MADHYA PRADESH HIGH COURT ADVOCATES BAR ASSOCIATION AND ANR versus UNION OF INDIA AND ANR on 18 May 2022

MADHYA PRADESH HIGH COURT ADVOCATES BARASSOCIATION AND ANR.

v.

UNION OF INDIA AND ANR.

(Writ Petition (Civil) No. 433 of 2012)

MAY 18, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

National Green Tribunal Act, 2010:

ss. 14, 21 – Jurisdiction of the High Court, if ousted by theNGT – Held:Nothing contained in the NGT Act either impliedly orexplicitly, ousts the jurisdiction of the High Courts u/Arts. 226 and227 – Power of judicial review remains intact and unaffected bythe NGT Act –Prerogative of writ jurisdiction of High Courts isneither taken away nor it can be ousted, as it is a part of the basicstructure of the Constitution – Constitution of India – Arts. 226 and227.

National Green Tribunal – Seat of the NGT – Plea that thereshould be NGT Bench in every State – Held: Seat of the NGT benchescan be located as per exigencies and it is not necessary to locatethem in every State – Prayer for relocating the Bhopal NGT toJabalpur is unmerited and is rejected.

s.22 – Remedy of direct appeal to the Supreme Court from thedecisions of the NGT u/s. 22 – Held: Remedy of direct appeal to theSupreme Court u/s. 22 is ultra vires the Constitution – As regards,the appeal mechanism to the High Court from the decisions of theNGT, the remedy before the High Court for a litigant u/Art. 226 and227 continues to be available notwithstanding the enactment of theNGT Act and the provision for appeal to the Supreme Court u/s. 22– Constitution of India.

s. 3 – Validity of – Held: s. 3 is not a case of excessivedelegation of power to the Central Government – s. 3 is found to beultra vires the Constitution – Constitution of India.

Dismissing the writ petition, the Court

HELD: 1. The National Green Tribunal under Section 14& 22 of the National Green Tribunal Act, 2010 does not oust the

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AHigh Court’s jurisdiction under Article 226 & 227 as the same isa part of the basic structure of the Constitution. The remedy ofdirect appeal to the Supreme Court under Section 22 of the NGTAct is intra vires the Constitution of India. Section 3 of the NGTAct is not a case of excessive delegation of power to the CentralGovernment. The seat of the NGT benches can be located as perBexigencies and it is not necessary to locate them in every State.The prayer for relocating the Bhopal NGT to Jabalpur isunmerited and is rejected. [Para 38][233-G-H; 323-A-C]

Whether the NGT ousts the High Court’s jurisdiction underSections 14 & 22 of the NGT Act?C

2. The power of judicial review under Articles 226, 227,and 32 are part of the basic structure of the Constitution and thesame is inviolable. The NGT is within the purview of Article 226and 227 jurisdiction of the High Courts. The High Courts havebeen entertaining petitions under Article 226 and 227 of theDConstitution against orders of the NGT. While exercising suchjurisdiction, the Courts necessarily exercise due discretion onwhether to entertain or to reject the petition. Nothing containedin the NGT Act either impliedly or explicitly, ousts the jurisdictionof the High Courts under Article 226 and 227 and the power ofEjudicial review remains intact and unaffected by the NGT Act.The prerogative of writ jurisdiction of High Courts is neithertaken away nor it can be ousted, as without any doubt, it isdefinitely a part of the basic structure of the Constitution. TheHigh Court’s exercise their discretion in tandem with the lawdepending on the facts of each particular case. Since the HighFCourt’s jurisdiction remain unaffected, the first question isanswered in the negative, against the petitioners. [Paras 12-15][314-C, G-H; 315-A, F-H; 316-A]

L Chandra Kumar v. UOI 1997 (3) SCC 261 : [1997](2) SCR 1186 – relied on.G

Whether a seat of the NGT should be in every State? Ifyes, should they invariably be established at the principal seat ofHigh Court, which in this case would be Jabalpur instead ofBhopal?

3.1 The NGT caters to a limited number of cases unlikethe CAT, where the volume of cases is substantially higher. Thevolume of cases handled by the NGT and the CAT are notcomparable. Looking at the large volume of service-related cases,it was suggested that the Benches of the CAT should be locatedat the seat of each High Court. But such logic cannot apply to theNGT, where the zone wise pendency in aggregate is only 2237cases as on 31.3.2022 from the date of its inception. [Paras 17and 19][316-G; 317-E]

3.2 With the low case load, if the NGT Benches are set upin all 28 States and 8 union territories, the judges and othermembers in these forums might be left twiddling their thumbs.Accordingly, no basis is seen to allow one NGT bench in everyState. [Para 21][317-H; 318-A]

3.3 The petitioner put forth that the seat of the NGT mustbe at Jabalpur where the principal seat of the Madhya PradeshHigh Court is located. The Bhopal Bench caters to multiple States.In such a situation, the location of the Bench to the extentpossible, should be convenient and accessible to litigants of allthree States. Here the respondents project that Bhopal iscentrally located in relation to Rajasthan, Madhya Pradesh, &Chhattisgarh. Moreover, Bhopal being the capital of MadhyaPradesh, is well connected and accessible without much difficulty.This would commend that Bhopal is a sound locational choice forthe NGT which caters to the litigants from three States. [Para22][318-B-D]

3.4 The low case load in the Bhopal Bench, do not matchwith the strident plea of the petitioners to locate the Bench atJabalpur. This is therefore perceived as an attempt by thepetitioners (who are practicing lawyers in Jabalpur), to primarilyespouse their professional interest. No other rational basis isseen for the Association’s plea for relocation of the NGT Benchto Jabalpur from Bhopal. There is no justification to grant suchrelief to the petitioners. [Para 23][318-E]

S.P. Sampath Kumar vs. Union of India (1987) 1 SCC124 : [1987] (1) SCR 435 – held inapplicable.

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AWhether the remedy of direct appeal to the SupremeCourt from the decisions of the NGT under Section 22 of theNGT Act is ultra vires to the Constitution? Whether an appealmechanism be provided to the High Courts from the decisionsof the NGT?B4.1 It needs to be observed that even when a direct appealto the Supreme Court is provided by a statute against the decisionof a tribunal , the remedy under Article 226 or 227 before theHigh Court remains unextinguished. Moreover, the Appeal underSection 22 of the NGT Act, is limited to the grounds under Section100 of the CPC and the Supreme Court does not function as aCregular first appellate Court. However, under Article 226 or 227,remedies on issues of jurisdiction and also under the principlesset out in Associated Provincial Picture Houses Ltd. vs. WednesburyCorporation, are available for an aggrieved party. Subject todiscretion being exercised, the affected litigants can move HighDCourt under Article 226 or 227 and in such cases, a SLP underArticle 136 of the Constitution could also be maintained to theSupreme Court from the High Court’s verdict. Also importantly,the right to appeal before the High Court is a creature of thestatute and is not an inherent right. The provision for appeal toHigh Court should not therefore be created by issuing a writ ofEMandamus as that would be legislating through judicial order,and would impinge upon the well-founded concept of separationof powers. The options available to a litigant to either move tothe Supreme Court in a case where a substantial question of lawarises or proceed under Article 226 or 227 must not also beFoverlooked. If necessary, a party can also approach this Court byway of an Article 136 petition. With such choices being availablefor a party no rational justification is found for striking downSection 22 of the Act which provides for a direct appeal to theSupreme Court. [Paras 24-26][319-A-E]

4.2 A litigating party must also realise that in any event, ifthe opposite side approaches the Supreme Court, the litigant onthe other side would have to defend his case before this Courtand at that stage they cannot be complaining about the distanceto Delhi. Thus, the remedy of direct appeal to the Supreme Court G

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under the NGT Act from the NGT’s decision cannot be seen asdenial of access to justice to the litigants in the field ofenvironmental law. [Para 27][319-F]

4.3 It must also be underscored that the ground raised bythe Petitioners about Supreme Court being inaccessible, wouldequally apply to litigants, from all across the country, who have totravel to the Supreme Court, either by way of Article 136 or Article32 or any other provision. Despite the provision under Article130 of the Constitution, the Supreme Court has no other benchaway from Delhi. In these circumstances by pleadinginaccessibility, the petitioners are also incidentally questioning,the location of the Supreme Court at New Delhi. Such a contentionon the face of it would be irrational and not acceptable. [Para30][320-D-E]

4.4 It cannot also be overlooked that it is the Supreme Courtitself which had recommended the setting up of environmentalcourt with direct appeals to the Supreme Court. This would alsosupport the proposition on constitutional validity of Section 22 ofthe NGT Act and that it is not ultra vires to the Constitution.[Para 31][320-F]

Whether Section 3 of the NGT Act is ultra vires to theConstitution as suffering from the vice of excessive delegation?

5.1 It must be borne in mind that the operationalization ofthe NGT, including the location of its Benches, was closelymonitored by the Supreme Court. It is further seen that the UnionGovernment is to specify the ordinary place of sitting of NGTand its territorial jurisdiction under Section 3 of the NGT Actbeing mindful of the demand for environment litigation within aparticular territorial area. The Government is also to be guidedby the objects of the Act as also the directions given by theSupreme Court from time to time. Since, the Government is actingon the issue with the guidance of this Court, and the Governmentis obliged to follow the objectives of the NGT Act, adequatesafeguards are seen to guide the government. The Court istherefore of the opinion that Section 3 of the NGT Act is not acase of excessive delegation. [Para 32][321-A-C]

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AMadras Bar Association vs. Union of India and Anr.(2014) 10 SCC 1 : [2014] (10) SCR 1 – heldinapplicable.

5.2 Section 3 of the NGT Act is found to be intra vires tothe Constitution of India. However, it is clarified that theBconclusion is based on the specific facts of this case. [Para 36][322-F]

M.C. Mehta v. Union of India (1986) 2 SCC 176 : [1986](1) SCR 312; Indian Council for Enviro-Legal Actionv. Union of India (1996) 3 SCC 212 : [1996] (2) SCRC503; Vellore Citizens’ Welfare Forum v. Union of India(1996) 5 SCC 647 : [1996] (5) Suppl. SCR 241; A.P.Pollution Control Board v. Prof. M.V. Nayudu (1999) 2SCC 718 : [1999] (1) SCR 235; A.P. Pollution ControlBoard II v. Prof. M.V. Nayudu (2001) 2 SCC 62 : [2000](5) Suppl. SCR 249; Union of India Vs. Vimal BhaiDSLP(C) No. 12065 of 2009; Municipal Corporation ofGreater Mumbai vs. Ankita Sinha & Ors. 2021 SCCOnline SC 897; Mantri Techzone (P) Ltd. vs. ForwardFoundation (2019) 18 SCC 494; Whirlpool Corpn. Vs.Registrar of Trade Marks, Mumbai and Others (1998)E8 SCC 1 : [1998] (2) Suppl. SCR 359; AssociatedProvincial Picture Houses Ltd. vs. WednesburyCorporation [1948] 1 KB 223; R.K. Jain v. Union ofIndia (1993) 4 SCC 119 : [1993] (3) SCR 802; RojerMathew v. South Indian Bank Ltd. (2020) 6 SCC 1 :[2019] (16) SCR 1 - referred to.

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Case Law Reference

MADHYA PRADESH HIGH COURT ADVOCATES BARASSOCIATION v. UNION OF INDIA

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.433 of 2012.

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

Siddhartha R. Gupta, Mrigank Prabhakar, Shivam Singh Baghel,Ms. Sakshi Banga, Advs. for the Appellants.

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K. K. Venugopal, AG, Ms. Aishwarya Bhati, ASG, Saurabh Mishra,Amol Chandan, Ms. Vanshaja Shukla, Ms. Shivika Mehra, Aman Sharma,Manvendra Singh, Gurmeet Singh Makker, Mishra Saurabh, Rajan KumarChourasia, Sunny Choudhary, Advs. for the Respondents.

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The Judgment of the Court was delivered by HRISHIKESH ROY, J.

1. Through this writ petition filed under Article 32 of theConstitution of India, the petitioners who are the Madhya Pradesh HighCourt Advocates Bar Association and the District Bar Association, bothwith their registered offices at Jabalpur, have raised a challenge to thevires of the National Green Tribunal Act, 2010 (hereinafter referredto as “the NGT Act”), and pray for the following reliefs: - E

“(a) Issue an appropriate writ of certiorari or any other writ ofsimilar nature directing that the Bench of National Green Tribunalbe set up at all the places where the principal seat of High Courtis situated.

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(b) Hold and declare that the proposed sitting up of Bench ofNGT at Bhopal is not constitutionally and/or sustainable, G

(c) Declare the provision of Section 14 r/w 22 of the NationalGreen Tribunal Act, as unconstitutional insofar as they purport toexclude the writ jurisdiction of High Court under Article 226/227of the Constitution of India.”

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A2. The issues to be considered in this writ petitionare:- A.Whether the National Green Tribunal (hereinafterreferred to as “the NGT”) ousts the High Court’sjurisdiction under Sections 14& 22 of the NGT Act?

B.Whether a seat of the NGT should be in every State? IfByes, should they invariably be established at theprincipal seat of High Court, which in this case wouldbe Jabalpur instead ofBhopal?

C.Whether the remedy of direct appeal to the SupremeCourt from the decisions of the NGT under Section 22Cof the NGT Act is ultra vires to the Constitution?Whetheran appeal mechanism be provided to the High Courtsfrom the decisions of the NGT?

D.Whether Section 3 of the NGT Act is ultra vires to theConstitutionas suffering from the vice of excessiveDdelegation?

3. We have heard Mr. Siddhartha R. Gupta, the learned counselfor the petitioners. The Union of India is represented by Mr. K.K.Venugopal, the learned Attorney General for India together with Ms.Aishwarya Bhati, learned Additional Solicitor General. The State ofMadhya Pradesh (respondent No. 2) is represented by Mr. SunnyEChoudhary, learned counsel.

Arguments on behalf of Petitioners

4.1 The petitioners, who are espousing the cause of the Jabalpurbased lawyers practicing before the High Court and the Civil Courts,Fcontend that the Bhopal Bench of the NGT is located arbitrarily and thedecision is inconsistent with the direction in S.P. Sampath Kumar vs.Union of India[1] where this Court observed that for ensuring the efficacyand efficiency of any Tribunal, its seat should be at a place where theprincipal seat of the High Court is situated. As the Bench of the NGT isset up at Bhopal for catering to the environment related cases coveringGthree States i.e., Madhya Pradesh, Chhattisgarh, and Rajasthan, thepetitioners pray for setting up the Benches of the NGT at the principalseats of the High Courts in each of the three States and for their State ofMP, the petitioners want it at Jabalpur.

4.2 According to the petitioners, environmental litigation ispredominantly related to local factors and therefore, an easily accessibleand available forum is necessary to be constituted, without requiring thelitigants to move to distant places to secure environmental justice.

4.3 The petitioners argue that through incorporation of Section 14and Section 22 in the NGT Act, the jurisdiction and the role of the HighCourts under Article 226/227 is extinguished. This, therefore, hasimpacted the basic feature of the Constitution and as such the provisionsof Section 14 read with Section 22 of the NGT Act should be struckdown to the extent they divest the High Courts of their power as asuperior Court.

4.4 Adverting to the power of the Central Government to identifythe ordinary place of sitting of the NGT and specifying their respectiveterritorial jurisdiction under Section 4(3) of the NGT Act, the petitionersargue that such power being unguided, suffers from the vice of excessivedelegation. Laying stress on location of the NGT Bench at Jabalpurwhere adequate infrastructure is available, the petitioners question thechoice of the seat at Bhopal instead of at Jabalpur, which is the principalseat of the Madhya Pradesh High Court. According to the petitioners,this impacts the right of the litigant in the field of environmental law, toaccess justice.

4.5 The remedy of appeal to the Supreme Court under Section 22of the NGT Act in the petitioner’s perception, practically amounts todenial of access to justice for the economically vulnerable litigants andthis is contended to defeat the inherent objective of access to justice bybypassing the conveniently accessible remedy before the High Courtsunder Article 226 and 227 of the Constitution of India.

4.6 The petitioners next argue that the NGT does not enjoy theauthority and autonomy available to judges in the High Courts and bearingin mind the conditions of service, tenure, and other aspects of the judicialand non-judicial members of the NGT, according to the petitioners, it isneither an effective nor an appropriate substitute of the High Courts,which were entertaining environmental disputes through respective GreenBenches, prior to the enactment of the NGT Act. More specifically, theprocess of appointment, service conditions and other related provisionsfor appointment of presiding members of the NGT are not at par withthe judges of the High Court and therefore, the NGT can only play a A

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A“supplemental or subservient role instead of being an effective andappropriate substitute for the High Courts.”

Arguments on behalf of Respondent

5.1 Per contra, Mr. K K Venugopal, the learned Attorney Generalleading the arguments for the respondent’s project that the NGT wasBset up because of the prodding and recommendations made by theSupreme Court while dealing with environmental cases and theParliament was repeatedly entreated by the Court to create specializedenvironmental court with qualified judges and technical experts on theBench.The learned Attorney General refers to the exhortations madeby the Supreme Court in M.C. Mehta v. Union of India[2], IndianCCouncil for Enviro-Legal Action v. Union of India[3], Vellore Citizens’Welfare Forum v. Union of India[4], A.P. Pollution Control Boardv.Prof. M.V. Nayudu[5] and A.P. Pollution Control Board II v. Prof. M.V.Nayudu[6]and their acceptance by the Parliament, following the 186[th]Report of the Law Commission which lead tothe establishment ofDenvironmental courts. The Law Commission suggested in its Report thatappeals from the environmental courts should lie before the SupremeCourt. It is in this backdrop the learned AG submits that the NGT Actwas enacted and the environmental cases which were hitherto heard bygreen benches in the High Court, were ordered to be transferred to theNGT by the Supreme Court itself as the same would help in rendering Eexpeditious and specialized justice in the field of environment.

5.2 Insofar as the creation and setting up of the NGT and thelocation of their Benches, the learned AG submits that this was doneunder the active supervision of the Supreme Court and only after theproposed places ofsitting recommended by the Central GovernmentFreceived the concurrence of this Court, the concerned Benches andtheir place of sitting was notified by the Central Government. It is thereforeargued that the related notification had the imprimatur of the SupremeCourt. The respondents point out that the Supreme Court monitored andoversaw the implementation of the NGT Act and setting up of its Benchesin Union of India Vs. Vimal Bhai (SLP(C) No. 12065 of 2009) andGthe various orders passed on 19.9.2011, 6.12.2012 and 15.3.2013 by this

5 (1999) 2 SCC 718, Para. 23, 42, 47, 48, 52.

H6 (2001) 2 SCC 62, Para. 73.

Court would reflect that individual Bench of the NGT was set up tocater to multiple States and the location so chosen for the NGT atBhopal,also had the approval of the Supreme Court.

5.3 The learned Attorney General next contends that the remedybefore the High Court for a litigant under Article 226 and 227 continuesto be available notwithstanding the enactment of the NGT Act and theprovision for appeal to the Supreme Court under Section 22 of the NGTAct.It is specifically submitted by the learned AG that the High Court’spower of judicial review remains unaffected by the NGT Act as it is apart of the basic structure of our constitution, as was declared in LChandra Kumar v. UOI[7].

BACKDROP OF THE NATIONAL GREEN TRIBUNAL

6. The precursor to the NGT Act was the 186[th] Report of theLaw Commission of India dated 29.3.2003 which came after the SupremeCourt repeatedly urged Parliament through various judgments to establishspecialized environmental courts, with qualified judges and technicalexperts on the bench. The Supreme Court also put forward that thereshould be direct appeals to the Supreme Court from such environmentalcourts. The Law Commission then recommended creation of aspecialized court to deal with the environmental issues. The LawCommission expressed the view that it is not convenient for the HighCourts and the Supreme Court to make local inquiries or to receiveevidence. Moreover, the superior Courts will not have access to expertenvironmental scientists on permanent basis to assist them. The NGTwas conceived as a complementary specialized forum to deal with allmulti-disciplinary environmental issues, both as original as well as anappellate authority.The specialized forum was also made free from therules of evidence applicable to normal courts and was permitted to laydown its own procedure to entertain oral and documentary evidence,consult experts etc., with specific mandate to observe the principles ofnatural justice.

7. In order to understand the objective of the NGT Act, we mayusefully extract the following from the Municipal Corporation ofGreater Mumbai vs. Ankita Sinha & Ors.[8]where the following wasstated by one of us (Justice Hrishikesh Roy) for the 3 Judges Bench: - 7 1997 (3) SCC 261.

8 2021 SCC Online SC 897.

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“24 The Statement of Objects and Reasons of the NGT Actwill now require attention. Paras 2,3,4,5 and 6 of the Statementof Objects and Reasons being relevant are extractedhereinbelow: - “2. India is a party to the decisions taken at the UnitedNations Conference on the Human Environment held atStockholm in June, 1972, in which India participated,calling upon the States to take appropriate steps for theprotection and improvement of the human environment. TheUnited Nations Conference on Environment andDevelopment held at Rio de Janeiro in June, 1992, in whichIndia participated, has also called upon the States toprovide effective access to judicial and administrativeproceedings, including redress and remedy, and to developNational laws regarding liability and compensation for thevictims of pollution and other environmental damage.

3. The right to healthy environment has been construed asa part of the right to life under article 21 of the Constitutionin the judicial pronouncement in India.

4. The National Environment Tribunal Act, 1995 wasenacted to provide for strict liability for damages arisingout of any accident occurring while handling anyhazardous substance and for the establishment of aNational Environmental Tribunal for effective andexpeditious disposal of cases arising from such accident,with a view to giving relief and compensation for damagesto persons, property and the environment. However, theNational Environment Tribunal, which had a very limitedmandate, was not established. The National EnvironmentAppellate Authority Act, 1997 was enacted to establish theNational Environment Appellate Authority to hear appealswith respect to restriction of areas in which any industries,operations or processes or class of industries, operationsor processes shall not be carried out or shall be carriedout subject to certain safeguards under the Environment(Protection) Act, 1986. The National Environment AppellateAuthority has a limited workload because of the narrowscope of its jurisdiction.

5. Taking into account account the large number ofenvironmental cases pending in higher courts and theinvolvement of multidisciplinary issues in such cases, theSupreme Court requested the Law Commission of India toconsider the need for constitution of specializedenvironmental courts. Pursuant to the same, the LawCommission has recommended the setting up ofenvironmental courts having both original and appellatejurisdiction relating to environmental laws.

6. In view of the foregoing paragraphs, a need has beenfelt to establish a specialized tribunal to handle themultidisciplinary issues involved in environmental cases.Accordingly, it has been decided to enact a law to providefor the establishment of the National Green Tribunal foreffective and expeditious disposal of civil cases relatingto environmental protection and conservation of forestsand other natural resources including enforcement of anylegal right relating to environment.”

25. A reading of the Statement of Objects and Reasons showsthat paragraph 4 thereof refers to the National EnvironmentalTribunal Act, 1995 (NET) which provided for strict liabilityand damages arising out of accidents occurring whilehandling hazardous substances. In the same context it wasobserved that the NET had a very limited and narrow mandateand jurisdiction. Thereafter, in Para 5 it has been recordedthat a large number of environmental cases are pending inhigher Courts which involve multi-disciplinary issues and, insuch cases, the Supreme Court had requested the LawCommission of India to consider the need for constitution ofspecialized environmental Courts.

26. Significantly, the Statement of Objects and Reasons alsorefers to right to a healthy environment being a part of theright to life under Article 21 of the Constitution of India. Thiswas consistent with the earlier mentioned 186th LawCommission Report highlighting that the body so created,would aim to “achieve the objectives of Article 21, 47, 48A,51A (g) of the Constitution of India by means of a fair, fast AB

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and satisfactory judicial procedure”. An institution concernedwith a significant aspect of right to life necessarily should begiven the most liberal construction.

27. The paragraph 2 of the Statement of Objects and Reasonsrefers to the United Nations Conference on the HumanEnvironment held at Stockholm in June 1972 which calledupon governments and peoples to exert common efforts forthe preservation and improvement of the human environmentwhen it involved people and for their posterity. Therefore,the municipal law enacted with such a laudatory objective ofnot only preventing damage to the environment but also toprotect it, must be provided with the wherewithal to dischargeits protective, preventive and remedial function towardsprotection of the environment. The mandate and jurisdictionof the NGT is therefore conceived to be of the widest amplitudeand it is in the nature of a sui generis forum.

28. The United Nations Conference on Environment andDevelopment held at Rio De Janeiro in June, 1992 where Indiaparticipated, impressed upon the States to provide effectiveaccess to judicial and administrative proceedings, lay outredress and remedy and to develop national laws regardingliability and compensation for the victims of pollution andother environmental damage. The Preamble of the Actsignificantly emphasized on construing the right to healthyenvironment as a part of the Right to Life under Article 21 ofthe Constitution which was accepted by various judicialpronouncements in India. The National Green Tribunal wasborn in our country with such lofty dreams to deal with multi-disciplinary issues, relating to the environment.

29. The limited mandate conferred on the earlier forum i.e.the NET and the narrow scope of jurisdiction of the NationalEnvironment Appellate Authority along with the involvementof multi-disciplinary issues arising in environmental cases,were intended to be addressed through the constitution of theNGT.”

8. Explaining the purpose to constitute the specialized court todeal with environmental issues, in Mantri Techzone (P) Ltd. vs.

MADHYA PRADESH HIGH COURT ADVOCATES BARASSOCIATION v. UNION OF INDIA [HRISHIKESH ROY, J.]

Forward Foundation[9], Justice S. Abdul Nazeer writing for the threeJudges Bench made the following pertinent observation, on the statusof the NGT: - “40. The Tribunal has been established under a constitutionalmandate provided in Schedule VII List I Entry 13 of theConstitution of India, to implement the decision taken at theUnited Nations Conference on Environment and Development.The Tribunal is a specialised judicial body for effective andexpeditious disposal of cases relating to environmentalprotection and conservation of forests and other naturalresources including enforcement of any legal right relatingto the environment. The right to healthy environment has beenconstrued as a part of the right to life under Article 21 byway of judicial pronouncements. Therefore, the Tribunal hasspecial jurisdiction for enforcement of environmental rights.”

9. The NGT is set up under the constitutional mandate under Entry13 List I of Schedule VII to enforce Article 21 in regard to theenvironment and the Tribunal was conferred special jurisdiction forenforcement of environmental rights. It thus appears that the role of theNGT was not simply adjudicatory, but it also had the equally vital rolewhich is preventive, ameliorative, or of the remedial category. Thefunctional capacity of the NGT was intended to leverage wide powersto do full justice in the field of environment.The NGT came into existenceas a sui generis institution established for the enforcement of environmentalrights emanating from Article 21 of the Constitution[10].

10. After the NGT was set up, the Supreme Court pertinentlydirected the transfer of environmental cases pending before the HighCourts to the NGT for expeditious and specialized justice for allconcerned. The Supreme Court also actively oversaw the implementationof the Act and creation of the NGT itself through various Orders[11].Those also pertained to, inter-alia, the location of the NGT benches. Inother words, the Supreme Court was not only conscious of the locationof the benches of the NGT but also had given its imprimatur to theNGT’s creation and other aspects.

9 (2019) 18 SCC 494.

10 2021 SCC OnLine 897, Para. 44, 98.

11 SLP (C) 12065 of 2009.

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A11. With the above prefatory contexts in mind, we may now lookat the challenge.

ISSUE WISE DISCUSSION

A.Whether the NGT ousts the High Court’s jurisdictionunder Sections 14 & 22 of the NGT Act?

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12. Insofar as the contention of the petitioners that there is ousterof jurisdiction of the High Courts under Article 226 and 227 of theConstitution because of Sections 14 & 22 of the NGT Act, it must berecalled that in L. Chandra Kumar vs. Union of India[supra], it hasbeen categorically declared that the power of judicial review underCArticles 226, 227, and 32 are part of the basic structure of our constitutionand the same is inviolable.The following pertinent opinion rendered bythe 7 Judges’ bench of this Court must be remembered on this aspect: - “78………We, therefore, hold that the power of judicial reviewover legislative action vested in the High Courts under Article226 and in this Court under Article 32 of the Constitution isan integral and essential feature of the Constitution,constituting part of its basic structure. Ordinarily, therefore,the power of High Courts and the Supreme Court to test theconstitutional validity of legislations can never be ousted orexcluded.

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79. We also hold that the power vested in the High Courts toexercise judicial superintendence over the decisions of allcourts and tribunals within their respective jurisdictions isalso part of the basic structure of the Constitution. This isFbecause a situation where the High Courts are divested of allother judicial functions apart from that of constitutionalinterpretation, is equally to be avoided.”

13. Apart from the clear enunciation on legal position to the effectthat the NGT is within the purview of Article 226 and 227 jurisdiction ofthe High Courts, the learned Attorney General on behalf of the Union ofGIndia has also made submissions consistent with L. ChandraKumar[supra] and conceded the legal position.

14. It can further be noted that in terms of the above ratio in L.Chandra Kumar [supra], the High Courts have been entertainingpetitions under Article 226 and 227 of the Constitution against orders of H

MADHYA PRADESH HIGH COURT ADVOCATES BARASSOCIATION v. UNION OF INDIA [HRISHIKESH ROY, J.]

the NGT. While exercising such jurisdiction, the Courts necessarilyexercise due discretion on whether to entertain or to reject the petition,as per the test broadly laid down in Whirlpool Corpn. Vs. Registrar ofTrade Marks, Mumbai and Others[12]; “14. The power to issue prerogative writs under Article 226of the Constitution is plenary in nature and is not limited byany other provision of the Constitution. This power can beexercised by the High Court not only for issuing writs in thenature of habeas corpus, mandamus, prohibition, quowarranto and certiorari for the enforcement of any of theFundamental Rights contained in Part III of the Constitutionbut also for “any other purpose”.

15. Under Article 226 of the Constitution, the High Court,having regard to the facts of the case, has a discretion toentertain or not to entertain a writ petition. But the High Courthas imposed upon itself certain restrictions one of which isthat if an effective and efficacious remedy is available, theHigh Court would not normally exercise its jurisdiction. Butthe alternative remedy has been consistently held by this Courtnot to operate as a bar in at least three contingencies, namely,where the writ petition has been filed for the enforcement ofany of the Fundamental Rights or where there has been aviolation of the principle of natural justice or where the orderor proceedings are wholly without jurisdiction or the vires ofan Act is challenged. There is a plethora of case-law on thispoint but to cut down this circle of forensic whirlpool, wewould rely on some old decisions of the evolutionary era ofthe constitutional law as they still hold the field.”

15. It is also noteworthy that nothing contained in the NGT Acteither impliedly or explicitly, ousts the jurisdiction of the High Courtsunder Article 226 and 227 and the power of judicial review remainsintact and unaffected by the NGT Act.The prerogative of writ jurisdictionof High Courts is neither taken away nor it can be ousted, as withoutany doubt, it is definitely a part of the basic structure of the Constitution.The High Court’s exercise their discretion in tandem with the lawdepending on the facts of each particular case. Since the High Court’s A

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Ajurisdiction remain unaffected, the first question is answered in thenegative, against the petitioners.

B.Whether a seat of the NGT should bein every State? Ifyes, should they invariably be established at theprincipal seat of High Court, which in this case wouldBbe Jabalpur instead of Bhopal?

16. The petitioners in pleading for a NGT Bench in each state,place heavy reliance on S.P. Sampath[supra]. To appreciate this, theCourt’s following observation needs consideration in the context ofadministrative tribunals: -C“8.

“8. I may also add that if the Administrative Tribunal is to bean equally effective and efficacious substitution for the HighCourt on the basis of which alone the impugned Act can besustained, there must be a permanent or if there is not sufficientwork, then a Circuit Bench of the Administrative Tribunal atDevery place where there is a seat of the High Court. I would,therefore, direct the government to set up a permanent Benchand if that is not feasible having regard to the Vol. of work,then at least a circuit Bench of the Administrative Tribunalwherever there is a seat of the High Court, on or before March31, 1987. That would be necessary if the provisions of theEimpugned Act are to be sustained. So far as rest of the pointsdealt with in the judgment of Ranganath Misra, J. areconcerned, I express my entire agreement with the view takenby him.”

17. As is seen, Justice Bhagwati made the above observation inFthe case where the Supreme Court was concerned with the CentralAdministrative Tribunal [in short, “CAT”] where the volume of litigationis substantially higher.This is why the direction to establish permanentbenches or circuit benches in every State is predicated on assessingfeasibility by reference to the volume of litigation. Here we must followGthe principle of proportionality. To underscore the issue, the CAT have17 Benches and 21 Circuit Benches as opposed to only five Benches ofthe NGT. The NGT caters to a limited number of cases unlike the CAT,where the volume of cases is substantially higher. As per the report[13]tabled in Rajya Sabha by the Parliamentary Standing Committee on H13 100_2020_9_11.pdf (rajyasabha.nic.in)

Personnel, Public Grievances, Law and Justice, the CAT have over 48,000cases pending as on 6[th ]March, 2020.

18. While on this, we may also notice the data available on thewebsite of the National Green Tribunal[14] which reflects the pendency ofcases before the NGT as on 28.02.2022: -

19. As is apparent from the above chart the volume of caseshandled by the NGT and the CAT are not comparable. Looking at thelarge volume of service-related cases, it was suggested that the Benchesof the CAT should be located atthe seat of each High Court. But suchlogic cannot apply to the NGT, where the zone wise pendency inaggregate is only 2237 cases as on 31.3.2022 from the date of its inception.Therefore, the ratio in S.P. Sampath [supra] does not aid the petitionerswho want the NGT Bench to be relocated from Bhopal to Jabalpur,where the Madhya Pradesh High Court is located.

20. It is also worthy of attention that the total disposal by all Benchesof the NGT is 2799 cases during 12 months i.e., March, 2021 to February,2022. The pendency figure for this period is 2237 only. The rate of disposalbeing higher than the pendency, no major backlog issue is seenbeforethe NGT. The strikingly small 107 cases in the NGT’s Bhopal Benchmust also receive our due attention. These data do not provide for areasonable basis to entertain a prayer for a NGT Bench at Jabalpur orfor that matter, an individual NGT Bench in each of those three States.

21. With the low case load, if the NGT Benches are set up in all28 States and 8 union territories as is suggested by the petitioners, the 14National Green Tribunal A

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Ajudges and other members in these forums might be left twiddling theirthumbs. Accordingly, no basis is seen to allow one NGT bench in everyState.

22. With the above answer to the first part of the issue B, thesecond part becomes superfluous. However, since earnest submissionBis made by the petitioner’s counsel, the issue needs to be decided. Thepetitioner put forth that the seat of the NGT must be at Jabalpur wherethe principal seat of the Madhya Pradesh High Court is located as perthe dicta in S.P. Sampath [supra]. On this aspect, the cited case isentirely inapplicable as the Bhopal Bench caters to multiple States. Insuch a situation, the location of the Bench to the extent possible,shouldCbe convenient and accessible to litigants of all three States.Here therespondents project that Bhopal is centrally located in relation toRajasthan, Madhya Pradesh, & Chhattisgarh. Moreover, Bhopal beingthe capital of Madhya Pradesh, is well connected and accessible withoutmuch difficulty. This would commend to us that Bhopal is a soundDlocational choice for the NGT which caters to the litigants from threeStates.

23. The low case load in the Bhopal Bench, do not match with thestrident plea of the petitioners to locate the Bench at Jabalpur. This istherefore perceived as an attempt by the petitioners (who are practicingElawyers in Jabalpur), to primarily espouse their professional interest. Noother rational basis is seen for the Association’s plea for relocation ofthe NGT Bench to Jabalpur from Bhopal. We see no justification togrant such relief to the petitioners and the second segment of issue B isaccordingly answered against them.

FC.Whether the remedy of direct appeal to the SupremeCourt from the decisions of the NGT under Section 22of the NGT Act is ultra vires to the Constitution? Whetheran appeal mechanism be provided to the High Courtsfrom the decisions of the NGT?

G24. The petitioners have also pleaded that instead of appeal to theSupreme Court under Section 22 from the orders passed by the NGT, anappeal mechanism as a matter of right should also be provided beforethe concerned High Courts. According to them, appeal to the SupremeCourt is inadequate and unaffordable and therefore inaccessible. Onthis aspect it needs to be observed that even when a direct appeal to theH

Supreme Court is provided by a statute[15] against the decision of atribunal[16], the remedy under Article 226 or 227 before the High Courtremains unextinguished. Moreover, the Appeal under Section 22 of theNGT Act, is limited to the grounds under Section 100 of the CPC andthe Supreme Court does not function as a regular first appellate Court.However, under Article 226 or 227, remedies on issues of jurisdictionand also under the principles set out in Associated Provincial PictureHouses Ltd. vs. Wednesbury Corporation[17], are available for anaggrieved party. Subject to discretion being exercised, the affected litigantscan move High Court under Article 226 or 227 and in such cases, a SLPunder Article 136 of the Constitution could also be maintained to theSupreme Court from the High Court’s verdict.

25. Also importantly, the right to appeal before the High Court is acreature of the statute and is not an inherent right. The provision forappeal to High Court should not therefore be created by issuing a writ ofMandamus as that would be legislating through judicial order, and wouldimpinge upon the well-founded concept of separation of powers[18].

26. The options available to a litigant to either move to the SupremeCourt in a case where a substantial question of law arises or proceedunder Article 226 or 227 must not also be overlooked. If necessary, aparty can also approach this Court by way of an Article 136 petition.With such choices being available for a party norational justification isfound for striking down Section 22 of the Act which provides for a directappeal to the Supreme Court.

27. A litigating party must also realize that in any event, if theopposite side approaches the Supreme Court, the litigant on the otherside would have to defend his case before this Court and at that stagethey cannot be complaining about the distance to Delhi. Thus, the remedyof direct appeal to the Supreme Court under the NGT Act from theNGT’s decision cannot be seen as denial of access to justice to thelitigants in the field of environmental law.

28. The issue of direct appeals to the Supreme Court, orentertaining petitions under Article 136 to challenge tribunal’s decision, 15 Inter alia,Electricity Act, 2003; Telecom Regulatory Authority of India Act, 1997.

16 Inter alia, Armed Forces Tribunal under the Armed Forces Tribunal Act, 2007.

17 [1948]1KB223.

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Awas considered in the case of R.K. Jain v. Union of India.[19] In paragraph76 of the said judgment, this Court addressed similar submission to theeffect that appeal mechanism should be provided from a tribunal’sdecision, to a division bench of the High Court. The three Judges benchof this Court, however, expressly refrained from issuing direction forcreation of appeal provisions to the High Courts, which was perceivedBto be an impermissible judicial function. So far, the legislature has notacted on the recommendation of this Court but then that issue is withinthe policy domain of the legislative wing of the State.

29. The implication of the Supreme Court being conceived as thefirst appellate forum was considered in Rojer Mathew v. South IndianCBank Ltd.[20], and in that case the Union Government was directed to doa study on the effect of direct appeals to the Supreme Court and placethe resultant report before Parliament. But even in Rojer Mathew [supra],the Supreme Court had no occasion to say that direct appeals to theSupreme Court is constitutionally impermissible.D30. It must also be underscored that the ground raised by thePetitioners about Supreme Court being inaccessible, would equally applyto litigants, from all across the country, who have to travel to the SupremeCourt, either by way of Article 136 or Article 32 or any other provision.Despite the provision under Article 130 of the Constitution, the SupremeCourt has no other bench away from Delhi. In these circumstances byEpleading inaccessibility, the petitioners are also incidentally questioning,the location of the Supreme Court at New Delhi. Such a contention onthe face of it would be irrational and not acceptable.

31. It cannot also be overlooked that it is the Supreme Court itselfwhich had recommended the setting up of environmental court with directFappeals to the Supreme Court. This would also support the propositionon constitutional validity of Section 22 of the NGT Act and that it is notultra vires to the Constitution. Consequently, the answer to both aspectsof the question C is answered in favour of the respondents.

D.Whether Section 3 of the NGT Act is ultra vires to theGConstitution as suffering from the vice of excessivedelegation?

32. Adverting next to the argument of the petitioners that Section3 is a case of excessive delegation to the Union Government. It must be 19 (1993) 4 SCC 119.H20 (2020) 6 SCC 1, Para.218.

borne in mind that the operationalization of the NGT, including the locationof its Benches, was closely monitored by the Supreme Court. It is furtherseen that the Union Government is to specify the ordinary place of sittingof NGT and its territorial jurisdiction under Section 3 of the NGT Actbeing mindful of the demand for environment litigation within a particularterritorial area. The Government is also to be guided by the objects ofthe Act as also the directions given by the Supreme Court from time totime. Since, the Government is acting on the issue with the guidance ofthis Court, and the Government is obliged to follow the objectives of theNGT Act, adequate safeguards are seen to guide the government. Weare therefore of the opinion that Section 3 of the NGT Act is not a caseof excessive delegation.

33. The petitioners are seen to have founded their contentionswith considerable reliance on the decision in Madras Bar Associationvs. Union of India and Anr.[21]to argue that the NGT is neither accessiblenor it is independent in dealing with environmental cases. In the reliedcase, this Court struck down certain provisions of the National TaxTribunal Act, 2005 (for short, ‘NTT Act’) but this must be appreciatedin the context of that case. Moreover, one must not overlook thedistinction between the operation of the NTT Act vis-à-vis the NGTAct. To be specific, the NTT Act provided that the NTT would ordinarilysit at New Delhi. The NGT Act however provides for the creation ofbenches acrossthe country. Additionally, the NTT was vested with thepower of adjudicating appeals arising from orders passed by the IncomeTax Appellate Tribunal on substantial questions of law. This was ajurisdiction that the High Courts were exercising under Article 227 incertain cases, and in that context, it was found that the NTT was indirectlyimpinging on the jurisdiction of the High Courts under Article 227. Thejurisdiction exercised by the NGT is however distinct, and different, andnot comparable. Also glaring was the fact that Union Government hadthe power to transfer members of the NTT from one bench to another.No such provision exists in the NGT Act. Besides, the NTT wasconstituted only to determine substantial questions of law and it wasunclear how accountants and other technical members with no legaltraining would deal with the issues raised in such matters. Those troublingissues do not arise in the NGT Act. One must also be cognizant of thefact that the Selection Committee under Section 7 of the NTT Act was AB

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Adominated by two secretaries of the Government, as opposed to theSelection Committee for the NGT under the Tribunal Reforms Act whichclearly has judicial dominance.

34. Taking into account all the striking distinctions between theoperation of the NGT Act and the NTT Act, the petitioners’ reliance onBthe NTT judgment, which was rendered in the context of the provisionsof the NTT Act, is found to be wholly misplaced.

35. Addressing next, the argument of the petitioners that the NGTdoes not enjoy the same status and independence as the High Courts onaccount of the conditions of service and tenure etc., it would beCappropriate to say that although in paragraph 33 of the written submissions,the petitioners deal with specific provisions of the Tribunal ReformsAct, 2021 and the Rules framed, those were neither raised in the petitionnor any relief is claimed in reference to the Tribunal Reforms Act.Conspicuously, those were also not argued during the oral hearing.Therefore,we need not delve into those aspects as the same is beyondDthe scope of the instant proceeding.

36. It must also be borne in mind that the question of validity ofthe Tribunal Reforms Act, is pending in this Court in a batch of casestagged with WP(C) 1018/2021 Madras Bar Association v. Union ofIndia. Few similar issues like the present have also been raised in theEpending cases where the Union of India has filed counter affidavitindicating their stand.As those issues are under consideration in thepending case, the same is left to be decided in those matters.

37. For all the aforesaid reasons, section 3 of the NGT Act isfound to be intra vires to the Constitution of India. However, it is clarifiedFthat our conclusion is based on the specific facts of this case, and wemake no comments on the issues which are sub-judice in the WP(C)1018/2021 Madras Bar Association v. Union of India.

Conclusions

G38. In consequence of the above analysis, our conclusions are, A.The National Green Tribunal under Section 14 & 22 of theNGT Actdoes not oust the High Court’s jurisdiction underArticle 226 & 227 as the same is a part of the basicstructure of the Constitution.

H

B.The remedy of direct appeal to the Supreme Court underASection 22 of the NGT Act is intra vires the Constitution ofIndia.

Conclusion

C.Section 3 of the NGT Act is not a case of excessivedelegation of power to the Central Government.

B

D.The seat of the NGT benches can be located as perexigencies and it is not necessary to locate them in everyState.The prayer for relocating the Bhopal NGT to Jabalpuris unmerited and is rejected.

39. With the foregoing conclusions, the Writ Petition is found devoidof merit and is dismissed. The parties to bear their own cost.

C

Nidhi Jain(Assisted by : Tamana, LCRA)

Writ Petition dismissed.

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