Supreme Court of India
SANGHAR ZUBER ISMAIL versus MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE AND ANOTHER on 31 August 2021
[2021] 8 S.C.R. 525
SANGHAR ZUBER ISMAIL
v.
MINISTRY OF ENVIRONMENT, FORESTS ANDCLIMATE CHANGE AND ANOTHER
(Civil Appeal No. 4543 of 2021)
AUGUST 31, 2021
[DR DHANANJAYA Y CHANDRACHUD, M R SHAHAND HIMA KOHLI, JJ.]
Environmental law: Marine environment – Environmentalclearance granted on 5 January 2021 in favour of the secondrespondent (project proponent) for expansion of capacity of itsrefinery situated in the petro-chemical complex at Vadinar, DistrictDevbhumi Dwarka, Gujarat from 20 MMTPA to 46 MMTPA –Appellant challenged before the NGT that the expansion was likelyto cause an adverse impact on the marine environment, both in termsof the mangroves and marine biology – Based on the statement ofproject proponent that all the EC conditions would be duly compliedwith and due mitigation measures would be taken to ensure the safetyof mangroves and marine environment, NGT proceeded to observethat it did not find any ground to interfere with the grant of the EC– It, however, directed the project proponent to ensure that allnecessary safeguards are adopted and EC conditions are dulycomplied with – A three member Committee was constituted in thatregard – Held: The NGT merely based its conclusion on the statementwhich was made by the project proponent and did not conduct anindependent appraisal of the grounds of challenge – NGT did notdeal with the substantive grounds of challenge in the exercise of itsappellate jurisdiction – Constitution of an expert committee did notabsolve the NGT of its duty to adjudicate – The adjudicatoryfunction of the NGT cannot be assigned to committees, even expertcommittees – The decision has to be that of the NGT – The NGT hasbeen constituted as an expert adjudicatory authority under an Actof Parliament – The discharge of its functions cannot be obviatedby tasking committees to carry out a function which vests in theNGT.
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ACIVIL APPELLATE JURISDICTION: Civil Appeal No.4543 of2021.
From the Judgment and Order dated 08.06.2021 of the NationalGreen Tribunal, Principal Bench, New Delhi, in Appeal No.5 of 2021(WZ).B
Purvish Jitendra Malkan, Ms. Dharita P Malkan, Ms. DeepaGorasia, Alok Kumar, Ms. Nandini Chhabra, Ms. Bhavna Sarkar,Ms. Khushboo Vinodray Malkan, Advs. for the Appellant.
Dhruv Mehta, Sr. Adv., Somiran Sharma, Advs. for theRespondents.C
The following Order of the Court was passed
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O R D E R
DR DHANANJAYA Y CHANDRACHUD, J.
1. Admit.
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2. This appeal arises from a judgment of the National GreenTribunal dated 8 June 2021 at the Principal Bench, NewDelhi.
3. The appeal before the NGT arose from the grant of anEenvironmental clearance on 5 January 2021 in favour ofthe second respondent for the expansion of the capacity ofits refinery situated in the petro-chemical complex at Vadinar,District Devbhumi Dwarka, Gujarat from 20 MMTPA to46 MMTPA. The main challenge before the NGT, asrecorded in paragraph 3 of the decision is that the expansionFwas likely to cause an adverse impact on the marineenvironment, both in terms of the mangroves and marinebiology. The NGT noted that its attention been drawn tothe EIA/EMP study prepared by CSIR–NEERI. Havingextracted from the study, the NGT noted the submission ofGsenior counsel for the second respondent that all the ECconditions would be duly complied with and due mitigationmeasures would be taken to ensure the safety of mangrovesand marine environment.
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4. Having recorded the statement of the second respondent,Hthe NGT proceeded to observe that it did not find any ground to interfere with the grant of the EC. It, however, directedthe project proponent to ensure that all necessary safeguardsare adopted and EC conditions are duly complied with. Athree member Committee was constituted in that regard.
5. The NGT was seized with a substantive appeal under theprovisions of Section 16 of the National Green Tribunal Act2010. Section 16(h) reads thus:
“16. Any person aggrieved by –
(a) to (g)xxxxxxxxx
(h) an order made, on or after the commencementof the National Green Tribunal Act 2010, grantingenvironmental clearance in the area in which anyindustries, operations or processes or class ofindustries, operations and processes shall not becarried out or shall be carried out subject to certainsafeguards under the Environment (Protection) Act1986.”
6. The specific ground before the NGT was that the expansionof the refinery will cause serious hazards to both the marinebiology and to mangroves. The NGT observed that theproject was already in existence and there was nocontinuing grievance against its functioning insofar asenvironmental norms are concerned. This observation wouldnot conclude the issue as to whether the expansion of theproject would have a deleterious impact on the environment.
7. Having regard to the nature of its appellate power, the NGThas to apply its mind to the substantive grounds of challenge.The NGT has merely based its conclusion on the statementwhich has been made by the project proponent and has notconducted an independent appraisal of the grounds ofchallenge.
8. As a matter of fact, Mr Dhruv Mehta, learned seniorcounsel, who appears on behalf of the second respondent,states that the appellant had not produced a copy of thecorrect EIA before the NGT and an application has beenfiled on behalf of the second respondent for clarifying the A
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528SUPREME COURT REPORTS
Aposition. Be that it may, the NGT has not dealt with thesubstantive grounds of challenge in the exercise of itsappellate jurisdiction. Constitution of an expert committeedoes not absolve the NGT of its duty to adjudicate. Theadjudicatory function of the NGT cannot be assigned tocommittees, even expert committees. The decision has toBbe that of the NGT. The NGT has been constituted as anexpert adjudicatory authority under an Act of Parliament.The discharge of its functions cannot be obviated by taskingcommittees to carry out a function which vests in the tribunal.
9. We accordingly allow the appeal and set aside the impugnedCorder dated 8 June 2021. Appeal No 5/2021(WZ) isaccordingly restored to the file of the NGT for disposalafresh. All the rights and contentions of the parties on themerits are kept open.
10. Pending application(s), if any, stand disposed of.D
Devika Gujral
Appeal allowed.
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