Delhi High Court
Vimal Bhai & Others vs Union Of India & Others on 11 February, 2009
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
CM No. 15895/2005 in W.P. (C) 17682/2005
Judgment reserved on: 17th December 2008
Date of decision: 11th February, 2009
VIMAL BHAI & ORS. ..... Petitioners
Through: Mr. Rahul Choudhary with
Mr. Ritwick Dutta, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. P.P. Malhotra, Addl. Solicitor
General of India with
Ms. Monika Garg, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Yes
Digest?
JUDGMENT
Dr. S.Muralidhar, J.
1. This is an application filed by the petitioners in W.P. (C) No. 17682
of 2005, seeking a direction to the respondents to implement the order
dated 29th September 2005 passed by this Court disposing of the said
writ petition. By the said order dated 29th September 2005, this Court
had directed the respondents "to take requisite steps for clearing the
proposals" related to the appointment of the Chairman and other
Members of the National Environment Appellate Authority (NEAA)
constituted under the National Environment Appellate Authority Act,
1997 („NEAA Act‟).
Background
2. The aforementioned writ petition was filed in this Court by social
activists engaged in the field of environment. Initially, the petitioners
approached this Court questioning a decision dated 20th May 2005 of the
NEAA dismissing their appeal on account of delay. In the said appeal,
the petitioners had challenged the environment clearance granted by the
Government of India on 8th February 2005 for the setting up of the
Loharinag-Pala Hydroelectric Power Project (600 MW) in Uttarkashi,
District of Uttaranchal. The appeal was to be filed within thirty days
thereafter but was filed on 1st April 2005. This Court, by its order dated
29th September 2005, held that the NEAA had adopted "a very hyper-
technical approach in rejecting the petitioners‟ application for
condonation of 23 days delay instead of dealing with this plea on merit".
It accordingly set aside the NEAA‟s order dated 20th May 2005 and
remanded the case to the NEAA for a decision on merits in accordance
with law.
3. This Court was, in the course of the hearing of the above writ
petition, informed that the NEAA was first constituted on 9th April 1997
with the following persons:
1. Shri. Justice N. Venkatachala (former judge of the Supreme
Court) - Chairperson.
2. Smt. Nirmala Buch (former Secretary to the Government
of India) - Vice-Chairperson.
3. Shri. Mohinder Singh (former Principal Secretary to the
State Govt. of Uttar Pradesh) - Member.
4. Shri.Ejaj A.Malik (former Principal Chief Conservator of
Forests, Jammu and Kashmir) - Member.
Jusice Venkatachala, Smt. Nirmala Buch, Shri Mohinder Singh and Shri
Ejaj A. Malik demitted office with effect from 2nd July 2000, 13th July
2000, 7th March 2000 and 13th July 2003 respectively. The office of the
Chairperson has remained vacant since 2nd July 2000. The post of Vice-
Chairperson was filled up by the appointment of Shri Vishwanath Anand
with effect from 1st February 2002. His term was extended for a period
of six months with effect from 1st February 2005 till 31st July 2005. He
demitted office on 31st July 2005.
4. Taking note of the fact that the posts of Chairperson and Vice-
Chairperson of the NEAA were vacant this Court, while disposing of the
writ petition on 29th September 2005, observed:
"While considering this matter it was noticed by this
Court that the Union of India has failed to constitute the
National Environment Authority under the Act of 1997
and on the contrary allowed this Authority to become a
one-man show when the statute prescribed its composition
which requires a Chairman, Vice Chairman and three
Technical Members. By Court order dated 12th
September, 2005 the Union of India was, accordingly,
directed to file an affidavit indicating therein the steps
taken by it for composition of the Appellate Authority.
This affidavit has been filed and it is stated that steps were
taken from time to time for reconstitution of this
Authority. It is explained that a retired Judge of the
Supreme Court has now been nominated but some
modalities about the perks and salary of the Chairman are
being processed in the Finance Ministry.
Given regard to the importance of the Authority created
under the National Environment Authority Act, it is
appropriate to direct the Union of India and all its
concerned functionaries to take requisite steps for clearing
the proposals related to the appointment of the Chairman
of the Appellate Authority and other Technical Members
and reconstitute the Authority within 45 days.
The Registrar to fax this order to Secretary, Ministry of
Environment and Forest for compliance.
The petition is disposed of."
5. When no effective steps were taken by the Respondents to
reconstitute the NEAA within forty-five days thereafter, the petitioners
filed the present application, CM No. 15895 of 2005. On 7th February
2007, a statement was made to this Court by the Respondents that a Bill
to set up Central and Regional Environment Tribunals to replace the
NEAA was being introduced in the budget session of the Parliament.
Although two further adjournments were granted on 4th April 2007 and
16th May 2007 on this ground, nothing appears to have been happened.
6. On 6th August 2008, the following order was passed by this Court:
"By order dated 29th September, 2005, the Division
Bench of this court directed the Union of India and all its
concerned functionaries to take requisite steps for
clearing the proposals related to the appointment of
the Chairman of the Appellate Authority under the
National Environment Appellate Authority Act 1997 and
other technical members and reconstitute the Authority
within 45 days. The said directions have not yet been
fully complied with. The post of Chairman still remains
vacant. The Vice Chairman retired some time in June
2006 and no person has been appointed to that post yet.
Thus both the posts of Chairman and Vice Chairman are
vacant as of now. The learned counsel appearing for the
respondent states that they have taken all possible steps
to fill up the said vacancies. However, this court is not
satisfied that any serious effort has been made to comply
with the directions of this court. The respondents are
directed to produce the original files relating to
the appointment to the posts of Chairman and Vice
Chairman of the Appellate Authority before this court on
13th August, 2008.
A copy of this order be given dasti under the signature of
court master."
7. Despite the above order, the Respondents did precious little to make
appointments to the vacant posts of Chairperson and Vice- Chairperson
of the NEAA. This led this Court to pass the following order on 15 th
October 2008:
"Learned counsel appearing for the respondents stated that
the only progress made from 3.9.2008 till date is that the
Registrar (Admn.), Supreme Court of India has been
requested to give the addresses and contact numbers of
the retired Judges of the Supreme Court of India. It
appears that the respondents are not serious about
fulfilling their such statutory obligation of appointing the
Chairperson and Vice Chairperson of the National
Environment Appellate Authority (NEAA). The post of
Chairperson has remained vacant since
July 2000. The Vice Chairperson‟s post fell vacant in July
2005. Both posts remain vacant till date. It is now
submitted by the respondents that keeping in view the
work load of the NEAA in terms of number of appeals
received and disposed during the last few years, and also
keeping in view that three Members of the NEAA are
already in position, the filling up of the post of Vice
Chairperson is not required. We find this explanation
given by the respondents to be unsatisfactory. We direct
the Secretary, Ministry of Environment and Forests,
Government of India to remain present before this court
on 20th October, 2008 at 2.00 pm with the relevant files
relating to the appointments of Chairperson and Vice
Chairperson of the NEAA. Copy of this order be given
dasti to counsel for the respondent under the signature of
Court Master."
8. Thereafter the Secretary, Environment appeared before the Court and
assured that letters of offers would be written to certain retired judges of
the Supreme Court to ascertain their consent. However, at the
subsequent hearings this Court was informed that the learned retired
judges to whom such letters had been written, had declined the offer.
One of them had pointed out that the terms and conditions being offered
were substantially different from what was being offered to the
Chairpersons of certain other statutory tribunals.
9. At the hearing on 3rd December 2008 this Court Mr. Rahul
Choudhary, the learned counsel appearing for the petitioners, pointed out
that given the fact that the salary offered to both the Chairperson and
Vice-Chairperson of the NEAA being equal to that of a Secretary to the
Government of India, it was not surprising that no retired Judge of the
Supreme Court or retired Chief Justice of a High Court was inclined to
accept the post. He further submitted that the three technical members
presently at the NEAA comprised two former members of the Indian
Forest Service and one former member of the IAS. He pointed out that
the MoEF has two separate wings: the Environment Wing and the Forest
Wing. The Forest Service Officers were not expected to have expertise
in the area of environment. Therefore, the qualifications of these
Members did not satisfy the requirement of the provisions of the NEAA
Act.
Position under the NEAA Rules regarding the service conditions of
Chairperson of the NEAA
10. At the hearing on 3rd December 2008 this Court examined in detail
the relevant provisions of the NEAA Act and the Rules. Under Section
22 NEAA Act, the Central Government can by notification, make rules
for carrying out the provisions of the Act. This power includes under
Section 22(2) (b) to make rules in respect of the salaries and allowances
payable to and other terms and conditions of service of the Chairperson,
the Vice-Chairperson and the Member under Section 9 of the Act.
Pursuant thereto, the Central Government has made the National
Environment Appellate Authority (Salary, Allowances and Conditions
of Service of Chairperson and Vice-Chairperson) Rules, 1998 („NEAA
Rules‟).
11. Under Rule 4 the Chairperson shall be entitled to the pay scale of
Secretary to the Government of India, i.e., Rs. 26,000/- (fixed). It is
stated "the pay shall be fixed in accordance with prevailing orders i.e.
pay minus pension." Rule 4 reads as under:
"Pay of Chairperson
4. A Chairperson shall be entitled to the pay scale of
Secretary to the Government of India, i.e. Rs. 26,000/-
(fixed). The pay shall be fixed in accordance with
prevailing orders i.e. pay minus pension.
(i) The Chairperson shall be entitled to dearness
allowances and city compensatory allowance at the
rates admissible to a Secretary to the Government
of India.
(ii) Leave Travel Concession (LTC), Travelling
Allowances and Daily Allowance on tour, shall be
paid to the Chairperson as applicable to a Secretary
to the Government of India. He will also be
entitled to facility of temporary Government
accommodation in guest house/inspection
bungalow run by the Central Government,
wherever applicable, on payment of normal rent at
outstation, of the class to which a Secretary to the
Government of India eligible.
(iii) Official visits abroad by a Chairperson shall be
undertaken only in accordance with Government
orders as applicable to officers of equal grade in
the Government of India. For domestic tours, the
Chairperson would keep the Secretary of the
administrative Ministry/Department informed.
(iv) A Chairperson shall be entitled to medical
treatment and hospital facilities as provided in the
Central Government Health Scheme (CGHS) as
applicable to a retired Government Servant. At
places where the CGHS scheme is not in
operation, he shall be entitled to reimbursement
facilities provided under the Central Services
(Medical Attendance) Rules."
12. Rules 9 and 10, which are also relevant read as under:
"9. Accommodation :
A Chairperson is entitled for House Rent Allowance at the
rate of 30% of the basic pay drawn, if he stays in Delhi.
Outside Delhi, he shall be entitled to rented unfurnished
accommodation with built up area measuring around 350
sq. meters in the National Capital Region (NCR) with
suitable open land area appurtenant as permissible under
the regulation of the concerned municipal bodies.
10. Special Provisions relating to existing Chairperson
Notwithstanding anything contained in these rules, salary,
allowances and conditions of service of the Chairperson
appointed before and holding office on, the
commencement of these rules shall be, at par with a
sitting Judge of the Supreme Court of India;
Provided that the salary being pay of a sitting judge of the
Supreme Court minus pension (before commutation) fixed
in his case."
13. Rule 10 therefore extends the salary, allowances and conditions of a
sitting judge of the Supreme Court only to an „existing Chairperson‟, i.e.
a person who has been appointed before and is holding office on the
commencement of the Rules. This therefore applied only to the first
Chairperson, Justice Venkatachala. For the succeeding Chairperson
Rule 4 would apply which meant that the pay is the same as that of a
Secretary to the Government of India. The Vice-Chairperson too is
entitled in terms of Rule 12 "to the pay scale of Secretary to the
Government of India, i.e., Rs. 26,000 (fixed)". There appears to be no
rational explanation for the obvious irrationality of the government
policy in this regard. While Justice Venkatachala the first Chairperson
was given the pay, allowances and conditions of service admissible to a
sitting Judge of the Supreme Court, his successor in office, who too
would be either a sitting or a retired Judge of the Supreme Court, is not
extended the same terms. It is a further anomaly that the pay, allowances
and conditions of service of the Chairperson of the NEAA is no different
from that of the Vice-Chairperson and a Secretary to the Government of
India. This is not the position in many other Tribunals and quasi judicial
bodies headed by former judges of the Supreme Court. No surprisingly
therefore no retired judge of the Supreme Court or retired Chief Justice
of a High Court was willing to accept the offer of the post of
Chairperson NEAA.
14. In the above context, this Court passed the following order on 3rd
December 2008:
"We find that the terms and conditions offered to the
Chairperson, National Environment Appellate Authority
(`NEAA‟) are substantially different
from those offered to former Judges who have been
appointed as Chairperson/Members of other
Authorities/Bodies. It seems all of them have been
offered terms and conditions similar to sitting Judges of
the Supreme Court, if not identical. We are also informed
that the existing members of NEAA are all
former bureaucrats having no technical expertise.
The Secretary, Ministry of Environment and Forests is
directed to file an affidavit within one week explaining
why the terms and conditions offered to the
Chairperson NEAA is different from those offered to
retired judges of the Supreme Court and who have been
appointed as Chairperson of other authorities and why
persons having the necessary technical expertise have not
been appointed as members of NEAA.
List on 17th December, 2008 as Item No.1.
Dasti."
15. Pursuant to the above order Shri Rajneesh Dubey, Joint Secretary in
the Ministry of Environment & Forest (MoEF) filed an affidavit dated
10th December 2008 stating as under:
"That subsequently, Hon‟ble Justice P.V. Reddi agreed to
accept the post of Chairperson on two conditions that (1)
his emoluments should be same as that of the sitting
Judge of the Supreme Court and (ii) he should be allotted
residential accommodation. The matter in this regard was
taken up with the Ministry of Finance for amending the
NEAA (Salary, Allowances and Conditions of Service of
Chairperson and Vice-Chairperson) Rules, 1998 to make
the terms and conditions of Chairperson, NEAA at par
with the sitting Judge of Supreme Court. The Ministry
of Finance has not agreed to the terms and conditions
of a sitting judge to Hon'ble Justice Reddi.
As regards the residential accommodation, the
Ministry of Urban Development informed that the
Chairperson would only be allotted an entitled type of
Bungalow as soon as available, as there was no
accommodation already earmarked to Chairperson
NEAA." (emphasis supplied)
16. As regards the technical expertise of the serving members of the
NEAA, it was stated in the same affidavit as under:
"That three members are presently in position namely, (i)
Shri Kaushalendra Prasad who is a retired Indian Forest
Service (IFS) Officer and has previously held the post of
Principal Chief Conservator of Forests (PCCF) of Uttar
Pradesh, (ii) Shri J.C. Kala who is a retired I.F.S. Officer
and previously held the post of Director General of
Forests and Special Secretary in the Ministry of
Environment & Forests, Government of India and (iii)
Dr. I.V. Manivannan who is a retired I.A.S. Officer and
has held the post of Secretary, Department of
Environment & Forests, Government of Tamil Nadu.
That all the three members are qualified for appointment
as Member in terms of eligibility as per Section 5(3) of
the above said Act, by virtue of their professional
knowledge or practical experience in the areas pertaining
to conservation and environment management."
17. At the subsequent hearing it was submitted by Mr.Choudhary,
learned counsel for the petitioners that with the Finance Ministry
unwilling to consider granting the Chairperson NEAA, the salary,
allowances, terms and conditions of a sitting Judge of the Supreme
Court, the post of Chairperson NEAA was unlikely to be filled up. He
submitted that by keeping the post of Chairperson vacant for over eight
years and that of the Vice-Chairperson vacant since 1st August 2005, the
government had rendered the NEAA non-functional. He placed on
record the complete list of cases which have been disposed of and are
pending before the NEAA since 1998.
18. Mr. P.P.Malhotra, the learned Additional Solicitor General of India,
reiterated what has been stated in the affidavit dated 10th December 2008
of Mr. Rajneesh Dubey. He submitted that the terms and conditions of
service of the Chairperson and Vice-Chairperson have probably been
fixed in light of the Notification issued by the Central Government on
29th January 1998 announcing the policy concerning the Chairperson and
Members of regulatory authorities. He submits that there are only ten
pending matters before the NEAA and therefore, the Ministry of Finance
has taken the stand that it cannot agree to the proposal for extending to
the Chairperson the same terms and conditions of service as are
applicable to a sitting Judge of the Supreme Court.
19. More than three years after its mandatory order dated 29 th September
2005, this Court is faced with a situation where the Respondent Union of
India has not only not obeyed the mandamus issued to it by this Court
but continues to defy it by refusing to correct what appear to be obvious
anomalies in the NEAA Rules. Normally, this Court would, in the
exercise of its extraordinary jurisdiction under Article 226, exercise
restraint in issuing directions concerning the rules governing the service
conditions of the Chairperson of a statutory Tribunal. However, the
present case tests the limits of the scope of this Court‟s powers in
exercise of its extraordinary jurisdiction under Article 226 of the
Constitution. The Court cannot be expected to remain a mute witness to
the unfortunate rendering of a statutory body ineffective by an unwilling
executive. This application raises issues of considerable importance
concerning the answerability of the executive government to carry forth
the legislative mandate.
The rationale behind the setting up of the NEAA
20. The issues raised can be better appreciated when the rationale behind
the creation of the NEAA is examined. The Environment (Protection)
Act, 1986 (EPA) was enacted to implement the decisions taken at the
United Nations Conference on the Human Environment held at
Stockholm in June 1972, in which the Government of India participated.
However, the EPA did not itself set up a special adjudicatory mechanism
to decide cases involving environmental pollution. The need for
environmental courts to adjudicate issues concerning environmental
pollution was first emphasized by the Supreme Court of India in M.C.
Mehta v. Union of India 1986 (2) SCC 176. In para 22 of the judgment
the Court suggest to the Government of India that:
"......since cases involving issues of environmental
pollution, ecological destruction and conflicts over
national resources are increasingly coming up for
adjudication and these cases involve assessment and
evolution of scientific and technical data, it might be
desirable to set up environment courts on the regional
basis with one professional Judge and two experts drawn
from the Ecological Sciences Research Group keeping in
view the nature of the case and the expertise required for
its adjudication. There would of course be a right of
appeal to this Court from the decision of the environment
court."
21. The experience over the years has been that the matters concerning
the environment are invariably brought before the Supreme Court of
India and the High Courts by way of public interest litigation (PIL)
petitions. There has been an explosion of PIL petitions in the area of
environment alone. The nature of these matters is such that they require
constant monitoring of the directions issued by the courts by way of
"continuing mandamus." The general growing arrears of cases at all
levels of the courts has placed a greater pressure on the constitutional
courts to allocate adequate time for environment cases. The Supreme
Court in M.C. Mehta anticipated this problem and therefore suggested
the creation of an exclusive alternative forum for environment cases thus
easing at least the initial burden on High Courts and the Supreme Court.
22. With the increased emphasis on planning and implementation of
large projects impacting on the environment in general, the issue
concerning grant of environmental clearance for such projects has
assumed significance. The decision to grant environmental clearance is
invariably that of the State and Central Governments. A need was felt to
create a forum for questioning these decisions. In the environment
impact assessment (EIA) notification issued under the EPA a detailed
procedure has been outlined whereby public hearings are expected to be
conducted for addressing the objections that may be raised by
communities and individuals to the grant of environmental clearance to a
project. Till the NEAA Act came into being there was no forum other
than the High Court or the Supreme Court where such EIA clearance
could be challenged. It is in the above background that the NEAA Act
was enacted.
23. In the scheme of the Statement of Objects and Reasons to the NEAA
Act appended to the Bill, it is stated as under:
"Clause (v) of sub-section (2) of section 3 of the
Environment (Protection) Act, 1986 empowers the
Central Government to impose restrictions in the areas in
which any industries, operations or class of industries,
operations or processes shall not be carried out or shall
be carried out subject to certain safeguards. In view of
recent pronouncements by the Supreme Court in certain
public interest litigation cases involving environmental
issues, it was considered necessary to set up an
independent body for quick redressal of public
grievances. Consequently, an Ordinance was
promulgated providing for the establishment of a
National Environment Appellate Authority to deal with
writ petitions, complaints, representations or appeals
against the grant of environmental clearance to projects."
24. The NEAA Act received the assent of the President and was notified
on 26th March 1997. The long title to the Act states that it is "an Act to
provide for the establishment of a National Environment Appellate
Authority to hear appeals with respect to restriction of areas in which
any industries, operations or processes shall not be carried out or shall be
carried out subject to certain safeguards under the Environment
(Protection) Act, 1986 and for matters connected therewith or incidental
thereto."
The Scheme of the NEAA Act
25. The statutory scheme of the NEAA Act indicates that the NEAA is
intended to be independent authority presided over by senior functionary
of the judiciary with substantial judicial experience. The Chairperson is
supported by members with experience in technical matters. Since the
appeals before the NEAA are against the decisions of either the Central
Government or the State Government, the NEAA is expected to function
in an impartial and independent manner. If indeed the object was, as
indicated by the Supreme Court, "to set up an independent body for a
quick redressal of public grievances", then it is obvious that the
Parliament intended that the NEAA should be an effective body
functioning on a day-to-day basis.
26. Under Section 3 of the NEAA Act, the NEAA has been constituted
by the Central Government with its head office in Delhi. Section 4
requires that the NEAA shall consist of a Chairperson, a Vice-
Chairperson and such other Members not exceeding three, as the Central
Government may deem fit. Under Section 5(1) a person shall be
qualified for being appointed as a Chairperson unless he has been a
Judge of the Supreme Court or a Chief Justice of a High Court. Under
Section 5(2) a person shall not be qualified for appointment as a Vice-
Chairperson unless he has "for at least two years held the post of a
Secretary to the Government of India or any other post under the Central
or State Government carrying a scale of pay which is not less than that
of a Secretary to the Government of India; and expertise or experience in
administrative, legal, managerial or technical aspects of problems
relating to environment." Under Section 5(3) a person shall not be
qualified for appointment as Member unless "he has professional
knowledge or practical experience in the areas pertaining to
conservation, environmental management, law or planning and
development."
27. While Section 6 states that in the absence of the Chairperson, the
functions of such Chairperson shall be discharged by the Vice-
Chairperson, Section 10 of the Act states that no act or proceedings of
the NEAA shall be questioned or shall be invalid merely on the ground
of existence of any vacancy or defect in the establishment of the
Authority. The Chairperson, Vice-Chairperson or Member shall hold
office in terms of Section of 7 of the Act, for a term of three years from
the date on which such person enters office. However, they shall be
eligible for reappointment for another term of three years provided that
no Chairperson shall hold office after he has attained seventy years of
age and no Vice-Chairperson or a Member shall hold office after
attaining the sixty-five years of age. The removal of the Chairperson or
Vice-Chairperson or the Member can only be on the ground of proved
misbehaviour or incapacity after an inquiry made by a Judge of the
Supreme Court and by an order made by the President.
28. The jurisdiction of the NEAA is specified in Section 11(1) which
reads as under:
"(1) Any person aggrieved by an order granting
environmental clearance in the areas in which any
industries, operations or processes or class of industries,
operations and processes shall not be carried out or shall
be carried out subject to certain safeguards may, within
thirty days from the date of such order, prefer an appeal
to the Authority in such form as may be prescribed."
29. Under Section 12, the NEAA has been given the power of the Civil
Court while trying a suit. Under Section 15, with effect from the date of
the establishment of the NEAA "no civil court or other authority shall
have jurisdiction to entertain any appeal in respect of any matter with
which the Authority is so empowered by under this Act." The failure to
comply with an order made by the NEAA under Section 19 shall be
punishable with imprisonment for a term which may extend to seven
years, or with fine which may extend to one lakh rupees, or with both.
30. An overview of the provisions of the NEAA Act show that the
NEAA was intended by Parliament to be an effective independent
judicial authority which would review the EIA decisions of the state and
central governments.
How the NEAA Act has been rendered ineffective
31. However, as the present petition indicates, the Government of India
has by its unwillingness to take effective steps, rendered the NEAA an
ineffective body, thus defeating the very purpose of the NEAA Act. The
NEAA Act came into force on 26th March 1997 and its first Chairperson
was Justice N.Venkatachala, a retired Judge of the Supreme Court.
There was hardly any awareness in the initial years of the constitution of
the NEAA and appeals were seldom filed. In fact, the only significant
case that was referred to it was by the Supreme Court in A.P. Pollution
Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718.
32. Since 2nd July 2000 the office of the Chairperson NEAA has
remained vacant. The office of the Vice-Chairperson has remained
vacant since 1st August 2005. The reason for the posts have remaining
vacant have been noticed earlier. They leave this Court in no doubt that
the Union of India is not at all serious about having an effective
functioning NEAA. That the government has been lackadaisical is
obvious. This Court finds the failure of the government to appoint a
Chairperson for over eight years inexcusable. A headless NEAA has
thus been rendered and ineffective by the act of omission of the
government. The intention of Parliament in requiring the government to
constitute an independent body for quick redressal of public grievances
in relation to grant of environmental clearances has thus been defeated.
33. The seemingly simplistic explanation offered by the government that
it is "doing its best" and that it has repeatedly been making offers to
retired Judges of the Supreme Court and retired Chief Justices of the
High Court does not impress this court. Nor does the submission of Mr.
Malhotra that a person offered the post of Chairperson NEAA would
have to be provided accommodation on par with a Supreme Court Judge
and since there is a shortage of official accommodation, there would be a
further difficulty in filling up the post.
34. As already noticed, Rule 10 of the NEAA Rules extended the terms
and conditions of a sitting Judge of the Supreme Court only to the first
Chairperson and not to the successors. If the Government was serious
that the NEAA should be an effective body functioning on a day-to-
basis, and if the experience of the last eight years shows that the post of
Chairperson has not been able to be filled because of the patently unfair
terms of service as contained in Rules 4 and 10 of the NEAA Rules, the
logical step for the government would have been to amend the NEAA
Rules to extend to the Chairperson NEAA the terms applicable to a
sitting Supreme Court Judge. Given the number of Tribunals that have
been created by the Union of India even subsequent to the NEAA Act,
and given the fact that the Chairpersons of many such Tribunals have
been extended the terms applicable to a sitting Supreme Court Judge
which includes providing the appropriate official accommodation, the
excuse of shortage of accommodation only for the Chairperson of the
NEAA is a red herring.
35. This omission of the government has a wider ramification in terms of
the protection of the environment. We have been shown a list of river
valley and hydro-electric projects which have been granted environment
clearance since the EIA Notifications issued on 14th September 2006. In
2006 itself three such projects were given clearance. In the year 2007,
25 such projects and in the year 2008 11 such projects have been granted
clearance. Likewise, between 2006 and 2008 there have been as many
as 252 projects stated to have been granted environment clearances
which fall in the category of Non-Coal Mining projects. These are in
States other than Andhra Pradesh (AP), Chhattisgarh, Goa, Karnataka,
Kerala, Maharashtra and Tamil Nadu. As regards the remaining States
as many as 335 projects have been granted environment clearance from
September 2006 till August 2008. Compared with this the total number
of appeals filed thus far before the NEAA is only 50. Given the large
number of projects, it is clear that in the absence of a properly
constituted NEAA, persons aggrieved by the grant of EIA clearances do
not perceive it to be an effective mechanism. It places an unreasonable
burden on the High Courts and Supreme Court to effectively or
efficiently deal with all the possible PILs that such EIAs may generate.
When Parliament has provided an alternative judicial forum for such
cases, there is no reason why such body should not be made effective by
the government. By rendering such forum ineffective, the Union of India
is contributing the arrears and delays in the expeditious disposal of the
cases pending before the courts.
36. Ironically, in PILs challenging grant of EIA clearance, the Union of
India invariably raises a preliminary objection that there is an alternative
remedy available to the petitioner before the NEAA. However, as the
present case shows, that remedy is being rendered nugatory by the
Union of India itself by not appointing a Chairperson for over eight
years and a Vice-Chairperson for over three years. The list produced by
the petitioners of appeals before the NEAA shows that most of the
appeals disposed of thus far have in fact been dismissed, comprised as it
is of retired bureaucrats, minus the Chairperson and Vice Chairperson.
The NEAA is, therefore, at present neither an effective nor an
independent mechanism for redressing the grievances of the public in
relation to the environment clearances granted both either the State or
the Central Government.
37. We are also not happy with the manner of appointment of Members
of the NEAA. The present incumbents cannot be stated to be persons
satisfying the requirements of possessing technical expertise in terms of
Section 5(2) of the NEAA Act. Nevertheless we do not wish to disturb
the tenure of the present incumbents since we are informed that they are
likely to demit office sometime in March 2009. However, we direct that
hereafter the Union of India shall appoint as Members of the NEAA
only persons with special technical knowledge in the area concerning the
environment as required by Section 5(2) NEAA Act. The appointment of
retired bureaucrats of the MoEF, who do not satisfy this requirement, as
Members of the NEAA will be contrary to the spirit of the Section 5 (2)
NEAA Act and ought not to be countenanced.
Scope of the powers of this Court
38. The numerous orders passed by this Court in the past three years
reflect both the concern of the Court and the considerable restraint
exercised by it in refraining from proceeding against the concerned
officials for disobeying its binding orders. However, the government has
failed to take satisfactory steps to address the concern expressed by this
Court. It has failed to comply with the Court‟s orders and has left it with
no choice but to issue further mandatory directions to ensure that the
legislative mandate contained in the NEAA Act is not frustrated by
executive apathy. The government has to be made accountable in law for
its disobedience of the court‟s orders.
39. The issue may also be viewed from the point of view of access to
justice. The NEAA Act is an enactment intended to provide an effective
and efficacious remedy for citizens aggrieved by what they perceive to
be adverse decisions of the government granting EIA clearance for
various projects. The challenge to such decisions would invariably on
the ground that it would adversely affect the right to clean environment
and health, which are but facets of the right to life itself. The NEAA Act
was intended to ease the burden of the High Courts and the Supreme
Court thus enabling them to take up other equally important issues
affecting the lives of citizens.
40. By rendering the NEAA ineffective, the government has denied the
citizens the right of access to effective and efficacious justice in matters
concerning the environment. This Court, being a constitutional court
charged with the responsibility of protecting and enforcing fundamental
rights cannot be expected to be a mute spectator and permit the
continued apathy of the government. The plenitude of its powers under
Article 226 of the Constitution require it to issue mandatory directions
by way of corrective measures to prevent the continued denial of the
right of access to effective justice in matters concerning the
environment. This Court would, by issuing further mandatory directions,
be ensuring the protection and enforcement of the fundamental rights of
persons of access to justice guaranteed under Articles 14 and 21 of the
Constitution.
Reinterpreting Rules 4 and 10
41. The above discussion shows that one major factor that has hindered
the appointment of a Chairperson of the NEAA has been the present
Rule 4 of the NEAA Rules which offers to the Chairperson only the
salary of a Secretary to the Government of India while it expects the
qualification of such person to be that of a retired Judge of the Supreme
Court or a retired Chief Justice of the High Court. Rule 10 grants the
salary of a sitting Judge of the Supreme Court only to the first
Chairperson and not the successor in that office. As already noticed, the
government has, without amending Rules 4 and 10, undertaken a
pointless exercise of trying to persuade retired judges of the Supreme
Court or retired Chief Justices of the High Courts to accept the post of
Chairperson.
42. Strangely, the stand of the government, and in particular the Ministry
of Finance, as regards on the pay and conditions of service of the
Chairperson, seems peculiar to the NEAA. When it comes to other
tribunals, the policy of the government has been different. The current
practice followed by it in regard to the National Consumer Disputes
Redressal Commission, the Telecom Disputes Settlement Appellate
Tribunal and the Electricity Appellate Tribunal shows that the
Chairpersons of such Tribunals have been granted the salary and terms
and conditions as are applicable to a sitting Judge of the Supreme Court.
Clearly in relation to such tribunals the government has given up its
policy as contained in the Notification dated 29 th January 1998. This
Court therefore finds no rational basis for denying to the Chairperson,
NEAA the terms offered to the Chairperson of any of the above
tribunals. After making this Court wait for a considerable period the
NEAA Rules to be amended, the Union of India has washed its hands
off thus compelling the Court to issue the above directions to preserve
and operationalise the mandate of the NEAA Act. The refusal of the
Finance Ministry to do so is inexplicable. It has resulted in an avoidable
impasse with the NEAA continuing to remain headless for eight long
years thus frustrating the legislative mandate of the NEAA.
43. In the circumstances, this Court is thus left with no option but to
exercise its extraordinary jurisdiction under Article 226 to direct that in
relation to the appointment hereafter of the Chairperson of the NEAA
the Respondent Union of India will offer the salary, allowances and
other conditions of service as applicable to a sitting Judge of the
Supreme Court. In other words the benefit of Rule 10 of the NEAA
Rules will be extended to every Chairperson of the NEAA and not just
the first one. Effectively therefore, in relation to the Chairperson NEAA
hereafter appointed, the word "existing" before the word "Chairperson"
in the heading of Rule 10 and the words "appointed before and holding
office on, the commencement of these rules" following the words "of the
Chairperson" in the substantive portion of Rule 10 will not apply. This
will be the position notwithstanding Rule 4 of the NEAA Rules. Rule 4
would be subject to Rule 10 as interpreted by this Court. As explained
hereinbefore, these directions are essential to ensure that the NEAA
functions as an effective appellate tribunal and satisfies the legislative
mandate of the NEAA Act.
44. It is accordingly directed that the Union of India shall grant to the
Chairperson of the NEAA hereafter appointed the salary, allowances and
other conditions of service as applicable to a sitting Judge of the
Supreme Court. The Respondent Union of India will now proceed to
take steps on this basis to fill up the post of Chairperson and Vice-
Chairperson of the NEAA and will complete the process within a period
of 12 weeks from today. The necessary amendments to the NEAA Rules
consistent with the above directions shall be carried out by the Union of
India within the same time period. As regards the appointment of
Members of the NEAA after the retirement of present incumbents, the
Union of India will abide by the directions issued by this Court in para
37 of this judgment.
45. With the above directions, the application is disposed of. For not
complying with the directions issued by this Court on September 29,
2005, which has necessitated the filing of this application, we direct the
Respondent Union of India to pay the applicant costs of Rs.20,000
within four weeks.
S. MURALIDHAR, J.
CHIEF JUSTICE
FEBRUARY 11, 2009
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