The main legal point established is that the judgment of the Hon'ble Supreme Court mandating the constitution of the Appellate Authority under the Water and Air Act by a sitting or retired High Court Judge must be implemented, and the constitution of the National Green Tribunal does not negate this requirement.

N. Paul Vasanthakumar, J.

1. 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 experien