MUNICIPAL CORPORATION OF GREATER MUMBAI versus ANKITA SINHA & ORS. on 7 October 2021

[2021] 10 S.C.R. 1

MUNICIPAL CORPORATION OF GREATER MUMBAI

v.

ANKITA SINHA & ORS.

(Civil Appeal Nos. 12122-12123 of 2018)

OCTOBER 07, 2021

[A. M. KHANWILKAR, HRISHIKESH ROY ANDC. T. RAVIKUMAR, JJ.]

National Green Tribunal Act, 2010: History of legislation –Preamble and Statement of Objects and Reasons of the Act –Contours of the jurisdiction of the NGT – Discussed.

National Green Tribunal Act, 2010: Interpretation of –Purposive interpretation – The provision must be read with theintention to accentuate them, especially as they concern protectionsof rights under Art.21 and also deal with vital environmental policyand its regulatory aspects.

National Green Tribunal Act, 2010: Salient features –Discussed.

National Green Tribunal Act, 2010: Role of National GreenTribunal – The Schedule I of the NGT Act is concerned withimplementation of few environmental related enactments such asthe Water Act, the Air Act, the Environment Act, the ForestConservation Act etc – As one looks at these enactments, anexpanded role for the NGT is clearly discernible – The activities ofthe NGT are not only geared towards the protection of theenvironment but also to ensure that the developments do not causeserious and irreparable damage to the ecology and the environment– NGT is primarily concerned with protection of the environmentand also preservation of the natural resources – As the specializedforum, the NGT would be expected to take preventive action, besidessettling and adjudicating disputes and pass orders on all environmentrelated questions – NGT is not just an adjudicatory body but has toperform wider functions in the nature of prevention, remedy andamelioration.

National Green Tribunal Act, 2010: Power of National GreenTribunal – In case of environmental events causing damage – The ANGT is empowered to carry out restitutive exercise for compensatingpersons adversely affected by environmental events – The largerdiscourse which informs such functions is related to distributiveand corrective justice – Even in the absence of harm inflicted byhuman agency, in a situation of a natural calamity, the NGT will berequired to devise a plan for alleviating damage – An inquisitorialBfunction is also available for the NGT, within and without adversarialsignificance – Many of these functions do not require an active“dispute”, but the formulation of decisions.

National Green Tribunal: Suo motu power, exercise of – Thespecialized tribunal’s exercise of suo motu powers is somewhatCdistinct from those exercised by the constitutional Courts – TheSupreme Court and High Courts can foray into any issues undertheir constitutional mandate but the NGT cannot naturally travelbeyond its environmental domain in reference to the scheduledenactments – However, as long as the sphere of action is notDbreached, the NGT’s powers must be understood to be of the widestamplitude.

National Green Tribunal: Uniqueness of NGT vis-a-vis otherTribunals – The statutory Tribunals are categorized to fall underfour subheads; Administrative Tribunals under Art.323A; Tribunalsunder Art.323B; Specialized sector Tribunals and most prominently;ETribunals to safeguard rights under Art.21 – The duties of NGTbrings it within the ambit of the fourth category, creating acompelling proposition for wielding much broader powers asdelineated by the statute.

Conclusion

National Green Tribunal: Sui Generis role of NGT – NGT is aFspecialised forum – The NGT is a Tribunal with sui generischaracteristic, with the special and all-encompassing jurisdictionto protect the environment – Besides its adjudicatory role as anappellate authority, it is also conferred with the responsibility todischarge role of supervisory body and to decide substantialquestions relating to the environment – The necessity of having aGspecialized body, with the expertise to handle multi-dimensionalenvironmental issues allows for an all-encompassing frameworkfor environmental justice – The technical expertise that may berequired to address evolving environmental concerns woulddefinitely require a flexible institutional mechanism for its effectiveHexercise.

National Green Tribunal: An Authority to take suo motucognizance of matter – NGT is not required to be triggered intoaction by an aggrieved or interested party alone – The exercise ofpower by the NGT is not circumscribed by receipt of application –When substantial questions relating to the environment arise andthe issue is civil in nature and those relate to the enactments inSchedule I of the Act, the NGT even in the absence of an application,can self-ignite action either towards amelioration or towardsprevention of harm.

Environmental law: Precautionary Principle – Application of– Held: The principle must apply in the widest amplitude to ensurethat it is not only resorted to for adjudicatory purposes but also forother ‘decisions’ or ‘orders’ to governmental authorities or polluters,when they fail to “to anticipate, prevent and attack the causes ofenvironmental degradation – Two aspects must therefore beemphasized i.e. that the NGT is itself required to carry out preventiveand protective measures, as well as hold governmental and privateauthorities accountable for failing to uphold environmental interests– Thus, a narrow interpretation for NGT’s powers should beeschewed to adopt one which allows for full flow of the forum’spower within the environmental domain – Doctrines/Principles.

Environmental law: Environmental justice and equity – Whensubstantive justice is elusive for a large segment, disengaging withsubstantive rights at the very altar, for a perceived procedurallacuna, would surely bring in a process, which furthers inequality,both economic and social – An “equal footing” conception maynot, therefore, be feasible to adequately address the asymmetricalrelationship between the polluters and those affected by their actions– Instead, a recognition of the historical experience of marginalizedclasses of persons while accessing and effectively using the legalsystem, will allow for necessary appreciation of social realities andbalancing the arm of justice.

Directing to post the matters on 25.10.2021 for furtherdirections and answering the common legal issue regarding suomotu jurisdiction of NGT, the Court HELD: 1.1 The 186[th] Report of the Law Commission ofIndia dated 23.9.2003, the Law Commission had made thepertinent observation espousing the case for the creation of a ABCD

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Aspecialized Court to deal with environmental issues. Theobservations in the Report suggest that the Law Commissionwas of the opinion that it was not convenient for the High Courtsand the Supreme Court to make local inquiries or receiveevidence. Moreover, the superior courts would not have accessto expert environmental scientists on permanent basis to assistBthem. Therefore, NGT was conceived as a complimentaryspecialized forum to deal with all environmental multi-disciplinaryissues both as original and also as an appellate authority, whichcomplex issues were hitherto dealt with by the High Courts andthe Supreme Court. The NGT, therefore, was intended to be theCcompetent forum for dealing with environmental issues insteadof those being canvassed under the writ jurisdiction of the Courts.It was explicitly noted that the creation of the NGT would allowfor the Supreme Court and High Court to avoid intervening undertheir inherent jurisdiction when an alternative efficacious remedywould become available before the specialized forum. [Paras 13.2,D13.3, 13.4][28-D; 29-D-E, F]

1.2 The power of judicial review was omitted to ensureavoidance of High Courts’ interference with the Tribunal’s ordersby way of a mid-way scrutiny by the High Court, before the mattertravels to the Supreme Court where NGT’s orders can beEchallenged. The streamlining of the mechanism was to arrest thegrowing tide of litigation before High Courts and the SupremeCourt and shift such issues to the domain of the NGT. This ishow the proposed forum was made free from the rules of evidenceand the NGT was permitted to lay down its own procedure to Fentertain oral and documentary evidence, consult experts etc.The observance of the principles of natural justice was howevermandated. [Paras 13.4 and 13.5][30-B-C; 30-D]

2.1 A reading of the Statement of Objects and Reasons ofNGT Act shows that paragraph 4 thereof refers to the NationalGEnvironmental Tribunal Act, 1995 (NET) which provided for strictliability and 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 recorded that a H

large number of environmental cases are pending in higherCourts which involve multi-disciplinary issues and, in such cases,the Supreme Court had requested the Law Commission of Indiato consider the need for constitution of specialized environmentalCourts. Significantly, the Statement of Objects and Reasons alsorefers to right to a healthy environment being a part of the rightto life under Article 21 of the Constitution of India. This wasconsistent with the earlier mentioned 186th Law CommissionReport highlighting that the body so created, would aim to “achievethe objectives of Article 21, 47, 48A, 51A (g) of the Constitution ofIndia by means of a fair, fast and satisfactory judicial procedure”.[Paras 14.2, 14.3][31-G-H; 32-A-C]

2.2 The paragraph 2 of the Statement of Objects andReasons refers to the United Nations Conference on the HumanEnvironment held at Stockholm in June 1972 which called upongovernments and peoples to exert common efforts for thepreservation and improvement of the human environment whenit involved people and for their posterity. Therefore, the municipallaw enacted with such a laudatory objective of not only preventingdamage to the environment but also to protect it, must beprovided with the wherewithal to discharge its protective,preventive and remedial function towards protection of theenvironment. The mandate and jurisdiction of the NGT istherefore conceived to be of the widest amplitude and it is in thenature of a sui generis forum. [Para 14.4][32-C-E]

2.3 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 out redressand remedy and to develop national laws regarding liability andcompensation for the victims of pollution and other environmentaldamage. The Preamble of the Act significantly emphasized onconstruing the right to healthy environment as a part of the Rightto Life under Article 21 of the Constitution which was acceptedby various judicial pronouncements in India. The National GreenTribunal was born in our country with such lofty dreams to dealwith multi-disciplinary issues, relating to the environment. The AB

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Alimited mandate conferred on the earlier forum i.e. the NET andthe narrow scope of jurisdiction of the National EnvironmentAppellate Authority along with the involvement of multi-disciplinary issues arising in environmental cases, were intendedto be addressed through the constitution of the NGT. [Paras 14.5,14.6][32-E-H; 33-A]B

3.1 The NGT is intended to address wide ranging societalconcerns. The Statute has to be read in its entirety and eachprovision of the Act must be given its due meaning bycomprehending the mischief it intends to remedy. The applicationof the Heydon’s Rule could adequately aid here as the Rule directsCadoption of that construction which “shall suppress the mischiefand advance the remedy”. [Paras 15.1, 15.3] [33-B-C, G]

Bengal Immunity Co. v. State of Bihar [1955] 2 SCR603; AIR 1955 SC 661 – followed.

DFrancis Bennion Statutory Interpretation described;Panama Refining Co. v. Ryan 47 Columbia LawReview 527 – referred to.

3.2 The laudatory objectives for creation of the NGT wouldimplore to adopt such an interpretive process which will achieveEthe legislative purpose and will eschew procedural impedimentor so to say incapacity. The precedents of this Court, suggest aconstruction which fulfills the object of the Act. The choice forthis Court would be to lean towards the interpretation that wouldallow fructification of the legislative intention and is forwardlooking. The provisions must be read with the intention toFaccentuate them, especially as they concern protections of rightsunder Article 21 and also deal with vital environmental policyand its regulatory aspects. [Para 15.6][34-G; 35-A-B]

4.1 Section 14 gives original jurisdiction to the NGT todecide a substantial question relating to environment; SectionG15 deals with relief, compensation and restitution whereby besidesproviding relief to the victims of pollution, the NGT can directrestitution of property damage and restitution of environmentfor such area(s) “as the Tribunal may think fit”. Section 16 givesappellate jurisdiction to the Tribunal against the orders passed H

under various enactments. Section 17 provides for liability to payrelief or compensation in certain cases, Section 18 specifies whocan move application/appeal before the Tribunal. It includes,among others, 18(2)(d) “any person aggrieved including anyrepresentative body / organization” and the locus standi is notlimited only to the aggrieved party. Section 19 provides forprocedure and powers of the Tribunal. Section 19(1) significantlysays that the Tribunal shall not be bound by procedures laid downin the CPC and shall be bound by the Principles of Natural Justice.Section 19(2) provides that subject to the provisions of the Act,the Tribunal shall have powers to regulate its own procedure.Section 19(3) mentions that the Tribunal shall not be bound bythe rules of evidence contained in the Evidence Act, 1872. Whiledischarging functions under Section 19(4), besides summoning,enforcing attendance, examining persons on oath, requiringdiscovery and production of documents, receiving evidence onoath, the NGT also has powers to review its decision, to passinterim orders as well as pass cease and desist orders. Section20 says that while adjudicating issues, the Tribunal shall applythe environmental principles, namely, sustainable developmentprinciples, precautionary principles and polluter pays principle.Under Section 25, the Tribunal can execute its order/decision asa decree of the Civil Court and for that purpose shall have all thepowers of a Civil Court. Section 29 bars the jurisdiction of theCivil Court to entertain all environmental matters covered bythe Tribunal. Under Section 33, the NGT Act has an overridingeffect over other laws. [Para 16.1][35-B-H; 36-A-B]

4.2 While on the statutory provisions, it is seen that theCentral Government has framed the National Green Tribunal(Practice & Procedure) Rules, 2011. The said Rules make it clearthat the NGT has been given wide discretionary powers to securethe ends of justice. This power is coupled with the duty to beexercised for achieving the objectives. The intentionunderstandably being to preserve and protect the environmentand the matters connected thereto. By choosing to employ aphrase of wide import, i.e. secure the ends of justice, the legislaturehas nudged towards a liberal interpretation. Securing justice is a AB

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Aterm of wide amplitude and does not simply mean adjudicatingdisputes between two rival entities. It also encompasses interalia, advancing causes of environmental rights, grantingcompensation to victims of calamities, creating schemes for givingeffect to the environmental principles and even hauling upauthorities for inaction, when need be. Moreover, unlike the civilBcourts which cannot travel beyond the relief sought by the parties,the NGT is conferred with power of moulding any relief. Theprovisions show that the NGT is vested with the widest power toappropriate relief as may be justified in the facts and circumstancesof the case, even though such relief may not be specifically prayedCfor by the parties. [Paras 16.2, 16.3, 16.4, 16.5][36-B-C, D-G]

4.3 Another distinguishing feature of the environmentalforum is on the aspect of locus standi which was made as wide asis available to the High Courts and the Supreme Court. Thus,any person or organization who may be interested in the subjectDmatter is permitted to approach the NGT. The provisions of theNGT Act and the NGT Rules demonstrate that myriad roles areto be discharged by the NGT, as was encapsulated in the LawCommission Report, the Preamble and the Statement of Objectsand Reasons. This is also forthcoming from the internationalobligation and commitment by India to implement the decisionEtaken at the Stockholm and the Rio De Janeiro Conventionstowards protection of the environmental rights under Article 21of the Constitution. [Paras 16.6, 16.7][36-G-H, 37-A-B]

5. NON-ADJUDICATORY ROLES OF NGT

F5.1 As can be seen, the Parliament intended to confer widejurisdiction on the NGT so that it can deal with the multitude ofissues relating to the environment which were being dealt withby the High Courts under Article 226 of the Constitution or bythe Supreme Court under Article 32 of the Constitution. TheTribunal is also expected to proceed with such matters with theGunderstanding that environment and environmental principles arepart of Article 21 of the Constitution.[Para 17.1][37-B-D]

Vellore Citizens’ Welfare Forum v. UOI (1996) 5 SCC647 : [1996] 5 Suppl. SCR 241 – relied on.

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5.2 The Schedule I of the NGT Act is concerned withimplementation of few environmental related enactments suchas the Water Act, the Air Act, the Environment Act, the ForestConservation Act etc. As one looks at these enactments, anexpanded role for the NGT is clearly discernible. The activitiesof the NGT are not only geared towards the protection of theenvironment but also to ensure that the developments do notcause serious and irreparable damage to the ecology and theenvironment. These would suggest a broad canvas for the NGTAct as also its creation. [Para 17.2][37-D-F]

5.3 For the environmental forum, tasked withimplementation of the statutes mentioned in Schedule I of theNGT Act, the concept of lis, would obviously be beyond the usualunderstanding in civil cases where there is a party (whether privateor government) disturbing the environment and the other one(could be an individual, a body or the government itself), who hasconcern for the protection of environment. Therefore, the NGTis primarily concerned with protection of the environment andalso preservation of the natural resources. As the specializedforum, the NGT would be expected to take preventive action,besides settling and adjudicating disputes and pass orders on allenvironment related questions. The NGT is not justan adjudicatory body but has to perform wider functions in thenature of prevention, remedy and amelioration. [Paras 17.3,17.4][37-F-G; 38-A]

5.4 The NGT is empowered to carry out restitutive exercisefor compensating persons adversely affected by environmentalevents. The larger discourse which informs such functions isrelated to distributive and corrective justice. Even in the absenceof harm inflicted by human agency, in a situation of a naturalcalamity, the Tribunal will be required to devise a plan foralleviating damage. An inquisitorial function is also available forthe Tribunal, within and without adversarial significance.Importantly, many of these functions do not require an active“dispute”, but the formulation of decisions. [Para 18][38-D-F]

Bhopal Gas Peedith Mahila Udyog Sangathan vs. Unionof India (2012) 8 SCC 326 : [2012] 12 SCR 947– relied on.

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A6. EXERCISE OF SUO MOTU POWER BY NGT

The specialized tribunal’s exercise of suo motu powers issomewhat distinct from those exercised by the constitutionalCourts. The Supreme Court and High Courts can foray into anyissues under their constitutional mandate but the NGT cannotBnaturally travel beyond its environmental domain in reference tothe scheduled enactments. However, as long as the sphere ofaction is not breached, the NGT’s powers must be understood tobe of the widest amplitude. From the very inception, the role ofthe NGT was not simply adjudicatory in the nature of a lis but toperform equally vital roles which are preventative, ameliorativeCor remedial in nature. The functional capacity of the NGT wasintended to leverage wide powers to do full justice in itsenvironmental mandate. [Paras 20, 21.6][39-F-H; 41-F-G]

Mantri Techzone (P) Ltd. v. Forward Foundation (2019)18 SCC 494; Rajeev Hitendra Pathak v. AchyutDKashinath (2011) 9 SCC 541 : [2011] 10 SCR 513;Rajeev Suri v. DDA 2021 SCC Online SC 7; AndhraPradesh Pollution Control Board v. Prof. M. V. Nayudu(Retd.) and Ors. (1999) 2 SCC 718 : [1999] 1 SCR235 – relied on.

E7. UNIQUENESS OF NGT VIS-A-VIS OTHER TRIBUNALS

While there are many tribunals functioning within theirspecified domains, variances do exist in the manner in which theyare designed to function. The statutory Tribunals were categorizedto fall under four subheads; Administrative Tribunals under ArticleF323A; Tribunals under Article 323B; Specialized sector Tribunalsand most prominently; Tribunals to safeguard rights under Article21. The duties of NGT brings it within the ambit of the fourthcategory, creating a compelling proposition for wielding muchbroader powers as delineated by the statute. The ideal was toGcreate a fairly proactive and responsive Institution which couldstep into varying roles, as the situation demanded. During thecourse of its functioning, the NGT has been recognized as one ofthe most progressive Tribunals in the world. This jurisprudentialleap has allowed our country to enter a rather exclusive group of H

nations which have set up such institutions with broad powers.[Para 22.1, 22.2, 22.3][41-G-H; 42-A-C; 43-B-C]

State of Meghalaya v. All Dimasa Students Union (2019)8 SCC 177 : [2019] 8 SCR 297 – relied on.

8. THE SUI GENERIS ROLE OF NGT

8.1 The NGT was conceived as a specialized forum not onlyas a like substitute for a civil court but more importantly to takeover all the environment related cases from the High Courts andthe Supreme Court. Many of those cases transferred to the NGT,emanated in the superior courts and it would be appropriate thusto assume that similar power to initiate suo motu proceedingsshould also be available with the NGT. [Para 24.4][44-G-H;45-A]

Paramjit Kaur v. State of Punjab (1999) 2 SCC 131 :[1998] 1 Suppl. SCR 538; DG NHAI v. Aam AadmiLokmanch 2020 SCC Online SC 572 – relied on.

8.2 The NGT is a Tribunal with sui generis characteristic,with the special and all-encompassing jurisdiction to protect theenvironment. Besides its adjudicatory role as an appellateauthority, it is also conferred with the responsibility to dischargerole of supervisory body and to decide substantial questionsrelating to the environment. The necessity of having a specializedbody, with the expertise to handle multi-dimensionalenvironmental issues allows for an all-encompassing frameworkfor environmental justice. The technical expertise that may berequired to address evolving environmental concerns woulddefinitely require a flexible institutional mechanism for its effectiveexercise. [Para 24.5][45-B-C]

9. AUTHORITY WITH SELF-ACTIVATING CAPABILITY

9. AUTHORITY WITH SELF-ACTIVATING CAPABILITY

9.1 Given the multifarious role envisaged for the NGT andthe purposive interpretation which ought to be given to thestatutory provisions, it would be fitting to regard the NGT ashaving the mechanism to set in motion all necessary functionswithin its domain and this, should necessarily clothe it with theauthority to take suo motu cognizance of matters, for effectivedischarge of its mandate. Section 14(1) of the NGT Act deals A

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Awith jurisdiction, and the jurisdictional provision conspicuouslyomits to specify that an application is necessary to trigger theNGT into action. In situations where the three prerequisites ofSection 14(1) i.e., Civil cases; involvement of substantial questionof environment; and implementation of the enactments inSchedule I are satisfied, the jurisdiction and power of the NGTBgets activated. On these material aspects, the NGT is not requiredto be triggered into action by an aggrieved or interested partyalone. It would therefore be logical to conclude that the exerciseof power by the NGT is not circumscribed by receipt of application.When substantial questions relating to the environment arise andCthe issue is civil in nature and those relate to the enactments inSchedule I of the Act, the NGT even in the absence of anapplication, can self-ignite action either towards amelioration ortowards prevention of harm. [Paras 25.1, 25.3][45-D-E; 46-B-D]

9.2 Section 14(1) exists as a standalone feature, notDconstricted by the operational mechanism of the subsequentsubsections. The sub Section (2) of Section 14 functions as acorollary and comes into play when a dispute arises from thequestions referred to in Section 14(1). Likewise sub Section (3)thereafter, refers to the period of limitation concerningapplications, when they are addressed to the NGT. WhereEadjudication is involved, the adjudicatory function under Section14(2) comes into play. When it is a case warranting NGT’sintervention, or may be a situation calling for decisions to meetcertain exigencies, the functions under Section 14(1) can beundertaken and those may not involve any formal application orFan adjudicatory process. However, the later provisions may notwork in similar fashion. Therefore, care must be taken to ensureunrestricted discharge of the responsibilities under Section 14(1)and that wide arena of NGT’s functioning. [Para 25.4][46-D-G]

9.3 The other pertinent provisions relating to, inter-alia,Gjurisdiction, interim orders, payment of compensation and review,do not require any application or appeal, for the NGT to passnecessary orders. These crucial powers are expected to beexercised by the NGT, would logically suggest that the action/orders of the NGT need not always involve any application or H

appeal. To hold otherwise would not only reduce its effectivenessbut would also defeat the legal mandate given to the forum. Itmay also be relevant to bear in mind that while dealing withcontested cases, the NGT is required to pass “award” and“order” and the statute repeatedly uses the word “decision”.Therefore, it is appropriate to correlate the word “decision” tothe NGT, in its non-adversarial or inquisitorial role, as wassuggested by the Law Commission and recognized in DG, NHAI.[Paras 25.5, 25.6][46-G-H; 47-B]

9.4 The duty to safeguard Article 21 rights cannot stand ona narrow compass of interpretation. Procedural provisions mustbe allowed to fall in step with the substantive rights that areinvoked in the environmental domain, in larger public interest.The specialized forum is bestowed with the responsibility toensure protection of the environment. To be effective in itsdomain, we need to ascribe to the NGT a public responsibility toinitiate action when required, to protect the substantive right ofa clean environment and the procedural law should not beobstructive in its application. [Para 25.7][47-C-D]

State of Punjab & Anr. v. Shamlal Murari & Anr. (1976)1 SCC 719 : [1976] 2 SCR 82 – relied on.

9.5 While discussing the NGT’s power and responsibility,it is essential to keep in mind the Principle 10 of the RioDeclaration which speaks of three fundamental rights i.e., accessto information, access to public participation and access to justice,as key pillars of environmental governance. Access to justice,may however be curtailed by illiteracy, lack of mobility, povertyor even the lack of technical knowledge on the part of citizens.Another deterrence is the likelihood of polluters/violators beingpowerful entities with adequate wherewithal to skirt regulations.Thus, it may not always be feasible for individuals to knock onthe doors of the Tribunal, and NGT in such exigencies must notbe made dysfunctional. [Para 25.8][47-F-H]

10. THE PRECAUTIONARY PRINCIPLE

10.1 The origin of the Precautionary Principle itself is rootedas an institutional obligation, by holding them primarily AB

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Aresponsible for the environmental concerns and remedies. Section20 of the NGT Act which includes the term “decision”, in additionto “order” and “award”, also require the Tribunal to apply the‘Precautionary Principle’ . [Paras 26.2 and 26.3][48-D-E]

10.2 The principle must apply in the widest amplitude toBensure that it is not only resorted to for adjudicatory purposesbut also for other ‘decisions’ or ‘orders’ to governmental authoritiesor polluters, when they fail to “to anticipate, prevent and attackthe causes of environmental degradation.”[.] Two aspects musttherefore be emphasized i.e. that the Tribunal is itself requiredto carry out preventive and protective measures, as well as holdCgovernmental and private authorities accountable for failing touphold environmental interests. Thus, a narrow interpretationfor NGT’s powers should be eschewed to adopt one which allowsfor full flow of the forum’s power within the environmental domain.[Para 26.4][48-F-G; 49-A-B]

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10.3 It is an important legal onus on the Tribunal to actwith promptitude to deal with environmental exigencies. Theresponsibility is not just to resolve legal ambiguities but to arriveat a reasoned and fair result for environmental problems whichare adversarial as well as non-adversarial. [Para 26.5][49-B-C]

E11. ENVIRONMENTAL JUSTICE AND ENVIROMENTALEQUITY

11.1 The conceptual frameworks of environmental justiceand equity should merit consideration vis-à-vis the NGT’s domainand how its functioning and decisions can have wide implicationsFin socio-economic dimensions of people at large. The concept ofenvironmental justice is a trifecta of distributive justice,procedural justice and justice as recognition. Environmentalequity as a developing concept has focused on thedisproportionate implications of environmental harms on theGeconomically or socially marginalized groups. The concerns ofhuman rights and environmental degradation overlap under thisumbrella term, to highlight the human element, apart fromeconomic and environmental ramifications. Environmental equitythus stands to ensure a balanced distribution of environmental H

risks as well as protections, including application of sustainabledevelopment principles. [Para 27.1][49-E-G]

11.2 When substantive justice is elusive for a largesegment, disengaging with substantive rights at the very altar,for a perceived procedural lacuna, would surely bring in a process,which furthers inequality, both economic and social. An “equalfooting” conception may not therefore be feasible to adequatelyaddress the asymmetrical relationship between the polluters andthose affected by their actions. Instead, a recognition of thehistorical experience of marginalized classes of persons whileaccessing and effectively using the legal system, will allow fornecessary appreciation of social realities and balancing the armof justice. [Para 27.3][50-F-G]

12. ENVIRONMENTAL JURISPRUDENCE IN INDIA

12. ENVIRONMENTAL JURISPRUDENCE IN INDIA

12.1 By expanding the scope of Articles 21, 32, 48A,51A(g), this Court has guaranteed the right to a pollution freeenvironment for a holistic existence. Most crucially, theexpansion of Right to Life under Article 21 by this Court hasbecome a touchstone to determine many environmental concerns.Adopting international principles and moulding them to Indianrealities also became a focal concern, given the lacunae in regimeswhich may be exploited by those who may not have much concernfor environmental degradation. Creation of the ‘Absolute LiabilityPrinciple’ by this Court is a well recognized testament for this. Itwould thus be appropriate to state that much of the principles,institutions and mechanisms in this sphere have been created,on account of this Court’s initiative. [Paras 28.2, 28.3][52-A-B,C-D]

12.2 The Supreme Court adopted the role of an “amicusenvironment” by threading together human rights andenvironmental concerns, resultingly developing a sui generisenvironmental discourse. There were both procedural andsubstantive innovations made, by entertaining PIL petitions,seeking remedies, including guidelines and directions in theabsence of legislation. Many of the landmark cases which holdthe fort to this day, were in recognition of the ‘at risk’ nature ofsome populations. The creation of the NGT itself was due in large AB

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Apart to the need expressed by this Court for such a forum.[Para28.4][52-F; 53-A-B]

12.3 Environmental jurisprudence in India has beenintrinsic to advancing a democratic, welfare oriented legal regime.Issues affecting the ecology and the environment must have aBbroad perspective and should have a society centric approach.Furthermore, the very nature of ecological and environmentalissues has the propensity for rapid deterioration. Many suchsensitive matters, stood transferred to the NGT, with the aimthat those would be dealt with expediently with the requiredtechnical expertise and legal sophistication. The proactivenessCof the superior Court was surely expected to be seen in theTribunal’s approach. [Para 28.6][53-E-F]

H.P. Bus Stand Management & Development Authorityv. Central Empowered Committee (2021) 4 SCC 309– relied on.D

12.4 The NGT is the institutionalization of the developmentsmade by this Court in the field of environment law. Theprogressive steps have allowed it to inherit a very broadconception of environmental concerns. Its functions therefore,must not be viewed in a cribbed manner, which detracts from theEprogress already made in the Indian environmental jurisprudence.[Para 28.8][55-A-B]

13.1 The NGT Act, when read as a whole, gives muchleeway to the NGT to go beyond a mere adjudicatory role. TheParliament’s intention is clearly discernible to create aFmultifunctional body, with the capacity to provide redressal forenvironmental exigencies. Accordingly, the principles ofenvironmental justice and environmental equity must be explicitlyacknowledged as pivotal threads of the NGT’s fabric. The NGTmust be seen as a sui generis institution and not unus multorum,Gand its special and exclusive role to foster public interest in thearea of environmental domain delineated in the enactment of 2010must necessarily receive legal recognition of this Court.[Para 30][55-C-E]

13.2 The environmental impacts on climate change aregaining increasing visibility in the shape of uncertain rains,species extinction, loss of natural habitat and so on. These alsohave the propensity to diminish fresh water resources, reduceagricultural yields and impact public health, particularly in thecities. The flooding and erosion in riverine and coastal areas arematters of serious concern. Governmental assessment of India’sincreased vulnerability to such changes in the near future alsoexists with many countries declaring climate emergencies andmany others being urged to follow suit. Therefore, the nature ofecological imbalance which is visible even in our own times maycascade, and the unforeseen injustice of the future may not becapable of being handled within the frontiers set forth today. Thelong term and very often irreparable environmental damage whichare expected to be arrested by the NGT, urge this Court to advertto what is termed as the ‘Seventh Generation’ sustainabilityprinciple,or the ‘Great Law of the Iroquois’ (as it originates fromthe Iroquois Tribe) which requires all decision making towithstand for the benefit of seven generations down the line.[Paras 31, 32][55-E-G; 56-A-B]

13.3 It is vital for the well being of the nation and its people,to have a flexible mechanism to address all issues pertaining toenvironmental damage and resultant climate change so that abetter environmental legacy is left behind, for our children, andthe generations thereafter. In circumstances, where adverseenvironmental impact may be egregious, but the communityaffected is unable to effectively get the machinery into action, aforum created specifically to address such concerns should surelybe expected to move with expediency, and of its own accord. Thepotentiality of disproportionate harm imposes a higher obligationon authorities to preserve rights which may be waylaid due tosuch restrictive access. The “global impacts of climate changewill fall disproportionately on minority and low-incomecommunities”. Thus, an affirmative role, beyond mere adjudicationat the instance of applicant, is certainly required for serving theends of environmental justice, as the statute itself requires of theNGT. [Paras 33, 34][56-B-E]

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A13.4 The NGT, with the distinct role envisaged for it, canhardly afford to remain a mute spectator when no-one knocks onits door. The forum itself has correctly identified the need forcollective stratagem for addressing environmental concerns. Sucha society centric approach must be allowed to work within theestablished safety valves of the principles of natural justice andBappeal to the Supreme Court. The hands-off mode for the NGT,when faced with exigencies requiring immediate and effectiveresponse, would debilitate the forum from discharging itsresponsibility and this must be ruled out in the interest of justice.It would be procedural hairsplitting to argue (as it has been) thatCthe NGT could act upon a letter being written to it, but learningabout an environmental exigency through any other means cannottrigger the NGT into action. To endorse such an approach wouldsurely be rendering the forum procedurally shackled orincapacitated. [Paras 35, 36][56-F-H; 57-A-B]

D13.5 When the Registry of the NGT does indeed receive acommunication or letter, including matters published in media, itmay cause to initiate suo motu action by inviting attention of NGTto such matters in the form of office report. Such circumstanceswould however require a notice to be given to the sender of thecommunication or author of the news item, as the case may be, toEassist the NGT in the course of hearing and to substantiate thefactual matters. It must also be said that the exercise of suo motujurisdiction does not mean eschewing with the principles ofnatural justice and fair play. In other words, the party likely to beaffected should be afforded due opportunity to present their side,

Fbefore suffering adverse orders. Institutions which are oftenaddressing urgent concerns gain little from procedural nitpicking,which are unwarranted in the face of both the statutory spirit andthe evolving nature of environmental degradation. Not merelyshould a procedure exist but it must be meaningfully effective toaddress such concerns. The role of such an institution cannot beGmechanical or ornamental. An interpretation must be adoptedwhich sustains the spirit of public good and not render theenvironmental watchdog of our country toothless and ineffective.[Paras 37, 39][57-B-D, E-G]

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MUNICIPAL CORPORATION OF GREATER MUMBAI v. ANKITA

SINHA & ORS.

Standard Chartered v. Dharminder Bhohi (2013) 15SCC 341 : [2013] 9 SCR 410; Transcore v. Union ofIndia (2008) 1 SCC 125 : [2006] 9 Suppl. SCR 785;Techi Tagi Tara v. Rajendra Singh Bhandari & Ors.(2018) 11 SCC 734 : [2017] 12 SCR 956; Tamil NaduPollution Control Board v. Sterlite Industries (I) Ltd.(2019) 19 SCC 479; Sarah Mathew v. Institute of CardioVascular Diseases (2014) 2 SCC 62 : [2013] 12 SCR674; New India Assurance Co. Ltd. v. Nusli Neville Wadia(2008) 3 SCC 279 : [2007] 13 SCR 598; M.C. Mehtav. UOI (1997) 2 SCC 353 : [1996] 10 Suppl. SCR 973;S. Jagannathan v. Union of India (1997) 2 SCC 87 :[1996] 9 Suppl. SCR 848; Karnataka Industrial AreasDevelopment Board v. C Kenchappa and Ors. (2006) 6SCC 371 : [2006] 2 Suppl. SCR 362; Rural LitigationAnd Entitlement Kendra & Ors v. State Of U. P. & OrsAIR 1985 SC 652 : [1985] 3 SCR 169; Charan LalSahu v. Union of India (1990) 1 SCC 613 : [1989] 2Suppl. SCR 597; Virender Gaur v. State of Haryana(1995) 2 SCC 577 : [1994] 6 Suppl. SCR 78; SubhashKumar v. State of Bihar (1991) 1 SCC 74; M.C. Mehtav. Union of India (1987) 1 SCC 395 : [1987] 1 SCR819; M.C. Mehta v. Union of India (1986) 2 SCC 176: [1986] 1 SCR 312; Indian Council for Environmental-Legal Action v. Union of India (1996) 3 SCC 212 :[1996] 2 SCR 503; A.P. Pollution Control Board v. M.V.Nayudu (1999) 2 SCC 718 : [1999] 1 SCR 235; A.P.Pollution Control Board II v. M.V. Nayudu (2001) 2 SCC62 : [2000] 5 Suppl. SCR 249 – referred to.

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[2021] 10 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.12122-12123 of 2018.G

From the Judgment and Order dated 30.10.2018 and 05.12.2018of the National Green Tribunal, Principal Bench, New Delhi in O.A.No.510 of 2018 and Review Application No.49 of 2018 in O.A. No.510of 2018.

With

Civil Appeal Nos. 86 and 5902 of 2019 and Civil AppealNos. 6273, 6274, 6275, 6276, 6277-6278, 6279, 6280-6281, 2897, 6282,6283, 6262, 6284, 6285 and 6286 of 2021.

Amit Anand Tiwari, AAG, Anand Grover, Nidhesh Gupta, SanjayParikh, Gopal Shankarnarayanan, V. Giri, Mukul Rohatgi, KrishnanVenugopal, Sajan Poovyya, Jaideep Gupta, Atmaram N. S. Nadkarni,Dhruv Mehta, Siddhartha Dave, Sr. Advs., Ms. Astha Sharma,Ms. Mantika Haryani, Simranjeet Singh Rekhi, Vanshdeep Dalmia, HarishVasudevan, Ms. Nishtha Kumar, Ms. Japneet Kaur, Ms. Vriti Gujral,Ms. Pallavi Singh, Abhimanue Shrestha, Satwik Parikh, DivyanshKhurana, James P. Thomas, K. K. Vinosh, Apzal Ansari, Abhilash M.R., Sayooj Mohandas M., Amith Krishnan, M. Thangathurai, SandeepSingh, Mahesh Agarwal, Rohan Talwar, Shivendra Singh, E. C. Agrawala,Anand Kumar Shrivastava, Ms. Priyansha Indra Sharma, SharanBalakrishnan, Pratibhanu Singh, Arpit Shukla, Ms. Aishwarya Bhati,Gurmeet Singh Makker, Ms. Ruchi Kohli, Shiv Mangal Sharma, BhuvanMishra, C. K. Sasi, Abdullah Naseeh, Ms. Meena K. P., Ms. AninditaMitra, Ashish Wad, Ms. Tamali Wad, Ms. Aruna Savla, Pimple Sharad,Ms. Sukriti Jaggi, Ajeyo Sharma, Sidharth Mahajan, Santosh RebelloSalvador, Ms. Arzu Paul, Adiraj Bali, Ms. Deepti Arya for M/s J S Wadand Co., Jobi Jose Kondody, Alex M Scaria, Ms. Usha Nandini V., BijuP. Raman, Ms. Saritha Thomas, S. Thananjayan, Ms. Promila,K. Sakthivel, Ms. Aaiyna Verma, Ms. Jaswanti, Darpan K. M.,Ms. Amrita Sharma, Prakash S. Rao, Rajat Jonathan Shaw, Ms. RashiBansal, Bijo Mathew Joy, Manu Krishnan G., Seshatalpa Sai Bandaru,E. M. S. Anam, M. S. Vishnu Sankar, A. Karthik, Enoch David SimonJoel, Ms. Smrithi Suresh, Saaketh Kasibhatla, Arsh Khan, Parsant Kumar,Md. Shahid Anwar, Amit Singh, Intakhab Alam, Mohammed NaseemMughal, Satish Solanki, Mukesh Verma, Yash Pal Dhingra, Amith S. J.,Purushottam Sharma Tripathi, Mukesh Kumar Singh, Tahir AshrafSiddiqui, Jogy Scaria, Ms. Beena Victor, Ms. M. Prirya, Ravi Lomod,K. Parameshwar, Ms. A. Sregurupriya, Prasad Hegde, Zulfiker Ali P.S., Augustine Peter, Ms. Lakshmi Sree P., Ms. Sadiya Shakeel, Dr. JosephAristotle S., Ms. Preeti Singh, Ms. Ripul Swati Kumari, Suvidutt M. A.,Mrs. Anu B., Ms. Vijayalakshmi Raju, Mrs. Dhanya C., Advs. for theAppearing Parties.

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AThe Judgment of the Court was delivered byHRISHIKESH ROY, J.

“Estragon: Let’s go.

Vladimir: We can’t.

Estragon: Why not?

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Vladimir: We’re waiting for Godot.” [1]

1. Leave granted in the Special Leave Petitions.

2. The consideration to be made in these matters is whether theNational Green Tribunal (for short “the NGT”) has the power to exerciseCSuo Motu jurisdiction in discharge of its functions under the NationalGreen Tribunal Act, 2010 (for short, “the NGT Act 2010”).

3. In the lead case in this group, i.e. the Civil Appeal No. 86 of2019, the NGT noticed an article titled “Garbage Gangs of Deonar:The Kingpins and Their Multi-Crore Trade” in the online news portal,DThe Quint. The article spoke of how mismanagement of solid wastehad an adverse impact on the environment, public health and lives ofindividuals living in the vicinity of the dumping ground in Mumbai city.

4. The NGT took suo motu cognizance of the above article videorder dated 07.08.2018 and directed that the article writer Ankita SinhaEbe the applicant in the case OA No. 510 of 2018, registered at the NGT’sinstance. Thereafter, steps were taken for inspection of the DeonarDumping site by the representative of the Central Pollution Control Board,Maharashtra Pollution Control Board, the District Collector of the areaand also the representative of the Municipal Corporation of GreaterMumbai (for short “the MCGM”). Pursuant to the Report of theFinspecting team which highlighted that the landfill site failed to complywith the provisions of the Solid Waste Management Rules, 2016, theNGT vide order dated 30.10.2018 noted that ‘damage to the environmentand public health is self-evident’ and ordered MCGM to paycompensation to the tune of Rs. 5 crores.

G5. This Court while entertaining the Civil Appeal No. 86/2019 ofMCGM, ordered stay on the operation of the order passed by the NGTand thereafter arranged for analogous consideration of the related caseswhere the common threshold jurisdictional issue arises on whether theNGT has the power to exercise suo motu jurisdiction.

H1 Beckett, S. (1954). Waiting for Godot: Tragicomedy in 2 Acts.

6. Mr. Mukul Rohatgi, Mr. Dushyant Dave, Mr. Jaideep Gupta,Mr. Dhruv Mehta, Mr. Atmaram Nadkarni, Mr. Krishnan Venugopal,Mr. V. Giri, Mr. Sajan Poovayya and Mr. Sidhartha Dave, learned SeniorCounsel together with Mr. E.M.S Anam, Ms. Amrita Sharma, Mr. S.Thananjayan have taken a common stand. They have argued that theNGT is a Tribunal and a creature of statute and as such, it cannot act onits own motion or exercise the power of judicial review or act suo motu,in discharge of its function. Being a creature of the statute, the forumcannot assume inherent powers as under Article 32 and Article 226 andits domain is circumscribed by the limitations so imposed. The learnedcounsel also argue that the NGT has an adjudicatory role to decidedisputes which necessarily mean involvement of two or more contestingparties. Therefore, the NGT by acting suo motu cannot transpose itselfto the shoes of one such party. The absence of general power of judicialreview with the NGT (which is available with superior courts) ishighlighted to keep away suo motu power from the NGT. Variousjudgments relating to the Tribunal’s power and role are cited by thecounsel and those would be discussed in later part of this order.

7. Projecting the contrary view, Mr. Nidhesh Gupta, the learnedSenior Counsel appearing for the aggrieved party in SLP(C) No. 6732/2021, Mr. Sanjay Parikh, learned Senior Counsel for the Intervener inC.A. No.86/2019 and Mr. Gopal Sankaranarayanan, learned SeniorCounsel appearing for the Impleader I.A. No.71482/2021 in the SLP(C)No. 6732/2021, by referring to the special role envisaged for the NGTand the history of its incorporation, make equally powerful submission insupport of exercise of suo motu jurisdiction, by the NGT.

8. Mr. Anand Grover, the learned Senior Counsel was appointedas the Amicus Curiae to assist the Court and he was heard at length.The counsel acknowledges the NGT’s role and position under the Actand its wide jurisdiction over environmental matters but Mr. Grover is ofthe view that the NGT is incapable of triggering action on its own. Inother words, the NGT cannot act suo motu without someone movingthe Forum as otherwise the forum then would be perceived to be judgingits own cause. Since suo motu power is not conferred under the NGTAct, the specialized tribunal has to be moved by an outside party. Butthe format of the application is not important and even a letteraddressedby an interested party, will clothe the NGT with power to take action isthe concessional submission of Mr. Grover.

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A9. Representing the Central Government, Ms. Aishwarya Bhati,the learned Additional Solicitor General of India submitted that Suo Motupower is not exercisable by the NGT since the same has not beenconferred on the forum under the NGT Act, unlike the situation in thenow repealed National Environment Tribunal Act, 1995 (hereinafterreferred to as the “NET Act”). The counsel refers to the provisions ofBthe NGT Act and submits that the concept of locus standi was expandedfor NGT’s intervention under Section 18(2)(e) but the tribunal is notvested with suo motu power to take action on its own unlike the HighCourts and the Supreme Court. The learned ASG, however, submits thateven on receipt of a letter, the NGT can commence action onCenvironmental matters. Thus, on exercise of epistolary jurisdiction bythe NGT, the ASG is on the same page as the amicus curiae but asearlier noted both counsel argue for keeping away the suo motupowerfrom the NGT.

10.1 Having summarized the positions taken by the respectiveCounsel, we may now refer to the specific grounds of challenge to keepDaway suo motu power from the NGT. The concerned counsel projectthat NGT is a creature of the statute and just like other such statutorytribunals, the NGT is also bound within statutory confines. They haverelied upon Standard Chartered Vs. Dharminder Bhohi[2] wherein,provisions of the Recovery of the Debts Due to Banks and FinancialEInstitutions Act, 1993 were analysed to note the limitations of the DebtRecovery Tribunal and Appellate Tribunal. From the analysis of JusticeDipak Misra (as his Lordship then was) for the Division Bench, it can beinferred that the Tribunal was given power under the statute to passsuch other orders and give such directions to give effect to its orders orto prevent abuse of its process or to secure the ends of justice but inFdischarge of its functions the Tribunal was required to confine itself towithin the statutory parameters. Thus, Section 19(25) conferred limitedpowers and the submission thus is that the Tribunal does not have anyinherent powers.

10.2 Similarly, Justice S.H. Kapadia (as his Lordship then was) inGTranscore Vs. Union of India[3], opined on behalf of a Division Benchthat, “ 67. ...The DRT is a tribunal, it is the creature of the statute, ithas no inherent power which exists in the civil courts.”

2 (2013) 15 SCC 341H3 (2008) 1 SCC 125

10.3 The counsel also projects that in the context of ConsumerForums, Justice Dalveer Bhandari (as his Lordship then was) speakingfor a three judge bench in Rajeev Hitendra Pathak Vs. AchyutKashinath[4], observed as under : - “34. On a careful analysis of the provisions of the Act, it isabundantly clear that the Tribunals are creatures of the statuteand derive their power from the express provisions of the statute.The District Forums and the State Commissions have not beengiven any power to set aside ex parte orders and the power ofreview and the powers which have not been expressly given bythe statute cannot be exercised.”

11.1 The second limb of contention is that the Act is applicable to‘disputes’ as, necessarily referring to a lis between two parties. Thecounsel has relied upon Techi Tagi Tara Vs. Rajendra Singh Bhandari& Ors.[5] wherein the term ‘substantial question relating toenvironment’ was interpreted in an attenuated fashion to mean a questionarising as part of a dispute. The submission therefore is that a disputemust necessitate a claimant or an applicant. Further, this dispute mustalso be capable of settlement by the NGT. In the cited case the propositionis articulated in the following fashion, “19. On a combined reading of all these provisions, it is clear tous that there must be a substantial question relating to theenvironment and that question must arise in a dispute — it shouldnot be an academic question. There must also be a claimant raisingthat dispute which dispute is capable of settlement by the NGT bythe grant of some relief which could be in the nature ofcompensation or restitution of property damaged or restitution ofthe environment and any other incidental or ancillary reliefconnected therewith.

20. ...In Prabhakar v. Deptt. of Sericulture [Prabhakar v. Deptt.of Sericulture, (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149] thefollowing definition of “dispute” was noted in paras 34 and 35 ofthe Report: (SCC p. 21)

“34. To understand the meaning of the word “dispute”, it wouldbe appropriate to start with the grammatical or dictionary meaningof the term:

4 (2011) 9 SCC 5415 (2018) 11 SCC 734

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A‘ “Dispute”.—to argue about, to contend for, to oppose byargument, to call in question — to argue or debate (with, about orover) — a contest with words; an argument; a debate; a quarrel;’35. Black’s Law Dictionary, 5th Edn., p. 424 defines “dispute”as under:

B‘Dispute.—A conflict or controversy; a conflict of claims or rights;an assertion of a right, claim, or demand on one side, met bycontrary claims or allegations on the other. The subject of litigation;the matter for which a suit is brought and upon which issue isjoined, and in relation to which jurors are called and witnessesexamined.”C

11.2 The amicus curiae has also addressed this issue, by defininga dispute as necessitating an assertion and a denial. By this reasoning, itis submitted that function of Section 14 of the NGT Act is available onlyto adjudicate upon disputes, as in an adversarial system but not for anyother ameliorative, restorative or preventative functions.D12.1 Thirdly, the lack of general power of Judicial Review hasbeen argued to show legislative intent to curb suo motu powers. Counselhave stated that the NGT, as a Tribunal with prescribed authority undera statute, does not have any general power of judicial review. Thus, it isnot within the category of Writ Courts as under Article 226 and ArticleE32 of the Constitution of India. In the relied upon judgment Tamil NaduPollution Control Board v. Sterlite Industries (I) Ltd.,[6 ]Justice R.F.Nariman speaking about the NGT for a Division Bench of this Court hasobserved the following, “41. ...Suffice it to say that the NGT is not a tribunal set up eitherunder Article 323-A or Article 323-B of the Constitution, but is aFstatutory tribunal set up under the NGT Act. That such a tribunaldoes not exercise the jurisdiction of all courts except the SupremeCourt is clear from a reading of Section 29 of the NGTAct…………

43. ...In the present case, it is clear that Section 16 of the NGTGAct is cast in terms that are similar to Section 14(b) of the TelecomRegulatory Authority of India Act, 1997, in that appeals are againstthe orders, decisions, directions, or determinations made underthe various Acts mentioned in Section 16. It is clear, therefore,that under the NGT Act, the Tribunal exercising appellate H6 (2019) 19 SCC 479

jurisdiction cannot strike down rules or regulations made underthis Act. Therefore, it would be fallacious to state that the Tribunalhas powers of judicial review akin to that of a High Courtexercising constitutional powers under Article 226 of theConstitution of India. We must never forget the distinction betweena superior court of record and courts of limited jurisdiction thatwas, in the felicitous language of Gajendragadkar, C.J., in Powers,Privileges and Immunities of State Legislatures, In re [Powers,Privileges and Immunities of State Legislatures, In re, (1965) 1SCR 413 : AIR 1965 SC 745] , made in the following words:(SCR p. 499: AIR p. 789, para 138)

“138. We ought to make it clear that we are dealing with thequestion of jurisdiction and are not concerned with the proprietyor reasonableness of the exercise of such jurisdiction. Besides, inthe case of a superior court of record, it is for the court to considerwhether any matter falls within its jurisdiction or not. Unlike acourt of limited jurisdiction, the superior court is entitled to determinefor itself questions about its own jurisdiction.

‘Prima facie’, says Halsbury, ‘no matter is deemed to be beyondthe jurisdiction of a superior court unless it is expressly shown tobe so, while nothing is within the jurisdiction of an inferior courtunless it is expressly shown on the face of the proceedings thatthe particular matter is within the cognizance of the particularcourt [Halsbury’s Laws of England, Vol. 9, p. 349] ’.

For this reason also, we are of the view that the State Governmentorder made under Section 18 of the Water Act, not being thesubject-matter of any appeal under Section 16 of the NGT Act,cannot be “judicially reviewed” by the NGT. Following the judgmentin BSNL [BSNL v. TRAI, (2014) 3 SCC 222] , we are of the viewthat the NGT has no general power of judicial review akin to thatvested under Article 226 of the Constitution of India possessed bythe High Courts of this country. Shri Sundaram’s strong relianceon the NGT judgment dated 17-7-2014 in Wilfred J. v. Ministryof Environment & Forests [Wilfred J. v. Ministry of Environment& Forests, 2014 SCC OnLine NGT 6860] must also be rejectedas this NGT judgment does not state the law on this aspectcorrectly. This contention is also without merit, and therefore,rejected.”

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A12.2 The argument has been that the superior Courts exercisingdiscretionary powers under Article 32 and Article 226, to safeguardfundamental rights, can venture into judicial review. But such a powernot being expressly conferred on the NGT would suggest the limitednature of the Forum’s powers, which would exclude any suo motuexercise.BI. THE BACKDROP OF THE NATIONAL GREENTRIBUNAL

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13.1 In order to understand the contours of jurisdiction of theNGT, we have thought it necessary to refer to the history of the legislationCand also the Preamble and the Statement of Objects and Reasons of theNGT Act. The parliamentary intent which shaped the creation of theNGT and the broad issues that they sought to address through thespecialized institution should now be brought to the fore.

13.2 The precursor to the NGT Act was the 186[th] Report of theLaw Commission of India dated 23.9.2003 where the Law CommissionDhad made the following pertinent observation espousing the case for thecreation of a specialized Court to deal with environmental issues:- “It is true that the High Court and Supreme Court have beentaking up these and other complex environmental issues andEdeciding them. But, though they are judicial bodies, they do nothave an independent statutory panel of environmental scientiststo help and advise them on a permanent basis. They are prone toapply principles like the Wednesbury Principle and refuse to gointo the merits. They do not also make spot inspections or receiveoral evidence to see for themselves the facts as they exist onFground. On the other hand, if Environmental Courts are establishedin each State, these Courts can make spot inspections and receiveoral evidence. They can receive independent advice on scientificmatters by a panel of scientists.

These Environmental Courts need not be Courts of exclusiveGjurisdiction. However, the High Courts, even if they areapproached under Art. 226 either in individual cases or in PILcases, where orders of environmental authorities could bequestioned, may refuse to intervene on the ground that there is aneffective alternative remedy before the specialist EnvironmentalCourt. As of now, when we have consumer Courts at the District H

and State level, the High Courts have consistently refused toentertain writ petitions under Art. 226 because parties have aremedy before the fora established under the Consumer ProtectionAct, 1986. We have also the example of special environmentalcourts in Australia, New Zealand and in some other countries andthese are manned by Judges and expert commissioners. The RoyalCommission in UK is also of the view that if environmental courtsare established, the High Courts may refuse to entertainapplications for judicial review on the ground that there is aneffective alternative remedy before these Courts.

It is for the above reasons we are proposing the establishment ofseparate environmental courts in each State. In Chapter IX, wepropose to give the details of the constitution, power and jurisdictionof these Courts.”

13.3 The above would suggest that the Law Commission was ofthe opinion that it is not convenient for the High Courts and the SupremeCourt to make local inquiries or receive evidence. Moreover, the superiorcourts will not have access to expert environmental scientists onpermanent basis to assist them. Therefore, NGT was conceived as acomplimentary specialized forum to deal with all environmental multi-disciplinary issues both as original and also as an appellate authority,which complex issues were hitherto dealt with by the High Courts andthe Supreme Court.

13.4 The NGT, therefore, was intended to be the competent forumfor dealing with environmental issues instead of those being canvassedunder the writ jurisdiction of the Courts. It was explicitly noted that thecreation of the NGT would allow for the Supreme Court and High Courtto avoid intervening under their inherent jurisdiction when an alternativeefficacious remedy would become available before the specialized forum.The 186th Law Commission Report provided the following reasoning,

“Likewise, we have not thought it fit to enable the EnvironmentalCourts, to have judicial review powers exercised by the High Courtunder Art. 226 of the Constitution of India. We have felt that it issufficient to vest original civil jurisdiction as exercisable by a CivilCourt, in the Environmental Courts. If we vest powers of Judicialreview as under Art. 226, then there may be need to subject theorders to the writ jurisdiction of High Courts as held in L. ChandraKumar vs. Union of India, 1997 (3) SCC 261.

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ANo doubt, the Environment Court exercising powers of a CivilCourt or as an appellate Court in civil jurisdiction, may be technicallyamenable to writ jurisdiction of the High Court but inasmuch aswe are providing an appeal to the Supreme Court, the High Courtsmay decline to interfere on the ground that there is an effectivealternative remedy of appeal on law and fact to the SupremeBCourt, as explained later in this Chapter.”[7]

Thus, the power of judicial review was omitted to ensure avoidanceof High Courts’ interference with the Tribunal’s orders by way of a mid-way scrutiny by the High Court, before the matter travels to the SupremeCourt where NGT’s orders can be challenged. The streamlining of theCmechanism was to arrest the growing tide of litigation before High Courtsand the Supreme Court and shift such issues to the domain of the NGT.

13.5 This is how the proposed forum was made free from therules of evidence and the NGT was permitted to lay down its ownprocedure to entertain oral and documentary evidence, consult expertsDetc. The observance of the principles of natural justice was howevermandated.II. PREAMBLE & STATEMENT OF OBJECTS ANDREASONS

14.1 The Statement of Objects and Reasons of the NGT Act willEnow require attention. Paras 2,3,4,5 and 6 of the Statement of Objectsand Reasons being relevant are extracted hereinbelow: - “2. India is a party to the decisions taken at the United NationsConference on the Human Environment held at Stockholm in June,1972, in which India participated, calling upon the States to takeappropriate steps for the protection and improvement of the humanFenvironment. The United Nations Conference on Environmentand Development held at Rio de Janeiro in June, 1992, in whichIndia participated, has also called upon the States to provideeffective access to judicial and administrative proceedings,including redress and remedy, and to develop National lawsGregarding liability and compensation for the victims of pollutionand other environmental damage.

3. The right to healthy environment has been construed as a partof the right to life under article 21 of the Constitution in the judicialpronouncement in India.

H7 Chapter II, 186th Law Commission Report.

4. The National Environment Tribunal Act, 1995 was enacted toprovide for strict liability for damages arising out of any accidentoccurring while handling any hazardous substance and for theestablishment of a National Environmental Tribunal for effectiveand expeditious disposal of cases arising from such accident, witha view to giving relief and compensation for damages to persons,property and the environment. However, the National EnvironmentTribunal, which had a very limited mandate, was not established.The National Environment Appellate Authority Act, 1997 wasenacted to establish the National Environment Appellate Authorityto hear appeals with respect to restriction of areas in which anyindustries, operations or processes or class of industries, operationsor processes shall not be carried out or shall be carried out subjectto certain safeguards under the Environment (Protection) Act,1986. The National Environment Appellate Authority has a limitedworkload because of the narrow scope of its jurisdiction.

5. Taking into account account the large number of environmentalcases pending in higher courts and the involvement ofmultidisciplinary issues in such cases, the Supreme Courtrequested the Law Commission of India to consider the need forconstitution of specialized environmental courts. Pursuant to thesame, the Law Commission has recommended the setting up ofenvironmental courts having both original and appellate jurisdictionrelating to environmental laws.

6. In view of the foregoing paragraphs, a need has been felt toestablish a specialized tribunal to handle the multidisciplinary issuesinvolved in environmental cases. Accordingly, it has been decidedto enact a law to provide for the establishment of the NationalGreen Tribunal for effective and expeditious disposal of civil casesrelating to environmental protection and conservation of forestsand other natural resources including enforcement of any legalright relating to environment.”

14.2 A reading of the Statement of Objects and Reasons showsthat paragraph 4 thereof refers to the National Environmental TribunalAct, 1995 (NET) which provided for strict liability and damages arisingout of accidents occurring while handling hazardous substances. In thesame context it was observed that the NET had a very limited and narrowmandate and jurisdiction. Thereafter, in Para 5 it has been recorded thata large number of environmental cases are pending in higher Courts ABC

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Awhich involve multi-disciplinary issues and, in such cases, the SupremeCourt had requested the Law Commission of India to consider the needfor constitution of specialized environmental Courts.

14.3 Significantly, the Statement of Objects and Reasons also refersto right to a healthy environment being a part of the right to life underBArticle 21 of the Constitution of India. This was consistent with theearlier mentioned 186th Law Commission Report highlighting that thebody 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, fastand satisfactory judicial procedure”. An institution concerned with asignificant aspect of right to life necessarily should be given the mostCliberal construction.

14.4 The paragraph 2 of the Statement of Objects and Reasonsrefers to the United Nations Conference on the Human Environmentheld at Stockholm in June 1972 which called upon governments andpeoples to exert common efforts for the preservation and improvementDof the human environment when 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 to protect it,must be provided with the wherewithal to discharge its protective,preventive and remedial function towards protection of the environment.EThe mandate and jurisdiction of the NGT is therefore conceived to be ofthe widest amplitude and it is in the nature of a sui generis forum.

14.5 The United Nations Conference on Environment andDevelopment held at Rio De Janeiro in June, 1992 where Indiaparticipated, impressed upon the States to provide effective access toFjudicial and administrative proceedings, lay out redress and remedy andto develop national laws regarding liability and compensation for thevictims of pollution and other environmental damage. The Preamble ofthe Act significantly emphasized on construing the right to healthyenvironment as a part of the Right to Life under Article 21 of theConstitution which was accepted by various judicial pronouncements inGIndia. The National Green Tribunal was born in our country with suchlofty dreams to deal with multi-disciplinary issues, relating to theenvironment.

14.6 The limited mandate conferred on the earlier forum i.e. theNET and the narrow scope of jurisdiction of the National EnvironmentHAppellate Authority along with the involvement of multi-disciplinary issues arising in environmental cases, were intended to be addressed throughthe constitution of the NGT.

III.THE NEED FOR PURPOSIVE INTERPRETATION

15.1 While adequate clarity is discernible in the phraseology thatis employed under Section 14 and other provisions of the NGT Act, asshall be discussed in later parts of the judgement, the intention behindthe statute should receive our careful attention.Tracing the legislativehistory for creation of the NGT it is seen that the NGT is intended toaddress wide ranging societal concerns and these have prompted us toopt for purposive interpretation. The Statue will have to be read in itsentirety and each provision of the Act must be given its due meaning bycomprehending the mischief it intends to remedy. The chosen interpretiveexercise is best understood from the treatise Interpretation of Statutes,authored byJustice G.P. Singh who explained thus, “When the question arises as to the meaning of certain provisionin statute, it is not only legitimate but proper to read that provisionin its context. The context here means, the statute as a whole, theprevious state of the law, other statutes in pari materia, the generalscope of the statute, and the mischief that it was intended toremedy. This statement of the rule was later fully adopted by theSupreme Court.

It is a rule now firmly established that the intention of theLegislature must be found by reading the statute as a whole. Therule is referred to as an ‘elementary rule’ by Viscount Simonds: acompelling rule by Lord Sommervell of Harrow; and a “settledrule” by B.K. Mukherjee J. “I agree” said Lord Halsbury, “thatyou must look at the whole in order to give effect, if it be possibleto do so, to the intention of the framer of it.”

15.2 The mischief that the NGT Act attempted to remedy wereunderscored in the legislative history, and the pronouncements of theconstitutional Courts flagging their environmental concerns.

15.3 The application of the Heydon’s Rule could adequately aidus here as the Rule directs adoption of that construction which “shallsuppress the mischief and advance the remedy” as was pertinentlyobserved by Justice S.R. Das, for a seven judge bench in BengalImmunity Co. vs. State of Bihar[8], A

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A“...the office of all judges is to make such construction as shalsuppresses the mischief and advance the remedy, and to suppresssubtle inventions and evasions for continuance of the mischief;and pro privato commodo, and to add force and life to the cureand remedy, according to the true intent of the makers of the Act,pro bono publico.”B15.4 Francis Bennion in his book Statutory Interpretationdescribed ‘purposive interpretation’ as under:

‘A purposive construction of an enactment is one which giveseffect to the legislative purpose by—

C(a) following the literal meaning of the enactment where thatmeaning is in accordance with the legislative purpose, or (b) applying a strained meaning where the literal meaning is not inaccordance with the legislative purpose.’

D15.5 Justice Frankfurter of US Supreme Court in ‘SomeReflections on the Reading of Statutes’, has elucidated on the principlesto ascertain the contextual meaning of statutes in the following manner, ‘The purpose of construction being the ascertainment of meaning,every con- sideration brought to bear for the solution of thatproblem must be devoted to that end alone.E

...

Judge Learned Hand speaks of the art of interpretation as ‘theproliferation of purpose’.”[9]

Eventually, Justice Frankfurter relied upon Justice BenjaminFCardozo’s phraseology in Panama Refining Co. Vs. Ryan, and the sameis taken as a lodestar in our quest, “the meaning of a statute is to be looked for, not in any singlesection, but in all the parts together and in their relation to the endin view”[10].G15.6 The laudatory objectives for creation of the NGT wouldimplore us to adopt such an interpretive process which will achieve thelegislative purpose and will eschew procedural impediment or so to say 9 47 Columbia Law Review 527H10 293 U.S. 388 (1935) (dissenting)

incapacity. The precedents of this Court, suggest a construction whichfulfills the object of the Act.[11] The choice for this Court would be to leantowards the interpretation that would allow fructification of the legislativeintention and is forward looking. The provisions must be read with theintention to accentuate them, especially as they concern protections ofrights under Article 21 and also deal with vital environmental policy andits regulatory aspects.

IV. SALIENT STATUTORY FEATURES OF NGT ACT -

IV. SALIENT STATUTORY FEATURES OF NGT ACT - 16.1 Applying the chosen tool of interpretation to the statutorylayout of the NGT Act, following provisions will require the Court’sattention. Section 2(1)(c) of the NGT Act defines the term “environment”;Section 2(1)(m) defines “substantial question relating to environment”.Chapter III relates to jurisdiction, power and proceedings of the Tribunal.The Section 14 gives original jurisdiction to the NGT to decide a substantialquestion relating to environment; Section 15 deals with relief,compensation and restitution whereby besides providing relief to thevictims of pollution, the NGT can direct restitution of property damageand restitution of environment for such area(s) “as the Tribunal maythink fit”. Section 16 gives appellate jurisdiction to the Tribunal againstthe orders passed under various enactments. Section 17 provides forliability to pay relief or compensation in certain cases, Section 18 specifieswho can move application/appeal before the Tribunal. It includes, amongothers, 18(2)(d) “any person aggrieved including any representativebody / organization” and the locus standi is not limited only to theaggrieved party. Section 19 provides for procedure and powers of theTribunal. Section 19(1) significantly says that the Tribunal shall not bebound by procedures laid down in the CPC and shall be bound by thePrinciples of Natural Justice. Section 19(2) provides that subject to theprovisions of the Act, the Tribunal shall have powers to regulate its ownprocedure. Section 19(3) mentions that the Tribunal shall not be boundby the rules of evidence contained in the Evidence Act, 1872. Whiledischarging functions under Section 19(4), besides summoning, enforcingattendance, examining persons on oath, requiring discovery and productionof documents, receiving evidence on oath, the NGT also has powers toreview its decision, to pass interim orders as well as pass cease anddesist orders. Section 20 says that while adjudicating issues, the Tribunalshall apply the environmental principles, namely, sustainable development 11 Sarah Mathew v. Institute of Cardio Vascular Diseases (2014) 2 SCC 62, New IndiaAssurance Co. Ltd. Vs. Nusli Neville Wadia (2008) 3 SCC 279.

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Aprinciples, precautionary principles and polluter pays principle. UnderSection 25, the Tribunal can execute its order/decision as a decree ofthe Civil Court and for that purpose shall have all the powers of a CivilCourt. Section 29 bars the jurisdiction of the Civil Court to entertain allenvironmental matters covered by the Tribunal. Under Section 33, theNGT Act has an overriding effect over other laws.B

16.2 While on the statutory provisions, it is seen that the CentralGovernment has framed the National Green Tribunal (Practice &Procedure) Rules, 2011 (for short “the NGT Rules”). For our purpose,Rule 24 is important which reads thus:

“24. Order and directions in certain cases – The TribunalCmay make such orders or give such directions as may benecessary or expedient to give effect to its order or to preventabuse of its process or to secure the ends of justice.”

16.3 The said Rules make it clear that the NGT has been givenwide discretionary powers to secure the ends of justice. This power isDcoupled with the duty to be exercised for achieving the objectives. Theintention understandably being to preserve and protect the environmentand the matters connected thereto.

16.4 By choosing to employ a phrase of wide import, i.e. securethe ends of justice, the legislature has nudged towards a liberalEinterpretation. Securing justice is a term of wide amplitude and does notsimply mean adjudicating disputes between two rival entities. It alsoencompasses inter alia, advancing causes of environmental rights,granting compensation to victims of calamities, creating schemes forgiving effect to the environmental principles and even hauling upauthorities for inaction, when need be.F

16.5 Moreover, unlike the civil courts which cannot travel beyondthe relief sought by the parties, the NGT is conferred with power ofmoulding any relief. The provisions show that the NGT is vested withthe widest power to appropriate relief as may be justified in the factsand circumstances of the case, even though such relief may not beGspecifically prayed for by the parties.

16.6 Another distinguishing feature of the environmental forum ison the aspect of locus standi which was made as wide as is available tothe High Courts and the Supreme Court. Thus, any person or organizationwho may be interested in the subject matter is permitted to approach theHNGT.

16.7 The provisions of the NGT Act and the NGT Rulesdemonstrate that myriad roles are to be discharged by the NGT, as wasencapsulated in the Law Commission Report, the Preamble and theStatement of Objects and Reasons. This is also forthcoming from theinternational obligation and commitment by India to implement the decisiontaken at the Stockholm and the Rio De Janeiro Conventions towardsprotection of the environmental rights under Article 21 of the Constitution.

V. NON-ADJUDICATORY ROLES OF NGT

17.1 As can be seen, the Parliament intended to confer widejurisdiction on the NGT so that it can deal with the multitude of issuesrelating to the environment which were being dealt with by the HighCourts under Article 226 of the Constitution or by the Supreme Courtunder Article 32 of the Constitution. The Tribunal is also expected toproceed with such matters with the understanding that environment andenvironmental principles are part of Article 21 of the Constitution. [SeeVellore Citizens’ Welfare Forum vs. UOI[12]; M.C. Mehta vs. UOI[13]etc.]

17.2 The Schedule I of the NGT Act is concerned withimplementation of few environmental related enactments such as theWater Act, the Air Act, the Environment Act, the Forest ConservationAct etc. As one looks at these enactments, an expanded role for theNGT is clearly discernible. The activities of the NGT are not only gearedtowards the protection of the environment but also to ensure that thedevelopments do not cause serious and irreparable damage to the ecologyand the environment. These would suggest a broad canvas for the NGTAct as also its creation.

17.3 For the environmental forum, tasked with implementation ofthe statutes mentioned in Schedule I of the NGT Act, the concept of lis,would obviously be beyond the usual understanding in civil cases wherethere is a party (whether private or government) disturbing the environmentand the other one (could be an individual, a body or the governmentitself), who has concern for the protection of environment. Therefore,the NGT is primarily concerned with protection of the environment andalso preservation of the natural resources. As the specialized forum, theNGT would be expected to take preventive action, besides settling andadjudicating disputes and pass orders on all environment related questions.

12 (1996) 5 SCC 647

13 (1997) 2 SCC 353

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A17.4 The NGT is not just an adjudicatory body but has to performwider functions in the nature of prevention, remedy and amelioration.This aspect was specifically flagged in the 186th Law Commission Report,

“The Environment Court, in our view, must have power to frameschemes and monitor them and also have power to modify theBschemes from time to time. If one looks at the problems raised inseveral cases and the directions issued by the Supreme Court, itwill be observed that such a power is necessary to be vested inthese Courts. .... The Environment Court must be able to providean “environmental solution” to grave problems like the onementioned above and unless it has power to frame comprehensiveCschemes which will involve issuing directions to variousdepartments, the solution cannot be implemented. Such acomprehensive jurisdiction is now being exercised both by theSupreme Court and High Courts. In our view, the proposed Courtsmust have similar powers. They will also have to monitor theDschemes till they are successfully implemented on ground and, ifnecessary, modify the schemes from time to time.”

18. We have earlier discussed that the NGT is empowered tocarry out restitutive exercise for compensating persons adversely affectedby environmental events. The larger discourse which informs suchEfunctions is related to distributive and corrective justice, as will beelaborated in later paragraphs. Even in the absence of harm inflicted byhuman agency, in a situation of a natural calamity, the Tribunal will berequired to devise a plan for alleviating damage. An inquisitorial functionis also available for the Tribunal, within and without adversarialsignificance. Importantly, many of these functions do not require an activeF“dispute”, but the formulation of decisions.

19.1 With the constitution of the NGT, many cases pending beforethe High Courts were transferred to the NGT. Apprehending the possibilityof conflict between the High Courts and the NGT (in matters concerningenvironment and the statutes mentioned in Schedule I of the NGT Act),GJustice Swatanter Kumar speaking for the three Judge Bench in BhopalGas Peedith Mahila Udyog Sangathan vs. Union of India[14],highlighted the NGT’s role in the context, in the following words: - “40. Keeping in view the provisions and scheme of the NationalGreen Tribunal Act, 2010 (for short “the NGT Act”) particularlyH14 (2012) 8 SCC 326

Sections 14, 29, 30 and 38(5), it can safely be concluded that theenvironmental issues and matters covered under the NGT Act,Schedule I should be instituted and litigated before the NationalGreen Tribunal (for short “NGT”). Such approach may benecessary to avoid likelihood of conflict of orders between theHigh Courts and NGT. Thus, in unambiguous terms, we directthat all the matters instituted after coming into force of the NGTAct and which are covered under the provisions of the NGT Actand/or in Schedule I to the NGT Act shall stand transferred andcan be instituted only before NGT. This will help in renderingexpeditious and specialised justice in the field of environment toall concerned.

41. We find it imperative to place on record a caution forconsideration of the courts of competent jurisdiction that the casesfiled and pending prior to coming into force of the NGT Act,involving questions of environmental laws and/or relating to anyof the seven statutes specified in Schedule I of the NGT Act,should also be dealt with by the specialised tribunal, that is, NGT,created under the provisions of the NGT Act. The courts may bewell advised to direct transfer of such cases to NGT in itsdiscretion, as it will be in the fitness of administration of justice.”

19.2 In the above case, this Court mandated transfer of all casesconcerning the statutes mentioned in Schedule I of the NGT Act to thespecialized forum as otherwise there can be conflicts with the HighCourts. Notably, some of those cases were originally registered suomotu by the Courts.

VI EXERCISE OF SUO MOTU POWER BY NGT

20. Let us now explore whether the NGT in discharge of itsfunctions, should also have suo motu power. The specialized tribunal’sexercise of suo motu powers is somewhat distinct from those exercisedby the constitutional Courts. The Supreme Court and High Courts canforay into any issues under their constitutional mandate but the NGTcannot naturally travel beyond its environmental domain in reference tothe scheduled enactments. However, As long as the sphere of action isnot breached, the NGT’s powers must be understood to be of the widestamplitude.

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A21.1 Explaining the purpose for constituting the special court todeal with environmental issues, in Mantri Techzone (P) Ltd. vs. ForwardFoundation[15], Justice S. Abdul Nazeer writing for the three Judge Bench,made the following pertinent observations on the status of the NGT:- “40. The Tribunal has been established under a constitutionalBmandate provided in Schedule VII List I Entry 13 of theConstitution of India, to implement the decision taken at the UnitedNations Conference on Environment and Development. TheTribunal is a specialised judicial body for effective and expeditiousdisposal of cases relating to environmental protection andconservation of forests and other natural resources includingCenforcement of any legal right relating to the environment. Theright to healthy environment has been construed as a part of theright to life under Article 21 by way of judicial pronouncements.Therefore, the Tribunal has special jurisdiction for enforcementof environmental rights.”D

21.2 As can be seen from the quoted passage, this Court recognizedthat the NGT is set up under the constitutional mandate in Entry 13 ofList I in Schedule VII to enforce Article 21 with respect to theenvironment and in the context observed that the Tribunal has specialjurisdiction for enforcement of environmental rights.

E21.3 Elaborating further, in paragraphs 44-46, the Supreme Courtexpressed that the interpretation that is in favour of conferring jurisdictionshould be preferred rather than one taking away jurisdiction. It wasspecifically noted that, “46. ... As stated supra the typical nature of the Tribunal, its breadthFof powers as provided under the statutory provisions of the Actas well as the Scheduled enactments, cumulatively, leaves nomanner of doubt that the only tenable interpretation to theseprovisions would be to read the provisions broadly in favour ofcloaking the Tribunal with effective authority. An interpretationGthat is in favour of conferring jurisdiction should be preferred ratherthan one taking away jurisdiction.”

21.4 Such being the wide contour of the NGT’s powers, theexposition in Rajeev Suri vs. DDA[16] was not to constrict the suo motu 15 (2019) 18 SCC 494H16 2021 SCC Online SC 7.

powers of the NGT. To appreciate the implication of the ratio in RajeevSuri, it must be noticed that it was in the specific context of ‘MeritsReview’ and the NGT transgressing beyond its environmental mandate.This is why, one of us, Justice A.M. Khanwilkar observed that, “503. NGT is not a plenary body with inherent powers to addressconcerns of a residuary character. It is a statutory body with limitedmandate over environmental matters as and when they arise forits consideration. In a cause before it, NGT cannot directly go onto adjudicate on concerns of violation of fundamental rights andonce the contours of a subject matter traverse the scope of appealfrom a grant of EC, the merits review by tribunal cannot traversebeyond the scope of jurisdiction vested in it by the statute.”

21.5 Thus, the ratio in Rajeev Suri to the quoted extent will notclash with the view propounded here as the exposition is not to allowany inherent power of residuary character for the NGT. In its own domain,as crystalized by the statute, the role of the NGT is clearly discernible.

21.6 The need for an expert body with extensive functions andthe sources of inspiration behind it was articulated in Andhra PradeshPollution Control Board v. Prof. M. V. Nayudu (Retd.) and Ors.[17]where Justice M. Jagannadha Rao speaking for a Division Bench referredto a comparable court in Australia and noted the following, “The Land and Environment Court of New South Wales inAustralia, established in 1980, could be the ideal. It is a superiorcourt of record and is composed of four Judges and nine technicaland conciliation assessors. Its jurisdiction combines appeal, judicialreview and enforcement functions. Such a composition in ouropinion is necessary and ideal in environmental matters.”

The above would show that from the very inception, the role ofthe NGT was not simply adjudicatory in the nature of a lis but to performequally vital roles which are preventative, ameliorative or remedial innature. The functional capacity of the NGT was intended to leveragewide powers to do full justice in its environmental mandate.

VII. UNIQUENESS OF NGT VIS-A-VIS OTHERTRIBUNALS

22.1 While we see many tribunals functioning within their specifieddomains, variances do exist in the manner in which they are designed to A

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Afunction.The statutory Tribunals were categorized to fall under foursubheads; Administrative Tribunals under Article 323A; Tribunals underArticle 323B; Specialized sector Tribunals and most prominently;Tribunals to safeguard rights under Article 21. As already noted, theduties of NGT brings it within the ambit of the fourth category, creatinga compelling proposition for wielding much broader powers as delineatedBby the statute.

22.2 The ideal was to create a fairly proactive and responsiveInstitution which could step into varying roles, as the situation demanded.Commenting on the specialized and unique role of the NGT, Justice AshokBhushan in State of Meghalaya vs. All Dimasa Students Union[18],Cfittingly observed thus:- “163. The object for which the said power is given is not far toseek. To fulfil the objective of the NGT Act, 2010, NGT has toexercise a wide range of jurisdiction and has to possess widerange of powers to do justice in a given case. The power is givenDto exercise for the benefit of those who have right for cleanenvironment which right they have to establish before the Tribunal.The power given to the Tribunal is coupled with duty to exercisesuch powers for achieving the objects. In this regard reference ismade to the judgment of this Court in L. Hirday Narain v. CIT [L.EHirday Narain v. CIT, (1970) 2 SCC 355] , wherein this Courtwas examining provision empowering authority to do something.This Court laid down in para 14: (SCC p. 359)

“14. The High Court observed that under Section 35 of the IndianIncome Tax Act, 1922, the jurisdiction of the Income Tax OfficerFis discretionary. If thereby it is intended that the Income Tax Officerhas discretion to exercise or not to exercise the power to rectify,that view is in our judgment erroneous. Section 35 enacts that theCommissioner or Appellate Assistant Commissioner or the IncomeTax Officer may rectify any mistake apparent from the record. Ifa statute invests a public officer with authority to do an act in aGspecified set of circumstances, it is imperative upon him to exercisehis authority in a manner appropriate to the case when a partyinterested and having a right to apply moves in that behalf andcircumstances for exercise of authority are shown to exist. Evenif the words used in the statute are prima facie enabling, the courts will readily infer a duty to exercise power which is invested in aidof enforcement of a right—public or private—of a citizen.”

22.3 Reflecting on the expanded role of NGT unlike other Tribunals,this Court so appositely observed that the forum has a duty to do justicewhile exercising “wide range of jurisdiction” and the “wide range ofpowers”, given to it by the statute.

23. During the course of its functioning, the NGT has beenrecognized as one of the most progressive Tribunals in the world. Thisjurisprudential leap has allowed our country to enter a rather exclusivegroup of nations which have set up such institutions with broad powers.To understand how the NGT is perceived globally, we may usefully referto the views of Chief Justice Brian Preston of the Land and EnvironmentCourt of NSW Australia, “The NGT is an example of a specialized court to better achievethe goals of ensuring access to justice, upholding the rule of lawand promoting good governance.”[19]

VIII. THE SUI GENERIS ROLE OF NGT

24.1 The NGT being one of its own kind of forum, commends usto consider the concept of a sui generis role, for the institution. Thestructure of Sui generis institutions was explained in Paramjit KaurVs. State of Punjab[20], wherein Justice S. Saghir Ahmad spoke thus fora Division Bench, “14. The concept of sui generis is applied quite often with referenceto resolution of disputes in the context of international law. Whenthe conventions formulated by compacting nations do not coverany area territorially or any subject topically, then the body towhich such power to arbiter is entrusted acts sui generis, that is, on its own and not under any law.”

24.2 In DG NHAI vs. Aam Aadmi Lokmanch[21], Justice S.Ravindra Bhat commenting on the sui generis role of the NGT, soappropriately stated as follows:- 19 GILL, G. (2020). Mapping the Power Struggles of the National Green Tribunal ofIndia: The Rise and Fall? Asian Journal of Law and Society,7(1), 85-126.

20 (1999) 2 SCC 131

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A“38. A conjoint reading of Sections 14, 15 and the Schedules wouldlead one to infer that the NGT has circumscribed jurisdiction todeal with, adjudicate, and wherever needed, direct measures suchas payment of compensation, or make restitutionary directions incases where the violation (i.e. harm caused due to pollution orexposure to hazards, etc.) are the result of infraction of anyBenactment listed in the first schedule. Yet, that, interpretation, inthe opinion of this court, is not warranted.

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76. The power and jurisdiction of the NGT under Sections 15(1)(b)and (c) are not restitutionary, in the sense of restoring theenvironment to the position it was before the practise impugned,or before the incident occurred. The NGT’s jurisdiction in onesense is a remedial one, based on a reflexive exercise of its powers.In another sense, based on the nature of the abusive practice, itspowers can also be preventive.

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77. As a quasi-judicial body exercising both appellate jurisdictionover regulatory bodies’ orders and directions (under Section 16)and its original jurisdiction under Sections 14, 15 and 17 of theNGT Act, the tribunal, based on the cases and applications madebefore it, is an expert regulatory body. Its personnel includeEtechnically qualified and experienced members. The powers itexercises and directions it can potentially issue, impact not merelythose before it, but also state agencies and state departmentswhose views are heard, after which general directions to preventthe future occurrence of incidents that impact the environment,are issued.”F

24.3 In that case, this Court repelled the argument for a restrictedjurisdiction for the NGT, and fittingly observed in paragraph 76 that thepowers conferred on the NGT are both reflexive and preventive and therole of the NGT was recognized in paragraph 77 as “an expertGregulatory body”, which can issue general directions also albeit withinthe statutory framework.

24.4 The above discussion would advise us to say that the NGTwas conceived as a specialized forum not only as a like substitute for acivil court but more importantly to take over all the environment relatedcases from the High Courts and the Supreme Court. Many of thoseH

cases transferred to the NGT, emanated in the superior courts and itwould be appropriate thus to assume that similar power to initiate suomotu proceedings should also be available with the NGT.

24.5 The NGT is a Tribunal with sui generis characteristic, withthe special and all-encompassing jurisdiction to protect the environment.Besides its adjudicatory role as an appellate authority, it is also conferredwith the responsibility to discharge role of supervisory body and to decidesubstantial questions relating to the environment. The necessity of havinga specialized body, with the expertise to handle multi-dimensionalenvironmental issues allows for an all-encompassing framework forenvironmental justice. The technical expertise that may be required toaddress evolving environmental concerns would definitely require aflexible institutional mechanism for its effective exercise.

IX. AUTHORITY WITH SELF-ACTIVATING CAPABILITY

25.1 Given the multifarious role envisaged for the NGT and thepurposive interpretation which ought to be given to the statutory provisions,it would be fitting to regard the NGT as having the mechanism to set inmotion all necessary functions within its domain and this, as would followfrom the discussion below, should necessarily clothe it with the authorityto take suo motu cognizance of matters, for effective discharge of itsmandate.

25.2 The analysis for this segment should commence with Section14 of the NGT Act and the same being of great relevance is beingextracted hereunder, “ 14. Tribunal to settle disputes. - (1) The Tribunal shall have thejurisdiction over all civil cases where a substantial question relatingto environment (including enforcement of any legal right relatingto environment), is involved and such question arises out of theimplementation of the enactments specified in Schedule I.

(2) The Tribunal shall hear the disputes arising from the questionsreferred to in sub-section (1) and settle such disputes and passorder thereon.

(3) No application for adjudication of dispute under this sectionshall be entertained by the Tribunal unless it is made within aperiod of six months from the date on which the cause of actionfor such dispute first arose: Provided that the Tribunal may, if it is ABC

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Asatisfied that the applicant was prevented by sufficient cause fromfiling the application within the said period, allow it to be filedwithin a further period not exceeding sixty days.”

25.3 The Section 14(1) of the NGT Act deals with jurisdiction,andthe jurisdictional provision conspicuously omits to specify that anBapplication is necessary to trigger the NGT into action. In situationswhere the three prerequisites of Section 14(1) i.e., Civil cases;involvement of substantial question of environment; and implementationof the enactments in Schedule I are satisfied, the jurisdiction and powerof the NGT gets activated. On these material aspects, the NGT is notrequired to be triggered into action by an aggrieved or interested partyCalone. It would therefore be logical to conclude that the exercise ofpower by the NGT is not circumscribed by receipt of application. Whensubstantial questions relating to the environment arise and the issue iscivil in nature and those relate to the enactments in Schedule I of theAct, the NGT in our opinion even in the absence of an application, canDself-ignite action either towards amelioration or towards prevention ofharm.

25.4 In the same spirit, we find merit in the arguments that Section14(1) exists as a standalone feature, not constricted by the operationalmechanism of the subsequent subsections. The sub Section (2) of SectionE14 functions as a corollary and comes into play when a dispute arisesfrom the questions referred to in Section 14(1). Likewise sub Section(3) thereafter, refers to the period of limitation concerning applications,when they are addressed to the NGT. Where adjudication is involved,the adjudicatory function under Section 14(2) comes into play. When itis a case warranting NGT’s intervention, or may be a situation callingFfor decisions to meet certain exigencies, the functions under Section14(1) can be undertaken and those may not involve any formal applicationor an adjudicatory process. However, the later provisions may not workin similar fashion. Therefore, care must be taken to ensure unrestricteddischarge of the responsibilities under Section 14(1) and that wide arenaGof NGT’s functioning.

25.5 The other pertinent provisions relating to, inter-alia,jurisdiction, interim orders, payment of compensation and review, do notrequire any application or appeal, for the NGT to pass necessary orders.These crucial powers are expected to be exercised by the NGT, wouldHlogically suggest that the action/orders of the NGT need not always involve any application or appeal.To hold otherwise would not only reduceits effectiveness but would also defeat the legal mandate given to theforum.

25.6 It may also be relevant to bear in mind that while dealingwith contested cases, the NGT is required to pass “award” and “order”and the statute repeatedly uses the word “decision”. Therefore, it isappropriate to correlate the word “decision” to the NGT, in its non-adversarial or inquisitorialrole, as was suggested by the Law Commissionand recognized in DG, NHAI (supra).

25.7 The duty to safeguard Article 21 rights cannot stand on anarrow compass of interpretation. Procedural provisions must be allowedto fall in step with the substantive rights that are invoked in theenvironmental domain, in larger public interest. The specialized forum isbestowed with the responsibility to ensure protection of the environment.To be effective in its domain, we need to ascribe to the NGT a publicresponsibility to initiate action when required, to protect the substantiveright of a clean environment and the procedural law should not beobstructive in its application. In the context, Justice V.R. Krishna Iyerspeaking for a Division Bench in State of Punjab & Anr. Vs. ShamlalMurari & Anr.[22] has so correctly prioritized the substantive rights andobserved succinctly, “8. ...We must always remember that processual law is not to be atyrant but a servant, not an obstruction but an aid to justice. It has beenwisely observed that procedural prescriptions are the handmaid and notthe mistress, a lubricant, not a resistant in the administration of justice.”

25.8 While discussing the NGT’s power and responsibility, it isessential to keep in mind the Principle 10 of theRio Declaration whichspeaks of three fundamental rights i.e., access to information, access topublic participation and access to justice, as key pillars of environmentalgovernance. Access to justice, may however be curtailed by illiteracy,lack of mobility, poverty or even the lack of technical knowledge on thepart of citizens. Another deterrence is the likelihood of polluters/violatorsbeing powerful entities with adequate wherewithal to skirt regulations.Thus, it may not always be feasible for individuals to knock on the doorsof the Tribunal, and NGT in such exigencies must not be madedysfunctional.

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AX. THE PRECAUTIONARY PRINCIPLE

26.1 Tracing the origin of the Precautionary Principle, ScottLafranchi in his treatise[23] has expounded on the proactive role of theauthorities in the following passage: - “Many consider the German development of Vorsorgeprinzip toBsignify the true creation of the precautionary principle, in light ofthe attention it focuses on “long term planning to avoid damage tothe environment, early detection of dangers to health andenvironment through comprehensive research, and acting inadvance of conclusive scientific evidence of harm.”16 TheCprecautionary foundation of Vorsorgeprinzip has been describedas an “action principle” that holds public authorities responsiblefor protecting the natural foundations of life and preserving thephysical world for the present and future generations, and “‘cantherefore be used to counter the short-termism endemic in alldemocratic, consumption oriented societies.’”D

26.2 The origin of the Precautionary Principle itself is rooted asan institutional obligation, by holding them primarily responsible for theenvironmental concerns and remedies.

26.3 As earlier seen, S.20 of the NGT Act which includes theEterm “decision”, in addition to “order” and “award”, also require theTribunal to apply the ‘Precautionary Principle’ and the statutorymandate being relevant is extracted: - “20. Tribunal to apply certain principles. - The Tribunal shall, whilepassing any order or decisions or award, apply the principles ofFsustainable development, the precautionary principle and thepolluter pays principle.”

26.4 The principle set out above must apply in the widest amplitudeto ensure that it is not only resorted to for adjudicatory purposes but alsofor other ‘decisions’ or ‘orders’ to governmental authorities or polluters,when they fail to “to anticipate, prevent and attack the causes ofGenvironmental degradation”[24][.] Two aspects must therefore be 23 Scott LaFranchi, Surveying the Precautionary Principle’s Ongoing GlobalDevelopment: The Evolution of an Emergent Environmental Management Tool, 32B.C. Envtl. Aff. L. Rev. 679 (2005)24 Vellore Citizens (supra), S. Jagannathan v. Union of India (1997) 2 SCC 87, KarnatakaHIndustrial Areas Development Board v. C Kenchappa and Ors (2006) 6 SCC 371.

emphasized i.e. that the Tribunal is itself required to carry out preventiveand protective measures, as well as hold governmental and privateauthorities accountable for failing to uphold environmental interests. Thus,a narrow interpretation for NGT’s powers should be eschewed to adoptone which allows for full flow of the forum’s power within theenvironmental domain.

26.5 It is not only a matter of rhetoric that the Tribunal is to remainever vigilant, but an important legal onus is cast upon it to act withpromptitude to deal with environmental exigencies. The responsibility isnot just to resolve legal ambiguities but to arrive at a reasoned and fairresult for environmental problems which are adversarial as well as non-adversarial. It would be apposite here to refer to Justice BenjaminCardozo, of the United States Supreme Court, who in his seminal treatise,‘The Nature of the Judicial Process’, stated thus, “It is true that codes and statutes do not render the judgesuperfluous, nor his work perfunctory and mechanical. There aregaps to be filled. There are doubts and ambiguities to be cleared.There are hardships and wrongs to be mitigated if not avoided.”

The above could be a pointer towards the preemptive functionsof the NGT as a sui generis body.

XI. ENVIRONMENTAL JUSTICE AND ENVIROMENTALEQUITY

27.1 The conceptual frameworks of environmental justice andequity should merit consideration vis-à-vis the NGT’s domain and howits functioning and decisions can have wide implications in socio-economicdimensions of people at large. The concept of environmental justice is atrifecta of distributive justice, procedural justice and justice asrecognition.[25 ]Environmental equity as a developing concept has focusedon the disproportionate implications of environmental harms on theeconomically or socially marginalized groups. The concerns of humanrights and environmental degradation overlap under this umbrella term,to highlight the human element, apart from economic and environmentalramifications. Environmental equity thus stands to ensure a balanceddistribution of environmental risks as well as protections, includingapplication of sustainable development principles.

25 Schlosberg D, Defining Environmental Justice: Theories, Movements, and Nature(Oxford University Press 2009)

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A27.2 Voicing concerns about the disproportionate harm for thepoor segments, Lois J. Schiffer (then Assistant Attorney General,Environment & Natural Resources Division (ENRD), U.S. Departmentof Justice) and Timothy J. Dowling (then Attorney at ENRD) in theirReflections on the Role of the Courts in Environmental Law, wrotethe following evocative passage on the concept of environmental justice,B

“Environmental Justice, which focuses on whether minorities andlow-income people bear a disproportionate burden of exposure toenvironmental harms and any resulting health effects. In the pastten to fifteen years, this issue has crystallized a grass-rootsmovement that combines civil rights issues with environmentalCissues, with a goal of achieving “environmental justice” or“environmental equity,” which is understood to mean the fairdistribution of environmental risks and protection fromenvironmental harms.”[26]

27.3 There is also a need to focus on the interconnection betweenprinciples of procedural justice and distributive justice. The concern is toDcreate a system which is affirmative enough to balance thedisproportionate wielding of power between polluters and affected people.

“Environmental justice starts with distributive justice, or moreaccurately, distributive injustice. The rich and powerful derive themost benefit while suffering the least harm from environmentallyEharmful activities; conversely, the poor and minorities derive theleast benefit but suffer the most harm.Further, those who benefitcause harm to the places where people “live, work, play, and goto school,” whereas the people who reside there do little or nothingto harm their community.” [27]

When substantive justice is elusive for a large segment, disengagingFwith substantive rights at the very altar, for a perceived procedural lacuna,would surely bring in a process, which furthers inequality, both economicand social. An “equal footing” conception may not therefore be feasibleto adequately address the asymmetrical relationship between the pollutersand those affected by their actions. Instead, a recognition of the historicalGexperience of marginalized classes of persons while accessing andeffectively using the legal system, will allow for necessary appreciationof social realities and balancing the arm of justice.

26 Schiffer, L. J., & Dowling, T. J. (1997). Reflections On The Role Of The Courts InEnvironmental Law. Environmental Law, 27(2), 327–342.27 Jeff Todd, A “Sense of Equity” in Environmental Justice Litigation, 44 HARV. ENVTL.HL. REV. 169, 193 (2020).

27.4 The law must be interpreted in such a manner as to fosterfurther development of existing legal concepts by incorporating this senseof equity. The issues which this Court has had the occasion to examinehave highlighted the limitations of the mechanisms to reach to the heartof environmental concerns. This Court has previously moulded thejurisdictional jurisprudence in favour of larger societal interest, whetherthat be in the form of ‘Public Interest Litigation’ or widening the scopeof locus standi.

“The identification of potential environmental justice issues is veryimportant in determining how our enforcement efforts are workingin minority and low-income communities, and whether they arecomparable to the enforcement efforts in other communities.” [28]27.5 In the backdrop of the above weighty concerns, this Courtshould advert to what Schiffer and Dowling have stated on the ‘Blindfoldof Lady Justice’, which symbolizes “the ideal of administering equaljustice to everyone who comes to our Courts, regardless of race,creed, or economic class.”[29] The relevance of this concept is particularlyapposite when we consider the inability of most marginalized communities,to access the legal machinery.

IX. ENVIRONMENTAL JURISPRUDENCE IN INDIA

IX. ENVIRONMENTAL JURISPRUDENCE IN INDIA

28.1 Proceeding with the above understating, we can comfortablyplace the NGT within the rubric of the larger environmental jurisprudencewhich has been informing this unique institution. The role of this Court inestablishing the legal connect between matters of environmental concernand fundamental rights of citizens, has produced much academic literature.Amongst others, Armin Rosencranz and Shyam Divan in their writing-Environmental Law And Policy In India, have noted that the field oflaws pertaining to environmental concerns has been a fairly fertile groundfor judicial innovations by this Court; moving the concept of Environmentallaw from the realm of torts to interlink it with fundamental rights[30],liberalizing the concept of locus standi in environmental matters,exercising suo motu powers to reign in polluters, using expert committeesto monitor implementation of Court orders, etc.[31]

28 Supra Note 26.

29 Ibid

30 Rural Litigation And Entitlement Kendra & Ors V. State Of U. P. & Ors AIR 1985 SC652,Charan Lal Sahu Vs. Union of India (1990) 1 SCC 613, Virender Gaur Vs. State ofHaryana (1995) 2 SCC 577

31 See M.A.A. Baig, Environmental Law And Justice(1996). Domenico Amirante,Environmental Courts In Comparative Perspective: Preliminary Reflections On TheNational Green Tribunal Of India (2012). M.K. Ramesh, Environmental Justice: CourtsAnd Beyond, Indian Jo. Of Envtl. L. 20(2002).

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A28.2 By expanding the scope of Articles 21, 32, 48A, 51A(g), thisCourt has guaranteed the right to a pollution free environment for aholistic existence.[32] Most crucially, the expansion of Right to Life underArticle 21 by this Court has become a touchstone to determine manyenvironmental concerns. In Subhash Kumar Vs. State of Bihar, thisCourt explicitly held the following,B

“Right to life is a fundamental right under Article 21 of theConstitution and it includes the right of enjoyment of pollution freewater and air for full enjoyment of life.”[33]

28.3 Adopting international principles and moulding them to IndianCrealities also became a focal concern, given the lacunae in regimes whichmay be exploited by those who may not have much concern forenvironmental degradation. Creation of the ‘Absolute LiabilityPrinciple’[34] by this Court is a well recognized testament for this. Itwould thus be appropriate to state that much of the principles, institutionsand mechanisms in this sphere have been created, on account of thisDCourt’s initiative.

“The constitutionally-protected fundamental right to life and libertyhas been extended through judicial creativity to cover unarticulatedbut implicit rights such as the right to a wholesome environment.. . .The right was recognized as part of the right to life in 1991. .E. . The court has since fleshed out the right to a wholesomeenvironment by integrating into Indian environmental jurisprudencenot just established but even nascent principles of internationalenvironmental law.”[35]

28.4 It has been noted that the Supreme Court adopted the role ofFan “amicus environment” by threading together human rights andenvironmental concerns, resultingly developing a sui generisenvironmental discourse.[36] There were both procedural and substantiveinnovations made, by entertaining PIL petitions, seeking remedies, G32 Maheshwara Swamy, N. Law Relating to Environmental Pollution and Protection.India, Thompson Reuters, Vol.I, Ed.5.33 (1991) 1 SCC 74.34 M.C. Mehta vs. Union of India, 1987 SCC (1) 395.35 Rajamani, Lavanya. 2007. Public Interest Environmental Litigation in India: ExploringIssues of Access, Participation, Equity, Effectiveness and Sustainability. Journal ofEnvironmental LawH36 Supra, Note 19.

including guidelines and directions in the absence of legislation. Many ofthe landmark cases which hold the fort to this day, were in recognition ofthe ‘at risk’ nature of some populations. The creation of the NGT itselfwas due in large part to the need expressed by this Court for such aforum.[37]

28.5 Justice T.S. Doabia in Environmental & Pollution Laws inIndia, has highlighted the larger societal concerns which have informedthis Court’s deliberation when dealing with environmental matters, “The Supreme Court of India, in its interpretation of Article 21 ofthe Constitution of India, has facilitated the emergence of anenvironmental jurisprudence in India, while also strengtheninghuman rights jurisprudence.

...The Courts have successfully isolated specific environmentallaw principles upon the interpretation of Indian statutes and theConstitution, combined with a liberal view towards ensuring socialjustice and the protection of human rights. The principles haveoften found reflection in the Constitution in some form, and areusually justified even when not explicitly mentioned in the statuteconcerned.” [38]

28.6 Environmental jurisprudence in India has therefore beenintrinsic to advancing a democratic, welfare oriented legal regime. Issuesaffecting the ecology and the environment must have a broad perspectiveand should have a society centric approach. Furthermore, the very natureof ecological and environmental issues has the propensity for rapiddeterioration. Many such sensitive matters, as has been noted, stoodtransferred to the NGT, with the aim that those would be dealt withexpediently with the required technical expertise and legal sophistication.The proactiveness of the superior Court was surely expected to be seenin the Tribunal’s approach.

28.7 Analyzing the concept of the functioning of the NGT and itsrole within the broader concept of the environmental rule of law, JusticeD.Y. Chandrachud speaking for a three judges Bench in H.P. Bus Stand 37 M.C. Mehta vs. Union of India (1986) 2 SCC 176, Indian Council for Environmental-Legal Action v. Union of India (1996) 3 SCC 212, A.P. Pollution Control Board vs.M.V. Nayudu (1999) 2 SCC 718, A.P. Pollution Control Board II vs. M.V. Nayudu(2001) 2 SCC 62.

38 Justice T.S. Doabia, Environmental & Pollution Laws in India, 3rd Ed., Vol 2 (2017).

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AManagement & Development Authority vs. Central EmpoweredCommittee[39] so succinctly said that, “40. The environmental rule of law, at a certain level, is a facet ofthe concept of the rule of law. But it includes specific featuresthat are unique to environmental governance, features which areBsui generis. The environmental rule of law seeks to create essentialtools – conceptual, procedural and institutional to bring structureto the discourse on environmental protection. It does so to enhanceour understanding of environmental challenges – of how they havebeen shaped by humanity’s interface with nature in the past, howthey continue to be affected by its engagement with nature in theCpresent and the prospects for the future, if we were not to radicallyalter the course of destruction which humanity’s actions havecharted. The environmental rule of law seeks to facilitate a multi–disciplinary analysis of the nature and consequences of carbonfootprints and in doing so it brings a shared understanding betweenscience, regulatory decisions and policy perspectives in the fieldDof environmental protection. It recognizes that the ‘law’ elementin the environmental rule of law does not make the conceptpeculiarly the preserve of lawyers and judges. On the contrary, itseeks to draw within the fold all stakeholders in formulatingstrategies to deal with current challenges posed by environmentalEdegradation, climate change and the destruction of habitats. Theenvironmental rule of law seeks a unified understanding of theseconcepts.”

28.8 It is this environmental rule of law that has been encapsulatedwith the NGT’s creation at this Court’s behest. Professor DomenicoFAmirante in a comparative analysis of similar bodies across the world,notes that, “With reference to the judicial enforcement of environmental law– which as we have seen should be considered an importantcondition not only for sustainable development but also for thesustainability of the legal environmental order – the National GreenGTribunal of India seems to be the most comprehensive andpromising among the specialized environmental Courts created inAsia over the last decade.” [40]

39 (2021) 4 SCC 30940 Domenico Amirante, Environmental Courts in Comparative Perspective: PreliminaryHReflections on the National Green Tribunal of India, 29 Pace Envtl. L. Rev. 441 (2012)

The NGT therefore, is the institutionalizationof the developmentsmade by this Court in the field of environment law. These progressivesteps have allowed it to inherit a very broad conception of environmentalconcerns. Its functions therefore, must not be viewed in a cribbed manner,which detracts from the progress already made in the Indianenvironmental jurisprudence.

X. CONCLUSION:

29. Before we set out our conclusion, we acknowledge the ablecontribution of Mr. Anand Grover as amicus curiae, assisted by Ms.Astha Sharma, AOR who were requested to assist the Court on thecentral issue of suo motu jurisdiction of NGT.

30. The NGT Act, when read as a whole, gives much leeway tothe NGT to go beyond a mere adjudicatory role. The Parliament’s intentionis clearly discernible to create a multifunctional body, with the capacityto provide redressal for environmental exigencies. Accordingly, theprinciples of environmental justice and environmental equity must beexplicitly acknowledged as pivotal threads of the NGT’s fabric. TheNGT must be seen as a sui generis institution and not unus multorum,and its special and exclusive role to foster public interest in the area ofenvironmental domain delineated in the enactment of 2010 mustnecessarily receive legal recognition of this Court.

31. The environmental impacts on climate change are gainingincreasing visibility in the shape of uncertain rains, species extinction,loss of natural habitat and so on. These also have the propensity todiminish fresh water resources, reduce agricultural yields and impactpublic health, particularly in the cities. The flooding and erosion in riverineand coastal areas are matters of serious concern. Governmentalassessment of India’s increased vulnerability to such changes in the nearfuture also exists[41] with many countries declaring climate emergenciesand many others being urged to follow suit[42].

32. Therefore, the nature of ecological imbalance which is visibleeven in our own times may cascade, and the unforeseen injustice of the 41 Indian Network for Climate Change Assessment, Climate Change and India: A 4X4Assessment - A sectoral and regional analysis for 2030s, Ministry of Environment andForests, Government of India, 16 November 2010

42 Secretary-General’s Remarks at the Climate Ambition Summit. United Nations. UnitedNations, December 12, 2020.

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Afuture may not be capable of being handled within the frontiers set forthtoday. The long term and very often irreparable environmental damagewhich are expected to be arrested by the NGT, urge this Court to advertto what is termed as the ‘Seventh Generation’ sustainabilityprinciple,or the ‘Great Law of the Iroquois’ (as it originates from theIroquois Tribe) which requires all decision making to withstand for theBbenefit of seven generations down the line.

33. It is vital for the wellbeing of the nation and its people, to havea flexible mechanism to address all issues pertaining to environmentaldamage and resultant climate change so that we can leave behind abetter environmental legacy, for our children, and the generationsCthereafter.

34. In circumstances where adverse environmental impact maybe egregious, but the community affected is unable to effectively get themachinery into action, a forum created specifically to address suchDconcerns should surely be expected to move with expediency, and of itsown accord. The potentiality of disproportionate harm imposes a higherobligation on authorities to preserve rights which may be waylaid due tosuch restrictive access. It is also noteworthy that the “global impactsof climate change will fall disproportionately on minority and low-income communities”.[43] Thus, an affirmative role, beyond mereEadjudication at the instance of applicant, is certainly required for servingthe ends of environmental justice, as the statute itself requires of theNGT. We cannot validate an argument which furthers uncertainty tojustify the role of a spectator, if not inaction, and would most assuredlyresult in injustice.F35. The NGT, with the distinct role envisaged for it, can hardlyafford to remain a mute spectator when no-one knocks on its door. Theforum itself has correctly identified the need for collective stratagem foraddressing environmental concerns. Such a society centric approachmust be allowed to work within the established safety valves of theGprinciples of natural justice and appeal to the Supreme Court. The hands-off mode for the NGT, when faced with exigencies requiring immediateand effective response, would debilitate the forum from discharging itsresponsibility and this must be ruled out in the interest of justice.

36. It would be procedural hairsplitting to argue (as it has been)that the NGT could act upon a letter being written to it, but learningabout an environmental exigency through any other means cannot triggerthe NGT into action. To endorse such an approach would surely berendering the forum procedurally shackled or incapacitated.

37. When the Registry of the NGT does indeed receive acommunication or letter, including matters published in media, it maycause to initiate suo motu action by inviting attention of NGT to suchmatters in the form of office report. Such circumstances would howeverrequire a notice to be given to the sender of the communication or authorof the news item, as the case may be, to assist the NGT in the course ofhearing and to substantiate the factual matters. It must also be said thatthe exercise of suo motu jurisdiction does not mean eschewing with theprinciples of natural justice and fair play. In other words, the party likelyto be affected should be afforded due opportunity to present their side,before suffering adverse orders.

38. One could admit to the argument of danger of suo motujurisdiction, if the NGT was acting outside its domain. But when it islegitimately working within the contours of its statutory mandate andwith procedurals safeguards clarified above in play, the nature of thetrigger itself viz. a letter or a ‘suo motu’ initiation, cannot be the basis tocurtail the role and responsibility of the specialized forum.

39. Institutions which are often addressing urgent concerns gainlittle from procedural nitpicking, which are unwarranted in the face ofboth the statutory spirit and the evolving nature of environmentaldegradation. Not merely should a procedure exist but it must bemeaningfully effective to address such concerns. The role of such aninstitution cannot be mechanical or ornamental. We must therefore adoptan interpretation which sustains the spirit of public good and not renderthe environmental watchdog of our country toothless and ineffective.

40. Let us now hark back to the dialogues of the two protagonists,in Waiting for Godot, the play written by Samuel Beckett with which,we started this judgment. At the end of the deliberations, we find ourselvessaying that the National Green Tribunal must act, if the exigencies sodemand, without indefinitely waiting for the metaphorical Godot to knockon its portal. The preceding discussion advises us to answer the pointedquestion in the affirmative. It is accordingly declared that the NGT is A

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Avested with suo motu power in discharge of its functions under theNGT Act.

41. Having answered the common legal issue involved in all thesecases regarding the suo motu jurisdiction of NGT, we direct delinking ofthese cases for now being heard separately on merits. Indeed, if theBcases(s) emanate from same/common order of NGT, such case(s) beheard together. Registry may do the needful and post the matters on25.10.2021 for direction and fixing date of hearing, before the Benchpresided over by one of us (Justice A.M. Khanwilkar). For the purposeof further hearing, the respective cases shall not be treated as part-heard before this Bench.

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