WP(C) No. 17682/2005 Page 1 of 27 IN THE HIGH COURT OF DELHI AT NEW DELHI CM No. 15895/2005 in W.P. (C) 17682/2005 Judgment reserved on: 17th December 2008 Date of decision: 11th February, 2009 VIMAL BHAI & ORS. ..... Petitioners Through: Mr. Rahul Choudhary with Mr. Ritwick Dutta, Advocates. versus UNION OF INDIA & ORS. ..... Respondents Through Mr. P.P. Malhotra, Addl. Solicitor General of India with Ms. Monika Garg, Advocate. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Yes Digest? JUDGMENT Dr. S.Muralidhar, J. 1. This is an application filed by the petitioners in W.P. (C) No. 17682 of 2005, seeking a direction to the respondents to implement the order dated 29th September 2005 passed by this Court disposing of the said writ petition. By the said order dated 29th September 2005, this Court had directed the respondents “to take requisite steps for clearing the proposals” related to the appointment of the Chairman and other Members of the National Environment Appellate Authority (NEAA) constituted under the National Environment Appellate Authority Act, 1997 („NEAA Act‟). WP(C) No. 17682/2005 Page 2 of 27 Background 2. The aforementioned writ petition was filed in this Court by social activists engaged in the field of environment. Initially, the petitioners approached this Court questioning a decision dated 20th May 2005 of the NEAA dismissing their appeal on account of delay. In the said appeal, the petitioners had challenged the environment clearance granted by the Government of India on 8th February 2005 for the setting up of the Loharinag-Pala Hydroelectric Power Project (600 MW) in Uttarkashi, District of Uttaranchal. The appeal was to be filed within thirty days thereafter but was filed on 1st April 2005. This Court, by its order dated 29th September 2005, held that the NEAA had adopted “a very hyper- technical approach in rejecting the petitioners‟ application for condonation of 23 days delay instead of dealing with this plea on merit”. It accordingly set aside the NEAA‟s order dated 20th May 2005 and remanded the case to the NEAA for a decision on merits in accordance with law. 3. This Court was, in the course of the hearing of the above writ petition, informed that the NEAA was first constituted on 9th April 1997 with the following persons: 1. Shri. Justice N. Venkatachala (former judge of the Supreme Court) – Chairperson. 2. Smt. Nirmala Buch (former Secretary to the Government of India) – Vice-Chairperson. 3. Shri. Mohinder Singh (former Principal Secretary to the State Govt. of Uttar Pradesh) – Member. 4. Shri.Ejaj A.Malik (former Principal Chief Conservator of Forests, Jammu and Kashmir) – Member. WP(C) No. 17682/2005 Page 3 of 27 Jusice Venkatachala, Smt. Nirmala Buch, Shri Mohinder Singh and Shri Ejaj A. Malik demitted office with effect from 2nd July 2000, 13th July 2000, 7th March 2000 and 13th July 2003 respectively. The office of the Chairperson has remained vacant since 2nd July 2000. The post of Vice- Chairperson was filled up by the appointment of Shri Vishwanath Anand with effect from 1st February 2002. His term was extended for a period of six months with effect from 1st February 2005 till 31st July 2005. He demitted office on 31st July 2005. 4. Taking note of the fact that the posts of Chairperson and Vice- Chairperson of the NEAA were vacant this Court, while disposing of the writ petition on 29th September 2005, observed: “While considering this matter it was noticed by this Court that the Union of India has failed to constitute the National Environment Authority under the Act of 1997 and on the contrary allowed this Authority to become a one-man show when the statute prescribed its composition which requires a Chairman, Vice Chairman and three Technical Members. By Court order dated 12th September, 2005 the Union of India was, accordingly, directed to file an affidavit indicating therein the steps taken by it for composition of the Appellate Authority. This affidavit has been filed and it is stated that steps were taken from time to time for reconstitution of this Authority. It is explained that a retired Judge of the Supreme Court has now been nominated but some modalities about the perks and salary of the Chairman are being processed in the Finance Ministry. WP(C) No. 17682/2005 Page 4 of 27 Given regard to the importance of the Authority created under the National Environment Authority Act, it is appropriate to direct the Union of India and all its concerned functionaries to take requisite steps for clearing the proposals related to the appointment of the Chairman of the Appellate Authority and other Technical Members and reconstitute the Authority within 45 days. The Registrar to fax this order to Secretary, Ministry of Environment and Forest for compliance. The petition is disposed of.” 5. When no effective steps were taken by the Respondents to reconstitute the NEAA within forty-five days thereafter, the petitioners filed the present application, CM No. 15895 of 2005. On 7th February 2007, a statement was made to this Court by the Respondents that a Bill to set up Central and Regional Environment Tribunals to replace the NEAA was being introduced in the budget session of the Parliament. Although two further adjournments were granted on 4th April 2007 and 16th May 2007 on this ground, nothing appears to have been happened. 6. On 6th August 2008, the following order was passed by this Court: “By order dated 29th September, 2005, the Division Bench of this court directed the Union of India and all its concerned functionaries to take requisite steps for clearing the proposals related to the appointment of the Chairman of the Appellate Authority under the National Environment Appellate Authority Act 1997 and other technical members and reconstitute the Authority WP(C) No. 17682/2005 Page 5 of 27 within 45 days. The said directions have not yet been fully complied with. The post of Chairman still remains vacant. The Vice Chairman retired some time in June 2006 and no person has been appointed to that post yet. Thus both the posts of Chairman and Vice Chairman are vacant as of now. The learned counsel appearing for the respondent states that they have taken all possible steps to fill up the said vacancies. However, this court is not satisfied that any serious effort has been made to comply with the directions of this court. The respondents are directed to produce the original files relating to the appointment to the posts of Chairman and Vice Chairman of the Appellate Authority before this court on 13th August, 2008. A copy of this order be given dasti under the signature of court master.” 7. Despite the above order, the Respondents did precious little to make appointments to the vacant posts of Chairperson and Vice- Chairperson of the NEAA. This led this Court to pass the following order on 15th October 2008: “Learned counsel appearing for the respondents stated that the only progress made from 3.9.2008 till date is that the Registrar (Admn.), Supreme Court of India has been requested to give the addresses and contact numbers of the retired Judges of the Supreme Court of India. It appears that the respondents are not serious about fulfilling their such statutory obligation of appointing the Chairperson and Vice Chairperson of the National Environment Appellate Authority (NEAA). The post of Chairperson has remained vacant since July 2000. The Vice Chairperson‟s post fell vacant in July WP(C) No. 17682/2005 Page 6 of 27 2005. Both posts remain vacant till date. It is now submitted by the respondents that keeping in view the work load of the NEAA in terms of number of appeals received and disposed during the last few years, and also keeping in view that three Members of the NEAA are already in position, the filling up of the post of Vice Chairperson is not required. We find this explanation given by the respondents to be unsatisfactory. We direct the Secretary, Ministry of Environment and Forests, Government of India to remain present before this court on 20th October, 2008 at 2.00 pm with the relevant files relating to the appointments of Chairperson and Vice Chairperson of the NEAA. Copy of this order be given dasti to counsel for the respondent under the signature of Court Master.” 8. Thereafter the Secretary, Environment appeared before the Court and assured that letters of offers would be written to certain retired judges of the Supreme Court to ascertain their consent. However, at the subsequent hearings this Court was informed that the learned retired judges to whom such letters had been written, had declined the offer. One of them had pointed out that the terms and conditions being offered were substantially different from what was being offered to the Chairpersons of certain other statutory tribunals. 9. At the hearing on 3rd December 2008 this Court Mr. Rahul Choudhary, the learned counsel appearing for the petitioners, pointed out that given the fact that the salary offered to both the Chairperson and Vice-Chairperson of the NEAA being equal to that of a Secretary to the WP(C) No. 17682/2005 Page 7 of 27 Government of India, it was not surprising that no retired Judge of the Supreme Court or retired Chief Justice of a High Court was inclined to accept the post. He further submitted that the three technical members presently at the NEAA comprised two former members of the Indian Forest Service and one former member of the IAS. He pointed out that the MoEF has two separate wings: the Environment Wing and the Forest Wing. The Forest Service Officers were not expected to have expertise in the area of environment. Therefore, the qualifications of these Members did not satisfy the requirement of the provisions of the NEAA Act. Position under the NEAA Rules regarding the service conditions of Chairperson of the NEAA 10. At the hearing on 3rd December 2008 this Court examined in detail the relevant provisions of the NEAA Act and the Rules. Under Section 22 NEAA Act, the Central Government can by notification, make rules for carrying out the provisions of the Act. This power includes under Section 22(2) (b) to make rules in respect of the salaries and allowances payable to and other terms and conditions of service of the Chairperson, the Vice-Chairperson and the Member under Section 9 of the Act. Pursuant thereto, the Central Government has made the National Environment Appellate Authority (Salary, Allowances and Conditions of Service of Chairperson and Vice-Chairperson) Rules, 1998 („NEAA Rules‟). 11. Under Rule 4 the Chairperson shall be entitled to the pay scale of WP(C) No. 17682/2005 Page 8 of 27 Secretary to the Government of India, i.e., Rs. 26,000/- (fixed). It is stated “the pay shall be fixed in accordance with prevailing orders i.e. pay minus pension.” Rule 4 reads as under: “Pay of Chairperson 4. A Chairperson shall be entitled to the pay scale of Secretary to the Government of India, i.e. Rs. 26,000/- (fixed). The pay shall be fixed in accordance with prevailing orders i.e. pay minus pension. (i) The Chairperson shall be entitled to dearness allowances and city compensatory allowance at the rates admissible to a Secretary to the Government of India. (ii) Leave Travel Concession (LTC), Travelling Allowances and Daily Allowance on tour, shall be paid to the Chairperson as applicable to a Secretary to the Government of India. He will also be entitled to facility of temporary Government accommodation in guest house/inspection bungalow run by the Central Government, wherever applicable, on payment of normal rent at outstation, of the class to which a Secretary to the Government of India eligible. (iii) Official visits abroad by a Chairperson shall be undertaken only in accordance with Government orders as applicable to officers of equal grade in the Government of India. For domestic tours, the Chairperson would keep the Secretary of the administrative Ministry/Department informed. (iv) A Chairperson shall be entitled to medical treatment and hospital facilities as provided in the Central Government Health Scheme (CGHS) as applicable to a retired Government Servant. At places where the CGHS scheme is not in WP(C) No. 17682/2005 Page 9 of 27 operation, he shall be entitled to reimbursement facilities provided under the Central Services (Medical Attendance) Rules.” 12. Rules 9 and 10, which are also relevant read as under: “9. Accommodation : A Chairperson is entitled for House Rent Allowance at the rate of 30% of the basic pay drawn, if he stays in Delhi. Outside Delhi, he shall be entitled to rented unfurnished accommodation with built up area measuring around 350 sq. meters in the National Capital Region (NCR) with suitable open land area appurtenant as permissible under the regulation of the concerned municipal bodies. 10. Special Provisions relating to existing Chairperson Notwithstanding anything contained in these rules, salary, allowances and conditions of service of the Chairperson appointed before and holding office on, the commencement of these rules shall be, at par with a sitting Judge of the Supreme Court of India; Provided that the salary being pay of a sitting judge of the Supreme Court minus pension (before commutation) fixed in his case.” 13. Rule 10 therefore extends the salary, allowances and conditions of a sitting judge of the Supreme Court only to an „existing Chairperson‟, i.e. a person who has been appointed before and is holding office on the commencement of the Rules. This therefore applied only to the first Chairperson, Justice Venkatachala. For the succeeding Chairperson Rule 4 would apply which meant that the pay is the same as that of a Secretary to the Government of India. The Vice-Chairperson too is entitled in terms of Rule 12 “to the pay scale of Secretary to the WP(C) No. 17682/2005 Page 10 of 27 Government of India, i.e., Rs. 26,000 (fixed)”. There appears to be no rational explanation for the obvious irrationality of the government policy in this regard. While Justice Venkatachala the first Chairperson was given the pay, allowances and conditions of service admissible to a sitting Judge of the Supreme Court, his successor in office, who too would be either a sitting or a retired Judge of the Supreme Court, is not extended the same terms. It is a further anomaly that the pay, allowances and conditions of service of the Chairperson of the NEAA is no different from that of the Vice-Chairperson and a Secretary to the Government of India. This is not the position in many other Tribunals and quasi judicial bodies headed by former judges of the Supreme Court. No surprisingly therefore no retired judge of the Supreme Court or retired Chief Justice of a High Court was willing to accept the offer of the post of Chairperson NEAA. 14. In the above context, this Court passed the following order on 3rd December 2008: “We find that the terms and conditions offered to the Chairperson, National Environment Appellate Authority (`NEAA‟) are substantially different from those offered to former Judges who have been appointed as Chairperson/Members of other Authorities/Bodies. It seems all of them have been offered terms and conditions similar to sitting Judges of the Supreme Court, if not identical. We are also informed that the existing members of NEAA are all former bureaucrats having no technical expertise. The Secretary, Ministry of Environment and Forests is WP(C) No. 17682/2005 Page 11 of 27 directed to file an affidavit within one week explaining why the terms and conditions offered to the Chairperson NEAA is different from those offered to retired judges of the Supreme Court and who have been appointed as Chairperson of other authorities and why persons having the necessary technical expertise have not been appointed as members of NEAA. List on 17th December, 2008 as Item No.1. Dasti.” 15. Pursuant to the above order Shri Rajneesh Dubey, Joint Secretary in the Ministry of Environment & Forest (MoEF) filed an affidavit dated 10th December 2008 stating as under: “That subsequently, Hon‟ble Justice P.V. Reddi agreed to accept the post of Chairperson on two conditions that (1) his emoluments should be same as that of the sitting Judge of the Supreme Court and (ii) he should be allotted residential accommodation. The matter in this regard was taken up with the Ministry of Finance for amending the NEAA (Salary, Allowances and Conditions of Service of Chairperson and Vice-Chairperson) Rules, 1998 to make the terms and conditions of Chairperson, NEAA at par with the sitting Judge of Supreme Court. The Ministry of Finance has not agreed to the terms and conditions of a sitting judge to Hon’ble Justice Reddi. As regards the residential accommodation, the Ministry of Urban Development informed that the Chairperson would only be allotted an entitled type of Bungalow as soon as available, as there was no accommodation already earmarked to Chairperson NEAA.” (emphasis supplied) 16. As regards the technical expertise of the serving members of the WP(C) No. 17682/2005 Page 12 of 27 NEAA, it was stated in the same affidavit as under: “That three members are presently in position namely, (i) Shri Kaushalendra Prasad who is a retired Indian Forest Service (IFS) Officer and has previously held the post of Principal Chief Conservator of Forests (PCCF) of Uttar Pradesh, (ii) Shri J.C. Kala who is a retired I.F.S. Officer and previously held the post of Director General of Forests and Special Secretary in the Ministry of Environment & Forests, Government of India and (iii) Dr. I.V. Manivannan who is a retired I.A.S. Officer and has held the post of Secretary, Department of Environment & Forests, Government of Tamil Nadu. That all the three members are qualified for appointment as Member in terms of eligibility as per Section 5(3) of the above said Act, by virtue of their professional knowledge or practical experience in the areas pertaining to conservation and environment management.” 17. At the subsequent hearing it was submitted by Mr.Choudhary, learned counsel for the petitioners that with the Finance Ministry unwilling to consider granting the Chairperson NEAA, the salary, allowances, terms and conditions of a sitting Judge of the Supreme Court, the post of Chairperson NEAA was unlikely to be filled up. He submitted that by keeping the post of Chairperson vacant for over eight years and that of the Vice-Chairperson vacant since 1st August 2005, the government had rendered the NEAA non-functional. He placed on record the complete list of cases which have been disposed of and are pending before the NEAA since 1998. 18. Mr. P.P.Malhotra, the learned Additional Solicitor General of India, WP(C) No. 17682/2005 Page 13 of 27 reiterated what has been stated in the affidavit dated 10th December 2008 of Mr. Rajneesh Dubey. He submitted that the terms and conditions of service of the Chairperson and Vice-Chairperson have probably been fixed in light of the Notification issued by the Central Government on 29th January 1998 announcing the policy concerning the Chairperson and Members of regulatory authorities. He submits that there are only ten pending matters before the NEAA and therefore, the Ministry of Finance has taken the stand that it cannot agree to the proposal for extending to the Chairperson the same terms and conditions of service as are applicable to a sitting Judge of the Supreme Court. 19. More than three years after its mandatory order dated 29th September 2005, this Court is faced with a situation where the Respondent Union of India has not only not obeyed the mandamus issued to it by this Court but continues to defy it by refusing to correct what appear to be obvious anomalies in the NEAA Rules. Normally, this Court would, in the exercise of its extraordinary jurisdiction under Article 226, exercise restraint in issuing directions concerning the rules governing the service conditions of the Chairperson of a statutory Tribunal. However, the present case tests the limits of the scope of this Court‟s powers in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. The Court cannot be expected to remain a mute witness to the unfortunate rendering of a statutory body ineffective by an unwilling executive. This application raises issues of considerable importance concerning the answerability of the executive government to carry forth the legislative mandate. WP(C) No. 17682/2005 Page 14 of 27 The rationale behind the setting up of the NEAA 20. The issues raised can be better appreciated when the rationale behind the creation of the NEAA is examined. The Environment (Protection) Act, 1986 (EPA) was enacted to implement the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972, in which the Government of India participated. However, the EPA did not itself set up a special adjudicatory mechanism to decide cases involving environmental pollution. The need for environmental courts to adjudicate issues concerning environmental pollution was first emphasized by the Supreme Court of India in M.C. Mehta v. Union of India 1986 (2) SCC 176. In para 22 of the judgment the Court suggest to the Government of India that: “……since cases involving issues of environmental pollution, ecological destruction and conflicts over national resources are increasingly coming up for adjudication and these cases involve assessment and evolution of scientific and technical data, it might be desirable to set up environment courts on the regional basis with one professional Judge and two experts drawn from the Ecological Sciences Research Group keeping in view the nature of the case and the expertise required for its adjudication. There would of course be a right of appeal to this Court from the decision of the environment court.” 21. The experience over the years has been that the matters concerning the environment are invariably brought before the Supreme Court of India and the High Courts by way of public interest litigation (PIL) petitions. There has been an explosion of PIL petitions in the area of WP(C) No. 17682/2005 Page 15 of 27 environment alone. The nature of these matters is such that they require constant monitoring of the directions issued by the courts by way of “continuing mandamus.” The general growing arrears of cases at all levels of the courts has placed a greater pressure on the constitutional courts to allocate adequate time for environment cases. The Supreme Court in M.C. Mehta anticipated this problem and therefore suggested the creation of an exclusive alternative forum for environment cases thus easing at least the initial burden on High Courts and the Supreme Court. 22. With the increased emphasis on planning and implementation of large projects impacting on the environment in general, the issue concerning grant of environmental clearance for such projects has assumed significance. The decision to grant environmental clearance is invariably that of the State and Central Governments. A need was felt to create a forum for questioning these decisions. In the environment impact assessment (EIA) notification issued under the EPA a detailed procedure has been outlined whereby public hearings are expected to be conducted for addressing the objections that may be raised by communities and individuals to the grant of environmental clearance to a project. Till the NEAA Act came into being there was no forum other than the High Court or the Supreme Court where such EIA clearance could be challenged. It is in the above background that the NEAA Act was enacted. 23. In the scheme of the Statement of Objects and Reasons to the NEAA WP(C) No. 17682/2005 Page 16 of 27 Act appended to the Bill, it is stated as under: “Clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 empowers the Central Government to impose restrictions in the areas in which any industries, operations or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards. In view of recent pronouncements by the Supreme Court in certain public interest litigation cases involving environmental issues, it was considered necessary to set