TALLI GRAM PANCHAYAT versus UNION OF INDIA AND OTHERS on 11 July 2022

Conclusion

1. These appeals arise from an order dated 16 July 2021 of theNational Green Tribunal[1]. The appellant challenged the grant of anGenvironmental clearance to Ultratech Cement Limited[2] by a letter dated5 January 2017. The NGT by the impugned judgment dismissed theapplications to recall the order of a single member and for condonationof delay.

1 “NGT”H2 “Fourth respondent”

2. By a letter dated 5 January 2017, the Ministry of Environment,Forest and Climate Change[3] granted an environment clearance to thefourth respondent for limestone mining with a total production capacityof 0.53 million tonnes per annum at villages Talli and Bambor situated inTaluka Talenja, of the District of Bhavnagar in the State of the Gujarat.The fourth respondent served a copy of the environment clearance uponthe Talathi-Cum-Mantri of the Gram Panchayat on 12 January 2017through a letter dated 9 January 2017. The fourth respondent also issueda public notice on the grant of the environmental clearance on 11 January2017 in Gujarati in “Saurashtra Samachar” and in English, in “GujaratSamachar”. The appellant challenged[4] the environmental clearance whichwas granted to the fourth respondent under Section 16 of the NGT Act onseveral grounds including the following:

“a) The area is ecologically sensitive, as the same has been notifiedas Brujad Gir. The same has been concealed by the ProjectProponent.

b) Out of the total area of 193.3269 Ha., 155.3269 a is the privateagricultural land. The consent of all the land holders, mandatoryunder the Mines and Minerals Developments Act has not beenobtained by the Project Proponent. Such, land holders have alsonot been given any opportunity in the process, while the decisionaffects their land rights protected under Art. 300A of theConstitution.

c) The area falls within the catchment area of four bandharas,proposed to be constructed to provide for water for irrigation anddrinking.

d) The mining if permitted would have severe effect of environmentand ecology and also the life and livelihood of the villagers.”

3. The appellant obtained leave to file an application forcondonation of delay[5] since the appeal was filed beyond the prescribedperiod of 30 days. The fourth respondent contended that the notice waspublished in the newspapers on 11 January 2017 and the letter was servedupon the Talathi-cum-Mantri on 12 January 2017 and therefore, the periodof limitation must be calculated from these dates. However, the appellant 3 “MoEFCC”

4 Appeal No. 36 of 2017

5 MA 262 of 2017 in Appeal No. 36 of 2017

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130SUPREME COURT REPORTS

Acontended that the publication was not in conformity with the statutoryrequirements under Clause 10 of the Environment Impact AssessmentNotification as interpreted in Save Mon Region Federation v. Unionof India[6]. The appellant argued that the environment clearance certificatemust be uploaded on the website and has to be accessible anddownloadable to the public. The appeal along with the application forBcondonation of delay was heard on 24 November 2017. In view of theposition of law in Save Mon Region Federation (supra), the Tribunalsought a clarification on whether the environment clearance which wasuploaded on the website was accessible to and could have beendownloaded by the public.C4. On 1 December 2017, the MoEFCC introduced an amendmentto the National Green Tribunal (Practice and Procedure) Rules 2011[7] byNotification GSR No. 1473(E)[8]. By the Notification, a proviso wasinserted in Rule 3 of the 2011 Rules which allowed the constitution ofsingle member Benches in exceptional circumstances. Rule 3 of the 2011DRules, as amended by the notification reads as follows:

“Distribution of business amongst the different ordinaryplace or places of Sittings of Tribunal.- (1) The Chairpersonmay constitute a bench of two or more members consisting of atleast one Judicial member and one Expert member.

E[Provided that in exceptional circumstances the Chairperson mayconstitute a single Member Bench]”

5. Subsequently, by an office order dated 5 December 2017, theChairperson of the National Green Tribunal, in exercise of powersconferred under Rule 3(1) of the 2011 Rules constituted single memberFBenches at the Regional Benches due to a shortage of members. Theoffice order read as follows:

“In exercise of powers conferred under Rule 3(1) of the NationalGreen Tribunal (Practices and Procedure) Rules 2011 as amendedvide Gazatte Notification No. G.S.R 1473 (E) dated 01[st] December,G2017 of the Ministry of Environment, Forest and Climate Change,Government of India and in view of the exceptional circumstancesprevailing in the National Green Tribunal on account of the shortage 6 2013 (1) All India NGT Reporter 1

7 “2011 rules”

H8 “notification”

of the Members, necessitating constitution of a Single MemberBench at the Regional Branches of the Tribunal. Accordingly, aSingle Member Bench is constituted in the Regional Benches atNGT SZB (Chennai), NGT CZB (Bhopal), NGT WZB (Pune) &NGT EZB (Kolkata) to conduct business of the Tribunal whichshall be fully empowered to deals with the matters in accordancewith law.”

6. The National Green Tribunal Bar Association (Western Bench)instituted a petition[9] under Article 32 of the Constitution, for challengingthe notification dated 1 December 2017 and the office order issued bythe Chairperson of the NGT on 5 December 2017 on the ground thatthey contravened Section 4(4)(c) of the NGT Act 2010 which requireseach Bench to consist of an equal number of judicial and expert members.This Court while hearing the petition on 11 January 2018, issued thefollowing directions:

“Let a copy of this petition be supplied to Mr. PS Narasimha,learned ASG assisting Mr. K.K. Venugopal, learned AttorneyGeneral of India. It is assured by Mr. Venugopal that the rulewhich is under challenge shall be rectified in consonance with theAct, and also in consonance with the spirit of the judgments of thisCourt.”

7. On 29 January 2018, a single member of the NGT dismissedthe application for condonation of delay which was filed by the appellant,for non-prosecution. The order of the single member reads as follows:

“The applicant is absent.

All the Respondents in chorus seek dismissal of this Applicationpointing out lack of diligence of the Applicant in the prosecutionof this case.

Perused the record. As the Respondents pointed out the applicant has shown no diligence in prosecution of this case.Hence, the Application MA No. 262/2017 stands rejected with noorder as to costs.”

On 31 January 2018, this Court in the petition challenging the validityof the government order directed that the Chairperson of the NGT shall A

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Anot constitute a single member Bench and each bench shall consist ofone judicial member and an expert member. Subsequently, the actingChairperson of the NGT issued an order that no single member Benchshall be constituted in any zonal benches with immediate effect.

8. The counsel for the appellant preferred an application for recallBof the order of the single member dated 29 January 2018[10] along with anapplication for condonation of delay in moving the application a yearafter the order sought to be recalled was passed[11]. The applicationswere taken up for hearing two years after they were filed. By an orderdated 16 July 2021, the Tribunal dismissed both the applications observingthat even if the prayer for recall of the order is granted, the applicationCof condonation of delay in filing the appeal cannot be allowed. The Tribunalobserved that the only ground of the appellant in seeking condonation ofdelay is that they did not have knowledge of the grant of the environmentclearance. It held that such a contention cannot be accepted since theenvironment clearance was duly uploaded and that the period of limitation Dmust be calculated from when the order was uploaded. It was observed:“Even if we grant the prayer for recall, the fact remains that MANo. 262/2017 (WZ), Bambor Gram Panchayat & Ors. v. Ministryof Environment & Forest & Ors., which is for condonation ofdelay in filing the appeal, cannot be accepted as ground pleaded isthat the appellant did not have knowledge of the grant of EC. ECEwas duly uploaded and individual knowledge is not the startingpoint. The EC was granted on 05.01.2017 while the appeal wasfiled on 19.4.2017 beyond the prescribed period of limitation andalso the period of limitation for which this Tribunal can condone.”

9. The appellant instituted these proceedings for challenging theForder of the Tribunal on the ground that the order passed by the singlemember on 29 January 2018 is null and void because the constitution ofa bench comprising of a single member is in contravention of Section4(4)(c) of the NGT Act 2010. The appellant also contended that thelawyer who was previously engaged to represent it returned the filebecause he was appointed as a Government Advocate and that he hadGbrought this information to the notice of the Tribunal. The appellant urgedthat the lawyer subsequently engaged by the appellant was not providedany notice of the hearing in spite of the fact that the appeal was taken up after a long gap in time. The appellant thus set up the plea of a violationof the principles of natural justice.

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10. Opposing these submissions, the fourth respondent contended that:

(i) The order of environment clearance was communicatedon 5 January 2017 and the Tribunal does not have the powerBto condone a delay beyond 90 days under the proviso toSection 16 of the NGT Act 2010, even if sufficient causeis shown;

(ii) The conduct of the appellant has been negligent becausehe has not appeared before the Tribunal on multipleoccasions; and C

(iii) The single member was not coram non judice at the time ofthe passing of the order on 29 January 2018 since the orderof this Court directing that single member benches shall notbe constituted was passed two days later, on 31 January2018.

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11. The issue before this Court is whether a single member of theTribunal could have dealt with the proceedings and dismissed theapplications for restoration and for condonation of delay on 29 January2018 after the Attorney General of India had assured this Court on11 January 2018 that the proviso to Rule 3 would be rectified inconsonance with the Act and the judgments of this Court. On 31 January2018 this Court also directed the Chairperson of the NGT not to constitutesingle member Benches.

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12. The single member of the NGT who dismissed the applicationfor condonation of delay submitted by the appellant on 29 January 2018had, in other cases, abstained from passing any judicial order on theground that there was a stay on the composition of a single memberbench. In an order dated 23 January 2018,[12] the member noted as follows:

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“Learned Counsel for the contesting parties are present. Theysubmit the case be taken up for hearing after sometime in view ofstay may be with regard to composition of Single Member Benchof this Tribunal. Request accepted. List for further proceedingson 1[st] March, 2018.”

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12 Goa Foundation, through its Secretary v. Goa Tourism Development Corporation(OA No. 156/2016)

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ASimilar orders were passed on the same day in other cases as well.[13]However, the single member dismissed the application for condonation ofdelay filed by the appellant though he did not pass any order in the othercases in view of the assurance that was made by the Attorney Generalbefore this court. The order of this court on 11 January 2018 notes theassurance of the Attorney General that the rule under challenge wouldBbe rectified to bring it in accord with the Act and the judgments of thiscourt. True, the order of this Court does not specifically record a directionfor stay. This must however, be understood in the perspective of the factthat the Attorney General had placed a solemn assurance before theCourt that the rule would be rectified to bring it in conformity with theCparent enactment and the decisions of this Court. Implicit in this is thesettled principle that delegated legislation must be in conformity with theenactment of the legislature which authorises its making. A rule cannotrise above the source of power. Propriety warranted that a consistentcourse of action should have been followed by the NGT, once theassurance which was held out before this court by the Attorney General,Dwas brought to its knowledge. The order of this Court on 31 January2018 directed that “inthemeantime,the Chairperson shall not constitutea Single Member Bench….”. The phrase “in the meantime’ elucidatesthat during the time the executive deliberates on the dissonance of theRule with the Act and judgments, there shall be a restraint on itsEimplementation. Thus, it is evident from the phraseology of the orderthat this Court intended that there be an interdict on the constitution ofsingle member benches constituted in purported exercise of the powerconferred by the rule. The assumption of jurisdiction by a single memberBench clearly stands vitiated. The Single member could not have passedan order in view of the proviso to Section 4(4)(c) of the NGT Act 2010Fwhich states that the number of expert members hearing the appeal orapplication shall be equal to the number of judicial members, mandatingthat there shall be at least one expert member on the Bench.

13. We accordingly allow the appeals and set aside the impugnedorder of the NGT dated 16 July 2021. The original order of the NGTGdated 29 January 2018 shall stand set aside. Appeal No 36 of 2017 shallstand restored to the file of the NGT for disposal afresh. All the rightsand contentions of the parties including on the issue of limitation are 13 Rajabhau Pawar v. The State of Goa through its Chief Secretary (OA No. 97/2016);Hthe Goa Foundation v. Goa State EIAA (OA No. 33/2015); TALLI GRAM PANCHAYAT v. UNION OF INDIA ANDOTHERS [DR DHANANJAYA Y CHANDRACHUD, J.]

kept open. This Court has expressed no expression on the merits of theappeals.

14. Pending applications, if any, stand disposed of.

Ankit Gyan(Assisted by : Rahul Rathi, LCRA)

Appeals allowed.

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