has
been used liberally and would be construed accordingly. There is
no reason for us to constrain or limit unnecessarily the meaning
of ‘implementation’. ‘Implementation’ has to be read in
39
conjunction with the provisions of the Acts, the Rules, the
Regulations and the Notifications issued under those Acts. The
expression, ‘implementation’ should be construed reasonably
upon the cumulative effect of these provisions and the attending
legislative intent. The Tribunal while giving it a liberal
construction has to also ensure that it does not travel beyond the
accepted norms of interpretation.
30. At this stage we may appropriately refer to the judgement of
the date pronounced by the Tribunal in the case of M.C. Mehta v.
UGC, Original Application No. 12 of 2014, where the Tribunal took
into consideration various definitions and judgments of the Court
and while explaining the expression ‘implementation’ the Tribunal
held as under:
“18. Phrase of significant importance appearing in
Section 14 of the NGT Act is ‘arises out of the
implementation of enactment specified in Schedule I’.
Even in this phrase, the word ‘implementation’ is of
essence. ‘Implementation’ in common parlance means
to take forward a decision or to take steps in furtherance
to a decision or a provision of law. It sets into motion,
the actions which are contemplated within the
provisions of the Act to which reference is made. It is
not synonymous to execution. ‘Execution’ in law,
particularly under the Code of Civil Procedure, 1908 is a
known and well-defined concept. ‘Implementation’ in
contradistinction thereto is a milder expression but
again operates within the limitations prescribed by the
law or the provision in which such expression appears.
Concept of implementation cannot travel beyond the
framework of law and in that sense it is even similar to
an execution as it must be executed in conformity to the
provisions of the Code of Civil Procedure, 1908. There
are some basic similarities between implementation and
execution but they differ in scope and enforcement.
19. We may now examine some of the definitions of the
word ‘Implementation’: -
40
Oxford Dictionary, 3rd ed., 2010, "implementation"- the
process of putting a decision or plan into effect;
execution.
Black's Law Dictionary, 9th ed., 2009, "implementation
plan" in relation to environmental law means 'a detailed
outline of steps needed to meet environmental quality
standards by an established time.'
P. Ramanatha Aiyar's The Law Lexicon, 3rd ed., 2012,
"implementation'- giving practical effect to.
Wharton's Law Lexicon, 15th ed., 2012, "implementing
agency"- includes any department of the Central
Government or a State Government, a Zilla Parishad,
Panchayat at intermediate level, Gram Panchayat or any
local authority or Government undertaking or nongovernmental
organization authorized by the Central
Government or the State Government to undertake the
implementation of any work taken up under the
Scheme.
20. In the case of Sanjay Gandhi Grih Nirman Sehkari
Sansthan, Indore v. State of Madhya Pradesh, MP
Reporter 1999, 528, where the High Court was
concerned with the expression ‘Implementation’
appearing in Section 54 of the Adhiniyam Scheme read
in conjunction with Sections 4, 6, 17(1) of the Land
Acquisition Act, where the word ‘Implementation’ means
commencement or completion of a decision taken (under
the Scheme Adhiniyam), the Court took the view that
the expression ‘Implementation’ has to be construed
liberally so as to ensure that the object is achieved and
not frustrated. Therefore, the Court held that
‘Implementation’ would mean that the steps under the
Scheme have been taken and not that they ought to
have been completed within the period of three years so
as to make the scheme lapse.
21. One also finds use of the expression ‘ímplement’ in
the very Preamble of the Environment Protection Act,
1986 where it states that it is considered necessary
further to implement the decision aforestated (decision
taken at the United Nations Conference on Human
Environment held at Stockholm in June 1972). List I of
the Seventh Schedule in terms of Article 246 of the
Constitution of India also uses similar expression in
Entry 13. Entry 13 reads as follows: -
41
13. Participation in international conferences,
associations and other bodies and implementing of
decisions made thereat.
22. The word ‘Implementation’ as used above clearly
indicates that it is a direct reference to the decision
taken and which are sought to be implemented by
taking further action thereof. Thus, when we have to
construe the word ‘implementation’ appearing in Section
14 of the NGT Act with reference to the Acts stated in
Schedule I of the said Act, it must confine itself to the
implementation of the provisions contained under those
Acts and that too, relating to a substantial question of
environment and not beyond that.”
31. ‘Implementation’, therefore, within the provisions of Section
14 of the NGT Act would relate to implementation of the various
provisions, rules, regulations and the notifications issued in
exercise of subordinate or delegated legislation with regard to any
or all of the Acts stated in Schedule I of the NGT Act. It is not
only implementation of the enactments, but even the questions
which arise out of such implementation that would clearly fall
within the ambit of Section 14 of the NGT Act. ‘Implementation’,
would therefore cover all questions relating to application,
enforcement and regulations under these enactments. There
should be a nexus between the pleaded cause of action and the
environment, making it a substantial question of environment.
This may be in relation to environment or even enforcement of any
legal right relating to environment. The word ‘implementation’
thus, has to be understood in its wider perspective and
connotation. The interpretation should be one which would
further the cause of effective implementation of the provisions of
the Scheduled Acts. Any matter in relation thereto would
42
squarely fall within the jurisdiction of the Tribunal. The nexus
with environment could be direct or even indirect. The present
case is one, which would fall in the latter category. It will be
obligatory to constitute appropriate expert committees in
consonance with the provisions of the scheduled Acts and the
Notifications issued thereunder otherwise this is bound to have
adverse effects on effective prevention and control of pollution.
32. We may also notice here that both the expressions
‘environment’ and ‘substantial question relating to environment’
has been given an inclusive definition in terms of Section 2 (c) and
(m) respectively of the NGT Act. In other words, this expression
would have to be given wider connotation as they are generally
understood but would also include what is specifically stated in
these Sections. If any activity or action of any authority under
various provisions of the Acts, would directly affect the
environment, then it would be a matter which would come within
the ambit of Section 14. The members of the EAC/SEAC are an
integral and inseparable part of the process of Environmental
Clearance which is the ethos of environmental jurisprudence
particularly with reference to the Scheduled Acts to the NGT Act.
The question arising from implementation of Appendix VI of the
Notification of 2006 would have an impact on environment. It
would also involve an enforceable legal right of the project
proponent and even public at large in relation to environment.
Hence, they will have an enforceable legal right that EAC/SEAC
43
should be constituted in accordance with law to consider their
case for Environmental Clearance. Thus, examined from either of
the point of views stated above the present case would fall within
the ambit and scope of Section 14 of the NGT Act.
33. The expression, ‘implementation’ appearing in different
statutes has been discussed by us in some detail above. At this
stage, we must notice that under the Statement of Objects and
Reasons of the Act 1986, the primary concern was over the
existing state of environment, that is the decline in environmental
quality, increasing pollution, loss of vegetal cover and biological
diversity, excessive concentrations of harmful chemicals in the
ambient atmosphere and in food chains, growing risks of
environmental accidents and threats to life support systems.
Thus, to prevent and control these pollution related problems and
to preserve wholesome environment for the community at large,
the provisions of the Act of 1986 Act were enacted. The Act of
1986, provided both for procedure as well as regulatory regime for
protection of environment thereto. In exercise of the powers
conferred under Section 6 and 25 of the Act of 1986, the Central
Government had framed the Rules of 1986. Under Rule 5 of the
said Rules, the Central Government is empowered to pass certain
prohibitory or restricted directions in relation to the fields stated
under that Rule. In terms of Rule 5(3)(d), it is empowered to issue
prohibition or restriction on location of such industry and the
manner in which the process is to be carried on. The grant or
44
refusal of Environmental Clearance/Authorization is, thus, the
most important aspect of environmental jurisprudence in as much
as it is only after grant and refusal of Environmental
Clearance/Authorization that any project or activity can be
carried on in that area. As already noticed, this process is to be
completed by an expert body i.e. the EAC/SEAC. Therefore, to
implement effectively the provisions of environmental law,
EAC/SEAC performs the most important and significant
functions. If the members of this expert body are non-
environmentalists and do not fall within the eligibility criteria of
Appendix VI, then besides violation or infringement of such
provisions, its direct impact would be on the environment. If
people who are not strictly qualified and eligible and who do not
professionally belong to this field, are selected as members of
EAC/SEAC, the obvious result would be improper application of
mind to the project reports and the application moved by the
Project Proponent for grant of Environmental
Clearance/Authorization. The EAC/SEAC has to perform
functions of a very scientific and technical nature and has to
analyse comprehensive terms of reference and environmental
impact assessment report in respect of the project activity and
then submit its report and recommendations to the Government
for grant/consideration of the appropriate authority. Persons who
are not eligible or are not having requisite expertise and
experience in relation to the various fields of environment and the
45
process involved therein, would cause serious prejudice to all the
stake-holders and more particularly to the environment and
ecology of the country. It is an accepted social norm that
prevention is better than cure. If the projects are cleared by class
of the persons afore-stated then such projects when made
operational, may have serious adverse impacts on the
environment and cause environmental hazards. It would be
better to prevent participation of such persons in the process of
appreciation and grant of consent/clearance/authorization rather
than to find remedies to the problems of pollution resulting from
improper exercise of powers by such persons. Appendix VI to the
Notification of 2006 issued in furtherance to the powers vested by
the Act and is subordinate/delegated legislation and thus, would
be an integral part of the Act. Therefore, compliance and proper
implementation of the provisions falling under and arising from
the specified Acts in Schedule I would be matters raising
substantial questions of environment, hence covered under
Section 14 of the NGT Act.
34. The selection and appointment of the members of the EAC is
duly provided under Appendix VI. It states the eligibility criteria
in that regard. Satisfying the eligibility criteria is a sine qua non
for being appointed to the committees. On one hand it states
legal requirement for selection of the EAC members, on the other
it gives a legal right in rem to ensure that appointments are made
in accordance with law. The exercise of jurisdiction by these
46
committees has a direct impact on the right of the Project
Proponent and as such the Project Proponent would have an
enforceable legal right to claim that EAC/SEAC members are
appointed in accordance with the specified criteria in the interest
of environment. This matter cannot be left to the discretion of the
authorities. Even examined from this point of view, the
application would be maintainable.
The Chairperson or Members who are to deal with complex
environmental issue while considering grant of Environment
Clearance or otherwise to the proposed projects must be
possessed of appropriate qualification and experience in that field.
They are expected to discharge functions of an expert body that
has serious ramifications not only on the rights of the parties
before it but even upon the development of the country. The
appointment of appropriate people with desired qualification thus
would be of concern and within the jurisdiction of this Tribunal.
The Supreme Court in the case of State of Assam v Sristikar
Dowerah & Ors AIR 1957 SC 414 was concerned with the question
of excessive delegation where, while referring to the desirability of
requisite qualifications of the members of the Tribunal, the Court
observed as under:
It is clear that the Tribunal was to sit in appeal over the
decision of the Excise Commissioner and that by itself
gives some indication that the person or persons to be
appointed to the Tribunal should have the requisite
capacity and competency to deal with appeals from such
high officials. We do not consider that there has been an
excessive delegation of legislative power.
47
35. Notification of 2006 has been issued in exercise of the
powers conferred by Sub-Section (1) and clause (v) of the Sub-
Section (2) of Section 3 of the Act of 1986 read with clause (d) of
Sub-Rule (3) of Rule 5 of the Rules of 1986. As already noticed,
the Central Government is vested with the power to take all such
measures as it deems necessary or expedient for the purpose of
protecting and improving the quality of environment and
preventing, controlling and abating pollution. Section 3(2) of the
Act of 1986 specifies inter-alia the matters in relation to which
measures could be taken by the Government. All the clauses of
Sub-Section (2) relates to various fields of environment but clause
(xiv) vests residual power in the Central Government. This
residual power is of a very generic nature but has only one object,
i.e. 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. This clearly
demonstrates the legislative intent of ensuring effective
implementation of the provisions of the Act.
In view of the above reasoning, we have no hesitation in
coming to the conclusion that providing of eligibility criteria under
the Regulations of 2006 would be a matter that would squarely
fall within the ambit and scope of Section 14 of the NGT Act.
Further, keeping in view the function and powers of the
EAC/SEAC and its impact on environment, it will be a substantial
question relating to environment and or even an enforceable legal
48
right of the Project Proponent relating to implementation of the
specified Acts in Schedule I of the NGT Act.
Discussion on issue no. 4: Whether the applicant cannot
invoke the provisions of Section 16 and/or 14 and this
application is not maintainable, on the ground on the ground
that the EIA Notification was issued on 14
th
September, 2006
much prior to 18
th
October, 2010, the date on which NGT Act
came into force? It is only the order passed on/or after the
commencement of NGT Act that can be assailed before the
Tribunal?
36. This contention of the respondents has to be noticed only to
be rejected. It is obvious that the present application is not an
appeal as it challenges no order within the ambit and scope of
Section 16 of the NGT Act. It is only the orders stated under
Section 16 (a) to (j) which can be challenged before this Tribunal
under Section 16 of the NGT Act and subject to the limitation
prescribed thereunder. None of the provisions of Section
16 makes the Notification of 2006 appealable before the Tribunal.
37. It is a petition which was filed before the High Court of Delhi
in New Delhi under Article 226/227 of the Constitution of India
seeking for striking down the qualifications prescribed in
Appendix VI to the Notification of 2006 for the Chairperson and
the members of the EAC, who are not experts from the field of
environment, ecology and other connected fields. This Writ
Petition came to be transferred to this Tribunal vide order dated
17th April, 2013. The transferred order was passed by the High
Court with the consent of the parties. The said order read as
under:
49
“The consent of both the counsel for the parties, the
writ petition is transferred to National Green Tribunal
(NGT). The Registrar General is directed to forward the
matter to the Registrar General, NGT within one week
from today.
The application stands disposed of.”
38. Upon the transfer, the case was registered as main
application under the provisions of the NGT Act. The case was
heard on merits. This is, thus, an application under Section 14 of
the Act. But respondents, in our considered opinion could hardly
be permitted to raise objections of maintainability in face of the
order of the High Court aforenoticed. We may also notice here
that appointments as Chairperson of EAC were made by MoEF by
passing administrative orders because Para 4 of Appendix VI has
been omitted in the year 2007. This process does not appear to
be strictly in consonance with law. The relevant materials were
provided to the Petitioners vide letter dated 11th November, 2010
and the Writ Petition had been filed in the High Court on
25th April, 2011 within the prescribed period of limitation under
Section 14.
39. We would make it clear that neither any arguments were
heard nor any arguments were addressed, with reference to the
allegations made in the application in relation to
selection/appointments of various Chairman/members of
EAC/SEAC. These selections/appointments appear to have been
made under the administrative orders passed by the MoEF, as
50
Para 4 of Appendix VI was not in the rule book after
11th October, 2007.
40. We are restricting our discussion and conclusion in this
judgment to the question of law raised for consideration of the
Tribunal and the directions, if any, required to be passed in
relation to the issues in the present application. In the facts and
circumstances of this case, issuance of certain directions have
become necessary to ensure the effective implementation of the
provisions of the various environmental Acts, particularly with
reference to the grant or otherwise of Environmental Clearance.
Appendix VI, as it exists today, is silent with regard to the
eligibility criteria and qualifications for appointment as Chairman
of EAC. The Supreme Court in the case of Vineet Narain & Ors.
v. Union of India and Another, (1998) 1 SCC 226, has held that in
exercise of the powers conferred upon the Supreme Court under
Article 32 read with Article 142 of the Constitution, the guidelines
and directions have been issued in large number of cases. Thus,
an exercise of providing guidelines by the court was stated to be
well-settled practice, which has taken firm roots in the
constitutional jurisprudence. This exercise is essential to fill the
void in absence of suitable legislation to cover the field. This
principle was also followed by the Supreme Court in the case of
Supreme Court Bar Association v. B.D. Kaushik, (2011) 13 SCC
774. Of course, this Tribunal, under the NGT Act, is not vested
with the above constitutional powers, however, the various
51
provisions of the NGT Act, gives to the Tribunal discretion to
effectively interpret the law and ensure that objectives of the
Scheduled Acts are achieved. The Tribunal will have general
powers to do what is necessary for it to administer environmental
justice. In the case of Grindlays Bank Ltd. v. Central Government
Industrial Tribunal and Ors., AIR 1981 SC 606, the Supreme
Court while dealing with various provisions of the Industrial
Disputes Act, 1947 and examining the powers of the Industrial
Tribunal held as under: -
“6. We are of the opinion that the Tribunal had the
power to pass the impugned order if it thought fit
in the interest of justice. It is true that there is no
express provision in the Act or the rules framed
there under giving the Tribunal jurisdiction to do
so. But it is a well-known rule of statutory
construction that a Tribunal or body should be
considered to be endowed with such ancillary or
incidental powers as are necessary to discharge its
functions effectively for the purpose of doing justice
between the parties. In a case of this nature, we
are of the view that the Tribunal should be
considered as invested with such incidental or
ancillary powers unless there is any indication in
the statute to the contrary. We do not find any
such statutory prohibition. On the other hand,
there are indications to the contrary.”
41. In the case of D.P. Maheshwari v. Delhi Administration,
(1983) 4 SCC 293, the Supreme Court held that in the exercise of
jurisdiction by the Tribunal, neither the High Court nor the
Supreme Court is required to be too astute to interfere with the
exercise of jurisdiction by special Tribunals at interlocutory
stages and on preliminary issues. The approach of the Courts is
to permit the Tribunals to exercise their jurisdiction to the fullest
52
so as to ensure that the Tribunals do complete and effective
justice. While examining the ouster of jurisdiction of the
Tribunals or the appellate authorities under a statute, the
Supreme Court in the case of Hakam Singh vs M/s. Gammon
(India) Ltd, 1971 1 SCC 286 noticed that in common law it is well
accepted that unless Parliament/legislature expressly ousts the
jurisdiction of the Court, the law must be interpreted in a manner
of conferring jurisdiction. The ouster of Court’s jurisdiction –
whether express or implied must be clear and unambiguous. The
assumption of jurisdiction cannot ordinarily be negatived by
implying limitations. If the language is not clear, the Court must
interpret the legislative clause in a narrow manner and sustain
the jurisdiction of a Court.
In light of these principles and to achieve the objective that
properly constituted EACs consider the cases of the Project
Proponents for grant of Environmental Clearance ensuring
environmental protection, it will be appropriate for this Tribunal
to issue required directions. Any observations made in this
judgment and findings recorded would not vitiate the
appointments of/or the recommendations made by such
members/Chairperson of the EAC/SEAC in the past.
42. Having answered the above formulated questions against the
respondents and in favour of the applicant, we dispose of this
petition with the following directions:
53
a) It is not necessary for this Tribunal to comment upon the
validity, correctness or otherwise of Para 4 of Appendix VI to
Notification of 2006, as it no longer remains on the statute.
b) As far as expression ‘public administration or management’
appearing in Para 2 of Appendix VI to the Notification of 2006 is
concerned, we direct MoEF not to appoint experts as
members/Chairperson of the EAC/SEAC under these head unless
the said experts in the above field is/are directly relatable to the
various fields of environmental jurisprudence.
c) We direct MoEF to provide eligibility criteria and specific
requirements for the person to be appointed as Chairperson of the
EAC/SEAC in Appendix VI within one month from today.
d) Till such prescription is made we direct MoEF not to appoint
persons as Chairperson/members of the EAC/SEAC who do not
have experience in the field of environment under the above head
and who do not satisfy the prescribed eligibility criteria as that
would lead to improper consideration and disposal of application
for clearance filed by the Project Proponent. Further, it is bound
to prejudicially affect the purpose of environmental enactments
and the environment itself.
43. We, however, leave the parties to bear their own costs.
Hon’ble Mr. Justice Swatanter Kumar
54
Chairperson
Dated: July 17, 2014
Hon’ble Mr. Justice U.D. Salvi
Judicial Member
Hon’ble Dr. D.K. Agrawal
Expert Member
Hon’ble Mr. B.S. Sajwan
Expert Member
Hon’ble Dr. R.C. Trivedi
Expert Member
55
