PROJECT

ON

Environment Courts & Tribunals

vis-à-vis National Green Tribunal

Submitted To Submitted By

Dr. Sabina Tanya

B.A. L.L.B

8th Semester

18/18

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 ACKNOWLEDGEMENT

The success and outcome of this presentation required guidance and I am

privileged to have the requisite assistance for the completion of my assignment.
I respect and thank Dr. Sabina for providing me with an opportunity to do the
assignment on “Jurisdiction of National Green Tribunals”. I am extremely
thankful to her for providing me with relevant information and direction. I am
grateful and fortunate to get constant encouragement and suggestions. I would
also like to acknowledge all those who provided me with kind support and help
to complete this project. Any omission in this brief acknowledgement does not
mean a lack of gratitude.

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 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................
NATIONAL GREEN TRIBUNAL: INDIA’S MODEL OF ECT……………………..7
DEVELOPMENT OF NATIONAL GREEN TRIBUNAL....................................................
COMPOSITION.....................................................................................................................
JURISDICTION OF NGT.......................................................................................................
TERRITORIAL JURISDICTION........................................................................................
SUBJECT-MATTER JURISDICTION...............................................................................
APPELLATE JURISDICTION............................................................................................
POWER TO GRANT RELIEF, COMPENSATION AND RESTITUTION………12
BAR OF JURISDICTION....................................................................................................
APPEAL TO THE SUPREME COURT..............................................................................
JURISDICTIONAL ISSUES...................................................................................................
CONFLICT WITH HIGH COURT’S JURISDICTION......................................................
CASE ANALYSIS...................................................................................................................
Tamil Nadu Pollution Control Board V. Sterlite Industries (I) Ltd. & Ors..........................
Civil Appeal Nos.4763-4764 Of 2013..................................................................................
Environment Support Group & Anr. v. National Biodiversity Authority & Ors.................
IA No. 8599/2021 (Order Dated 13-04-2021)......................................................................
Ms. Betty C. Alvares v. The State of Goa & Ors…………………………………...19
OVERSTEPPING THE JURISDICTION (SUO-MOTU POWERS)......................................
CONCLUSION....................................................................................................................
JURISDICTION OF ENVIRONMENT COURTS IN OTHER COUNTRIES
22

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 I. INTRODUCTION
a) THE DEVELOPMENT OF ENVIRONMENTAL LEGISLATION

“Through adequate, publicly promulgated environmental legislation, fairly enforced and

independently adjudicated, the environmental rule of law reduces corruption, ensures
accountability to the law, fairness in the application of the law, separation of powers,
participation in decision-making, respect for human rights and delivers environmental
justice.”
~UN Environment Assembly of the UN Environment Programme
The concept of environmental protection is not new. In India particularly, it has its roots
deeper in history when Bishnois of Rajasthan sacrificed their lives to save trees in 1730 and
the famous Chipko movement that began in 1973 in the Kumano and Garhwal region of
Uttarakhand State. At the international level too, the 1970s was a time of growing public
awareness and concern about environmental quality, human health and the natural world and
this led to increased public advocacy for more effective actions by governments. In response,
international organizations and many nations rapidly developed a body of environmental
standards, laws, regulations, policies and institutions. In India, Articles 48A and Article 51A
(g) were added to the Constitution through 42nd Amendment Act of 1976. The Constitution of
India through its Directive Principles of State Policy stipulates that “it is the duty of the
state to protect and improve the environment and to safeguard the forests and wildlife of the
country and bestow upon the citizens the fundamental duty to protect the environment”. To
further implement the decisions held at Stockholm in 1972 (The United Nations Conference
on Environment), the Parliament in 1986 enacted the Environment (Protection) Act, to
“provide for the protection and improvement of environment” and for the purpose of
“prevention of hazards to human beings, other living creatures, plants and property”.
Supplementing the Act are various legislations that aim at preventing the pollution of air 1,
water2, forest3 and provide for the protection of biodiversity4. To provide for effective
distribution and estimation of remedy, the Parliament further enacted the Public Liability
Insurance Act, 1991 that was followed by the National Environment Tribunal Act, 1995
1
The Air (Prevention and Control of Pollution) Act, 1981, The Air (Prevention and Control of
Pollution) Rules, 1982, The Noise Pollution (Regulation and Control) Rules, 2002.
2
The Water (Prevention and Control of Pollution) Act, 1974, The Water (Prevention and Control of Pollution)
Cess Act, 1977, Central Board for the Prevention and Control of Water Pollution (Procedure for Transaction of
Business) Rules, 1975.
3
The Forest (Conservation) Act, 1980, Forest (Conservation) Rules, 2003, The Wild Life (Protection) Act,1972.
4
The Biological Diversity Act, 2002.

4
and the National Environment Appellate Authority Act, 1997. This compendium of
legislative enactments may rightly be termed as the Indian corpus of Environmental law that
rightly forms the cornerstone of Environmental jurisprudence in India. The National Green
Tribunal Act (‘NGT Act’), 2010, was introduced to address the long-felt need for an
alternative platform to provide affordable and timely justice.

b) ENVIRONMENT COURTS AND TRIBUNALS (ECTs)

i) Factors pushing for ECTs

“Law coupled with strong institutions is essential for societies to respond to environmental
pressures and crucial for the international community to address the environmental
challenges of our time.”
~ Elizabeth Mrema, Director, Law Division at the UN Environment

In 1970s, the International Environment Law (IEL) also strengthened to a large extent and
began influencing countries’ domestic environmental law and institutions. The pioneering
1972 Stockholm Declaration, while non-binding, laid the foundations for modern IEL. This
was followed by many significant international environmental law instruments as the 1982
World Charter for Nature, the 1992 Rio Declaration on Environment and Development,
the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-
Making and Access to Justice in Environmental Matters, and UN Environment’s 2010
Guidelines for the Development of National Legislation on Access to Information, Public
Participation and Access to Justice in Environmental Matters (Bali Guidelines) among
others.

These international environmental law instruments provided international standards of best

practice for countries’ environmental governance and gave rise to THE 3
ENVIRONMENTAL “ACCESS RIGHTS” – people’s rights of access to information,
access to public participation and access to justice in environmental matters – now
considered the “3 PILLARS” of the environmental rule of law.

For instance, Principle 10 of 1992 Rio Declaration provides as follows:

“Environmental issues are best handled with participation of all concerned citizens, at the
relevant level. At the national level, each individual shall have appropriate access to
information concerning the environment that is held by public authorities … and the
opportunity to participate in decision-making processes. States shall facilitate and

5
encourage public awareness and participation by making information widely available.
Effective access to justice and administrative proceedings, including redress and remedy,
shall be provided.” (Emphasis added)

The third “pillar” of access rights – access to justice – as articulated in Principle 10 of the Rio
Declaration and refined in the Bali Guidelines is now seen as the primary driver of new
ECTs. International recognition of the interdependence of human rights and environmental
rights also has had a profound impact on environmental law in general and ECT development
in particular. As Justice Winston Anderson of the Caribbean Court of Justice has noted,
“Without environmental integrity any reference to human rights is largely illusory.” The
body of international environmental instruments relating to human rights and the
environment is a potent driver of efforts to enhance access to environmental justice at the
international and domestic law levels.

Civil society is also a major political driver for creating ECTs. As those whose lives,
livelihoods and life styles are on the line, the public has a vested interest in how environment,
health and land use decisions are made, and whether or not those crucial decisions are fair,
effective and enforced. People’s dissatisfaction with the traditional general court system in
many countries – based on public perceptions of delay, bias, inadequate expertise, lack of
political independence, high litigation costs and/ or corruption – is a major reason for civil
society’s push for a new court system. In the simple, but trenchant words of Australian court
law, people want a court that is “just, quick and cheap.” All too often, stakeholders conclude
that the traditional justice system provides limited access to information (despite Freedom of
Information Acts), few opportunities for public participation or access to justice, substantial
delays in deciding a case, huge costs for litigants in time and money, and ultimately delivers
decisions that fail to protect lives, the environment or sustainable development.

Not only are people finding that many general courts and tribunals fail to meet their
expectations, but adjudicators are finding that the complexity of the rapidly growing body of
environmental laws and the necessity of weighing very complicated scientific evidence
quickly is impossible. Faced with overloaded dockets, lack of environmental judicial
knowledge, insufficient staff, and demands for environmental justice, many justices and
judges have become advocates for specialized environmental forums.

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 ii) Positive Features of ECTs

Proponents of ECTs cite the following “pro” arguments in favour of specialized

environmental adjudication bodies:

1. Expertise: Expert decision makers make better decisions.

2. Efficiency: Greater efficiency, including quicker decisions.

3. Visibility: Shows visible government support for the environment and sustainability and
provides an easily identifiable forum for the public.

4. Cost: Can lower expenses for litigants and the courts.

5. Uniformity: Greater uniformity in decisions, so litigants know what to expect.

6. Commitment: Effectuates government’s commitment to the environment and

sustainability.

7. Accountability: Greater government accountability to the public.

8. Prioritization: Ability to prioritize and move on cases that are urgent.

9. Creativity: Can adopt rules allowing for innovative and flexible procedures and remedies.

10. Alternative Dispute Resolution: Broadens ability to use ADR and other non-adversarial
dispute resolving processes, including restorative justice, to provide win-win enforceable
agreements.

11. Public Participation: Involvement of the public can be increased, reinforcing one of the
critical access pillars to justice.

12. Public Confidence: The public’s confidence in the government and the judicial system
can be increased, so that members of society are more likely to bring concerns to the system.

13. Judicial Activism: Can apply new international principles of environmental law and
natural justice as well as national/local law.

II. NATIONAL GREEN TRIBUNAL: INDIA’S MODEL OF ECT

There is no one best model for an ECT – no “one-size-fits-all” design. Every EC and ET
reflects its national character, culture and legal system. This is understandable because what

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is “best” for each country is an ECT that fits that country’s unique ecological, historical,
legal, judicial, religious, economic, cultural and political environment. It is the model that
results in the most effective dispute resolution process with access to justice for all affected
interests.

India has adopted the model of ECT in the form of National Green Tribunal. The
National Green Tribunal was established in 2010 under Article 21 of the Indian
Constitution, which guarantees Indian citizens’ right to a sustainable environment.
India is the third nation to have such a mechanism after Australia and New Zealand.
The NGT is a specialized fast-track quasi-judicial body made up of judges and
environmental experts.

a) DEVELOPMENT OF NGT

Along with the various factors at the world level prodding for the establishment of
specialized environmental courts and tribunals there were many national factors at work too.
Recognising that most environment cases involve multi-disciplinary issues which are better
addressed in a specialised forum, the Tribunal was setup as per recommendations of the
Supreme Court, Law Commission and India’s international law obligations to develop
national laws on environment and implement them effectively.

In the cases of M.C. Mehta Vs. Union of India5, Indian Council for Enviro-Legal Action Vs.
Union of India6 and A.P. Pollution Control Board Vs. Professor M.V. Nayudu 7, the Indian
Supreme Court (orders of 1986, 1996, 2001) observed that as environmental cases
frequently involve assessment of scientific data, setting up environmental courts on a
regional basis with a legally qualified judge and two experts would help speed the judicial
process.

The Law Commission of India (186th Report 2003) recommended the establishment

of environmental courts in India. This recommendation was based on a review of the
technical and scientific problems that came before the courts and the inadequacy of
judicial knowledge on the scientific and technical aspects of environmental issues.

With the rise of public awareness and concerns about environmental issues, the Indian
judiciary was flooded with litigations. This was further facilitated by the concepts of

5
AIR 1987 SC 965
6
1996 3 SCC 212
7
1992 2 SCC 718

8
‘Social Action Litigation’ and the ‘epistolary jurisdiction’ introduced by the Supreme
Court of India which opened the doors of the Court to wider public by relaxing the
doctrine of locus standi and made the access to the Court easier. This led to the
proliferation of litigations and backlog of cases, which frustrated the cause of
litigations. By the time they were disposed irreparable damage had already been caused
to the environment. This called for an alternative forum having the requisite expertise
to tackle the complexity surrounding such matters for expeditious and effective
disposal of cases. In 1995 the National Environment Tribunal Act was enacted
subsequent to the Rio De Janeiro Conference in 1992, but it proved to be

dysfunctional. In 1997, the National Environment Appellate Authority was

established under the aegis of the Ministry of Environment and Forests, for quick
redressal of public grievances in relation to Environmental Clearances, but eventually
turned out to be ‘woefully ineffective’ and incompetent, non-functional and the
National Environment Tribunal Act which was never implemented.

The NGT replaced the existing National Environment Appellate Authority of the
Ministry of Environment and Forest. At present, the NGT is functional in five
locations. New Delhi is the principal seat of the Tribunal (Principal Bench) and Bhopal
(Central Zone), Pune (West Zone), Kolkata (East Zone) and Chennai (South Zone) are
the other seats of the tribunal as zonal benches. Additionally, the NGT constituted
circuit benches to convene in places, viz. Shimla, Shillong, Jodhpur and Kochi, to hear
cases pertaining to particular states. This was mainly to reduce the constraints of
accessibility, especially for the poor and tribal populations living in remote areas of the
country.

b) COMPOSITION OF NGT

The composition of the National Green Tribunal is given in Section 4 of Chapter II of the
NGT Act, 2010. The tribunal shall consist of a minimum of 10 members and not more than
20 members. This will be in accordance with the notification given by the Central
Government. The members will be a mix of judges and expert members on environmental
issues. In case of any deadlock i.e., the tie between several judges against and in favour of a
decision, the authority will remain in the hands of the chairperson to decide the case
and break the deadlock. Every bench of the tribunal must consist of at least one expert
member and one judicial member.

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The qualification required by the person to become a chairperson is that he should have
been a Supreme Court judge or chief justice of a High Court and to become eligible for
becoming a judicial member of the tribunal the person should have been a judge of the
High court. To be qualified as an expert member of the tribunal a person shall possess
a degree of master of sciences whether physical sciences or life sciences with a
doctorate or masters of technology or masters of engineering having fifteen years of
experience in that field with a five-year experience in fields of environment and
forests.

III. JURISDICTION OF NGT

The NGT has original, appellate, and special jurisdictional powers provided in the Act.
Under Section 14 of the NGT Act, 2010 the tribunal is empowered to entertain
original applications involving substantial questions relating to the environment arising
out of enactments mentioned in Schedule I of the NGT Act.
These enactments as mentioned in Schedule I as follows:

i) The Water (Prevention and Control of Pollution) Act, 1974

ii) The Water (Prevention and Control of Pollution) Cess Act, 1974
iii) The Forest (Conservation) Act, 1980
iv) The Air (Prevention and Control of Pollution) Act, 1981
v) The Environment (Protection) Act, 1986
vi) The Public Liability Insurance Act, 1991
vii) The Biological Diversity Act, 2002

a) TERRITORIAL JURISDICTION

The principal bench of NGT was set up in New Delhi and the other four places were
chosen i.e., Bhopal, Kolkata, Pune and Chennai. These benches of the NGT were given
jurisdiction of different states covering the entire India under its ambit. The Northern
jurisdiction is with Delhi Bench which covers Uttar Pradesh, Uttarakhand, Punjab,
Haryana, Himachal Pradesh, Jammu and Kashmir, National Capital Territory of
Delhi and Union Territory of Chandigarh. The Western jurisdiction is with Pune
Bench that includes Maharashtra, Gujarat, Goa with Union Territories of Daman

10
and Diu and Dadra and Nagar Haveli. The Central jurisdiction is with Bhopal
which covers Madhya Pradesh, Rajasthan and Chhattisgarh. The Eastern
jurisdiction is with Kolkata which includes West Bengal, Orissa, Bihar, Jharkhand,
seven sister States of the North-Eastern region, Sikkim, Andaman and Nicobar
Islands. The Southern jurisdiction is with Chennai that covers Kerala, Tamil Nadu,
Andhra Pradesh, Karnataka, Union Territories of Pondicherry and Lakshadweep.
Initially, established with its Principal Bench at New Delhi, the other benches were
established in different parts of the country to provide access to environmental justice
to a larger population. All the benches have been provided with the jurisdiction to hear
and decide all the environment- related cases arising in their respectively allotted areas.

b) SUBJECT-MATTER JURISDICTION

Section 14 defines the subject matter jurisdiction of the benches of NGT. It stipulates
that ‘Tribunal to settle disputes’ shall have the jurisdiction over all civil cases where a
substantial question relating to the environment (including enforcement of any legal
right relating to the environment), is involved and such question arises out of the
implementation of the enactments specified in Schedule I.
The Tribunal shall hear the disputes arising from the questions referred to in sub-
section (1) and settle such disputes and pass order thereon. No application for
adjudication of a dispute under this Section shall be entertained by the Tribunal unless
it is made within a period of six months from the date on which the cause of action for
such dispute first arose: Provided that the Tribunal may if it is satisfied that the
applicant was prevented by sufficient cause from filing the application within the said
period, allow it to be filed within a further period not exceeding sixty days. The phrase
“substantial question of the environment” has been defined under Section 2(m) of
the NGT Act as follows:
Section 2(m)- “substantial question relating to environment” shall include an
instance where,-
i) there is a direct violation of a specific statutory environmental
obligation by a person by which,-
A) the community at large other than an individual or group of
individuals is affected or likely to be affected by the environmental
consequences; or

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 B) the gravity of damage to the environment or property is substantial;
or
C) the damage to public health is broadly measurable;
ii) the environmental consequences relate to a specific activity or a point
source of pollution;
In Goa Foundation v. Union of India,8 the tribunal defined a substantial question of
law as “a substantial question relating to the environment must, therefore, be a
question which is debatable, not previously settled and must have a material bearing
on the case and its issues relating to environment”.

c) APPELLATE JURISDICTION

Section 16 of the NGT Act vests the appellate powers with the NGT, it empowers it to
hear appeals against the decisions or orders of the authorities established or for any act
directly in violation of the provisions of the Air Pollution Control, Water (Pollution
Control and Cess), Environment Protection, and Biodiversity Acts by any person
aggrieved by such decision. This appeal to the Tribunal must be preferred within thirty
days on which the order or decision or direction or determination is communicated to
him. But if the Tribunal is satisfied that the appellant was prevented by sufficient cause
from filing the appeal within the prescribed period of thirty days then it may give the
extension of not more than 60 days to the appellant for preferring his appeal.

d) POWER TO GRANT RELIEF, COMPENSATION OR RESTITUTION

Section 15 of the NGT Act provides for relief, compensation and restitution. The
tribunal may provide by an order to the victims of pollution and other environmental
damage arising under Schedule-1 (including accident while handling any hazardous
substance) of this Act, for restitution of property damaged, or for restitution of
environment for such area or areas; subject to the discretion of the Tribunal. The relief,
compensation or restitution, if provided, shall be in addition to the relief given under
the Public Liability Insurance Act, 1961.9 The application for any relief,
compensation or restitution shall be ascertained by a Tribunal within 5 years from the
date on which the cause of such compensation or restitution first arises. On the

8
Goa Foundation v. Union of India, Application no 26 of 2012.
9
Section 15(2) of the NGT Act, 2010.

12
satisfaction of sufficient cause, the Tribunal may further extend 60 days to file the
application.10

e) BAR OF JURISDICTION

The civil court shall not interfere with the appellate jurisdiction of the Tribunal, where
the matter or question related to settling a dispute or claim or relief or compensation or
restitution of property damaged or environmentally damaged involved and which may
be adjudicated upon by the tribunal.11

f) APPEAL TO THE SUPREME COURT

The Appeal may be filed before the Supreme Court against any award or decision or
order of the Tribunal, by any aggrieved person within 90 days from the date of
communication of the award or decision or order of the tribunal on any grounds
provided in Section 100 of the Code of Civil Procedure, 1908. Further, this Act
provides discretionary power to the Supreme Court related to appeal as the SC may
entertain any appeal after the expiration of the aforesaid period of 90 days if satisfied
by sufficient cause.12

IV. JURISDICTIONAL ISSUES

a) CONFLICT WITH HIGH COURT’S JURISDICTION

Section 29 of the NGT Act states that the matters falling under the jurisdiction shall
not be heard by any other civil court in the country. Accordingly, all the issues related
to substantial question of law and falling under any of the seven laws given in
Schedule 1 of the NGT Act shall not be heard by any other civil court. The statute
explicitly made a bar on the jurisdiction of the civil courts but no provision explains
the position and power of high courts regarding these issues. This has left the door
open for different interpretations by the high courts on whether to accept any case
which falls under NGT’s jurisdiction.

10
Section 15(3) of the NGT Act, 2010.

11
Section 29 of the NGT Act, 2010.
12
Section 22 of the NGT Act, 2010.

13
In Prakash Roadlines Ltd. v. Union of India,13 the Supreme Court ruled that all the
cases falling under NGT’s jurisdiction shall be heard only by the NGT as it would
reduce the workload of the HCs and also due to the choice of efficient alternate remedy
available with claimants.
In All India Plastic Industries Association v. Government of Tripura,14 the Tripura
High Court transferred a PIL related to environmental issues to the NGT on basis that
it was an expert body constituted for this purpose and Article 226 could not be invoked
if an alternate remedy was available.
While Section 22 of the NGT Act provides that an appeal against any order of NGT
shall lie before the SC, it leaves an area open for interpretations. The Madras HC has
ruled in its order that it can hear appeals against the orders of the NGT as Section 29
ousts the jurisdiction of only civil courts and that Articles 226 and 227 provide it with
the power to hear such appeals and that the high courts can hear such issues. This
brewed a fresh conflict on the issue of jurisdiction regarding NGT whether the High
Courts can intervene in issues related to the environment. However, the SC stayed its
decision in the Bhopal Gas Leak case for reconsideration based on its ruling that the
tribunals are not substitutes to the high courts and carry out only a supplemental role.
It held that despite these tribunals, the High Courts shall continue their jurisdiction
under Articles 226 and 227. Nevertheless, a fresh row of conflict arose with the issue
of widening of National Highway-7 by NHAI. This again brought up the matter of the
clash of jurisdiction between NGT and the High Courts. The Bombay High Court and
the NGT gave contradictory orders to the NHAI in this issue and it saw a confrontation
between the bodies.
In this case, NGT even questioned the Bombay HC that it should not interfere with this
matter as NGT had special jurisdiction over it and the HC also questioned NGT’s
authority to go against it. The Apex Court bench comprising Chief Justice T. S. Thakur,
Justices A. K. Sikri and Justice R. Banumathi heard the plea by NGO opposing the
widening of a stretch on the NH- 7 between Nagpur and Jabalpur. The judges directed
them to appear before the Bombay HC and inform it about the measures needed to be
taken for tiger conservation. This meant that the case will no longer be heard in the
NGT. In some cases, like in Vaamika Island v. UOI,15 SC has justified the intervention

13
AIR 1989 SC 1962
14
W.P. (C) 420 of 2013
15
(2013) 8 SCC 760

14
of HCs in these cases even after NGT came into existence.
In the recent case of State of Andhra Pradesh v. Raghu Ramakrishna Raju 16, the
question of NGT exercising the parallel jurisdiction with that of High Court arose
before the hon’ble Supreme Court.
Facts: The case concerned a plea by the State of Andhra Pradesh challenging an NGT
decision to halt construction work at Rushikonda Hills. Earlier, the NGT had taken
cognizance of the matter following a letter from MP Raghu Rama Krishna Raju, who said
construction on the hills would affect the eco-sensitive zone adversely.

The NGT had formed two committees and the second one was going to file a report on the
environmental viability of the project. Till the report was due, the NGT had stayed
construction. All this happened while the matter is still pending before the Andhra Pradesh
High Court.

The State of Andhra Pradesh challenged the order of NGT before the Supreme Court in this
case.

Issues: A) The Supreme Court in this case considered the question whether or not the NGT
can take up a matter which is already pending before the High Court. B) Another question
before Supreme Court was as to which decision must prevail in case of the conflicting
decisions of both forums.

Judgment: Holding that the orders of the High Court would prevail over Tribunal’s in case
of contradicting orders passed by High Court and NGT, the Supreme Court quashed the
proceedings before National Green Tribunal which halted the construction works at
Rushikonda Hills in Visakhapatnam. “The contradicting orders of High Court and the
National Green Tribunal would leave to anamolous situations, as authorities wouldn’t know
which order to follow. In such a case, orders of the Constitutional Court would prevail over
orders of the Tribunal.”

A bench comprising Justice BR Gavai and Justice Hima Kohli observed that it wasn’t
appropriate on part of NGT to continue proceedings before it specifically when it was pointed
out that the High Court was seized of the matter and has passed orders. Saying that
continuation of proceedings before NGT when the High Court is seized of the same issue will
not be in interest of justice, the bench has directed the parties to move the High Court for

16
Criminal Appeal No. 515 of 2021

15
appropriate orders, and granted liberty to the respondent MP K. Raghu Ramakrishna Raju to
file an application before the High Court.

The Bench noted that NGT was subordinate to the High Court in so far as territorial
jurisdiction is concerned.

V. CASE-ANALYSIS
a) TAMILNADU POLLUTION CONTROL BOARD V. STERLITE
INDUSTRIES (I) LTD. & ORS.17
Facts

The residents near the plant had complained of health problems such as irritation,
throat infection, severe cough, breathing problem, nausea etc. due to emissions from
the plant. The Tamil Nadu Pollution Control Board (TNPCB), on 23 May 2018,
directed the closure of the plant under Section 33-A of the Water Act and Section 31-A
of the Air Act. Subsequently, on 28 May 2018, the Government of Tamil Nadu under
section 18(1)(b) of the Water Act endorsed the TNPCB direction and ordered the
closure of the plant in view of larger public interest. However, the NGT, vide order
dated 15 December, permitted the re-opening of the plant.

Issue

The issue was of maintainability of the respondent’s appeal before the NGT with
respect to the contention that an appeal should have been filed first before the appellate
authority under the Air Act or the National Green Tribunal Act, 2010.

Decision

The Supreme Court bench comprising Justice Rohinton Fali Nariman and Justice
Navin Sinha, in these appeals filed by Tamil Nadu Pollution Control Board dealt with
the jurisdiction of NGT in matters arising out of various provisions of the Air Act and
Water Act. The Supreme Court set aside the order of the National Green Tribunal,
which permitted the re-opening of the Vedanta-Sterlite plant at Tuticorin.

No ‘Leapfrog’ Appeal Jurisdiction

17
Civil Appeal No. 4763-4764 of 2013

16
One of the impugned orders (before the NGT), which rejected renewal of consent to
operate was made under Section 27 of the Water Act and Section 21 of the Air Act. An
appeal is available against such an order before the appellate authority under Section
28 of the NGT Act. There was an appeal pending before the appellate authority. The
Apex court bench observed that while an appeal was still pending before the appellate
authority, the NGT took up a matter directly against the original order which was
challenged before the appellate authority even before the appellate authority could
decide the same.
Justice Nariman observed that these are akin to ‘leapfrog appeal’ provided under
several Acts of United Kingdom if a point of law of general public importance is
involved.
“It is, therefore, clear that no such provisions, as are contained in the U.K. Acts, being
present in any of the Acts that we are concerned with, such leapfrog appeals to the
NGT would necessarily be without jurisdiction”.

NGT Has No General Power of Judicial Review Akin to HCs

Another set of impugned orders were passed by the TNPCB under Sections 33-A and
31-A of the Water Act and Air Act respectively. The statutory scheme is that the
directions issued under Section 33-A of the Water Act are appealable to the NGT,
directions issued under Sec 31-A of the Air Act are not so appealable. In this context,
the bench said that “This being the case, all the aforesaid orders, being composite
orders issued under both the Water Act and the Air Act, it will not be possible to split
the aforesaid orders and say that so far as they affect water pollution, they are
appealable to the NGT, but so far as they affect air pollution, a suit or a writ petition
would lie against such orders…it is not possible for us to provide an appeal where
there is none in the guise of making an appellate system workable in practice”.

Another order which was impugned before NGT was made under Section 18 of the
Water Act. Such an order is not appealable to the NGT either under the Water Act or
under the NGT Act. The court said that such order can only be set aside in a suit by a
Civil Court or under Article 226 of the Constitution of India by a High Court. The
bench also dealt with another contention by Senior Advocate Aryama Sundaram, who
placing reliance on L. Chandra Kumar judgment argued that Tribunals generally have
the power of judicial review, save and accept a challenge to the vires of the legislation

17
under which such Tribunals are themselves set up. Rejecting the said argument, the
bench said that NGT is not a Tribunal set up either under Article 323-A or Article 323-
B of the Constitution, but is a statutory Tribunal set up under the NGT Act.
The bench said that “It is clear, therefore, that under the NGT Act, the Tribunal
exercising appellate jurisdiction cannot strike down rules or regulations made under
this Act. Therefore, it would be fallacious to state that the Tribunal has powers of
judicial review akin to that of a High Court exercising constitutional powers under
Article 226 of the Constitution of India…we are of the view that the NGT has no
general power of judicial review akin to that vested under Article 226 of the
Constitution of India possessed by the High Courts of this country”.
Holding thus, the bench observed that the Government order made under Section 18 of
the Water Act, not being the subject matter of any appeal under Section 16 of the NGT
Act, cannot be “judicially reviewed” by the NGT. The court also rejected another
contention that that as against a writ court acting under Article 226 of the Constitution
of India, the NGT is an expert body set up only to deal with environmental matters. It
said that “An appeal being a creature of statute, an order passed under Section 18 of
the Water Act is either appealable or it is not. If it is not, no general argument as to
the NGT being an expert body set up to hear environmental matters can be of any
help”.

Doctrine of Necessity can not confer Jurisdiction which NGT does not have

The court also disagreed with NGT observation that the doctrine of necessity would
take over if an appellate authority under the Act is not properly constituted so that no
appeal can then be effectively preferred. It said that “If an appellate authority is either
not yet constituted, or not properly constituted, a leapfrog appeal to the NGT cannot be
countenanced. The NGT is only conferred appellate jurisdiction from an order passed
in exercise of the first appeal. Where there is no such order, the NGT has no
jurisdiction”.

b) ENVIRONMENT SUPPORT GROUP & ANR. V. NATIONAL

BIODIVERSITY & ORS.18
A Bench comprising of Chief Justice of India SA Bobde, Justice AS Bopanna and Justice V.
Ramasubramanian were hearing a plea pertaining to an appeal against the Karnataka High
Court’s order wherein a plea challenging Section 40 of the Biodiversity Act had been
18
IA No. 8599/2021 (Order Dated 13-04-2021)

18
transferred by the High Court to NGT, Chennai. The hon’ble Karnataka High Court had held that
–“It is clear and undisputable proposition of law settled by the aforesaid judgment that
special tribunals can be constituted for the purpose of administration and implementation of
particular laws. There is no dispute about the fact that, in the present case, the Biological
Diversity Act, 2002 is expressly covered by Schedule-I and the Tribunal constituted under the
National Green Tribunal Act has the jurisdiction to decide all substantial questions relating
to enforcement of any legal right arising out of implementation of the Act and settle such
disputes and pass orders thereon.”

The Supreme Court observed that the National Green Tribunal (‘NGT’) could not
decide upon and strike down the validity of a law. The SLP in the instant case
challenges the order of transfer of the plea to the NGT. The CJI observed that “Prima
facie we are of the view that the National Green Tribunal cannot strike down a law”.

c) MS. BETTY C. ALVARES VS. THE STATE OF GOA AND ORS.19

Facts and Issues

A complaint regarding various instances of illegal construction in the Coastal Regulation

Zone of Candolim, Goa was made by a personal of foreign nationality. Her name was Betta
Alvarez.

Before the case could be decided on merits the maintainability of the main application was
challenged.

Objections

There were two objections:

1. The first objection was that Betty Alvarez had no locus standi in the matter
because she was not an Indian citizen and thus legally incompetent to file the
petition under Article 21 because as a non-citizen, she has not been guaranteed any
right under the Indian Constitution.

2. The second objection was that the matter was barred by the law of limitation and
should be dismissed. The case was initiated in the Hon’ble High Court of Bombay
19
Misc Application No. 32/2014 (WZ)

19
 Bench at Goa in the form of a PIL but by an order dated Oct 23, 2012, the Writ
Petition was transferred to the National Green Tribunal.

Judgment

 Regarding the first and main objection by the Respondents in this matter, the
Tribunal disagreed from taking a narrow view of the right guaranteed under
Article 21 of the Constitution of India.

 The Tribunal in bold terms stated that even assuming that the Applicant – Betty
Alvarez is not a citizen of India, the Application is still maintainable as she had
filed several other writ petitions and contempt applications before she filed the
present application, in which she had asserted that the Respondents had raised
some illegal constructions by way of which they were encroaching the sea beaches
along with governmental properties.

 Betty by her application sought the demolition of such illegal construction. When
despite finding substance in the complaints of Ms. Betty Alvarez the concerned
authorities did not take the requisite action, the Petitioner approached the High
Court.

 In order to answer the issue about locus standi, the court impressed on a plain
reading of Section 2(j) of the National Green Tribunal Act, 2010, the very act by
which the Tribunal has come into being. Interpreting this section, the Tribunal
found that the word ‘person’ deserves to be construed in a broad sense to include
an individual, whether a national or a person who is not an Indian citizen. The
Court noted that going into the details of Betty’s nationality is not required.

 The Court laid down in very bold terms that once it is found that any person can
file a proceeding related to the environmental dispute, Ms. Betty’s application is
maintainable without regards to the question of her nationality.

VI. OVERSTEPPING THE JURISDICTION (SUO-MOTO

POWERS)
NGT has repeatedly been accused by the Ministry of Environment, Forests and Climate
Change (MoEFCC) and the Central Government for overstepping its jurisdiction.
NGT, in many cases, exercised suo-motu powers. The Act does not provide for these
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powers. The issue concerning Manali-Rohtang Pass was taken up by NGT suo-motu
despite persistent insistence by the government that it was not within its jurisdiction. 20
The Madras High Court ordered NGT to not take up matters on suo-motu cognizance
as it is not within its jurisdiction.21 NGT has taken up many cases related to
environment suo-motu including self-cognizance of supply of dirty and stinky water to
people through pipelines of Delhi Jal Board.22 It also took suo-motu cognizance on
basis of news reports and issued notices to concerned ministries and departments of the
government for their stand on the impact of mining in National Parks but was
consistently reminded by governments of overriding its jurisdiction. 23 The Act provides
it with the power of merit review but not of judicial review. Section 20 empowers it to
ensure compliance of orders given by Central or State governments or government
authorities along lines of polluter pays principle, sustainable development and the
precautionary principle. But it does not have the power to review or to decide the
correctness of environmental rules and regulations or to suggest changes in or strike
down any law of government that violates such principles as it is not within its powers
specified under Section 15(1).
However, in Kalpavriksh v. Union of India,24 it directed the MoEFCC to revise
qualifications for members of the committee for project clearances under EIA
Notifications, 2006. NGT is a tribunal that has been established by a special statute of
the Parliament. It is not equivalent to the superior courts of the country. It has to
function within its statutory limitations and cannot act beyond its scope. The conflict
between NGT and the Government authorities (both Central and State) had reached
such a level that the Central Government (Deputy Secretary, Ministry of Environment
& Forests) submitted an affidavit with the SC that its functioning outside the defined
jurisdiction has caused ‘embarrassment’ to the government in Parliament. SC labelled
this act as ‘nonsense’ after the government asked to withdraw that affidavit due to
widespread criticism faced by it.

20
Dinesh Kumar Maheshwari v. UOI, order dated October 25, 2013.
21
Srestha Banerjee, Madras High Court restrains green tribunal from initiating suo motu proceedings, (Down to
Earth January 8, 2014) <http://www.downtoearth.org.> accessed on 8th June 2022.
22
NGT seeks response from govt on dirty water, Hindustan Times, (June 22, 2015).
23
Tribunal at its own motion v. Ministry of Environment, OA No. 16/2013(CZ), Decision 4 Apr. 2014.
24
Kalpavriksh v. Union of India, Application No. 116 (THC) of 2013.

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 VII. CONCLUSION

a) JURISDICTION OF ENVIRONMENTAL COURTS IN OTHER

COUNTRIES
AUSTRALIAN ENVIRONMENT COURTS (Land and Environment Courts Act,
1979) New South Wales, in a bid to spearhead the movement for the protection of the
environment, enacted the Land and Environment Court Act, 1979 after the Stockholm
Declaration in 1972. This Act established specialized courts to deal with the issues
related to the environment. This is the first model for these environmental courts and
has been followed by many countries. This ‘ideal’ system has created such courts
which have a wide jurisdiction under Section 16 covering the following issues: 1)
Environmental Planning and Protections Appeals; 2) Local Government
miscellaneous appeals and applications; and tree dispute applications; 3) Land
tenure, valuation, rating and compensation matters; 4) Environmental planning and
protection;
b) 5) Environmental planning and protection-criminal enforcement; 6) Appeals
with respect to environmental offences; 7) Applications for leave to appeal with
respect to environmental offences, and 8) Mining Jurisdiction. The statute has
empowered the Courts to hear the matters, not within its jurisdiction but which
are ancillary to the matters falling within its jurisdiction and has been given the
status of a superior court of record having the same jurisdiction as the SC of
New South Wales. It also provides that the appeal against the decisions of these
courts shall lie before the Supreme Court of Australia, not to any other
subordinate courts making it a combination of judicial review, appeal and
enforcement functions.

THE NEW ZEALAND ENVIRONMENT COURTS

The Environment Courts of New Zealand came into being with the Resources
Management Amendment Act, 1996 which amended the Act of 1991. These Courts,
established at the District Level, have jurisdiction and powers similar to District Courts
for matters related to sustainable management of resources. It shall ensure to a) Sustain
the potential of natural and physical resources (excluding minerals) to meet the
reasonably foreseeable needs of future generations; b) Safeguard the life-supporting
capacity of air, water, soil and ecosystems; c) Avoid, remedy, or mitigate any adverse

22
effects of activities on the environment. These Courts have also been entrusted to
adjudicate matters of national importance. It has been established as an original as well
as an appellate court of Judicature with powers to make declarations on any law (to
authorize any public or private projects; land sub-division approvals; environmental
effects of mining); to review the decision of any local authority under its appellate
jurisdiction and to issue enforcement orders through civil and criminal proceedings.

REFERENCES

1) Environment Courts & Tribunals: A guide for policy-makers, UNEP

https://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environ
mental-courts-tribunals.pdf
2) National Green Tribunal of India: An Observation from Environmental
Judgments, Environmental Science and Pollution Research (2018)
https://link.springer.com/content/pdf/10.1007/s11356-018-1763-2.pdf
3) National Green Tribunal FAQs https://www.greentribunal.gov.in/faqs
4) Orders of constitutional courts would prevail over statutory tribunals:
SC, The Economic Times
https://economictimes.indiatimes.com/news/india/orders-of-
constitutional-courts-would-prevail-over-statutory-tribunals-sc/
articleshow/91938978.cms
5) Supreme Court Junks NGT Order on Visakhapatnam Tourism Project,
The Business standard
https://www.business-standard.com/article/current-affairs/supreme-
court-junks-ngt-order-on-visakhapatnam-tourism-project-
122060200064_1.html
6) Livelaw.in
7) Thehindu.com
8) Blog.ipleaders.in
9) National Green Tribunal Act, 2010

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