Summary
A gram panchayat appealed to the National Green Tribunal against an environmental clearance for limestone mining granted in January 2017, with an application to condone delay. On 29.01.2018 a single member of the NGT, sitting under a proviso to Rule 3 of the NGT (Practice and Procedure) Rules, 2011 inserted on 01.12.2017, dismissed the condonation application for non-prosecution. That was after the Attorney General had assured the Supreme Court on 11.01.2018 that the proviso would be rectified to conform to Section 4(4)(c) of the NGT Act, and two days before the Court directed that no single member benches be constituted. The NGT later refused to recall the dismissal. The Supreme Court set aside both orders.
Issues
- Whether a single member of the National Green Tribunal, constituted under the proviso to Rule 3 of the NGT (Practice and Procedure) Rules, 2011, could validly dismiss an application after the Attorney General had assured the Supreme Court that the proviso would be rectified to conform to Section 4(4)(c) of the NGT Act, 2010.
- Whether an order passed by such a single member bench is vitiated for want of jurisdiction so that an application to recall it should have been allowed.
Provisions considered
- Section 4(4)(c), National Green Tribunal Act, 2010The number of expert members hearing an appeal or application must equal the number of judicial members, so every bench must have at least one expert member; a single member bench therefore could not pass the order of 29.01.2018. (¶¶ 6, 12)
- Rule 3(1) and the proviso inserted by Notification GSR 1473(E) of 01.12.2017, National Green Tribunal (Practice and Procedure) Rules, 2011The proviso permitting single member benches in exceptional circumstances was challenged as contrary to the Act; delegated legislation must conform to the enactment authorising it, and a rule cannot rise above the source of power. Once the Attorney General's assurance was before it, propriety required the NGT to follow a consistent course, as the same member did in other matters. (¶¶ 4, 5, 6, 12)
- Section 16 and its proviso (limitation for appeals), National Green Tribunal Act, 2010The appeal was filed beyond thirty days and the respondent argued that delay beyond ninety days could not be condoned; the Court expressed no view, leaving all contentions on limitation open on remand. (¶¶ 3, 10, 13)
Held
- On 11.01.2018 the Attorney General assured this Court that the rule under challenge would be rectified in consonance with the Act and its judgments; on 31.01.2018 the Court directed that 'in the meantime' the Chairperson shall not constitute a single member bench, words showing an interdict on implementing the rule while the executive deliberated. Though the earlier order recorded no express stay, implicit in the assurance was the settled principle that delegated legislation must conform to the parent enactment. (¶¶ 6, 7, 11, 12)
- The very member who dismissed the appellant's application on 29.01.2018 had on 23.01.2018 deferred other matters because of the pending challenge to single member benches; propriety warranted a consistent course once the assurance was known. The assumption of jurisdiction by the single member stood vitiated, and the order could not have been passed in view of the proviso to Section 4(4)(c). (¶ 12)
- The NGT's order of 16.07.2021 refusing recall and condonation, and the single member's order of 29.01.2018, were set aside; the appeal was restored for disposal afresh with all rights and contentions, including limitation, kept open and no opinion expressed on merits. (¶ 13)
Result
Appeals allowed; the NGT orders of 16.07.2021 and 29.01.2018 set aside and Appeal No. 36 of 2017 restored to the file of the NGT for fresh disposal, all contentions including limitation left open.