Environmental Watchdog | NGT could act upon a letter written to it but cannot be triggered suo motu on learning about an environmental exigency? Supreme Court Verdict

Supreme Court of India: The Bench of A.M. Khanwilkar, Hrishikesh Roy and C.T. Ravikumar, JJ., considered the question, Whether the National Green Tribunal has the power to exercise Suo Motu jurisdiction in the discharge of its functions under the National Green Tribunal Act, 2010?

“NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks its door.”

“…adopt an interpretation which sustains the spirit of public good and not render the environmental watchdog of our country toothless and ineffective.”


Backdrop


NGT took suo motu cognizance of the article titled “Garbage Gangs of Deonar: The Kingpins and Their Multi-Crore Trade” in the online news portal, The Quint.

After the registration of the above-stated case, steps were taken for inspection of the Deonar Dumping Site by the representative of the Central Pollution Control Board, Maharashtra Pollution Control Board, the District Collector of the area and also the representative of the Municipal Corporation of Greater Mumbai.

In the above matter, NGT noted that ‘damage to the environment and public health is self-evident’ and ordered MCGM to pay compensation of Rs 5 crores.

This Court while entertaining the Civil Appeal of MCGM, ordered stay on the operation of NGT’s order and thereafter arranged for analogous consideration of cases where common threshold jurisdictional issue arose on NGT’s power to exercise suo motu jurisdiction.

NGT cannot act on its own motion or exercise power of judicial review or act suo motu?

Mukul Rohatgi, Dushyant Dave, Jaideep Gupta, Dhruv Mehta, Atmaram Nadkarni, Krishnan Venugopal, V. Giri, Sajan Poovayya and Sidhartha Dav, Senior Counsel together with E.M.S Anam, Amrita Sharma, S. Thananjayan took the common stand and argued that, NGT being a creature of the statute, the forum cannot assume inherent powers as under Articles 32 and 226 and its domain is circumscribed by the limitations so imposed.

Further, they argued that NGT has an adjudicatory role to decide disputes which necessarily mean the involvement of two or more contesting parties.

Therefore, the NGT by acting suo motu cannot transpose itself to the shoes of one such party.

Stand taken by Amicus Curiae

Senior Counsel Anand Grover, who was appointed as Amicus Curiae acknowledged the role and position under the Act and its wide jurisdiction over environmental matters but he opined that the NGT was incapable of triggering action on its own.

“The NGT cannot act suo motu without someone moving the Forum as otherwise the forum then would be perceived to be judging its own cause.”

— Senior Counsel, Anand Grover

Stand taken by Additional Solicitor General of India

On behalf of Aishwarya Bhati, Additional Solicitor General of India, it was submitted that Suo Motu power is not exercisable by the NGT since the same has not been conferred on the forum under the NGT Act.

ASG added that the tribunal was not vested with suo motu power to take action on its vested with suo motu power to take actions on its own unlike the High Courts and the Supreme Court.

Specific Grounds of Challenge

  • NGT is a creature of the statute and just like other such statutory tribunals, the NGT is also bound within statutory confines.
  • Act is applicable to ‘disputes’ as, necessarily referring to a lis between two parties. The function of Section 14 of the NGT Act is available only to adjudicate upon disputes, as in an adversarial system but not for any other ameliorative, restorative or preventative functions.
  • Lack of general power of Judicial Review. NGT, as a Tribunal with prescribed authority under. Statute does not have any general power of judicial review. Hence, it is not within the category of writ courts as under Articles 226 and 32 of the Constitution of India.

Crux of the Court’s Discussion

Superior Courts exercising discretionary powers under Article 32 and Article 226, to safeguard fundamental rights, can venture into judicial review. But such power not being expressly conferred on the NGT would suggest the limited nature of the Forum’s powers, which would exclude any suo motu exercise.

Power of Moulding relief

“Unlike Civil Courts which cannot travel beyond the relief sought by the parties, the NGT is conferred with power of moulding any relief.”

Provisions show that the NGT is vested with the widest power to appropriate relief as may be justified in the facts and circumstances of the case, even though such relief may not be specifically prayed for by the parties.

Non-Adjudicatory Roles of NGT

Parliament intended to confer wide jurisdiction on the NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by the High Courts under Article 226 of the Constitution or by the Supreme Court under Article 32 of the Constitution.

NGT is not just an adjudicatory body but has to perform wider functions in the nature of prevention, remedy and amelioration.

Even in the absence of harm inflicted by human agency, in a situation of a natural calamity, the Tribunal will be required to devise a plan for alleviating damage.

In the Supreme Court decision of Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India, (2012) 8 SCC 326, Court mandated transfer of all cases concerning the statutes mentioned in Schedule I of the NGT Act to the specialized forum as otherwise there can be conflicts with the High Courts. Notably, some of those cases were originally registered suo motu by the Courts.

Detailed Analysis | Exercise of Suo Motu Power by NGT


Supreme Court expressed that the Supreme Court and High Courts can foray into any issues under their constitutional mandate but the NGT cannot naturally travel beyond its environmental domain in reference to the scheduled enactments.

As long as the sphere of action is not breached, the NGT’s powers must be understood to be of the widest amplitude.

 The purpose of constituting the special court to deal with environmental issues was explained in the Supreme Court decision of Mantri Techzone (P) Ltd. v. Forward Foundation, (2019) 18 SCC 494, Court expressed that the Tribunal had special jurisdiction for enforcement of environmental rights.

Exposition in Rajeev Suri v. DDA, 2021 SCC OnLine SC 7, was not to constrict the suo motu powers of the NGT. In this matter, Justice A.M. Khanwilkar observed that,

“NGT is not a plenary body with inherent powers to address concerns of a residuary character. It is a statutory body with limited mandate over environmental matters as and when they arise for its consideration. In a cause before it, NGT cannot directly go on to adjudicate on concerns of violation of fundamental rights and once the contours of a subject matter traverse the scope of appeal from a grant of EC, the merits review by tribunal cannot traverse beyond the scope of jurisdiction vested in it by the statute.”

 Thus, in Court’s opinion, the ratio in the above matter will not clash with the view propounded here as the exposition was not to allow any inherent power of residuary character for the NGT.

In Andhra Pradesh Pollution Control Board v. Prof. M. V. Nayudu (Retd.), (1999) 2 SCC 718, the need for an expert body with extensive functions and the sources of inspiration behind it was articulated.  

Uniqueness of NGT vis-à-vis other Tribunals

Court observed that the forum has a duty to do justice while exercising “wide range of jurisdiction: and the “wide range of powers”, given to it by the statute.

Sui Generis Role of NGT

Bench observed that NGT was conceived as a specialized forum not only as a like substitute for a civil court but more importantly to take over all the environment-related cases from the High Courts and the Supreme Court. Many of those cases transferred to the NGT, emanated in the superior courts and it would be appropriate thus to assume that similar power to initiate suo motu proceedings should also be available with the NGT.

Authority with Self-Activating Capability

Given the multifarious role envisaged for the NGT and the purposive interpretation which ought to be given to the statutory provisions, it would be fitting to regard the NGT as having the mechanism to set in motion all necessary functions within its domain and this, as would follow from the discussion below, should necessarily clothe it with the authority to take suo motu cognizance of matters, for effective discharge of its mandate.

NGT is not required to be triggered into action by an aggrieved or interested party alone.

Court stated that the exercise of power by the NGT is not circumscribed by receipt of application.

When substantial questions relating to the environment arise and the issue is civil in nature and those relate to the enactments in Schedule I of the Act, the NGT even in the absence of an application, can self-ignite action either towards amelioration or towards prevention of harm.

Bench found merit in the arguments that Section 14(1) exists as a standalone feature, not constricted by an operational mechanism of the subsequent subsections.

To be effective in its domain, we need to ascribe to the NGT a public responsibility to initiate action when required, to protect the substantive right of a clean environment and the procedural law should not be obstructive in its application.

Precautionary Principle

  • Tribunal is itself required to carry out preventive and protective measures, as well as hold governmental and private authorities accountable for failing to uphold environmental interests.

“A narrow interpretation for NGT’s powers should be eschewed to adopt one which allows for full flow of the forum’s power within the environmental domain.”

Conclusion


NGT 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 of environmental domain delineated in the enactment of 2010 must necessarily receive legal recognition of this Court.

Long term and very often irreparable environmental damage which are expected to be arrested by the NGT, urge this Court to advert to what is termed as the ‘Seventh Generation’ sustainability principle, or the ‘Great Law of the Iroquois’ which requires all decision making to withstand for the benefit of seven generations down the line.

It is vital for the wellbeing of the nation and its people, to have a flexible mechanism to address all issues pertaining to environmental damage and resultant climate change so that we can leave behind a better environmental legacy, for our children, and the generations thereafter.

Reasoning out the Primary Question:

Supreme Court also observed that,

In circumstances where adverse environmental impact may be egregious, but the community affected is unable to effectively get the machinery into action, a forum created specifically to address such concerns should surely be expected to move with expediency, and of its own accord.

Bench while making the above observations added that,

The hands-off mode for the NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice.

Expressing further, the Court stated that, it would be procedural hairsplitting to argue (as it has been) that the NGT could act upon a letter being written to it, but learning about an environmental exigency through any other means cannot trigger the NGT into action.

The exercise of suo motu jurisdiction does not mean eschewing with the principles of natural justice and fair play. The party likely to be affected should be afforded due opportunity to present their side, before suffering adverse orders.

Emphasising further, the Court enunciated that,

Institutions which are often addressing urgent concerns gain little from procedural nitpicking, which are unwarranted in the face of both the statutory spirit and the evolving nature of environmental degradation.

Final Words


NGT is vested with suo motu power in discharge of its functions under the NGT Act. [Municipal Corpn. Of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897, decided on 7-10-2021]

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