The Supreme Court on Wednesday reserved its verdict in a batch of connected matters, where the Court was considering if the National Green Tribunal had the power to take suo motu jurisdiction.
The three-judge bench of Justice A.M. Khanwilkar, Justice Hrishikesh Roy and Justice C.T. RaviKumar gave the parties 1 week’s time to file written submissions if any are required.
Senior Advocate Sanjay Parikh continued his arguments from yesterday by submitting that the jurisdiction of NGT is quite different as compared to any other tribunals, NGT is a result and answer of various international conventions such as Stockholm Convention, Earth Summit and other subsequent summits, hence it is an enactment under Article 253 of the Indian Constitution, to uphold the international commitments made at various conventions.
Senior Advocate Parikh further submitted once a Tribunal is provided with all the powers required to deal with environmental protection, it has to be construed by looking at the aims and objectives, read along with the preamble, Section 14, Section 15 and Section 19 of NGT Act. He pointed at Section 2(m)(ii)of NGT Act and stated that, the aforementioned provision does not require a statutory obligation, suppose there is a source of pollution, polluting a river, then the question is if this will be a substantial question related to environment.
Section 2(m) of National Green Tribunal Act, 2010:
“substantial question relating to environment shall include an instance where,–
(i) there is a direct violation of a specific statutory environmental obligation by a person by which,–
(A) the community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or
(B) the gravity of damage to the environment or property is substantial; or
(C) the damage to public health is broadly measurable;
(ii) the environmental consequences relate to a specific activity or a point source of pollution;”
Senior Advocate Parikh, in relation to Section 14 stated, Tribunal shall have Jurisdiction over all cases where a substantial question relating to environment is involved, here you have to ultimately point out that, it is related to the implementation of the acts mentioned in Schedule-I of the NGT Act. He added, if you look at the PILs that have been filed and which have given rise to environmental jurisprudence in India, in most of these cases, someone has looked at the public injuries that have been caused and consequently moves the Supreme Cout or the High Court.
Senior Advocate Parikh, further submitted, there are various cases where the Supreme Court of India or one of the High Court have taken Suo-Moto Cognizance of matters and have then transferred it to NGT for adjudication, furthering his argument he stated, suppose an aggrieved person approaches the NGT for relief, the Tribunal does not pass directions just for the person who one has approached the Tribunal, but to remedy the situation brought in front of the Tribunal, therefore when Section 14 (2) of the NGT Act is looked at, it has to be construed in broad parameters.
Senior Advocate Parikh, further stated, when a general issue has been brought to NGT by way of an application, letter written or cognizance of a newspaper report, the Tribunal should ask for a report, from implementing authority and the said report should be basis of proceeding forward. He further added, when a Suo-Moto matter is transferred to NGT, the Tribunal a appoints a committee, the said Committee furnishes a report and the report forms the basis of proceedings at NGT.
Parikh: Suo motu powers not required by NGT owing to provisions in Section 15 and Section 17
Senior Advocate Parikh, referring to Section 15 stated, discretion given to the tribunal to really asses the damage to the environment, area concerned and to public health and then pass the appropriate orders.
Senior Advocate Parikh, relied on Alaknanda Hydropower Co. Ltd. v. Anuj Joshi,(2014) 1 SCC 769, paragraph 52 to establish in situation of Act of God, where you are taking Suo Moto Cognizance, it is to establish if the result was aggravated by any externalities.
Alaknanda Hydropower Co. Ltd. v. Anuj Joshi, (2014) 1 SCC 769, paragraph 52:
”We are also deeply concerned with the recent tragedy, which has affected the Char Dham area of Uttarakhand. Wadia Institute of Himalayan Geology (WIG) recorded 350mm of rain on June 15-16, 2013. Snowfall ahead of the cloudburst also has contributed to the floods resulting in the burst on the banks of Chorabari lake near Kedarnath, leading to large scale calamity leading to loss of human lives and property. The adverse effect of the existing projects, projects under construction and proposed, on the environment and ecology calls for a detailed scientific study. Proper Disaster Management Plan, it is seen, is also not in place, resulting in loss of lives and property. “
Senior Advocate Parikh, with reference to Section 17of NGT Act stated, due to provisions such as this, NGT has not been provided Suo-Motu provision, as suppose 1 aggrieved person is stated to have suffered damages, when the expert committee visits the area, it finds numerous sufferers, and grants compensation to such people as well, hence Suo Motu powers are not required owing to the provisions in Section 15 & Section 17 of NGT. He added that the Law Commission and the legislature were aware of the aforementioned fact.
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Senior Advocate Parikh, with reference to Section 19 of NGT Act stated, it gives the power to the Tribunal to regulate its own procedure, he added, under this provision the Tribunal may declare the ways in which it can take cognizance of damage caused to the environment. Refuting the argument made by Amicus Curiae Grover that, it is a civil court and civil courts are never given this kind of power, Senior Advocate Parikh stated, it is not a civil court, it is a tribunal which finds its power in the NGT Act.
Justice Hrishikesh Roy: You gave the example of Chardham, the cloud burst situation, we are talking about Suo Motu Jurisdiction, one is supposed to do restitutive exercise, one is supposed to do compensatory exercise, one is supposed to put the inactive people into action, can the NGT be expected to evade a precuring by a third party, when action that is required is an immediate action, can there be a situation of self-cognizance instead of Suo Motu? If the Tribunal waits for an application, it might be too late.
Senior Advocate Parikh replied by stating, he agreed with Justice Roy, however putting a caveat to the agreement, the Tribunal is about factual point, why should you allow the environment to further deteriorate, taking cognizance should be in the jurisdiction of the court. He further added, protection of environment is the objective of all the international conventions that have been mentioned.
Justice C.T. Ravikumar: Cognizance is all about application of mind, so is it necessary for application to be there, in the light of Section 2(m), suppose a particular activity is detrimental to the environment, whether that particular fact can be the basis of cognizance, without any application?
Senior Advocate Parikh replied by stating, it will depend upon the factual situation, severity, whether it will have an impact on large amounts of people which is mention in the definition under Section 2(m) of NGT Act, if that is the severity then certainly NGT can take cognizance.
Senior Advocate Gopal Sankaranarayanan:
Senior Advocate Sankaranarayanan, placed reliance on H.P Ranjanna v. Union of India &Ors, to elucidate that NGT is not just an adjudicatory body but also an expert regulatory body, the court held:
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“The power and jurisdiction of the NGT under Sections 15(1)(b) and (c) are not restitutionary, in the sense of restoring the environment to the position it was before the practise impugned, or before the incident occurred. The NGT’s jurisdiction in one sense is a remedial one, based on a reflexive exercise of its powers. In another sense, based on thenature of the abusive practice, its powers can also be preventive.
As a quasi-judicial body exercising both appellate jurisdiction over regulatory bodies` orders and directions (under Section 15) and its original jurisdiction under Sections 14, 15 and 17 of the NGT Act, the tribunal, based on the cases and applications made before it, is an expert regulatory body. Its personnel include technically qualified and experienced members. The powers it exercises and directions it can potentially issue, impact not merely those before t, but also state agencies and state departments whose views are heard, after which general directions to prevent the future occurrence of incidents that impact the environment, are issued.”
Senior Advocate Sankaranarayanan submitted that, any argument that suggests, NGT is a substitute to a Civil Court, is put to rest by Law Commission’s own understanding, the burden on the Constitutional Courts are now going to be reduced. He added, it is that jurisdiction that is being put on NGT.
Senior Advocate Sankaranarayanan further submitted, Section 14(1) has three triggers, there has to be question dealing specifically with environment, it can only be civil in nature and it has to arise out of enactments in Schedule-I of the NGT Act.
Senior Advocate Sankaranarayanan brought the courts attention to, a recently notified act, Commission for Air Quality Management in NCR and adjoining area Act, 2021 passed by the Parliament, Section 20 of the said Act, provides for an appeal to the NGT. He added, I have no doubt, someday a clever lawyer will come before this Court and will claim this act is not included in Schedule-I of NGT Act and hence NGT does not have jurisdiction.
Senior Advocate Sankaranarayanan further submitted, the Court should consider, this is Article 21 oriented jurisdiction that has been carved out and put on the shoulders of NGT.
Justice Khanwilkar jokingly remarked: “We hope that clever lawyer is you and we will reject it.”
Senior Advocate Sankaranarayanan replied: “I will be happy to lose that one, My Lord.”
Senior Advocate Sankaranarayanan, with reference to Section 19 (4) (j) in comparison withSection 19 (4) (i) of the NGT Act stated that, if the provision in Section 19 (4) (i) was enough there was no need for Section 19 (4) (j). He also added, the provision in Section 19 (4) (j) there is no requirement for application or appeal and in Section 15(1) does not use the word applicant, but uses the word victim.
Section 19 (4) (i)&Section 19 (4) (j) of NGT Act:
(i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;
(j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I;
Senior Advocate Sankaranarayanan further submitted, in a number of cases the High Courts have transferred matters which they thought was under the jurisdiction of NGT, indicating that the High Courts understand, it is their jurisdiction that is going to NGT.
Senior Advocate Sankaranarayanan argued that, NGT is a unique tribunal with special jurisdictional powers, setup to protect the environment with three roles: (i). deciding substantial questions relating to the environment, in nature of regulatory body, (ii). Resolving disputes between parties (iii) entertaining appeals as prescribed.
Senior Advocate Sankaranarayanan pointed to the fact that, the NGT Act continuously uses the words award, order and decision, the word decision must be interpreted to be a separate and non-adversarial function.
On the issue of Suo Motu Cognizance being against Principles of Natural Justice, Sankaranarayanan explained if that were the case, every Supreme Court and High Court Judge taking suo motu cognizance would be in violation of principles of natural justice.