IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPIL No. 8 of 2009 along with CWP No.6802 & 6803 of 2010. Judgment reserved on: 27.5.2011. Date of decision : 12.8.2011 1. CWPIL No.8 of 2009: Court on its own Motion …Petitioner Versus. State of H.P. and others ….Respondents 2.CWP No.6802 of 2010 Lafarge India Pvt. Ltd. ….Petitioner Versus. Union of India and others ….Respondents 3.CWP No.6803 of 2010 Lafarge India Pvt. Ltd. ….Petitioner Versus Union of India and others ….Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge . The Hon’ble Mr. Justice Sanjay Karol,, Judge. Whether approved for Reporting ? yes For the Petitioner (s): Ms.Madhu Sharma, Advocate for the petitioner in CWPIL No.8 of 2009. M/s.Raju Ramchandra and Mr.R.L. Sood, Sr.Advocates, with N.K. Sood, Ajay Mohan Goel, Akshay Patil, Nitin Mishra, Vipin Negi and Aman Sood, Advocates for M/s.Lafarge India Pvt. Ltd. For the Respondent(s): Mr.Vivek Singh Thakur, Addl.A.G. and Mr.Rajesh Mandhotra, Dy.A.G. for respondents State. Mr.Sandeep Sharma, ASGI and Mr.Ravinder Thakur, CGSC, for respondent Union of India. - 2 - Mr.S.S. Mittal, Senior Advocate with Mr.Anil Chauhan, counsel for respondent Pollution Control Board. Mr.G.D. Verma, Sr.Advocate with Mr.G.S. Thakur, counsel for respondents 2&3 in CWP No.6802 of 2010. M/s.Ritwick Dutta, Rahul Chaudhary and Anand Sharma, counsel for respondent No.2 in CWP No.6803 of 2010. Per Deepak Gupta, J. 1. The aforesaid three petitions are being disposed of by one judgment since common questions of law and fact are involved in these cases. 2. Briefly stated, the facts of the case are that the petitioner in CWP Nos.6802 & 6803 of 2010 M/s.Lafarge India Pvt. Ltd. (hereinafter referred to as the Company) entered into a memorandum of understanding with the State of Himachal Pradesh for setting up a cement project in Tehsil Karsog, District Mandi, H.P. Consequent to this memorandum the Company applied for grant of environment clearance for its proposed project. The Union of India finalized the terms of reference and sent the same to the Company. Thereafter, a public notice was issued and the same was published in requisite number of newspapers as required under law. Objections were invited from the inhabitants of - 3 - the affected areas. Public hearing was held on 4th December, 2008 and thereafter the Expert Appraisal Committee (EAC) which was to take a decision in the matter constituted a Sub committee to visit the spot. The said Sub Committee visited some of the areas on 1st and 2nd May, 2009. It admittedly did not visit the mining area but viewed it from some distance. Thereafter, the EAC recommended that the project be approved and on the basis of the report of the EAC, Union of India passed an order on 8th June, 2009 granting environmental clearance which clearance was granted subject to as many as 55 conditions. 3. Against the order dated 8th June, 2009, two appeals were filed before the National Environmental Appellate Authority (hereinafter referred to as the Appellate Authority). It is not disputed that there was no Judicial Member presiding over the authority and one sole member of the authority visited the site and thereafter set-aside the order of the EAC. This - 4 - order has been challenged by the petitioner Company on various grounds. 4. A letter addressed to the Hon’ble Chief Justice of this Court against the setting up of the cement plant in question was treated as a writ petition (CWPIL No.8 of 2009) and since this relates to the same plant it has also been heard with the petitions of the petitioner Company. 5. The main dispute relates to the environment clearance dated 8.6.2009 granted in favour of the petitioner Company by the Union of India. Some of the local residents of the area challenged this clearance by filing appeals before the appellate Authority mainly on the following grounds: a) that the Additional Magistrate chairing the public hearing acted in an arbitrary manner and that no opportunity was given to the persons opposing the setting up of the plant. b) That the environmental impact assessment did not take into consideration the effect of setting up of - 5 - the cement plant on the fertile agricultural land and the other areas which would be affected. It was also urged that the forest rights of the villagers and the right to get herbs would be affected. c) Complaints were also raised with regard to air and noise pollution and the fact that the project would generate a large amount of hazardous waste. It was also prayed that no such permission should have been granted without first getting the forest clearance. 6. The sole member of the Appellate Authority visited the mining and plant site and came to the conclusion that the overwhelming opposition of the local villagers merits reconsideration by the State Government and according to the Single Member the dispossession, impoverishment and trauma attached to the people had not been captured by the EIA nor appreciated by the EAC or the - 6 - State Government. The Single member opined that the mining would affect the environment of the area. He also found that Majathal Wildlife Sanctuary is just 5 k.m. away from the plant site and taking all these factors into consideration the member came to the conclusion that the EAC and the Ministry have not correctly assessed the impact of the Project and quashed the same. He gave certain other directions also with which this Court is not concerned. 7. One of the main reasons which weighed with the Appellate Authority for setting aside the recommendations of the EAC was that the EAC had constituted a Sub Committee to visit the site but this Sub Committee only visited the plant site and did not visit the mining site. This decision of the Appellate Authority has been challenged by the Company by filing the aforesaid two writ petitions. 8. On behalf of the petitioner Company it is contended that the environmental clearance was granted after following the process laid down in the EIA notification dated 14th - 7 - September, 2006 and there was no violation of the prescribed procedure. It is further submitted that the public hearing was conducted in accordance with the requirements of the aforesaid notification. In this public hearing views were expressed both for and against the setting up of the Project. Further, according to the petitioner company, the EIA prepared by the petitioner Company was in strict compliance of the terms of reference. It is contended that it was not the legal requirement of law that the EAC by itself or through the Sub Committee should have visited the spot to assess the impact of the Project. It is admitted that the Sub Committee only visited the plant site but did not visit the actual mining site. It is contended that the Sub Committee viewed the mining site from three vantage points and also through Google imaging etc. It is further contended that the sub committee in its report had clearly indicated that it could not visit the mining site but despite this fact the EAC accepted the report of the sub Committee and therefore it is submitted that the - 8 - EAC by accepting the report of the Sub Committee condoned any lapse on behalf of the Sub Committee. It is urged that the single Member of the Appellate Authority could not have functioned as the Appellate Authority and passed the impugned order. It is further submitted that the member became Judge, Prosecutor and witness and he could not have himself gone to the spot to receive further evidence. Sh.Raju Ramchandra, learned senior counsel appearing on behalf of the petitioner Company also contended that a single Member could not sit over the report of the Expert Committee. According to him, the Member was swayed more by public sentiments than by legal provisions. He further submitted that the Appellate authority could not go into this aspect of the matter. It is argued by him that the concept of sustainable development is an integral part of our environmental jurisprudence. 9. Sh.Ritwick Dutta, learned counsel appearing on behalf of private respondents submitted that when the public hearing was held no public - 9 - representatives were present and only those supporting the management were present. According to him the Majathal Wildlife Sanctuary is less than 10 k.ms away and therefore the Project could not have been granted environmental clearance. Sh.Dutta submits that the petitioner Company is guilty of suppressing material facts and in its EIA as well as in other documents it wrongly stated that Majathal Wildlife Sanctuary was less than 10 k.ms away. He also submitted that there should be sequential clearances and first forest clearance must be obtained and then only environmental clearance can be granted. 10. Sh.G.D. Verma, learned senior counsel for some of the private respondents submitted that the environmental clearance could not have been granted in the fashion it has been done. According to him, the Company should first fulfil the conditions and thereafter only the question of granting environmental clearance to it would arise. He submits that the Company may or may not comply with the conditions laid down by - 10 - EAC and therefore the permission should be set- aside. 11. Ms.Madhu Sharma, Advocate, amicus curie in the Public Interest Litigation submitted that the plant in question if permitted to be erected will cause environmental havoc in the area. It will affect the flora and fauna of the area. She has otherwise supported the submissions of Mr.Ritwick Dutta. 12. The first question which arises for decision is whether a single Member could have decided the case or not because this goes to the very root of the matter. In fact this question is academic in nature because now there is no National Environment Appellate Authority as the National Environment Authority Act has itself been repealed. However, this question has to be decided as far as the present case is concerned. 13. The National Environmental Appellate Authority was created under the National Environment Appellate Authority Act, 1997. Section 4 deals - 11 - with the composition of the Authority and reads as follows: “4. Composition of Authority. The Authority shall consist of a Chairperson, a Vice- Chairperson and such other Members not exceeding three, as the Central Government may deem fit.” 14. Under Section 5 of the Act, only a person who has been a Judge of the Supreme Court or the Chief Justice of a High Court was qualified to be appointed as Chairperson of the Appellate Authority. As far as Vice-Chairperson is concerned the minimum eligibility was that the person should have held the post of Secretary to the Government of India for a period of at least two years and should have administrative, legal, managerial experience or expertise. Only a person having professional knowledge or practical experience in the areas pertaining to conservation, environmental management, law or planning and development could be appointed as a Member. 15. Section 6 provides that in the event of the occurrence of any vacancy in the office of the Chairperson, the Vice Chairperson may act as a Chairperson till a new Chairperson is appointed. - 12 - 16. Section 10 of the Act reads as follows: “10. Vacancy in Authority not to invalidate acts or proceedings. No act or proceedings of the Authority shall be questioned or shall be invalid merely on the ground of existence of any vacancy or defect in the establishment of the Authority.” 17. Under Section 11, an appeal against the order granting environmental clearance lay to the Appellate Authority. The procedure and powers of the Authority are laid down in Section 12 of the Act. Section 13 provides that the Chairperson shall exercise financial and administrative powers and has the authority to delegate such powers to the Vice-Chairperson or any other officer. 18. On behalf of the Petitioner Company, it is submitted that the sole member could not have acted as the Appellate Authority and a perusal of Section 12 of the Act clearly indicates that the decision had to be taken by at least two or more members. It is contended that Section 10 should be read only in respect of acts which are administrative in nature or proceedings relating to intermediately or interlocutory orders. It is contended that Section 12 clearly lays down - 13 - that it is the authority alone which can decide the matter and not a single member. 19. On the other hand, on behalf of the public representatives it is contended that Section 10 clearly validates all acts including judicial acts and it is contended that the order cannot be held invalid only on account of the fact that the posts of Chairperson and Vice-Chairperson were vacant. 20. Reliance is also placed on Rule 12 (4) of the National Environment Appellate Authority (Appeal)Rules, 1997 which reads as follows: “12.Orders of the Authority and time-frame for disposal of appeal:- (1)to (3) xxxxxxxx (4)No order of the Authority shall be questioned on the ground merely of the existence of any vacancy or defect in the constitution of the Authority or any defect in the appointment of a person acting as the member of the Authority.” 21. In Diwan Chand Verma vs. State of H.P. and another, 2004(2) Cur.L.J. (HP) 248, relating to the Human Rights Act, no Chairman was appointed but one of the Members was notified to act as Chairman in terms of Section 25 of the Protection of Human Rights Act. The person so appointed was a retired Judge of this Court. His appointment was the subject matter of - 14 - challenge in a petition filed in this Court. Section 25 of that Act is similar to Section 6 of the National Environment Appellate Authority Act. It would also be pertinent to mention that Section 9 of the Human Rights Act is identical to Section 10 of the present Act. Dealing with an identical issue a Division Bench of this Court held as follows: “14. We can summarily deal with Section 9 at this very stage and by simply observing that the existence of any vacancy or defect in the constitution of the Commission, as is mentioned therein, is relatable only to a stage which may arise after the constitution of the Commission, and not prior to its constitution. Only after the Commission has been validly constituted, at a stage subsequent to its valid constitution, if a vacancy has arisen or there creeps in some defect in its constitution, Section 9 saves the proceedings of the Commission from any vice of legal infirmity owning to any such vacancy or any defect in the constitution of the Commission. Section 9, therefore, had no applicability to the issues involved in this case (as the Commission had not been admittedly constituted, even on the own showing of the respondents, till the date the opinion was rendered) and it was, therefore, totally wrong on the part of the Law Department in invoking Section 9 of the act in so far as the facts of the present case were concerned. 15. That brings us to the core issue involved in this case which revolves around a plain reading of Section 25 of the Act read with primarily Section 21 of the Act. First and for most, a very clear stipulation in Section 21 of the Act is suggestive of the fact that a State Government has to consist of mandatorily a Chairperson (who has been a Chief Justice of a High Court) and Members, whose categories, are mentioned in Clauses (b), (c) and (d) of sub-section (2) of Section 21. The expression “the State Commission shall consist of” (emphasis supplied) being mandatory in nature, conveys clear Legislative intent in unmistakable terms that the Commission would not come into being nor shall it be deemed to be in existence unless and until its Chairperson, in addition to the Members, has been validly appointed. - 15 - The only person, who is eligible to be appointed as a Chairperson of the Commission, is one who has been a Chief Justice of a High Court. Factually it is undisputed that respondent No.2 has not been a Chief Justice of the High Court. If Notifications dated 5th August, 2003 and 17th September, 2003 are read together, insofar as the appointment of the four persons mentioned in the Notification dated 17th September, 2003 as Members of the Commission are concerned, perhaps no defect can be found in the issuance of these two Notifications per se nor can any defect be found in the matter of appointment of the four persons as the Members of the Commission. To that extent, therefore, only to the limited extent of examining the correctness and validity of the aforesaid two Notifications and appointment of the four person as the Members of the Commission, the Notification dated 17th September, 2003 may have to be read in isolation in the sense that even though it does appoint four persons as Members of the Commission, by itself neither this Notification nor the earlier Notification dated 5th August, 2003 bring about the existence of the Commission as such because the existence of the Commission cannot be brought about except with the appointment of the Chairperson. The composition of the Commission is complete only after the Chairperson is appointed. The four persons appointed as Members of the Commission vide Notification dated 17th September, 2003 actually cannot constitute or be deemed to constitute the part of the Commission because even after their appointment as Members of the Commission, Commission cannot be considered to have come into being, awaiting as it does the appointment of the Chairperson. Only after the Chairperson is appointed, would the Commission be deemed to have come into existence and, therefore, on and from the moment the Chairperson is appointed, the four members earlier appointed would constitute as a part of the Commission because only from the stage onwards can be Commission be said to have been validly constituted and to come into existence. To that extent, therefore, we have no hesitation in holding that despite the issuance of the Notifications dated 5th August, 2003 and 17th September, 2003 the State Commission could not be and cannot be considered to have been validly constituted because the Chairperson was not appointed and the appointment of the Chairperson, a person who has been a Chief Justice of the High Court, being a mandatory requirement under law, a sine qua non to the coming into existence of the Commission the appointment of the four persons, mentioned in the Notification dated 17th September, 2003, was a ritual, an exercise, or at best an event which - 16 - remained incomplete, directly linked as it was with the appointment of the Chairperson.” 22. Reliance is also placed on a judgment of this Court in Virender Kumar vs. P.S. Rana and another, 2007 (2) Cur.L.J. (HP) 106, wherein a Division Bench of this Court held that the State Information Commission constituted under the Right to Information Act, 2005 must be a multi member body. 23. A bare reading of the National Environment Appellate Authority Act leaves no manner of doubt that the National Environment Appellate Authority was to be a multi member body consisting of a Chairperson, Vice Chairperson and not more than three members. Therefore, for the body to be complete at any given time there should have been a Chairperson, Vice Chairperson and a member. It is important to note that under Section 6 of the Act it is only the Vice Chairperson who was given the power to act as the Chairperson and to discharge the functions in certain circumstances. There is no such provision permitting a member to act as a Chairperson. I am of the considered view that there could be no Appellate Authority without a - 17 - Chairperson and since only the Vice- Chairperson could act as a Chairperson there can be no proper body when there is neither a Chairperson nor a Vice Chairperson. 24. Reliance has been placed on Section 10 and Rule 12(4) that no order or proceedings of the Authority can be questioned on the ground of existence of any vacancy or defect in the constitution of the Authority. Defect of constitution can be on various grounds. For example a person who was not qualified to be a Vice-Chairperson may have been appointed as such. If an authority comprising such a Vice Chairperson passed an order such order would be valid on account of Section 10. No doubt, Section 10 also lays down that merely on the ground of existence of any vacancy no act or proceedings can be invalid. However, it must be noted that Section 10 falls under Chapter-II relating to the establishment of Authority and will not, in our considered opinion, apply to the judicial decisions of the Authority which fall within Chapter III. - 18 - 25. Rule 12(4) however clearly lays down that no order of the authority shall be questioned on the ground of existence of vacancy or defect in the constitution of the Authority. This Rule clearly envisages that even a judicial order passed in appeal cannot be challenged on this ground. 26. It is well settled law that Rules cannot supplant the provisions of the Act itself. No doubt, Rule 12 (4) indicates that no judicial order of the Authority can be questioned on the ground of existence of vacancies or defect in the constitution of the authority but this in my considered opinion runs contrary to the provisions of the main Act. The main Act specifically provides that the Authority shall consist of a Chairperson, Vice Chairperson and at lest one other Member. Section 6 provides that a Vice Chairperson may act as a Chairperson in certain circumstances. However, there is no provision where a Member can act as a Chairperson or a Vice Chairperson. Section 12 provides that it is the Authority which shall hear the appeal. Rule 12(4) validates the orders - 19 - despite there being existence of any vacancy or defect in the constitution of the Authority. There is, in my considered opinion, a difference between a defect in the constitution of the authority and in an authority not being constituted at all. A single Member by no stretch of imagination can be said to constitute the Authority. A vacancy of a Chairperson or a Vice Chairperson i.e. of one of them may be overlooked but when both posts are vacant the member by himself cannot constitute the Authority. 27. While taking this view, I am taking into consideration the fact that the National Environment Appellate Authority was to act as a judicial authority. It had very important functions to perform and therefore the legislature in its wisdom felt that the person to be appointed as a Chairperson must have been a Judge of the Supreme Court or a Chief Justice of a High Court. The Vice Chairperson and the Members could be ‘lay’ persons though with the qualifications prescribed referred to - 20 - hereinabove. The jurisdiction of the authority was very wide and Section 15 debarred any civil court from entertaining any matter which the authority is empowered to entertain under this Act. 28. Section 16 provides that the proceedings before the Authority would be deemed to be judicial proceedings. Section 19 contains a penal clause whereby a person who fails to comply with the orders made by the authority would be liable to be punished for an imprisonment which may extent to seven years. The Authority is clothed with very wide powers. The EAC is comprised of a number of experts and the Authority which would have the jurisdiction to set-aside the orders of the EAC was to constitute of a person who had held high judicial position, an expert in the filed of administration and Members who would be experts in fields of conservation, environment management, planning and development etc. The Authority has to