Sanghar Zuber Ismail vs Ministry of Environment, Forests and Climate Change and Another

Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 4543 of 2021

Sanghar Zuber Ismail Appellant(s)

Versus

Ministry of Environment, Forests and Respondent(s) Climate Change and Another

ORDER

Dr Dhananjaya Y Chandrachud, J

1 Admit.

2 This appeal arises from a judgment of the National Green Tribunal dated 8

June 2021 at the Principal Bench, New Delhi.

3 The appeal before the NGT arose from the grant of an environmental

clearance on 5 January 2021 in favour of the second respondent for the

expansion of the capacity of its refinery situated in the petro-chemical

complex at Vadinar, District Devbhumi Dwarka, Gujarat from 20 MMTPA to 46

MMTPA. The main challenge before the NGT, as recorded in paragraph 3 of

the decision is that the expansion was likely to cause an adverse impact on

the marine environment, both in terms of the mangroves and marine biology. Signature Not Verified Digitally signed by The NGT noted that its attention been drawn to the EIA/EMP study prepared Chetan Kumar Date: 2021.09.02 16:34:05 IST Reason: CA 4543/2021 2

by CSIR–NEERI. Having extracted from the study, the NGT noted the

submission of senior counsel for the second respondent that all the EC

conditions would be duly complied with and due mitigation measures would

be taken to ensure the safety of mangroves and marine environment.

4 Having recorded the statement of the second respondent, the NGT

proceeded to observe that it did not find any ground to interfere with the

grant of the EC. It, however, directed the project proponent to ensure that all

necessary safeguards are adopted and EC conditions are duly complied with.

A three member Committee was constituted in that regard.

5 The NGT was seized with a substantive appeal under the provisions of

Section 16 of the National Green Tribunal Act 2010. Section 16(h) reads thus:

“16. Any person aggrieved by –

(a) to (g) xxx xxx xxx

(h) an order made, on or after the commencement of the National Green Tribunal Act 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act 1986.”

6 The specific ground before the NGT was that the expansion of the refinery

will cause serious hazards to both the marine biology and to mangroves. The

NGT observed that the project was already in existence and there was no

continuing grievance against its functioning insofar as environmental norms

are concerned. This observation would not conclude the issue as to whether

the expansion of the project would have a deleterious impact on the

environment.

CA 4543/2021 3

7 Having regard to the nature of its appellate power, the NGT has to apply its

mind to the substantive grounds of challenge. The NGT has merely based its

conclusion on the statement which has been made by the project proponent

and has not conducted an independent appraisal of the grounds of challenge.

8 As a matter of fact, Mr Dhruv Mehta, learned senior counsel, who appears on

behalf of the second respondent, states that the appellant had not produced

a copy of the correct EIA before the NGT and an application has been filed on

behalf of the second respondent for clarifying the position. Be that it may,

the NGT has not dealt with the substantive grounds of challenge in the

exercise of its appellate jurisdiction. Constitution of an expert committee

does not absolve the NGT of its duty to adjudicate. The adjudicatory function

of the NGT cannot be assigned to committees, even expert committees. The

decision has to be that of the NGT. The NGT has been constituted as an

expert adjudicatory authority under an Act of Parliament. The discharge of its

functions cannot be obviated by tasking committees to carry out a function

which vests in the tribunal.

9 We accordingly allow the appeal and set aside the impugned order dated 8

June 2021. Appeal No 5/2021(WZ) is accordingly restored to the file of the

NGT for disposal afresh. All the rights and contentions of the parties on the

merits are kept open.

CA 4543/2021 4

10 Pending application(s), if any, stand disposed of.

….....…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

..…....…........……………….…........J. [M R Shah]

..…....…........……………….…........J. [Hima Kohli]

New Delhi;

August 31, 2021 CKB CA 4543/2021 5

ITEM NO.14 Court 4 (Video Conferencing) SECTION XVII

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No.4543/2021

SANGHAR ZUBER ISMAIL Appellant(s)

VERSUS

MINISTRY OF ENVIRONMENT, FORESTS AND Respondent(s) CLIMATE CHANGE & ANR.

(With appln.(s) for IA No.91013/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)

Date : 31-08-2021 This appeal was called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE M.R. SHAH HON’BLE MS. JUSTICE HIMA KOHLI

For Appellant(s) Mr. Purvish Jitendra Malkan, Adv.

Ms. Dharita P Malkan, Adv.

Ms. Deepa Gorasia, Adv.

Mr. Alok Kumar, Adv.

Ms. Nandini Chhabra, Adv.

Ms. Bhavna Sarkar, Adv.

Ms. Khushboo Vinodray Malkan, AOR

For Respondent(s) Mr. Dhruv Mehta, Sr. Adv.

Mr. Somiran Sharma, AOR

UPON hearing the counsel the Court made the following O R D E R

1 Admit.

CA 4543/2021 6 2 The appeal is allowed in terms of the signed reportable order.

3 Pending applications, if any, stand disposed of.

(CHETAN KUMAR) (SAROJ KUMARI GAUR) A.R.-cum-P.S. Court Master

(Signed reportable order is placed on the file)