NGT directs MoEF to appoint only experts in panels


Court :
National Green Tribunal

Brief :
The National Green Tribunal bench headed by Justice Swatanter Kumar directed the Ministry of Environment and Forest not to appoint persons as Chairperson/Members of the Expert Appraisal Committee/State Expert Appraisal Committee who do not have experience in the field of environment 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 be prejudicial to the purpose of enactments and environment itself.

Citation :
1. Kalpavriksh Through Neeraj Vagholikar Flat No. 5, 2nd Floor, Shri Dutta Krupa, 908, Deccan Gymkhana, Pune – 411 004, Maharashtra 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 …..Appellants Versus Union of India Through the Secretary Ministry of Environment and Forests, C.G.O. Complex, Lodhi Road, New Delhi-110 003. …….Respondent

 

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  

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Vineet Kumar
on 21 July 2014
Published in Others
Views : 2428
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