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The Delhi High Court has held that NGT Bench cannot constitute of a single-member as one expert member is mandatory.
The division-bench comprising of Justices DY Chandrachud and AS Bopanna observed that 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, at least one expert member on the Bench is mandatorily required.
The observation was made in the backdrop of challenge to the
constitutional validity of amendment to the National Green Tribunal
(Practice and Procedure) Rules 2011 brought by the MoEFCC on 1st Dec,
2017. By the Notification, a proviso was inserted in Rule 3 of the 2011
Rules which allowed the constitution of single member Benches in
exceptional circumstances.
The appellant instituted these proceedings for challenging the order of the Tribunal on the ground that the order passed by the single member on 29 January 2018 is null and void because the constitution of a bench comprising of a single member is in contravention of Section 4(4)(c) of the NGT Act 2010. It was also contended that the lawyer who was previously engaged to represent it returned the file because he was appointed as a Government Advocate and that he had brought this information to the notice of the Tribunal. The appellant urged that the lawyer subsequently engaged by the appellant was not provided any notice of the hearing in spite of the fact that the appeal was taken up after a long gap in time. The appellant thus set up the plea of a violation of the principles of natural justice.
The issue before the Court was whether a single member of the Tribunal could have dealt with the proceedings and dismissed the applications for restoration and for condonation of delay on 29 January 2018 after the Attorney General of India had assured this Court on 11 January 2018 that the proviso to Rule 3 would be rectified in consonance with the Act and the judgments of this Court.
Delivberating on the AG's statement, the Court opined that 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."
Analysing its order on the same, the Court stated that it 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."
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(With input from news agency language)
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