The Supreme Court today has opined that NGT is an umbrella body created to ensure all bodies under Schedule-I of the NGT Act work in tandem while considering the issue as to whether the National Green Tribunal has suo motu powers or not.
The Apex Court has adjourned its hearing till tomorrow.
A three-judge bench of Justice A.M Khanwilkar, Justice Hrishikesh Roy and Justice C.T Ravikumar, has listed the matter for hearing tomorrow.
Arguments Advanced
Amicus Curiae, Senior Advocate Anant Grover:
Amicus Curiae, Senior Advocate Anant Grover submitted that Supreme Court and High Courts, which are superior courts and constitutional courts, have the power under the constitutional dispensation, to take Suo-Moto cognizance of cases pertaining to public interest.
On the matter of Suo-Moto Cognizance of NGT, Senior Advocate Grover stated, NGT has no Suo-Moto powers, he added that in Judgement of Wilfred J. Anr vs Moef Ors, NGT had tried to enumerate its basis of Suo-Moto powers; they have looked at Section 19.
Wilfred J. Anr vs Moef Ors, Paragraph 44:
“From these stated principles it is clear that the Tribunal has to exercise powers which are necessary to administer the justice in accordance with law. Certainly, the Tribunal cannot have contrary to the powers prescribed or the law in force but it certainly would have to expand its powers and determine the various controversies in relation to fact and law arising before it. This Tribunal has the inherent powers not only by implied application of the above enunciated principles of law but the provisions of the NGT Act particularly Section 19 of the NGT Act which empowers the Tribunal to regulate its own procedure and to be guided by the Principles of natural justice.”
Senior Advocate Grover, further added if the plain meaning of the language in Section 14, Section 15 and Section 18 of National Green Tribunal Act, 2010 is looked at, the intention of the legislature is abundantly clear.
According to the Amicus Curiae, jurisdiction of the NGT is to adjudicate or settle a dispute, meaning of which is quite clear. Senior Advocate Grover further argued that there is no express provision for Suo- Moto Cognizance of NGT and it is difficult to infer such power.
Justice A.M Khanwilkar enquired, if representation received, letter received or communication received in the office of Registrar, which is placed before the Tribunal for appropriate direction, the Tribunal issues notice to the sender and ask them to complete the formalities, do you think atleast to that effect tribunal has Power?
Senior Advocate Grover replied that he agrees with the court completely, clarifying that if the proceedings start from an external source, there should be no problem, if the, and respondents are intimated.
“The only reason I am saying this is, your Lordships have appointed me Amicus Curiae, I am enamored by the Judges when they take position on the Bench they completely forget they are parties to litigation, I have to take a similar role.”
-Senior Advocate Grover
Senior Advocate Grover further argued that all the statutes in Schedule-I, have individual powers and drew the Court’s attention to Water Pollution Act, 1974. Furthering his point, he pointed to Section 16 of the said act, which enumerate the functions of the Central Board, and referring to the functions, Senior Advocate Grover stated these functions are similar to an application to NGT and if NGT is given Suo Moto powers, the powers enumerated in the statutes in Schedule-I, National Green Tribunal Act, 2010 would be Truncated.
He requested the Court, not to embark on this road as the criticism in Academic Literature points out that, it weakens the system at the lower level.
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The Amicus Curiae concluded by submitting, that NGT is not a court, the court even exercising powers which are inherent doesn’t have the power except for punishment of contempt Suo-Moto, the only power which allows Suo- Moto implicitly is the power of Constitutional jurisdiction of superior court, under Article 226, Article 227 and Article 32.
Senior Advocate Nidesh Gupta:
Senior Advocate Gupta at the outset stated, according to him, NGT has Suo-Moto Powers completely, not just on a letter and no other interpretation would be possible.
Senior Advocate Gupta, referred to the observations of Justice M. Jagannadha Rao in the 186th law commission report:
“It is true that the High Court and Supreme Court have been taking up these and other complex environmental issues and deciding them. But, though they are judicial bodies, they do not have an independent statutory panel of environmental scientists to help and advise them on a permanent basis. They are prone to apply principles like the Wednesbury Principle and refuse to go into the merits. They do not also make spot inspections nor receive oral evidence to see for themselves the facts as they exist on ground. On the other hand, if Environmental Courts are established in each State, these Courts can make spot inspections and receive oral evidence. They can receive independent advice on scientific matters by a panel of scientists.
These Environmental Courts need not be Courts of exclusive jurisdiction. However, the High Courts, even if they are approached under Art. 226 either in individual cases or in PIL cases, where orders of environmental authorities could be questioned, may refuse to intervene on the ground that there is an effective alternative remedy before the specialist Environmental Court. As of now, when we have consumer Courts at the District and State level, the High Courts have consistently refused to entertain writ petitions under Art 226 because parties have a remedy before the fora established under the Consumer Protection Act, 1986. We have also the example of special environmental courts in Australia, New Zealand and in some other countries and these are manned by Judges and expert commissioners. The Royal Commission in UK is also of the view that if environmental courts are established, the High Courts may refuse to entertain applications for judicial review on the ground that there is an effective alternative remedy before these Courts.
So far as locus standi before the proposed Court in original petitions is concerned, it must be as wide as it is today before High Courts/Supreme Court in the writ jurisdiction in environment matters. This is the position in Australia and New Zealand also. Any person or organization who or which is interested in the subject matter or in public interest must be able to approach the Court. As stated earlier, the Court must be permitted to impose exemplary costs in case of frivolous or vexatious litigation.”
Senior Advocate Gupta, argued that NGT has power to take Suo-Moto cognizance if a matter requires implementation of acts under Schedule-I of NGT act or should have substantial question related to the environment. He added, Section 14(1) of the NGT Act has the mandate of NGT exercising Suo-Moto jurisdiction and the intent of legislature is to give wide powers to NGT under, Section 14(1) of the NGT act.
He further argued that Section 14(1) and Section 15(1) of the NGT Act give the widest powers to NGT and if they are read subject to limitations under Section 14(3) and Section 15(3) it would negate the intent of the legislature. He pointed to the fact that if an issue has a continuing cause of action, NGT cannot take such a matter.
Senior Advocate Gupta, on Section 19 of NGT Act stated that NGT is not bound by procedure in CPC, has to follow Principles of Natural Justice and could make its own procedure. According to him, it shows the intent of the legislature.
Senior Advocate Gupta: Process of law, should not defeat the purpose of law.
Senior Advocate Gupta, relied on Rule 20 and Rule 24 of NGT Act to emphasize on wide powers given to NGT.
Senior Advocate Gupta, then referred to hypothetical situation where, a very influential organization is causing environmental degradation, and citizens affected by it are fearful to approach the NGT, it would be absurd for the NGT to not take Suo Moto cognizance in such a case.
Senior Advocate Gupta further argued that, because the NGT Act is a beneficial legislation, the power entrusted on the tribunal cannot be read narrowly and must be given a broader meaning; otherwise it would betray the legislative intent.
Senior Advocate Sanjay Parikh
Senior Advocate Parikh, at the outset clarified that the tribunal has jurisdiction to entertain matters on basis of letters or newspaper articles, but calling it Suo Moto Powers may be problematic.
Justice A.M Khanwilkar replied: “We will call it Sui-Generis jurisdiction.”
Senior Advocate Parikh submitted that the present environment legislations are a result of Stockholm Convention, which resulted in the 42nd amendment of the Indian Constitution. Subsequently, Rio Earth summit along with aforementioned convention developed certain principles like Polluter Pays principle, Precautionary principle, Public Trust Doctrine and then came judgments of the Supreme Court, which made environment a part of Right to life under Article 21 of the Indian Constitution.
Senior Advocate Parikh further submitted that the preamble of the NGT Act, states that above mentioned principles and Right to Environment, have become a part of Article 21 of the Indian Constitution.
Senior Advocate Parikh argued that if a matter involving huge environmental degradation is not brought before NGT, the Tribunal under Section 14 and Section 15 can take cognizance of such matters in the interest of environmental protection further adding that it is the duty of the Tribunal to do so.
Justice A.M Khanwilkar: NGT is an umbrella body created to ensure all bodies under Schedule-I of the NGT Act work in tandem.
Senior Advocate Parikh further stated, the state has an obligation under the Public Trust Doctrine to preserve the environment as established in Kamalnath v. Union of India, where the court had stated that Public Trust Doctrine was not only a shield but could also be used as a sword.
Justice A.M Khanwilkar: NGT can pass orders on apprehension, so this very different jurisdiction.
Senior Advocate Parikh relied on A.R. Antulay vs R.S. Nayak &Anr 1998 2 SCC 602 to state, by an enactment parliament can give enactment of Sui-Generis nature or Suo-Moto nature and thus is not only derived the Indian Constitution.
The next date of hearing is September 8, 2021.