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TMI Blog2019 (2) TMI 1938X X X X Extracts X X X X X X X X Extracts X X X X ..... rief facts necessary to appreciate the controversy raised in the present case are as follows. 2. The Respondent, Sterlite Industries (India) Ltd./Vedanta Ltd., was operating a copper smelter plant at the State Industries Promotion Corporation of Tamil Nadu Ltd. (SIPCOT) Industrial Complex at Thoothukudi, Tamil Nadu. On 01.08.1994, the Respondent received a No-Objection Certificate ["NOC"] from the Tamil Nadu Pollution Control Board ["TNPCB"] for the production of blister copper and sulphuric acid. The environmental clearance to the project by the Ministry of Environment, Forest, and Climate Change ["MoEF"] followed on 16.01.1995. On 17.05.1995, the State MoEF also granted environmental clearance to the Respondent. The TNPCB granted its consent under the Air (Prevention and Control of Pollution) Act, 1981 ["Air Act"] and Water (Prevention and Control of Pollution) Act, 1974 ["Water Act"] on 22.05.1995. After obtaining the requisite permissions, the consent to operate the plant was issued on 14.10.1996 by the TNPCB. Production commenced on 01.01.1997. However, the environmental clearances that were granted were challenged before the Madras High Court in Writ Petition Nos. 15501-1550 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Air Act and the Water Act which, apparently, was not pursued. On 06.09.2017, an inspection report by the TNPCB was made, and an order passed on 07.09.2017, granting renewal of consent to operate only till 31.03.2018 subject to various conditions. Meanwhile, a protest had been organized in March 2018 by some persons against the proposed expansion sought by the Respondent. The Respondent, therefore, had to file Writ Petition No. 7313 of 2018 before the Madurai Bench of the Madras High Court for police protection. This Writ Petition was disposed of by an order dated 04.04.2018 with a direction to consider the Respondent's application. On 09.04.2018, the TNPCB refused renewal of consent to operate to the Respondent's unit based on non-compliance with certain conditions that were laid down under the Air Act and the Water Act. On 12.04.2018, the Respondent filed Appeal Nos. 36-37 of 2018 before the appellate authority Under Section 28 of the Water Act. In these appeals, various orders were passed, until, on 06.06.2018, the following order was passed: APPLICATIONS 28 & 29/2018, APPLICATIONS 30 & 31/2018 AND APPEALS 36 & 37/2018: Heard. In view of the Government Order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd disconnection of power supply to the Unit. The power supply has been disconnected on 24.5.2018. 2. Under Article 48-A of the Constitution, "the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country". 3. Under Sections, 18(1)(b) of the Water Act, 1974 in the larger public interest, the Government endorse the closure direction of the Tamil Nadu Pollution Control Board and also direct the Tamil Nadu Pollution Control Board to seal the unit and close the plant permanently. 6. On the same date, the TNPCB issued a letter to the District Collector, inter alia, directing him to seal the Respondent's unit. These six orders became the subject matter of a composite Appeal No. 87 of 2018 Under Section 16 of the NGT Act. 7. A writ petition was filed by the Respondent before the Madurai Bench of the Madras High Court on 18.06.2018 so that the Respondent could access its unit to maintain its plant. This was dismissed as withdrawn on 09.07.2018. 8. The Appellants then took up a plea of maintainability of the composite appeal. As this was not being disposed of by the NGT, this Court, by its order dated 17.08.2018, directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding heavy metals such as Arsenic, Cadmium, Silver, Copper, Fluoride, etc. in and around the factory premises and nearby villages once a month and such report should be furnished to the TNPCB. b) The sampling of the above should be taken in the presence of an official from TNPCB. c) In addition to the above, the sampling of effluent/emission and solid waste should also be done by a monitoring group to be constituted by TNPCB comprising a representative of the District Collector, an official of TNPCB, NGOs and academicians as per condition No. 43 of Consent Order dated 19-04-2005. d) Both the reports should be sent by TNPCB to CPCB for analysis. Recommendations made by CPCB should be followed. e) Copper slag dumped at all the eleven sites including the Uppar River should be removed. If copper slag has been used for landfill purposes, then the excess amount of the slag over and above the level of ground would be removed and thereafter the landfill should be compacted with one feet of soil, so that the copper slag is not blown away by the strong winds. f) The dead stock of copper slag lying in the dump yard inside the factory premises which has solidified should be removed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be directed to start the construction of gypsum pond immediately and complete the same in a time bound manner as per the conditions laid down in the guidelines given by CPCB in October, 2014. p) The Appellant shall undertake a fresh detailed hydrogeological study for determining aquifer vulnerability and migration of leachate from the existing phosphogypsum pond through a reputed organization approved by the TNPCB as per condition No. 15 of the Consent Order dated 19/04/2005. q) Direction should be given to the TNPCB as well as to the Appellant to take independent ground water samples from the same points for the purpose of finding out groundwater pollution if any. Such reports should then be compared by the CPCB. Recommendations made by CPCB should be followed. r) Directions/Regulation may be framed for import of high grade copper ore. s) Irrespective of the norms, stack height in any case be increased in order to remove the ambiguity and the grievance of inhabitants of the people of the Tuticorin with regard to emission of SO2. t) Till such time, the stack height is not increased, the production of copper as well as sulphuric acid should be restricted/reduced to match the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned, an appeal was pending before the appellate authority, as a result of which, the NGT, when it set aside the said order, could not have done so. Similarly, the orders dated 12.04.2018, 23.05.2018, and 28.05.2018, made Under Section 33A of the Water Act and Section 31A of the Air Act, were composite orders issued. As orders Under Section 31A of the Air Act were not appealable to the NGT either under the Air Act or Under Section 16 of the NGT Act, the Tribunal acted without jurisdiction in interfering with these orders. Further, the order dated 28.05.2018, issued by the Government of Tamil Nadu Under Section 18 of the Water Act, was certainly not an appealable order under either the Water Act or the NGT Act, and could only have been corrected in judicial review in a writ petition filed Under Article 226 of the Constitution of India or in a suit before a Civil Court. According to him, therefore, the setting aside of such an order was also completely without jurisdiction. Shri K.V. Viswanathan, learned Senior Advocate appearing on behalf of the State of Tamil Nadu, added to these submissions. He cited some of our judgments as well as statutes and judgments of the English Courts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrected Under Section 14 of the NGT Act to avoid piecemeal litigation. Further, in any case, according to the learned Senior Advocate, a direction made Under Section 31A of the Air Act is undoubtedly equivalent to an order made Under Section 31 of the Air Act, and therefore, would be expressly appealable Under Section 16 of the NGT Act. Another without prejudice argument was made, that assuming all other arguments failed, these matters are only procedural, and therefore, appeals must necessarily land up before the expert tribunal which is so constituted as an expert tribunal to deal with all matters relating to the environment. For this, he referred to and relied strongly upon Sections 14, 15, 29, and 33 of the NGT Act. Insofar as the attack made upon the order dated 28.05.2018 of the Government of Tamil Nadu Under Section 18 of the Water Act is concerned, Shri Sundaram argued that on a proper construction of Section 18 read with the other provisions of the Water Act, only a general order, dealing with general matters, could be passed under the said Section, and not an order to shut down one particular industry. Since the Section 18 order purports to deal with only one particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this section, no person shall, without the previous consent of the State Board,-- (a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this Section referred to as discharge of sewage); or (b) bring into use any new or altered outlet for the discharge of sewage; or (c) begin to make any new discharge of sewage: Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent, within the said period of three months, till the disposal of such application. (2) An application for consent of the State Board Under Sub-section (1) shall be made in such form, contain such particulars and shall be accompanied by such fees as m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be, or by any person authorised by him in this behalf and the conditions so contained in such register shall be conclusive proof that the consent was granted subject to such conditions. (7) The consent referred to in Sub-section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board. (8) For the purposes of this Section and Sections 27 and 30,-- (a) the expression "new or altered outlet" means any outlet which is wholly or partly constructed on or after the commencement of this Act or which (whether so constructed or not) is substantially altered after such commencement; (b) the expression "new discharge" means a discharge which is not, as respects the nature and composition, temperature, volume, and rate of discharge of the effluent substantially a continuation of a discharge made within the preceding twelve months (whether by the same or a different outlet), so however that a discharge which is in other respects a continuation of previous discharge made as aforesaid shall not be deemed to be a new discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the expiry of the said period of thirty days if such authority is satisfied that the Appellant was prevented by sufficient cause from filing the appeal in time. (2) An appellate authority shall consist of a single person or three persons, as the State Government may think fit, to be appointed by that Government. (3) The form and manner in which an appeal may be preferred Under Sub-section (1), the fees payable for such appeal and the procedure to be followed by the appellate authority shall be such as may be prescribed. (4) On receipt of an appeal preferred Under Sub-section (1), the appellate authority shall, after giving the Appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible. (5) If the appellate authority determines that any condition imposed, or the variation of any condition, as the case may be, was unreasonable, then,-- (a) where the appeal is in respect of the unreasonableness of any condition imposed, such authority may direct either that the condition shall be treated as annulled or that there shall be substituted for it such condition as appears to it to be reasonable; (b) where the appeal is in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal Act, 2010, may file an appeal to the National Green Tribunal established Under Section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act. 16. The relevant Sections of the Air Act are as follows: 21. Restrictions on use of certain industrial plants.--(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area: Provided that a person operating any industrial plant in any air pollution control area immediately before the commencement of Section 9 of the Air (Prevention and Control of Pollution) Amendment Act, 1987, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application. (2) An application for consent of the State Board Under Sub-section (1) shall be accompanied by such fees as may be prescribed and shall be made in the prescribed form and shall contain the particulars of the industrial plant and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the conditions referred to in Clauses (i), (ii) and (iv) shall be complied with within such period as the State Board may specify in this behalf: Provided that in the case of a person operating any industrial plant in an air pollution control area immediately before the date of declaration of such area as an air pollution control area, the period so specified shall not be less than six months: Provided further that-- (a) after the installation of any control equipment in accordance with the specifications under Clause (i), or (b) after the alteration or replacement of any control equipment in accordance with the directions of the State Board under Clause (ii), or (c) after the erection or re-erection of any chimney under Clause (iv), no control equipment or chimney shall be altered or replaced or, as the case may be, erected or re-erected except with the prior approval of the State Board. (6) If due to any technological improvement or otherwise the State Board is of the opinion that all or any of the conditions referred to in Sub-section (5) require or requires variation (including the change of any control equipment, either in whole or in part), the State Board shall, aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss; or (b) the stoppage or Regulation of supply of electricity, water or any other service. 31B. Appeal to National Green Tribunal.--Any person aggrieved by an order or decision of the Appellate Authority Under Section 31, made on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established Under Section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act. 17. The relevant Sections of the NGT Act are as follows: 2. Definitions.--(1) In this Act, unless the context otherwise requires,-- xxx xxx xxx (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 (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; xx xxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the damaged property or environment, as it may think fit. (5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority. 16. Tribunal to have appellate jurisdiction.--Any person aggrieved by,-- (a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority Under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); (b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government Under Section 29 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); (c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, Under Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); (d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority Under Section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment damaged which may be adjudicated upon by the Tribunal, and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment damaged shall be granted by the civil court." xxx xxx xxx 33. Act to have overriding effect. -- The provisions of this Act, shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 18. It is important now to advert to both the orders dated 08.08.2013 and 15.12.2018, insofar as they deal with the maintainability of the appeals before them. 19. By the judgment of the NGT dated 08.08.2013, the NGT disposed of the plea on maintainability as follows: 62. Another aspect that would support the view that we are taking is the doctrine of necessity. Wherever in the facts and circumstances of the case, it is absolutely inevitable for a person to exercise another right available to it under the statute and where it is unable to exercise the preliminary right of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 31A of the Air Act is not covered under the expression 'order' used in Section 31 of the Air Act. Any direction essentially would contain an element of order as it requires and calls upon the parties to comply with the same. 'Direction' itself means an order; an instruction how to proceed, like the judge's direction to the jury, while 'Order' is defined as a command, direction or instruction. This is how the Black's Law Dictionary, 9th Edition, refers to these two expressions. In other words, they can be used as synonyms. They are not conflicting terms and one can be read into the other. Thus, we find no substance in this contention raised on behalf of the Respondents. 64. An appellate authority, which is constituted under the statute, is completely distinct and different from an administrative authority constituted otherwise even to deal with adjudicatory proceedings. In the case of an appellate authority, it must satisfy the existence de facto and must function de jure, in accordance with law. If the appellate authority itself was not in conformity with the notification, it cannot be said that it could function in accordance with law without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to be an independent order but relied on and endorsing the views of the TNPCB which is under challenge and that are not sufficient for ordering closure or refusal to grant even consent. If there are no other materials for the Government of Tamil Nadu to arrive at conclusion of closure on the ground of irreversible pollution being caused to the environment allowing the unit to function, then it cannot be said to be a policy decision to close down the industry permanently and if any order was passed based on the order by the Pollution Control Board, without independent application of mind and arbitrarily, then that can also be incidentally considered by the Tribunal for the purpose of deciding the question of legality of that order. So, under the present circumstances, it is not a case of this Tribunal entertaining the appeals where there is inherent lack of jurisdiction to entertain the same. 49. In the present proceedings, as already noted, the Appellate Authority having declined to proceed with the matter and the order of closure being appealable before this Tribunal, there is no ground to reject the appeal on the ground of maintainability so as to deprive the Appellant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, Shri Sundaram referred to Section 28(4) of the Air Act and Section 31(4) of the Water Act to argue that appeals to the appellate authority must be decided expeditiously, and if they were not so decided, an appeal would lie to the NGT against a decision by the appellate authority not to decide the matter before it expeditiously. This argument must also be negatived as, in point of fact, no appeal was preferred from any orders of the appellate authority adjourning the proceedings. As we have seen, an appeal was directly filed from the order of the TNPCB dated 09.04.2018. 24. At this point, it is important to advert to a few judgments of this Court. In Kundur Rudrappa v. Mysore Revenue Appellate Tribunal and Ors., (1975) 2 SCC 411, this Court, while dealing with Section 64 of the Motor Vehicles Act, 1939, stated: 4. The point that arises for consideration is whether any appeal lay Under Section 64 of the Act to the State Transport Appellate Tribunal against the issue of a permit in pursuance of an earlier resolution of the Regional Transport Authority granting the permit. It is only necessary to read Section 64(1)(a) which is material for the purpose of this appeal: 64. (1)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Sub-section (2) of Section 14 as also the dispute made in an application Under Sub-section (1) thereof. The approach of the learned TDSAT, being on the premise that its jurisdiction is limited or akin to the power of judicial review is, therefore, wholly unsustainable. The extent of jurisdiction of a court or a tribunal depends upon the relevant statute. TDSAT is a creature of a statute. Its jurisdiction is also conferred by a statute. The purpose of creation of TDSAT has expressly been stated by Parliament in the amending Act of 2000. TDSAT, thus, failed to take into consideration the amplitude of its jurisdiction and thus misdirected itself in law. 26. In B. Himmatlal Agrawal v. Competition Commission of India, Civil Appeal No. 5029/2018 [decided on 18.05.2018], this Court, while dealing with Section 53B of the Competition Act, 2002 held: 7. The aforesaid provision, thus, confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal. This statutory provision does not impose any condition of pre-deposit for entertaining the appeal. Therefore, right to file the appeal and have the said appeal decided on merits, if i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng invested by any statute of under its constitution with that jurisdiction was incompetent to entertain a passing off action. But it was urged that in a State the High Court is at the apex of the hierarchy of civil courts and has all the powers which the subordinate courts may exercise, and it is competent to entertain all actions as a Court of original jurisdiction which may lie in any court in the State. For this exalted claim, there is no warrant in our jurisprudence. Jurisdiction of a court means the extent of the authority of a court to administer justice prescribed with reference to the subject-matter, pecuniary value and local limits. Barring cases in which jurisdiction is expressly conferred upon it by special statutes, e.g. the Companies Act; the Banking Companies Act, the High Court of Mysore exercises appellate jurisdiction alone. As a court of appeal it undoubtedly stands at the apex within the State, but on that account it does not stand invested with original jurisdiction in matters not expressly declared within its cognizance. (at page 802) 28. In Northern Plastics Ltd. v. Hindustan Photo Films Mfg. Co. Ltd. and Ors., (1997) 4 SCC 452, Section 129-D of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the task of a lower statutory authority? xxx xxx xxx After reviewing a number of cases, this Court then concluded: 23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act. 30. In Arcot Textile Mills Ltd. v. Regional Provident Fund Commissioner, (2013) 16 SCC 1, appeals lay to the Tribunal constituted under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, Under Section 7-I of the Act. Whereas appeals lay against orders passed Under Section 7-A of the Act, which provided for determination of monies due from employers, no appeal lay against orders made Under Section 7-Q of the said Act, which spoke of interest payable by the employer. This Court held: 20. On a scrutiny of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milarly, an appeal would lie from an order or decision of the appellate authority Under Section 31 of the Air Act to the NGT only Under Section 31B of the Air Act read with Section 16(f) of the NGT Act. Obviously, since no order or decision had been made by the appellate authority under either the Water Act or the Air Act, any direct appeal against an original order to the NGT would be incompetent. NGT's jurisdiction being strictly circumscribed by Section 33B of the Water Act, read with Section 31B of the Air Act, read with Section 16(a) and (f) of the NGT Act, would make it clear that it is only orders or decisions of the appellate authority that are appealable, and not original orders. On the facts of the present case, it is clear that an appeal was pending before the appellate authority when the NGT set aside the original order dated 09.04.2018. This being the case, the NGT's order being clearly outside its statutory powers conferred by the Water Act, the Air Act, and the NGT Act, would be an order passed without jurisdiction. 32. In fact, in the United Kingdom, there are several Acts under which a leapfrog appeal is permitted if a point of law of general public import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions, 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. (II) Re: Orders passed Under Section 33A of the Water Act and Section 31A of the Air Act 35. We have referred to the orders dated 12.04.2018, 23.05.2018, and 28.05.2018 passed by the TNPCB Under Sections 33A and 31A of the Water Act and Air Act respectively. At this juncture, it is important to state that Section 33B of the Water Act and Section 31B of the Air Act were both enacted on 18.10.2010, which is the very date on which the NGT Act came into force. What is important to note is that whereas Section 33B(c) of the Water Act read with Section 16(c) of the NGT Act make it clear that directions issued Under Section 33A of the Water Act are appealable to the NGT, directions issued Under Section 31A of the Air Act are not so appealable. In fact, the statutory scheme is that directions given Under Section 31A of the Air Act are not appealable. 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 afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, Shri Sundaram argued, with particular reference to the explanation to Section 31A of the Air Act that "directions" partake of the nature of "orders" when closure of any particular industry or stoppage of supply of electricity qua any single industry is made, and therefore, such directions are appealable as orders Under Section 31 of the Air Act. This argument is also of no avail as Section 33A of the Water Act contains an identical explanation to that contained in Section 31A of the Air Act. Despite this, the legislative scheme, as stated hereinabove, is that so far as directions under the Water Act are concerned, they are appealable, but so far as directions under the Air Act are concerned, they are not appealable. Hence, reference made to P. Ramanatha Aiyer's Law Lexicon and Black's Law Dictionary, which state that in certain circumstances, orders are also directions and vice versa, would not apply to the present case, given the express statutory scheme. In this connection, Shri Sundaram cited Kanhiya Lal Omar v. R.K. Trivedi, (1985) 4 SCC 678, and relied upon paragraph 17, where this Court held, referring to Article 324(1) of the Constitution of India, that a "di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38. One further argument was made that these matters are only procedural, and therefore, substantially, an appeal to the NGT would be maintainable. It is well settled that the right to appeal is not a procedural matter but a substantive one. In Garikapati Veeraya v. N. Subbiah Choudhury, 1957 SCR 488, this Court held: From the decisions cited above the following principles clearly emerge: (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pass a quasi-judicial order after hearing both the State Board and the person who is affected. Quite obviously, this order is not a quasi-judicial order as the State Government has not found it necessary to hear either the State Board, or any person affected by such order. Further, such order does not purport to be an order which either affirms or sets aside any order made Under Sections 25, 26, or 27 of the Water Act. This argument of despair, therefore, must also be rejected. 40. Shri Sundaram then argued that this Court in L. Chandra Kumar (supra) made it clear that Tribunals that are set up, generally have the power of judicial review, save and except a challenge to the vires of the legislation under which such Tribunals are themselves set up. For this, he relied strongly upon paragraphs 90 and 93 of the judgment in L. Chandra Kumar (supra). It is important to notice that L. Chandra Kumar (supra) pertained to a Tribunal that was set up Under Article 323A of the Constitution of India. Under Article 323A(2)(d), the Administrative Tribunal so set up would be able to exercise the jurisdiction of all courts except the jurisdiction of the Supreme Court Under Article 136 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation the provisions of Sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations or societies owned or controlled by Government, not being a local or other authority or corporation or society controlled or owned by a State Government: Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this Sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations or societies. (3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this Sub-section apply to any local or other authority or corporation or society, all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court) in relation to-- (a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. The word "directions" used in Section 29 of the TRAI Act was interpreted to include orders and Regulations in the context of the factual matrix of that case and the apprehension of the Court that Section 29 would otherwise become unworkable, but the same cannot be read as laying down a proposition of law that the words "direction", "decision" or "order" used in Section 14(b) would include Regulations framed Under Section 36, which are in the nature of subordinate legislation. xxx xxx xxx 123. In Union of India v. Madras Bar Assn. [(2010) 11 SCC 1] and State of Gujarat v. Gujarat Revenue Tribunal Bar Assn. [(2012) 10 SCC 353: (2012) 4 SCC (Civ) 1229: (2013) 1 SCC (Cri.) 35: (2013) 1 SCC (L & S) 56: (2012) 10 Scale 285], this Court applied the principles laid down in L. Chandra Kumar case [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261: 1997 SCC (L & S) 577] and reiterated the importance of tribunals created for resolution of disputes but these judgments too have no bearing on the decision of the question formulated before us. 124. In the result, the question framed by the Court is answered in the following terms: in exercise of the power vested in it Under Section 14( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance on the NGT judgment dated 17.07.2014 in Wilfred v. Ministry of Environment and Forests must also be rejected as this NGT judgment does not state the law on this aspect correctly. This contention is also without merit, and therefore, rejected. 43. Shri Sundaram then argued that, in any case, this order is an order made by the State Government against the TNPCB, and is therefore, a direction to the TNPCB and not a direction to his client. If this were so, and the order had no effect on his client, there would have been no necessity to file an appeal before the NGT against such order. We have seen, however, that this order has been challenged on merits by the Respondent before the NGT. To then say that this order which is challenged would be defended on certain grounds, as a result of which, the NGT then gets vested with the jurisdiction to decide the same, is again to put the cart before the horse. It is clear that no appeal is provided against orders made Under Section 18 of the Water Act, and the attempt to bring the NGT in by the backdoor, as it were, would, therefore, have to be rejected. Also, to argue that as against a writ court acting Under Article 226 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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