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WHETHER THE NATIONAL GREEN TRIBUNAL HAS THE POWER TO EXERCISE suo motu JURISDICTION IN DICHARGE OF ITS FUNCTIONS UNDER THE NATIONAL GREEN TRIBUNAL ACT, 2010

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WHETHER THE NATIONAL GREEN TRIBUNAL HAS THE POWER TO EXERCISE suo motu JURISDICTION IN DICHARGE OF ITS FUNCTIONS UNDER THE NATIONAL GREEN TRIBUNAL ACT, 2010
By: Mr. M. GOVINDARAJAN
October 16, 2021
All Articles by: Mr. M. GOVINDARAJAN       View Profile
  • Contents

suo motu

suo motu’is latin term which means ‘on its own motion’.  In judicial purview it means  an action taken by a court of its own accord, without any request by the parties involved,  when it receives information about the violation of rights or breach of duty through media or a third party’s notification.   These cases are generally taken by Supreme Court in India.    Various courts in India have initiated legal proceedings on their own based on media reports, telegrams and letters received by aggrieved people, taking a suo motu cognizance of the issue.   The Indian Courts have taken suo motu cognizance in the following matters-

  • Contempt of court;
  • Re-opening of old cases;
  • Order probe for a new case.

Issue

Normally Tribunals are not having power to suo motu cognizance of an offence.  The issue to be discussed in this article is as to whether the National Green Tribunal (‘NGT’ for short) constituted under the National Green Tribunal Act (‘Act’ for short) is entitled to take suo motu cognizance of an offence under economic laws with reference to decided case laws.

National Green Tribunal

The Law Commission, in its 186th Report insisted for the establishment of specialized Court to deal with the environmental matters, since the High Courts and Supreme Court do not have statutory panel of environmental scientists to help and advise them on a permanent basis.  On the other hand if Environmental Courts are established in each State, these Courts can make spot inspections and receive oral evidence. They can receive independent advice on scientific matters by a panel of scientists.   It was explicitly noted that the creation of the NGT would allow for the Supreme Court and High Court to avoid intervening under their inherent jurisdiction when an alternative efficacious remedy would become available before the specialized forum.

The power of judicial review was omitted to ensure avoidance of High Courts’ interference with the Tribunal’s orders by way of a mid-way scrutiny by the High Court, before the matter travels to the Supreme Court where NGT’s orders can be challenged.

Case laws

In TAMIL NADU POLLUTION CONTROL BOARD VERSUS STERLITE INDUSTRIES (I) LTD. AND ORS. [2019 (2) TMI 1938 - SUPREME COURT] held that the NGT is not a tribunal set up under Article 323-A or Article 323-B of the Constitution but a statutory tribunal constituted under the NGT Act.  The NGT has no power of judicial review akin to that of a High Court.

In MUNICIPAL CORPORATION OF GREATER MUMBAI VERSUS ANKITA SINHA & ORS. [2021 (10) TMI 527 - SUPREME COURT]  the NGT noticed an article entitled ‘Garbage Gangs of Deonar : The Kingpins and their Multi-crore trade’ on the web line portal, the Quint, which dealt with the mismanagement of solid waste and the adverse impact on environment, public health and lives of individuals living in the vicinity of the dumping ground in Mumbai City.  The Tribunal took suo motu cognizance of the said article on 07.08.2018.  The authority of the article has been made as an applicant at the instance of the Tribunal.  Then steps were taken for inspection of Deonar dumping site by a Inspection team.  The Inspection report highlighted the landfill site failed to comply with the Solid Waste Management Rules, 2016.  The Tribunal, vide their order dated 30.10.2018 noted that damage to the environment and public health is self evident and directed the Municipal Corporation to pay compensation to the tune of ₹ 5 crores.  The Municipal Corporation filed the appeal before the Supreme Court.  The Supreme Court combined the other similar cases with the present appeal.

The issue to be considered by the Supreme Court is as to whether the National Green Tribunal has the power to exercise suo motu  in discharge of its functions under the Green Tribunal Act, 2010.

The appellants in this case have taken a common stand.  The contents of the appellants are as below-

  • The NGT is a tribunal, creature of a statute and so it cannot act on its own motion or exercise the power of judicial review or act suo motu in discharge of its function.
  • The NGT cannot assume inherent powers.
  • The NGThas an adjudicatory role to decide the disputes which necessarily involve two or more contesting parties.

The aggrieved party to the damage, contended that the NGT is having power to take suo motu cognizance.

The Supreme Court appointed Shri Anand Grover as, amicus curiae to assist the Court.  The amicus curiae was of the view that NGT cannot act suo motu without someone moving the Forum as otherwise the forum then would be perceived to be judging its own cause.  suo motu power is not conferred under the NGT Act.  The function of the section 14 of the  NGTAct is only available to adjudicate upon disputes, as in adversarial system but not for any other ameliorative, restorative or preventive functions.

The Central Government contended that suo motu power is not exercisable by the NGT since the same has not been conferred on the forum under the NGT Act, unlike the situation in the now repealed National Environment Tribunal Act, 1995.  NGT, as a Tribunal, with the prescribed authority under a statute, does not have general power of review. Therefore it is not within the category of writ courts under Article 226 and Article 32 of the Constitution.

The Supreme Court referred to the history of legislation, preamble and objects and reasoning of the NGT Act to observe that NGT is a special forum to deal with all environment issues both as original and appellate authority which were hither to dealt with by High Court and the Supreme Court.

The following are the functions of NGT under the NGT Act.

  • Section 14 Act gives original jurisdiction to the NGT to decide a substantial question relating to environment;
  • Section 15 deals with relief, compensation and restitution whereby besides providing relief to the victims of pollution, the NGT can direct restitution of property damage and restitution of environment for such area(s) ‘as the Tribunal may think fit’.
  • Section 16 gives appellate jurisdiction to the Tribunal against the orders passed under various enactments.
  • Section 17 provides for liability to pay relief or compensation in certain cases.
  •  Section 18 specifies who can move application/appeal before the Tribunal. It includes, among others, 18(2)(d) ‘any person aggrieved including any representative body / organization’ and the locus standi is not limited only to the aggrieved party.
  • Section 19 provides for procedure and powers of the Tribunal.
  • Section 19(1) significantly says that the Tribunal shall not be bound by procedures laid down in the Civil Procedure Code and shall be bound by the Principles of Natural Justice.
  • Section 19(2) provides that subject to the provisions of the Act, the Tribunal shall have powers to regulate its own procedure.
  • Section 19(3) mentions that the Tribunal shall not be bound by the rules of evidence contained in the Evidence Act, 1872.
  • While discharging functions under Section 19(4), besides summoning, enforcing attendance, examining persons on oath, requiring discovery and production of documents, receiving evidence on oath, the NGT also has powers to review its decision, to pass interim orders as well as pass cease and desist orders.
  • Section 20 provides that while adjudicating issues, the NGT shall apply the environmental principles, namely, sustainable development principles, precautionary principles and polluter pays principle.
  • Under Section 25, the NGTcan execute its order/decision as a decree of the Civil Court and for that purpose shall have all the powers of a Civil Court. Section 29 bars the jurisdiction of the Civil Court to entertain all environmental matters covered by the Tribunal. Under Section 33, the NGT Act has an overriding effect over other laws.

The Supreme Court observed that unlike the civil courts which cannot travel beyond the relief sought by the parties, the NGT is conferred with power of molding any relief. The provisions show that the NGT is vested with the widest power to appropriate relief as may be justified in the facts and circumstances of the case, even though such relief may not be specifically prayed for by the parties.

The activities of the NGT are not only geared towards the protection of the environment but also to ensure that the developments do not cause serious and irreparable damage to the ecology and the environment.

The NGT is primarily concerned with protection of the environment and also preservation of the natural resources. As the specialized forum, the NGT would be expected to take preventive action, besides settling and adjudicating disputes and pass orders on all environment related questions.

The Supreme Court then considered the suo motu power of NGT.  The Supreme Court observed that the NGT cannot naturally travel beyond its environmental domain in reference to the scheduled enactments.  However, as long as the sphere of action is not breached, the NGT’s powers must be understood to be of the widest amplitude. 

The Supreme Court relied on the judgment in MANTRI TECHZONE PVT. LTD. VERSUS FORWARD FOUNDATION AND ORS. [2019 (3) TMI 1924 - SUPREME COURT] The Supreme Court held that the NGT has special jurisdiction for enforcement of environmental rights.  The Supreme Court recognized that the NGT is set up under the constitutional mandate in Entry 13 of List I in Schedule VII to enforce Article 21 with respect to the environment and in the context observed that the NGT has special jurisdiction for enforcement of environmental rights.   The Supreme Court expressed that the interpretation that is in favor of conferring jurisdiction should be preferred rather than one taking away jurisdiction.

Such being the wide contour of the NGT’s powers, the exposition in Rajeev Suri vs. DDA16 – 2021 SCC online SC 7 was not to constrict the suo motu powers of the NGT.  The role of the NGT was not simply adjudicatory in the nature of a lis but to perform equally vital roles which are preventative, ameliorative or remedial in nature. The functional capacity of the NGT was intended to leverage wide powers to do full justice in its environmental mandate.

The Supreme Court observed that the forum has a duty to do justice while exercising wide range of jurisdiction’ and the ‘wide range of powers’, given to it by the statute. The NGT was conceived as a specialized forum not only as a like substitute for a civil court but more importantly to take over all the environment related cases from the High Courts and the Supreme Court.   Many of those cases transferred to the NGT, emanated in the superior courts and it would be appropriate thus to assume that similar power to initiate suo motu proceedings should also be available with the NGT.

The Section 14(1) of the NGT Act deals with jurisdiction and the jurisdictional provision conspicuously omits to specify that an application is necessary to trigger the NGT into action. In situations where the three prerequisites of Section 14(1) i.e., Civil cases; involvement of substantial question of environment; and implementation of the enactments in Schedule I are satisfied, the jurisdiction and power of the NGT gets activated. On these material aspects, the NGT is not required to be triggered into action by an aggrieved or interested party alone. It would therefore be logical to conclude that the exercise of power by the NGT is not circumscribed by receipt of application. When substantial questions relating to the environment arise and the issue is civil in nature and those relate to the enactments in Schedule I of the Act, the NGT in the opinion of the Supreme Court even in the absence of an application, can self-ignite action either towards amelioration or towards prevention of harm.

Issues affecting the ecology and the environment must have a broad perspective and should have a society centric approach.  Furthermore, the very nature of ecological and environmental issues has the propensity for rapid deterioration. Many such sensitive matters, as has been noted, stood transferred to the NGT, with the aim that those would be dealt with expediently with the required technical expertise and legal sophistication. The proactiveness of the superior Court was surely expected to be seen in the NGT’s approach.

When the Registry of the NGT does indeed receive a communication or letter, including matters published in media, it may cause to initiate suo motu action by inviting attention of NGT to such matters in the form of office report. Such circumstances would however require a notice to be given to the sender of the communication or author of the news item, as the case may be, to assist the NGT in the course of hearing and to substantiate the factual matters. It must also be said that the exercise of suo motu jurisdiction does not mean eschewing with the principles of natural justice and fair play. In other words, the party likely to be affected should be afforded due opportunity to present their side, before suffering adverse orders.

The Supreme Court found that the National Green Tribunal must act, if the exigencies so demand, without indefinitely waiting for the metaphorical Godot to knock on its portal. The preceding discussion advises us to answer the pointed question in the affirmative. It is accordingly declared that the NGT is vested with suo motu power in discharge of its functions under the NGT Act.

 

By: Mr. M. GOVINDARAJAN - October 16, 2021

 

 

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