NGT’s jurisdictional powers
The National Green Tribunal Act, 2010 (“NGT Act”), established the National Green Tribunal (“NGT”) to inter alia adjudicate cases related to environment protection and enforcement of legal rights relating to the environment.
Section 14 of the NGT Act provides the NGT with original and subject matter jurisdiction to deal with all civil cases involving substantial question relating to protection of environment and enforcement of associated legal rights under the statutes enlisted in Schedule 1 of the NGT Act.
Rule 24 of the National Green Tribunal (Practice & Procedure) Rules, 2011 (“NGT Rules”), provides that NGT may issue orders/ directions, which may be necessary to secure the ends of justice or to prevent abuse of its processes. It bestows the NGT with a wide range of discretionary powers to fulfill its objective of environmental protection. However, it does not mean that the NGT has absolute inherent powers to do complete justice. The Supreme Court in Rajeev Suri v. DDA[1] observed that:
“NGT is not a plenary body with inherent powers to address concerns of a residuary character. It is a statutory body with limited mandate over environmental matters as and when they arise for its consideration. In a cause before it, NGT cannot directly go on to adjudicate on concerns of violation of fundamental rights and once the contours of a subject matter traverse the scope of appeal from a grant of EC, the merits review by tribunal cannot traverse beyond the scope of jurisdiction vested in it by the statute.”
Courts have held that the NGT is a court of sui generis nature and not unus multorum. The NGT Act does not expressly provide for suo moto jurisdiction of the NGT. However, in Municipal Corporation of Greater Mumbai v. Ankita Sinha & Others[2], the Supreme Court held that the NGT is vested with suo motu jurisdiction to discharge its functions under the NGT Act, subject to the principles of natural justice, with the same being interpreted in the widest amplitude. Thus, if any substantial environmental question within the ambit of NGT Act arises, the NGT can deal with it even in the absence of any application made under Section 14 of the NGT Act, in order to ameliorate and prevent harm. This position of the NGT exercising suo moto powers does not conflict with the observation made in Rajiv Suri (supra) case, as the latter prohibited NGT’s inherent power of residuary character and not which is exercised within the domain of the NGT Act. Thus the inherent powers of the NGT are limited to the contours of the NGT Act unlike the Supreme Court or the High Courts under Article 32 or Article 226 of the Indian Constitution.[3]
Apart from original jurisdiction, the NGT is also vested with appellate jurisdiction. Section 16 of the NGT Act lists down the appellate powers of the NGT. Thus, an appeal before the NGT lies against (i) an order or decision by an appellate authority under Section 28, an order by State Government under Section 29 or directions issued by pollution control board (“Board”) under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (“Water Act”); (ii) an order by appellate authority under Section 28 of the Water (Prevention and Control of Pollution) Cess Act, 1977; (iii) an order by State Government or any other authority under Section 2 of the Forest (Conservation) Act, 1980; (iv) an order by appellate authority under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (“Air Act”); (v) any direction issued under Section 5 of the Environment (Protection) Act, 1986; (vi) an order granting or refusing to grant environmental clearance under the Environment (Protection) Act, 1986; and (vii) any determination of benefit sharing or order by National/ State biodiversity authority under the Biological Diversity Act, 2002.[4]
Although the ramifications of an order/ direction of the Board is wide and varied, through this blog, the authors are only analysing the hurdles and challenges faced while appealing and assailing orders/ directions issued by the Board under Section 31A of the Air Act and Section 33A of the Water Act.
NGT’s appellate jurisdiction vis-à-vis the composite direction by Board under Air Act and Water Act
The State and Central Boards are the statutory regulatory body to regulate and monitor water and air pollution and are inter alia constituted under Sections 3 and 4 of the Water Act and Sections 3 and 4 of the Air Act. Amongst others, the main function of the Board is to implement environmental laws to ensure protection of the environment.
It is a settled law that right to appeal is a creation of statute and it cannot be assumed to exist unless expressly provided in the statute.[5] Since right to appeal is a substantive question of law and not a mere procedural matter[6], the same has to be dealt with due caution by the courts, else it may render the existence of certain authorities infructuous.
Under Section 33A of the Water Act, the Board has the power to issue directions to any person, officer or authority who is bound to comply with such directions. Such powers include giving directions for closure of any industry or its operation or stoppage of electricity, water, etc. Similar powers are also provided to the Board under Section 31A of the Air Act. It is noteworthy that the NGT can entertain appeals under Section 33B(c) of the Water Act, read with Section 16(c) of the NGT Act, against directions issued by the Board under Section 33A of the Water Act. However, there is no mechanism provided either under the Air Act or under the NGT Act for appealing a direction issued under Section 31A of the Air Act.
Moreover, there are instances where the Board issues composite directions under the abovementioned sections of the Air Act and the Water Act (“Composite Directions”). This is where the main challenge lies – appealing such Composite Directions because firstly, the statutes do not provide any procedure to appeal against any Composite Direction, and secondly, such directions cannot be split such that water pollution related matters can be challenged before the NGT under Section 33B(c) of the Water Act, read with Section 16(c) of the NGT Act, and matters related to air pollution can be challenged before another forum.
In order to resolve this challenge, the Supreme Court in Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd and Others[7], highlighted the appellate jurisdiction of the NGT on Composite Directions and directions issued under Section 31A of the Air Act. Whilst doing so, the Supreme Court observed that the directions under Section 33A and Section 31A of the Water Act and Air Act respectively, are identical in nature, however, the appeals to such directions are not identical.
As mentioned above, since right to appeal is a substantive right and creature of statute, the statute can either confer a right to appeal or it does not. Thus, the NGT does not have appellate powers over directions issued under Section 31A of the Air Act as the same is not conferred upon the NGT under any of the statutes. Similar challenge is with the Composite Directions and the same cannot be appealed before the NGT as such directions cannot be bifurcated under Water Act and Air Act separately.
The NGT does not have appellate jurisdiction under the NGT Act or Air Act over directions issued under Section 31A of the Air Act or any Composite Directions. The Supreme Court in Sterlite Industries (supra) held that the NGT does not have the power of judicial review similar to that of the High Courts under Article 226 of the India Constitution.[8] If the right to appeal is absent in the statute, then the argument of NGT being an expert body or the doctrine of necessity would fail (Sterlite Industries (supra)). Thus, in such a scenario, the affected party may file a writ petition in the High Courts under Article 226 of the Indian Constitution.[9] This position of law was also subsequently reiterated by the NGT in various cases[10].
Conclusion
The NGT is vested with suo moto powers to deal with environmental issues. However, this power is subject to statutory mandate and procedural safeguards. Appeals of directions under Section 31A of the Air Act and the Composite Directions cannot be made before the NGT and NGT cannot use its suo moto powers to tweak its appellate jurisdiction, which is a creature of the NGT Act. Such directions can be challenged via writ petition under Article 226 of the Indian Constitution before the relevant High Court.
Though the nature of directions under Section 33A of the Water Act and 31A of the Air Act is identical, the appellate remedy in the respective statutes is different. This anomaly, as observed in Fatima Poultry Farm, T.S. v. Telangana State Pollution Control Board[11], can be rectified only by the legislature via an amendment to Section 31B of the Air Act to make it uniform with Section 33B of the Water Act. With such amendment, even the Composite Directions can be easily challenged before the NGT due to uniformity in the Water Act and Air Act. However, until such an amendment comes into the picture, the law laid down by the Supreme Court in Sterlite Industries (supra) settles the conflict.
For further information, please contact:
Juvraj Singh, Partner, Cyril Amarchand Mangaldas
juvraj.singh@cyrilshroff.com
[1] 2021 SCC OnLine SC 7.
[2] 2021 SCC OnLine SC 897.
[3] Indian Oil Corporation Limited v. V.B.R. Menon and Ors., (2023) 7 SCC 368.
[4] The National Green Tribunal Act, 2010, Section 16.
[5] Arcot Textile Mills Ltd v. Regional Provident Fund Commissioner, (2013) 16 SCC 1.
[6] Garikapati Veeraya v. N. Subbiah Choudhury, 1957 SCR 488.
[7] (2019) 19 SCC 479.
[8] Bharat Sanchar Nigam Limited v. Telecom Regulatory Authority of India and Ors., (2014) 3 SCC 222.
[9] The Constitution of India, 1950, Article 226.
[10] Aryavart Foundation v. Central Pollution Control Board and Others, 2022 SCC OnLine NGT 78; Michael Lambert Jehan v. Tamil Nadu Pollution Control Board, 2022 SCC OnLine NGT 2094; Fatima Poultry Farm, T.S. v. Telangana State Pollution Control Board, 2021 SCC OnLine NGT 2095.
[11] 2021 SCC OnLine NGT 2095.
