National Green Tribunal Act, 2010 – s.4(4)(c) – National Green Tribunal (Practice and Procedure) Rules, 2011 – Amendment in r.3 – By notification, a proviso was inserted in r.3 of the 2011 Rules, which allowed the constitution of a single member Bench in exceptional circumstances – The said notification was challenged – Before the Supreme Court on 11.01.2018, the Attorney General of India assured that the rule which is under challenge shall be rectified in consonance with the 2010 Act – However on 29.01.2018, a single member of the NGT dismissed an application for condonation of delay, which was filed by the appellant – On 31.01.2018, Supreme Court in the petition challenging the validity of the government order directed that the Chairperson of the NGT shall not constitute a single member Bench and each bench shall consist of one judicial member and an expert member – Appellant preferred an application for recall of the order of the single member dated 29.01.2018 and condonation of delay – The Tribunal dismissed both the applications by an order dated 16.07.2021 – On appeal, held: The single member of the NGT who dismissed the application for condonation of delay submitted by the appellant on 29.01.2018 had, in other cases, abstained from passing any judicial order on the ground that there was a stay on the composition of a single member bench – Propriety warranted that a consistent course of action should have been followed by the NGT, once the assurance which was held out before Supreme Court by the Attorney General, was brought to its knowledge – The phraseology of the order that the Supreme Court dated 31.01.2018 intended that there be an interdict on the constitution of single member benches constituted in purported exercise of the power conferred by the rule – The assumption of jurisdiction by a single member Bench clearly stands vitiated – The Single member could not have passed an order in view of the proviso to s. 4(4)(c) of the Act – The impugned order dated 16.07.2021 and original order of NGT dated 29.01.2018 set aside.
Allowing the appeals, the Court
HELD: 1. The single member of the NGT who dismissed the application for condonation of delay submitted by the appellant on 29 January 2018 had, in other cases, abstained from passing any judicial order on the ground that there was a stay on the composition of a single member bench. Similar orders were passed on the same day in other cases as well. However, the single member dismissed the application for condonation of delay filed by the appellant though he did not pass any order in the other cases in view of the assurance that was made by the Attorney General before this court. The order of this court on 11 January 2018 notes the assurance of the Attorney General that the rule under challenge would be rectified to bring it in accord with the Act and the judgments of this court. True, the order of this Court does not specifically record a direction for stay. This must however, be understood in the perspective of the fact that the Attorney General had placed a solemn assurance before the Court that the rule would be rectified to bring it in conformity with the parent enactment and the decisions of this Court. Implicit in this is the settled principle that delegated legislation must be in conformity with the enactment of the legislature which authorises its making. A rule cannot rise above the source of power. Propriety warranted that a consistent course of action should have been followed by the NGT, once the assurance which was held out before this court by the Attorney General, was brought to its knowledge. The order of this Court on 31 January 2018 directed that “in the meantime, the Chairperson shall not constitute a Single Member Bench….”. The phrase “in the meantime’ elucidates that during the time the executive deliberates on the dissonance of the Rule with the Act and judgments, there shall be a restraint on its implementation. Thus, it is evident from the phraseology of the order that this Court intended that there be an interdict on the constitution of single member benches constituted in purported exercise of the power conferred by the rule. The assumption of jurisdiction by a single member Bench clearly stands vitiated. The Single member could not have passed an order in view of the proviso to Section 4(4)(c) of the NGT Act 2010 which states that the number of expert members hearing the appeal or application shall be equal to the number of judicial members, mandating that there shall be at least one expert member on the Bench. [Para 12][133-F; 134A-F] Save Mon Region Federation v. Union of India 2013
(1) All India NGT Reporter 1; Goa Foundation,
through its Secretary v. Goa Tourism Development Corporation (OA No. 156/2016); Rajabhau Pawar v. The State of Goa through its Chief Secretary (OA No. 97/2016); The Goa Foundation v. Goa State EIAA (OA No. 33/2015) - referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.