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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.04.2014
CORAM
THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR
and
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
Writ Petition No.19496 of 2013
and
M.P.Nos.1 and 2 of 2013
Puducherry Environment Protection Association
rep. by its Secretary, K.Irusappan,
Puducherry Environment Protection Association,
Koodapakkam & Post, Puducherry. ... Petitioner
vs
1.The Union of India rep. by its Secretary,
Ministry of Environment and Forests,
Pariyavaran Bhavan, New Delhi.
2.The Secretary-Environment,
Government of Puducherry,
Chief Secretariat, Gubert Avenue,
Puducherry-1.
3.Shri Ajay Thiyagi, IAS.,
Joint Secretary (Pollution Control) cum
Appellate Authority under Air Act (Union Territories),
MOEF, Government of India,
Pariyavaran Bhavan, New Delhi.
4.Puducherry Pollution Control Committee
rep. by its Member Secretary,
3rd Floor, Housing Board Building,
Anna Nagar, Puducherry-605 005. ... Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, calling for the records of the 1st respondent culmination in S.O.1032(E), dated 12th December, 1989 published in the Gazette of India Part II, Section 3, Sub-section (ii) Extraordinary, dated 13th December, 1989, quash the same and direct the first respondent to constitute an Appellate Authority headed by a retired Justice of the High Court in accordance with the order of the Hon'ble Supreme Court in A.P.Pollution Control Board -vs- Prof.M.V.Nayudu (Retd.) & Others, to adjudicate appeals preferred under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981.
For Petitioner : Mr.T.Mohan for
M/s.Vijayalakshmi K.Rajaratnam
For Respondents : Mr.S.Haja Mohideen Gishthi
for R1 & R2
Mr.A.Tamilvanan,
Govt. Advocate (Puducherry) for R3
Mr.C.K.M.Appaji for R4
O R D E R
(Order of the Court was made by N.PAUL VASANTHAKUMAR, J.) This writ petition is filed to quash the order of the first respondent issued in S.O.1032(E), dated 12th December, 1989, published in the Gazette of India Part II, Section 3, Sub-section (ii) Extraordinary, dated 13th December, 1989, and direct the first respondent to constitute an Appellate Authority headed by a retired Judge of the High Court, in accordance with the judgment of the Hon'ble Supreme Court in A.P.Pollution Control Board -vs- Prof.M.V.Nayudu (Retd.) & Others (AIR 1999 Supreme Court Page 812) to adjudicate appeals preferred under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981.
2.This writ petition is filed as a 'Public Interest Litigation' by the Puducherry Environment Protection Association, challenging the order, dated 12.12.1989, appointing the Joint Secretary in-charge of Pollution Control in the Ministry of Environment and Forests as the Appellate Authority, contending that the Air (Prevention and Control of Pollution) Act, 1981 (Air Act) contains a provision under Section 31 for 'appeals' to an Appellate Authority to be constituted by the State Government and the Air (Prevention and Control of Pollution)(Union Territories) Rules, 1983 (UT Rules) provides the procedure for appeals from Union Territories under Rule 17, and Rule 2(C) of the said Rules defines Appellate Authority means an Appellate Authority constituted by the Central Government under sub-section (1) of section 31 of the Act. It is also contended that the impugned order was issued by the first respondent by exercising the power under Sub Section (1) of Section 31 of the Air Act and the headquarters of the Appellate Authority shall be at New Delhi.
3.According to the petitioner, the first respondent appointed the Joint Secretary in-charge of Pollution Control in the Ministry of Environment and Forests as the Appellate Authority and the practice of appointing Government Officers to perform judicial functions in the matters concerning the environment and posting of civil servants as Appellate Authority was found fault with by the Hon'ble Supreme Court in a number of cases right from 1986, i.e., (i) M.C.Mehta -vs- Union of India and Shriram Foods and Fertilizers Case [1986 (2) SCC 176 (at page 202)]; Vellore Citizens Welfare Forum Case [1996 (5) SCC 647]; and A.P.Pollution Control Board -vs- M.V.Nayudu (Retd.) and others (AIR 1999 Supreme Court 812).
4.It is the further contention of the petitioner that the Law Commission of India, in its 186th report at page Nos.98 and 99, has also recommended as follows:-
It will be noticed that several of the special statutes e.g. Environment (Protection) Act, 1986, Water (P&CP) Act, 1974, Air (P&CP) Act, 1981, delegate power to the State Governments/Union Government to designate appellate authorities. The appeals lie generally, as can be seen from the above paragraphs, to various officers of government or Departments of Government. Except in one or two cases, the appeals do not lie to a judicial body comprising a judicial officer. In no case does the appellate authority have the assistance of experts in the field of environment.
In the light of the discussion in the earlier chapters and experience of Establishment of Environmental Courts abroad, the Law Commission is of the opinion that the present system is not satisfactory so far as disposal of these appeals are concerned. The appeal is practically the first opportunity for a party or even third parties affected by pollution, to seek relief. In the view of the Commission, such appeals must lie to an appellate Court having special jurisdiction and must comprise of persons who have or had judicial qualifications or have considerable experience as lawyers. They must also be assisted by experts in environmental science. As stated in the earlier chapters, it is now well recognized in several countries that the appeals must lie to Court manned by persons with judicial knowledge and experience, assisted by experts in various aspects of environmental science.
5.In the light of the above judgments of the Hon'ble Supreme Court and the above Law Commission recommendation, the appointment of the Government Officer as Appellate Authority in the year 1989 suffers from legal infirmity and the Union Territory of Puducherry has not constituted the Appellate Authority under the Air and Water Act in terms of the directions issued by the Hon'ble Supreme Court. Hence the writ petition is filed with the abovesaid prayer, virtually to implement the order of the Hon'ble Supreme Court.
6.The first respondent has filed a counter affidavit stating that the Appellate Authority under the Water (Prevention and Control of Pollution) Act, 1974, Water (Prevention and Control of Pollution) Cess Act, 1977, have been constituted by the concerned State Governments in the respective States. It is also stated that the Parliament has enacted the National Green Tribunal Act, 2010 (Act 19/2010) and prior to the said enactment, the National Environmental Tribunal Act, 1995 and the National Environmental Appellate Authority Act, 1997 were available, as per which, the aggrieved party can file appeals as per the provisions of the said Acts and the said Acts (National Environmental Tribunal Act, 1995 and National Environmental Appellate Authority Act, 1997 ) were repealed, after enacting the National Green Tribunal Act, 2010, as per which, the appeal against the directions of the State Pollution Control Boards or Pollution Control Committees under Section 33A of the Water Act could be heard by the respective High Courts.
7.It is also stated in the counter affidavit of the first respondent that as per the National Green Tribunal Act, 2010, the National Green Tribunal is in place and the appeal against the decisions of the Appellate Authority under the Air Act as well as the direction under the Water Act is within the jurisdiction of the National Green Tribunal and the Tribunal is headed by a person, who has been a Judge of the Supreme Court of India. It is further stated that the Joint Secretary, viz., Shri. Ajay Tyagi, was in- charge of the Control of Pollution (CP) Division in the Ministry and and accordingly, he has functioned as an Appellate Authority under the Air Act during that period.
8.The sum and substance of the contention of the first respondent in the counter affidavit is that after the enactment of National Green Tribunal Act, 2010, there is no necessity to appoint a retired High Court Judge as an Appellate Authority under the Air and Water Act.
9.The learned counsel appearing for the petitioner submitted that the National Green Tribunal will have jurisdiction to hear and dispose of cases filed against the orders of the Appellate Authorities and the Appellate Authority having been directed to be constituted by the judgment of the Hon'ble Supreme Court, dated 27.01.1999, giving direction to constitute Appellate Authorities under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31 of the Air (Prevention and Control of Pollution), Act, 1981 and other Rules, which mandates a Judge of the High Court, sitting or retired, and a Scientist or group of Scientists of high ranking and experience, to help in the adjudication of disputes relating to environment and pollution, the first respondent is legally bound to implement the same by constituting the Appellate Authority in terms of the directions issued by the Hon'ble Supreme Court.
10.The learned counsel appearing for the first respondent submitted that the Green Tribunal having been constituted under the National Green Tribunal Act, 2010, by a retired Judge of the Supreme Court, there is no necessity to constitute Appellate Authority headed by the High Court retired Judge, at this distance of time.
11.The learned counsel appearing for the first respondent further submitted that as the relief is sought against the Central Government, the Union Territory of Puducherry has no say in the matter and if the Appellate Authority is constituted as per the judgment of the Hon'ble Supreme Court, as referred to above, the Union Territory can seek for similar relief.
12.We have considered the rival submissions. It is not in dispute that the judgment of the Hon'ble Supreme Court, reported in A.P.Pollution Control Board -vs- M.V.Nayudu (Retd.) and others (AIR 1999 Supreme Court 812), referred to above, mandates constitution of Appellate Authority under the Water and Air Act by a sitting or retired High Court Judge. In paragraph Nos.47 to 51, the Hon'ble Supreme Court held thus:-
47....., the Government of India should, in our opinion, bring about appropriate amendments in the environmental statutes, rules and notifications to ensure that in all environmental courts, tribunals and appellate authorities, there is always a Judge of the rank of a High Court Judge or a Supreme Court Judge, sitting or retired and a scientist or group of scientists of high ranking and experience so as to help a proper and fair adjudication of disputes relating to the environment and pollution.
48.There is also an immediate need that in all the States and Union Territories, the appellate authorities under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 or other rules, there is always a Judge of the High Court, sitting or retired, and a scientist or group of scientists of high ranking and experience, to help in the adjudication of disputes relating to the environment and pollution. An amendment to existing notifications under these Acts can be made for the present.
49.There is also need for amending the notifications issued under Rule 12 of the Hazardous Wastes (Management and Handling) Rules, 1989. What we have said applies to all other such rules or notifications issued either by the Central Government or the State Governments.
50.We request the Central and State Governments to take notice of these recommendations and take appropriate action urgently.
51.We finally come to the appellate authority under the National Environment Appellate Authority Act, 1997. In our view, it comes very near to the ideals set by this Court. Under that statute, the appellate authority is to consist of a sitting or retired Supreme Court Judge or a sitting or retired Chief Justice of a High Court and a Vice-Chairman who has been an administrator of high rank with expertise in technical aspects of problems relating to the environment; and technical members, not exceeding three, who have professional knowledge or practical experience in the areas pertaining to conservation, environmental management, land or planning and development.
13.The constitution of National Green Tribunal cannot be stated as a reason for not constituting the Appellate Authority, in terms of the direction issued by the Supreme Court, as the National Green Tribunal will have jurisdiction to decide cases, which are to be filed against the orders of the Appellate Authority alone. In such view of the matter, the reason stated by the first respondent in the counter affidavit is not countenanced and a direction is issued to the first respondent to constitute Appellate Authority under the Air and Water Act within a period of three months from the date of receipt of a copy of this order.
N.PAUL VASANTHAKUMAR,J.
And M.SATHYANARAYANAN,J.
14.With the above direction, the writ petition is disposed of. Consequently, connected Miscellaneous Petitions are closed. No costs.
(N.P.V.,J.) (M.S.N.,J.)
Index :Yes 11.04.2014
Website :Yes
bs
To
1.The Union of India rep. by its Secretary,
Ministry of Environment and Forests,
Pariyavaran Bhavan, New Delhi.
2.The Secretary-Environment, Government of Puducherry,
Chief Secretariat, Gubert Avenue, Puducherry-1.
3.Shri Ajay Thiyagi, IAS., Joint Secretary (Pollution Control) cum
Appellate Authority under Air Act (Union Territories),
MOEF, Government of India, Pariyavaran Bhavan, New Delhi.
4.Member Secretary,Puducherry Pollution Control Committee
3rd Floor, Housing Board Building, Anna Nagar, Puducherry-605 005.
W.P.No.19496 of 2013
Dated:11.04.2014