NGT can direct Pollution Board to exercise its powers under Section 5 of Environment (Protection) Act: Supreme Court


Supreme Court: In an appeal filed by an oil marketing company against the judgment and order passed by the National Green Tribunal (‘NGT’), wherein it directed the Central Pollution Control Board (‘CPCB’) as well as the State Pollution Control Boards to issue directions to make it mandatory to obtain Consent to Establish (‘CTE’) (i.e. prior permission of the pollution control board to begin the work of construction of petrol retailing outlet at any place), and the Consent to Operate (‘CTO’) (i.e after the establishment of the retail petroleum outlets, a certificate is issued permitting to commence operation), for new retail petroleum outlets as well as the existing retail petroleum outlets, the division bench of Sudhanshu Dhulia and J.B. Pardiwala*, JJ. held that the NGT has the power to direct the CPCB that it should exercise its powers under Section 5 of the Environment (Protection) Act, 1986 (‘Act 1986’) for the purpose of protecting the environment, however, it modified the impugned directions issued by the NGT as contained in para 69(iii) and 69(iv) of the impugned order.

The issue is whether the NGT has the jurisdiction to direct the CPCB that it should in exercise of its powers under Section 5 of Act 1986 making it mandatory to obtain the CTE and CTO for all the petroleum retail outlets across the country?

The Court took note of the Scheme of the NGT Act, 2010, and said that as per Sections 14 to 20 the NGT has both original as well as appellate jurisdiction. Further, it said that Section 3 of the Act 1986 expressly empowers the Central Government or its delegate to “take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment…” Section 5 provides the Central Government or its delegate with the power to issue directions for achieving the objectives of the Act. Thus, read with the wide definition of “environment” in Section 2(a), Sections 3 and 5 provides the Central Government with all such powers as are “necessary or expedient for the purpose of protecting and improving the quality of the environment”.

The Court noted that the Central Government has framed the National Green Tribunal (Practices and Procedures) Rules, 2011, and relied on Municipal Corporation of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897 wherein it was held that “the said Rules make it clear that the NGT has been given wide discretionary powers to secure the ends of justice. This power is coupled with the duty to be exercised for achieving the objectives. The intention understandably being to preserve and protect the environment and the matters connected thereto”

The Court further took note of Section 21 of the Air (Prevention and Control of Pollution) Act, 1981, that places restrictions, both on establishment and operation of any industrial plant located in an air pollution control area without previous consent of the Board and said that the legislative intent behind this provision would lead to decipher two concepts-the consent for the purpose of establishing an industrial plant, while the other for operation of that plant. The purpose of this Section is to ensure that when a unit or an industrial plant is given consent to operate, the unit ought to have satisfied all the conditions stated in the order of consent to establish and would have installed the requisite effluent treatment plants and other anti-pollution devices to ensure that it causes no pollution.

The Court held that the NGT was well within its powers and jurisdiction to issue the said directions. However, the Court went on to address whether the impugned directions are reasonable and whether the same may lead to unnecessary harassment and cause immense hardships to the retail outlets.

The Court said that it is not inclined to disturb the impugned directions issued by the NGT, regarding installation of the Vapour Recovery Device circular and directed the CPCB to ensure that these directions are scrupulously followed and complied with. The Court held that it is not necessary to make obtaining of CTE and CTO mandatory and directed the CPCB to ensure that its guidelines are scrupulously followed and once the guidelines are scrupulously adhered to, no direction to obtain CTE and CTO for starting/operating a petroleum outlet is warranted.

The Court issued the following directions:

  • CPCB shall ensure that the directions issued by the NGT as contained in para 69(i) and (ii) of the impugned order are fully complied with.

  • The State Pollution Control Boards must ensure that the directions issued by the NGT about the installation of the VRS mechanism are complied with within the fresh timeline as prescribed by the CPCB.

[Indian Oil Corporation Limited v VBR Menon, 2023 SCC OnLine SC 257, decided on 14-03-2023]

*Judgment authored by Justice J.B. Pardiwala.

Know Thy Judge| Justice J B Pardiwala

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