M.P. High Court Advocates Bar Assn. vs Union of India

WRIT PETITION (CIVIL) NO. 433_OF 2012

Madhya Pradesh High Court Advocates Bar Association and Anr. Petitioner(s)

Versus

Union of India and Anr. Respondent(s)

J U D G M E N T

Hrishikesh Roy, J.

1. Through this writ petition filed under Article 32 of

the Constitution of India, the petitioners who are the

Madhya Pradesh High Court Advocates Bar Association and

the District Bar Association, both with their registered

offices at Jabalpur, have raised a challenge to the vires

of the National Green Tribunal Act, 2010 (hereinafter

referred to as “the NGT Act”), and pray for the following

reliefs: -

Signature Not Verified Digitally signed by JAGDISH KUMAR

“(a) Issue an appropriate writ of certiorari or any other writ of similar nature directing that the Bench Date: 2022.05.18 17:06:48 IST Reason:

of National Green Tribunal be set up at all the

Page 1 of 37 places where the principal seat of High Court is situated.

(b) Hold and declare that the proposed sitting up of Bench of NGT at Bhopal is not constitutionally and/or sustainable,

(c) Declare the provision of Section 14 r/w 22 of the National Green Tribunal Act, as unconstitutional insofar as they purport to exclude the writ jurisdiction of High Court under Article 226/227 of the Constitution of India.”

2. The issues to be considered in this writ petition

are:-

A. Whether the National Green Tribunal (hereinafter referred to as “the NGT”) ousts the High Court’s jurisdiction under Sections 14 & 22 of the NGT Act?

B. Whether a seat of the NGT should be in every State? If yes, should they invariably be established at the principal seat of High Court, which in this case would be Jabalpur instead of Bhopal?

C. Whether the remedy of direct appeal to the Supreme Court from the decisions of the NGT under Section 22 of the NGT Act is ultra vires to the Constitution? Whether an appeal mechanism be provided to the High Courts from the decisions of the NGT?

D. Whether Section 3 of the NGT Act is ultra vires to

Page 2 of 37 the Constitution as suffering from the vice of excessive delegation?

3. We have heard Mr. Siddhartha R. Gupta, the learned

counsel for the petitioners. The Union of India is

represented by Mr. K.K. Venugopal, the learned Attorney

General for India together with Ms. Aishwarya Bhati,

learned Additional Solicitor General. The State of Madhya

Pradesh (respondent No. 2) is represented by Mr. Sunny

Choudhary, learned counsel.

Arguments on behalf of Petitioners

4.1 The petitioners, who are espousing the cause of the

Jabalpur based lawyers practicing before the High Court

and the Civil Courts, contend that the Bhopal Bench of

the NGT is located arbitrarily and the decision is

inconsistent with the direction in S.P. Sampath Kumar vs.

Union of India1 where this Court observed that for

ensuring the efficacy and efficiency of any Tribunal, its

seat should be at a place where the principal seat of the

High Court is situated. As the Bench of the NGT is set

1 (1987) 1 SCC 124, Para. 8.

Page 3 of 37 up at Bhopal for catering to the environment related

cases covering three States i.e., Madhya Pradesh,

Chhattisgarh, and Rajasthan, the petitioners pray for

setting up the Benches of the NGT at the principal seats

of the High Courts in each of the three States and for

their State of MP, the petitioners want it at Jabalpur.

4.2 According to the petitioners, environmental

litigation is predominantly related to local factors and

therefore, an easily accessible and available forum is

necessary to be constituted, without requiring the

litigants to move to distant places to secure

environmental justice.

4.3 The petitioners argue that through incorporation of

Section 14 and Section 22 in the NGT Act, the jurisdiction

and the role of the High Courts under Article 226/227 is

extinguished. This, therefore, has impacted the basic

feature of the Constitution and as such the provisions

of Section 14 read with Section 22 of the NGT Act should

be struck down to the extent they divest the High Courts

of their power as a superior Court.

Page 4 of 37 4.4 Adverting to the power of the Central Government to

identify the ordinary place of sitting of the NGT and

specifying their respective territorial jurisdiction

under Section 4(3) of the NGT Act, the petitioners argue

that such power being unguided, suffers from the vice of

excessive delegation. Laying stress on location of the

NGT Bench at Jabalpur where adequate infrastructure is

available, the petitioners question the choice of the

seat at Bhopal instead of at Jabalpur, which is the

principal seat of the Madhya Pradesh High Court.

According to the petitioners, this impacts the right of

the litigant in the field of environmental law, to access

justice.

4.5 The remedy of appeal to the Supreme Court under

Section 22 of the NGT Act in the petitioner’s perception,

practically amounts to denial of access to justice for

the economically vulnerable litigants and this is

contended to defeat the inherent objective of access to

justice by bypassing the conveniently accessible remedy

before the High Courts under Article 226 and 227 of the

Constitution of India.

Page 5 of 37 4.6 The petitioners next argue that the NGT does not

enjoy the authority and autonomy available to judges in

the High Courts and bearing in mind the conditions of

service, tenure, and other aspects of the judicial and

non-judicial members of the NGT, according to the

petitioners, it is neither an effective nor an

appropriate substitute of the High Courts, which were

entertaining environmental disputes through respective

Green Benches, prior to the enactment of the NGT Act.

More specifically, the process of appointment, service

conditions and other related provisions for appointment

of presiding members of the NGT are not at par with the

judges of the High Court and therefore, the NGT can only

play a “supplemental or subservient role instead of being

an effective and appropriate substitute for the High

Courts.”

Arguments on behalf of Respondent

5.1 Per contra, Mr. K K Venugopal, the learned Attorney

General leading the arguments for the respondent’s

project that the NGT was set up because of the prodding

Page 6 of 37 and recommendations made by the Supreme Court while

dealing with environmental cases and the Parliament was

repeatedly entreated by the Court to create specialized

environmental court with qualified judges and technical

experts on the Bench. The learned Attorney General refers

to the exhortations made by the Supreme Court in M.C.

Mehta v. Union of India2, Indian Council for Enviro-Legal

Action v. Union of India3, Vellore Citizens' Welfare Forum

v. Union of India4, A.P. Pollution Control Board v. Prof.

M.V. Nayudu5 and A.P. Pollution Control Board II v. Prof.

M.V. Nayudu6 and their acceptance by the Parliament,

following the 186th Report of the Law Commission which

lead to the establishment of environmental courts. The

Law Commission suggested in its Report that appeals from

the environmental courts should lie before the Supreme

Court. It is in this backdrop the learned AG submits

that the NGT Act was enacted and the environmental cases

which were hitherto heard by green benches in the High

2 (1986) 2 SCC 176, Para. 22.

3 (1996) 3 SCC 212, Para. 6.

4 (1996) 5 SCC 647, Para. 25.

5 (1999) 2 SCC 718, Para. 23, 42, 47, 48, 52. 6 (2001) 2 SCC 62, Para. 73.

Page 7 of 37 Court, were ordered to be transferred to the NGT by the

Supreme Court itself as the same would help in rendering

expeditious and specialized justice in the field of

environment.

5.2 Insofar as the creation and setting up of the NGT and

the location of their Benches, the learned AG submits

that this was done under the active supervision of the

Supreme Court and only after the proposed places of

sitting recommended by the Central Government received

the concurrence of this Court, the concerned Benches and

their place of sitting was notified by the Central

Government. It is therefore argued that the related

notification had the imprimatur of the Supreme Court.

The respondents point out that the Supreme Court

monitored and oversaw the implementation of the NGT Act

and setting up of its Benches in Union of India Vs. Vimal

Bhai (SLP(C) No. 12065 of 2009) and the various orders

passed on 19.9.2011, 6.12.2012 and 15.3.2013 by this

Court would reflect that individual Bench of the NGT was

set up to cater to multiple States and the location so

Page 8 of 37 chosen for the NGT at Bhopal, also had the approval of

the Supreme Court.

5.3 The learned Attorney General next contends that the

remedy before the High Court for a litigant under Article

226 and 227 continues to be available notwithstanding the

enactment of the NGT Act and the provision for appeal to

the Supreme Court under Section 22 of the NGT Act. It is

specifically submitted by the learned AG that the High

Court’s power of judicial review remains unaffected by

the NGT Act as it is a part of the basic structure of our

constitution, as was declared in L Chandra Kumar v. UOI7.

BACKDROP OF THE NATIONAL GREEN TRIBUNAL

6. The precursor to the NGT Act was the 186th Report of

the Law Commission of India dated 29.3.2003 which came

after the Supreme Court repeatedly urged Parliament

through various judgments to establish specialized

environmental courts, with qualified judges and technical

experts on the bench. The Supreme Court also put forward

that there should be direct appeals to the Supreme Court

7 1997 (3) SCC 261.

Page 9 of 37 from such environmental courts. The Law Commission then

recommended creation of a specialized court to deal with

the environmental issues. The Law Commission expressed

the view that it is not convenient for the High Courts

and the Supreme Court to make local inquiries or to

receive evidence. Moreover, the superior Courts will not

have access to expert environmental scientists on

permanent basis to assist them. The NGT was conceived as

a complementary specialized forum to deal with all multi-

disciplinary environmental issues, both as original as

well as an appellate authority. The specialized forum was

also made free from the rules of evidence applicable to

normal courts and was permitted to lay down its own

procedure to entertain oral and documentary evidence,

consult experts etc., with specific mandate to observe

the principles of natural justice.

7. In order to understand the objective of the NGT Act,

we may usefully extract the following from the Municipal

Corporation of Greater Mumbai vs. Ankita Sinha & Ors.8

8 2021 SCC Online SC 897.

Page 10 of 37 where the following was stated by one of us (Justice

Hrishikesh Roy) for the 3 Judges Bench: -

“24 The Statement of Objects and Reasons of the NGT Act will now require attention. Paras 2,3,4,5 and 6 of the Statement of Objects and Reasons being relevant are extracted hereinbelow: -

“2. India is a party to the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, calling upon the States to take appropriate steps for the protection and improvement of the human environment. The United Nations Conference on Environment and Development held at Rio de Janeiro in June, 1992, in which India participated, has also called upon the States to provide effective access to judicial and administrative proceedings, including redress and remedy, and to develop National laws regarding liability and compensation for the victims of pollution and other environmental damage.

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

4.The National Environment Tribunal Act, 1995 was enacted to provide for strict liability for damages arising out of any accident Page 11 of 37 occurring while handling any hazardous substance and for the establishment of a National Environmental Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damages to persons, property and the environment. However, the National Environment Tribunal, which had a very limited mandate, was not established. The National Environment Appellate Authority Act, 1997 was enacted to establish the National Environment Appellate Authority to hear appeals with respect to restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986. The National Environment Appellate Authority has a limited workload because of the narrow scope of its jurisdiction.

5. Taking into account account the large number of environmental cases pending in higher courts and the involvement of multidisciplinary issues in such cases, the Supreme Court requested the Law Commission of India to consider the need for constitution of specialized environmental courts. Pursuant to the same, the Law Commission has recommended the setting up of environmental courts having both

Page 12 of 37 original and appellate jurisdiction relating to environmental laws.

6. In view of the foregoing paragraphs, a need has been felt to establish a specialized tribunal to handle the multidisciplinary issues involved in environmental cases.

Accordingly, it has been decided to enact a law to provide for the establishment of the National Green Tribunal for effective and expeditious disposal of civil cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment.”

25. A reading of the Statement of Objects and Reasons shows that paragraph 4 thereof refers to the National Environmental Tribunal Act, 1995 (NET) which provided for strict liability and damages arising out of accidents occurring while handling hazardous substances. In the same context it was observed that the NET had a very limited and narrow mandate and jurisdiction. Thereafter, in Para 5 it has been recorded that a large number of environmental cases are pending in higher Courts which involve multi-

disciplinary issues and, in such cases, the Supreme Court had requested the Law Commission of India to consider the need for constitution of specialized environmental Courts.

26. Significantly, the Statement of Objects and Reasons also refers to right to a healthy environment being a part of the right to life under Article 21 of the Constitution of India. Page 13 of 37 This was consistent with the earlier mentioned 186th Law Commission Report highlighting that the body 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, fast and satisfactory judicial procedure”. An institution concerned with a significant aspect of right to life necessarily should be given the most liberal construction.

27. The paragraph 2 of the Statement of Objects and Reasons refers to the United Nations Conference on the Human Environment held at Stockholm in June 1972 which called upon governments and peoples to exert common efforts for the preservation and improvement of the human environment when it involved people and for their posterity. Therefore, the municipal law enacted with such a laudatory objective of not 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. The mandate and jurisdiction of the NGT is therefore conceived to be of the widest amplitude and it is in the nature of a sui generis forum.

28. The United Nations Conference on Environment and Development held at Rio De Janeiro in June, 1992 where India participated, impressed upon the States to provide effective access to judicial and administrative proceedings, lay out redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. The Preamble of the Act significantly emphasized on construing the right to healthy environment as a part of the Right to Life

Page 14 of 37 under Article 21 of the Constitution which was accepted by various judicial pronouncements in India. The National Green Tribunal was born in our country with such lofty dreams to deal with multi-disciplinary issues, relating to the environment.

29. The limited mandate conferred on the earlier forum i.e. the NET and the narrow scope of jurisdiction of the National Environment Appellate Authority along with the involvement of multi-disciplinary issues arising in environmental cases, were intended to be addressed through the constitution of the NGT.”

8. Explaining the purpose to constitute the specialized

court to deal with environmental issues, in Mantri

Techzone (P) Ltd. vs. Forward Foundation9, Justice S.

Abdul Nazeer writing for the three Judges Bench made the

following pertinent observation, on the status of the

NGT: -

“40. The Tribunal has been established under a constitutional mandate provided in Schedule VII List I Entry 13 of the Constitution of India, to implement the decision taken at the United Nations Conference on Environment and Development. The Tribunal is a specialised judicial body for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other

9. (2019) 18 SCC 494.

Page 15 of 37 natural resources including enforcement of any legal right relating to the environment. The right to healthy environment has been construed as a part of the right to life under Article 21 by way of judicial pronouncements.

Therefore, the Tribunal has special jurisdiction for enforcement of environmental rights.”

9. The NGT is set up under the constitutional mandate

under Entry 13 List I of Schedule VII to enforce Article

21 in regard to the environment and the Tribunal was

conferred special jurisdiction for enforcement of

environmental rights. It thus appears that the role of

the NGT was not simply adjudicatory, but it also had the

equally vital role which is preventive, ameliorative, or

of the remedial category. The functional capacity of the

NGT was intended to leverage wide powers to do full

justice in the field of environment. The NGT came into

existence as a sui generis institution established for

the enforcement of environmental rights emanating from

Article 21 of the Constitution10.

10 2021 SCC OnLine 897, Para. 44, 98.

Page 16 of 37

10. After the NGT was set up, the Supreme Court

pertinently directed the transfer of environmental cases

pending before the High Courts to the NGT for expeditious

and specialized justice for all concerned. The Supreme

Court also actively oversaw the implementation of the Act

and creation of the NGT itself through various Orders11.

Those also pertained to, inter-alia, the location of the

NGT benches. In other words, the Supreme Court was not

only conscious of the location of the benches of the NGT

but also had given its imprimatur to the NGT’s creation

and other aspects.

11. With the above prefatory contexts in mind, we may

now look at the challenge.

ISSUE WISE DISCUSSION

A. Whether the NGT ousts the High Court’s jurisdiction under Sections 14 & 22 of the NGT Act?

12. Insofar as the contention of the petitioners that

there is ouster of jurisdiction of the High Courts under

Article 226 and 227 of the Constitution because of

11 SLP (C) 12065 of 2009.

Page 17 of 37 Sections 14 & 22 of the NGT Act, it must be recalled that

in L. Chandra Kumar vs. Union of India [supra], it has

been categorically declared that the power of judicial

review under Articles 226, 227, and 32 are part of the

basic structure of our constitution and the same is

inviolable. The following pertinent opinion rendered by

the 7 Judges’ bench of this Court must be remembered on

this aspect: -

“78………We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.

79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.” Page 18 of 37

13. Apart from the clear enunciation on legal position

to the effect that the NGT is within the purview of

Article 226 and 227 jurisdiction of the High Courts, the

learned Attorney General on behalf of the Union of India

has also made submissions consistent with L. Chandra

Kumar [supra] and conceded the legal position.

14. It can further be noted that in terms of the above

ratio in L. Chandra Kumar [supra], the High Courts have

been entertaining petitions under Article 226 and 227 of

the Constitution against orders of the NGT. While

exercising such jurisdiction, the Courts necessarily

exercise due discretion on whether to entertain or to

reject the petition, as per the test broadly laid down

in Whirlpool Corpn. Vs. Registrar of Trade Marks, Mumbai

and Others12;

“14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus,

12 (1998) 8 SCC 1.

Page 19 of 37 prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”.

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.”

15. It is also noteworthy that nothing contained in the

NGT Act either impliedly or explicitly, ousts the Page 20 of 37 jurisdiction of the High Courts under Article 226 and 227

and the power of judicial review remains intact and

unaffected by the NGT Act. The prerogative of writ

jurisdiction of High Courts is neither taken away nor it

can be ousted, as without any doubt, it is definitely a

part of the basic structure of the Constitution. The High

Court’s exercise their discretion in tandem with the law

depending on the facts of each particular case. Since the

High Court’s jurisdiction remain unaffected, the first

question is answered in the negative, against the

petitioners.

B. Whether a seat of the NGT should be in every State? If yes, should they invariably be established at the principal seat of High Court, which in this case would be Jabalpur instead of Bhopal?

16. The petitioners in pleading for a NGT Bench in

each state, place heavy reliance on S.P. Sampath [supra].

To appreciate this, the Court’s following observation

needs consideration in the context of administrative

tribunals: -

Page 21 of 37

“8. I may also add that if the Administrative Tribunal is to be an equally effective and efficacious substitution for the High Court on the basis of which alone the impugned Act can be sustained, there must be a permanent or if there is not sufficient work, then a Circuit Bench of the Administrative Tribunal at every place where there is a seat of the High Court. I would, therefore, direct the government to set up a permanent Bench and if that is not feasible having regard to the Vol. of work, then at least a circuit Bench of the Administrative Tribunal wherever there is a seat of the High Court, on or before March 31, 1987. That would be necessary if the provisions of the impugned Act are to be sustained. So far as rest of the points dealt with in the judgment of Ranganath Misra, J. are concerned, I express my entire agreement with the view taken by him.”

17. As is seen, Justice Bhagwati made the above

observation in the case where the Supreme Court was

concerned with the Central Administrative Tribunal [in

short, “CAT”] where the volume of litigation is

substantially higher. This is why the direction to

establish permanent benches or circuit benches in every

State is predicated on assessing feasibility by reference

to the volume of litigation. Here we must follow the

principle of proportionality. To underscore the issue,

the CAT have 17 Benches and 21 Circuit Benches as opposed

Page 22 of 37 to only five Benches of the NGT. The NGT caters to a

limited number of cases unlike the CAT, where the volume

of cases is substantially higher. As per the report13

tabled in Rajya Sabha by the Parliamentary Standing

Committee on Personnel, Public Grievances, Law and

Justice, the CAT have over 48,000 cases pending as on 6th

March, 2020.

18. While on this, we may also notice the data available

on the website of the National Green Tribunal14 which

reflects the pendency of cases before the NGT as on

28.02.2022: -

ZONE WISE Pendency as on 28/02/2022 Bench Pendency Principal Bench 621 (Delhi) SZB(Chennai) 517 CZB(Bhopal) 107 WZB(Pune) 694 EZB(Kolkata) 298 Total: 2237

13 100_2020_9_11.pdf (rajyasabha.nic.in) 14 National Green Tribunal Page 23 of 37

19. As is apparent from the above chart the volume of

cases handled by the NGT and the CAT are not comparable.

Looking at the large volume of service-related cases, it

was suggested that the Benches of the CAT should be

located at the seat of each High Court. But such logic

cannot apply to the NGT, where the zone wise pendency in

aggregate is only 2237 cases as on 31.3.2022 from the

date of its inception. Therefore, the ratio in S.P.

Sampath [supra] does not aid the petitioners who want the

NGT Bench to be relocated from Bhopal to Jabalpur, where

the Madhya Pradesh High Court is located.

20. It is also worthy of attention that the total disposal

by all Benches of the NGT is 2799 cases during 12 months

i.e., March, 2021 to February, 2022. The pendency figure

for this period is 2237 only. The rate of disposal being

higher than the pendency, no major backlog issue is seen

before the NGT. The strikingly small 107 cases in the

NGT’s Bhopal Bench must also receive our due attention.

These data do not provide for a reasonable basis to

entertain a prayer for a NGT Bench at Jabalpur or for

Page 24 of 37 that matter, an individual NGT Bench in each of those

three States.

21. With the low case load, if the NGT Benches are set

up in all 28 States and 8 union territories as is

suggested by the petitioners, the judges and other

members in these forums might be left twiddling their

thumbs. Accordingly, no basis is seen to allow one NGT

bench in every State.

22. With the above answer to the first part of the issue

B, the second part becomes superfluous. However, since

earnest submission is made by the petitioner’s counsel,

the issue needs to be decided. The petitioner put forth

that the seat of the NGT must be at Jabalpur where the

principal seat of the Madhya Pradesh High Court is

located as per the dicta in S.P. Sampath [supra]. On this

aspect, the cited case is entirely inapplicable as the

Bhopal Bench caters to multiple States. In such a

situation, the location of the Bench to the extent

possible, should be convenient and accessible to

litigants of all three States. Here the respondents

Page 25 of 37 project that Bhopal is centrally located in relation to

Rajasthan, Madhya Pradesh, & Chhattisgarh. Moreover,

Bhopal being the capital of Madhya Pradesh, is well

connected and accessible without much difficulty. This

would commend to us that Bhopal is a sound locational

choice for the NGT which caters to the litigants from

three States.

23. The low case load in the Bhopal Bench, do not match

with the strident plea of the petitioners to locate the

Bench at Jabalpur. This is therefore perceived as an

attempt by the petitioners (who are practicing lawyers

in Jabalpur), to primarily espouse their professional

interest. No other rational basis is seen for the

Association’s plea for relocation of the NGT Bench to

Jabalpur from Bhopal. We see no justification to grant

such relief to the petitioners and the second segment of

issue B is accordingly answered against them.

C. Whether the remedy of direct appeal to the Supreme Court from the decisions of the NGT under Section 22 of the NGT Act is ultra vires to the Constitution? Whether an appeal mechanism be provided to the High Courts from the decisions of the NGT?

Page 26 of 37

24. The petitioners have also pleaded that instead of

appeal to the Supreme Court under Section 22 from the

orders passed by the NGT, an appeal mechanism as a

matter of right should also be provided before the

concerned High Courts. According to them, appeal to

the Supreme Court is inadequate and unaffordable and

therefore inaccessible. On this aspect it needs to be

observed that even when a direct appeal to the Supreme

Court is provided by a statute15 against the decision

of a tribunal16, the remedy under Article 226 or 227

before the High Court remains unextinguished. Moreover,

the Appeal under Section 22 of the NGT Act, is limited

to the grounds under Section 100 of the CPC and the

Supreme Court does not function as a regular first

appellate Court. However, under Article 226 or 227,

remedies on issues of jurisdiction and also under the

principles set out in Associated Provincial Picture

Houses Ltd. vs. Wednesbury Corporation17, are available

15 Inter alia, Electricity Act, 2003; Telecom Regulatory Authority of India Act, 1997.

16 Inter alia, Armed Forces Tribunal under the Armed Forces Tribunal Act,

2007.

17 [1948] 1 KB 223.

Page 27 of 37 for an aggrieved party. Subject to discretion being exercised,

the affected litigants can move High Court under

Article 226 or 227 and in such cases, a SLP under

Article 136 of the Constitution could also be

maintained to the Supreme Court from the High Court’s

verdict.

25. Also importantly, the right to appeal before the

High Court is a creature of the statute and is not an

inherent right. The provision for appeal to High Court

should not therefore be created by issuing a writ of

Mandamus as that would be legislating through judicial

order, and would impinge upon the well-founded concept

of separation of powers18.

26. The options available to a litigant to either move to

the Supreme Court in a case where a substantial question

of law arises or proceed under Article 226 or 227 must

not also be overlooked. If necessary, a party can also

approach this Court by way of an Article 136 petition.

With such choices being available for a party no

18 (2017) 7 SCC 221, Para. 36.

Page 28 of 37 rational justification is found for striking down

Section 22 of the Act which provides for a direct appeal

to the Supreme Court.

27. A litigating party must also realise that in any

event, if the opposite side approaches the Supreme

Court, the litigant on the other side would have to

defend his case before this Court and at that stage

they cannot be complaining about the distance to Delhi.

Thus, the remedy of direct appeal to the Supreme Court

under the NGT Act from the NGT’s decision cannot be

seen as denial of access to justice to the litigants

in the field of environmental law.

28. The issue of direct appeals to the Supreme Court,

or entertaining petitions under Article 136 to

challenge tribunal’s decision, was considered in the

case of R.K. Jain v. Union of India19. In paragraph 76

of the said judgment, this Court addressed similar

submission to the effect that appeal mechanism should

be provided from a tribunal’s decision, to a division

19 (1993) 4 SCC 119.

Page 29 of 37 bench of the High Court. The three Judges bench of this

Court, however, expressly refrained from issuing

direction for creation of appeal provisions to the

High Courts, which was perceived to be an impermissible

judicial function. So far, the legislature has not acted

on the recommendation of this Court but then that issue

is within the policy domain of the legislative wing of

the State.

29. The implication of the Supreme Court being

conceived as the first appellate forum was considered

in Rojer Mathew v. South Indian Bank Ltd.20, and in that

case the Union Government was directed to do a study on

the effect of direct appeals to the Supreme Court and

place the resultant report before Parliament. But even

in Rojer Mathew [supra], the Supreme Court had no

occasion to say that direct appeals to the Supreme

Court is constitutionally impermissible.

30. It must also be underscored that the ground raised

by the Petitioners about Supreme Court being

20 (2020) 6 SCC 1, Para. 218.

Page 30 of 37 inaccessible, would equally apply to litigants, from

all across the country, who have to travel to the Supreme

Court, either by way of Article 136 or Article 32 or

any other provision. Despite the provision under

Article 130 of the Constitution, the Supreme Court has

no other bench away from Delhi. In these circumstances

by pleading inaccessibility, the petitioners are also

incidentally questioning, the location of the Supreme

Court at New Delhi. Such a contention on the face of

it would be irrational and not acceptable.

31. It cannot also be overlooked that it is the

Supreme Court itself which had recommended the setting

up of environmental court with direct appeals to the

Supreme Court. This would also support the proposition

on constitutional validity of Section 22 of the NGT Act

and that it is not ultra vires to the Constitution.

Consequently, the answer to both aspects of the

question C is answered in favour of the respondents.

D. Whether Section 3 of the NGT Act is ultra vires to the Constitution as suffering from the vice of excessive delegation?

Page 31 of 37

32. Adverting next to the argument of the petitioners

that Section 3 is a case of excessive delegation to the

Union Government. It must be borne in mind that the

operationalization of the NGT, including the location

of its Benches, was closely monitored by the Supreme

Court. It is further seen that the Union Government is

to specify the ordinary place of sitting of NGT and its

territorial jurisdiction under Section 3 of the NGT Act

being mindful of the demand for environment litigation

within a particular territorial area. The Government

is also to be guided by the objects of the Act as also

the directions given by the Supreme Court from time to

time. Since, the Government is acting on the issue with

the guidance of this Court, and the Government is

obliged to follow the objectives of the NGT Act,

adequate safeguards are seen to guide the government.

We are therefore of the opinion that Section 3 of the

NGT Act is not a case of excessive delegation.

33. The petitioners are seen to have founded their

contentions with considerable reliance on the decision

Page 32 of 37 in Madras Bar Association vs. Union of India and Anr.21

to argue that the NGT is neither accessible nor it is

independent in dealing with environmental cases. In the

relied case, this Court struck down certain provisions

of the National Tax Tribunal Act, 2005 (for short, ‘NTT

Act’) but this must be appreciated in the context of that

case. Moreover, one must not overlook the distinction

between the operation of the NTT Act vis-à-vis the NGT

Act. To be specific, the NTT Act provided that the NTT

would ordinarily sit at New Delhi. The NGT Act however

provides for the creation of benches across the country.

Additionally, the NTT was vested with the power of

adjudicating appeals arising from orders passed by the

Income Tax Appellate Tribunal on substantial questions

of law. This was a jurisdiction that the High Courts were

exercising under Article 227 in certain cases, and in that

context, it was found that the NTT was indirectly

impinging on the jurisdiction of the High Courts under

Article 227. The jurisdiction exercised by the NGT is

however distinct, and different, and not comparable. Also

21 (2014) 10 SCC 1.

Page 33 of 37 glaring was the fact that Union Government had the power

to transfer members of the NTT from one bench to another.

No such provision exists in the NGT Act. Besides, the NTT

was constituted only to determine substantial questions

of law and it was unclear how accountants and other

technical members with no legal training would deal with

the issues raised in such matters. Those troubling issues

do not arise in the NGT Act. One must also be cognizant

of the fact that the Selection Committee under Section 7

of the NTT Act was dominated by two secretaries of the

Government, as opposed to the Selection Committee for the

NGT under the Tribunal Reforms Act which clearly has

judicial dominance.

34. Taking into account all the striking distinctions

between the operation of the NGT Act and the NTT Act,

the petitioners’ reliance on the NTT judgment, which

was rendered in the context of the provisions of the

NTT Act, is found to be wholly misplaced.

35. Addressing next, the argument of the petitioners

that the NGT does not enjoy the same status and

Page 34 of 37 independence as the High Courts on account of the

conditions of service and tenure etc., it would be

appropriate to say that although in paragraph 33 of the

written submissions, the petitioners deal with specific

provisions of the Tribunal Reforms Act, 2021 and the

Rules framed, those were neither raised in the petition

nor any relief is claimed in reference to the Tribunal

Reforms Act. Conspicuously, those were also not argued

during the oral hearing. Therefore, we need not delve

into those aspects as the same is beyond the scope of

the instant proceeding.

36. It must also be borne in mind that the question of

validity of the Tribunal Reforms Act, is pending in

this Court in a batch of cases tagged with WP(C)

1018/2021 Madras Bar Association v. Union of India. Few

similar issues like the present have also been raised

in the pending cases where the Union of India has filed

counter affidavit indicating their stand. As those

issues are under consideration in the pending case, the

same is left to be decided in those matters. Page 35 of 37

37. For all the aforesaid reasons, section 3 of the NGT

Act is found to be intra vires to the Constitution of

India. However, it is clarified that our conclusion is

based on the specific facts of this case, and we make

no comments on the issues which are sub-judice in the

WP(C) 1018/2021 Madras Bar Association v. Union of

India.

Conclusions

38. In consequence of the above analysis, our

conclusions are,

A. The National Green Tribunal under Section 14 & 22

of the NGT Act does not oust the High Court’s

jurisdiction under Article 226 & 227 as the same is

a part of the basic structure of the Constitution.

B. The remedy of direct appeal to the Supreme Court

under Section 22 of the NGT Act is intra vires the

Constitution of India.

C. Section 3 of the NGT Act is not a case of excessive

delegation of power to the Central Government.

D. The seat of the NGT benches can be located as per

Page 36 of 37 exigencies and it is not necessary to locate them in

every State. The prayer for relocating the Bhopal

NGT to Jabalpur is unmerited and is rejected.

39. With the foregoing conclusions, the Writ Petition is

found devoid of merit and is dismissed. The parties to

bear their own cost.

…………………………………………J. [K.M. JOSEPH]

…………………………………………J. [HRISHIKESH ROY] NEW DELHI MAY 18, 2022

Page 37 of 37