TMI Blog2019 (2) TMI 1938X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. In the present case, it is clear that Section 16 of the NGT Act is cast in terms that are similar to Section 14(b) of the Telecom Regulatory Authority of India Act, 1997, in that appeals are against the orders, decisions, directions, or determinations made under the various Acts mentioned in Section 16. It is clear, therefore, that under the NGT Act, the Tribunal exercising appellate jurisdiction cannot strike down Rules or Regulations made under this Act. Therefore, it would be fallacious to state that the Tribunal has powers of judicial review akin to that of a High Court exercising constitutional powers Under Article 226 of the Constitution of India - the State Government order made Under Section 18 of the W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15501-15503/1996, 5769/1997, and 16961/1998. On 20.05.1999, the TNPCB granted its consent for production of two more products, namely, phosphoric acid and hydrofluorosilicic acid. On 21.09.2004, a Supreme Court Monitoring Committee was constituted to verify the compliance status of hazardous waste management. It recommended to the MoEF that the environmental clearance for the proposed expansion should not be granted, and if granted, should be revoked. On 19.04.2005, the TNPCB issued consent to operate, subject to fulfillment of various conditions for the expanded capacity. Meanwhile, the Madras High Court, on 28.09.2010, allowed the various writ petitions that had been filed and quashed the environmental clearances granted to the Respondent and directed the TNPCB to close down the plant. 3. Meanwhile, on 23.03.2013, the residents of nearby areas started complaining of irritation, throat infection, severe cough, breathing problem, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority 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 passed by the Government of Tamilnadu in G.O. Ms. No: 72, Environment Forests (EC-3) Department Dated: 28.5.2018, directing the Tamilnadu Pollution Control Board to close the plant permanently, we feel it is not appropriate to hear the Appeals and decide the issue at this juncture. Hence the Appeals and applications are adjourned to 10.7.2018. On 10.07.2018, the matter was further adjourned as follows: APPLICATIONS 28 29/2018, APPLICATIONS 30 31/2018 AND APPEALS 36 37/2018: In view of the remarks made in the adjudication proceedings on 6.6.2018 and as the position is same now, the Appeals and Applications are adjourned to 21.8.2018. Finally, on 18.12.2018, i.e., three days after the impugned order was passed by the NGT on 15.12.2018, an order passed by the appellate authority was as follows: APPLICATIONS 28, 29, 30 31/2018 AND APPEALS 36 37/2018: Ms. Janani, counsel for the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the NGT to render its final findings, both on maintainability as well as on merits. On 20.08.2018, the NGT constituted a Committee to go into the material produced by the parties to the Civil Appeal and to visit the site. This Committee was ultimately headed by Justice Tarun Agarwala, former Chief Justice of the Meghalaya High Court, together with two experts, one being a representative of the Central Pollution Control Board [ CPCB ] and another a representative of the MoEF. Aggrieved by this order, the Appellants knocked on the doors of this Court. This Court disposed of this appeal on 10.09.2018, by stating: By our order dated 17.08.2018, we had made it clear that the NGT may continue to hear the matter both on merits as well as on maintainability and finally decide the matter on both counts. Since our order is not referred to in the order dated 20.08.2018 passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a time bound manner. Thereafter, the bottom of the dump yard and the side walls should be covered with HDPE liner. Further, the Company should ensure that the generation and disposal of copper slag is maintained in the ratio of 1:1 and that the Company at best, can retain 10 days generation of copper slag in its dump yard. g) The dead stock of gypsum lying in the dump yard inside the factory premises which has solidified should be removed in a time bound manner. Thereafter, the bottom of the dump yard and the side walls should be covered with HDPE liner. Further, the Company should ensure that the generation and disposal of gypsum is maintained in the ratio of 1:1 and that the Company at best, can retain 10 days generation of gypsum in its dump yard. h) The Company before disposing copper slag, gypsum (or) any other waste product will s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 existing stack height. u) The transportation of copper ore concentrate from the port to the factory premises should be done in a closed conveyance or through a pipe conveyor system. v) Self-monitoring mechanism needs to be prepared by the Appellant for the periodic monitoring of Ambient Air Quality/Stack emissions/Fugitive emissions/ground water quality/surface water quality/soil quality/slag analysis through third party and report shall be furnished to the concerned regulatory agencies. w) All the monitoring data, compliance reports of CTE/CTO/EC and environmental statement shall be uploaded on the website of the Company. x) TNPCB should be directed to commission Regional Environmental Impact Assessment Study in and around Tuticorin District by engaging a reputed national agency. y) CPCB recommen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 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 show that once an appeal is available to an appellate authority, after which an appeal lies to the NGT, a party cannot leapfrog directly to the NGT. Apart from this, the learned Senior Advocate also argued, based on the scheme of the Water Act, Air Act, and NGT Act, that all the appeals filed before the NGT were incompetent. Shri Guru Krishnakumar, learned Senior Advocate appearing on behalf of the TNPCB, also went on to criticize the order passed by the NGT dated 08.08.2013 on maintainability. According to him, no doctrine of necessity could be imported if an appellate tribunal was not constituted, as a result of which an appeal could not be argued before the appellate authority. Consequently, a leapfrog appeal would not be maintainable before the NGT. According to the learned Senior Advocate, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 industry, it is non est and liable to be ignored. An alternate argument made is that even though the order states that it is made Under Section 18, it can otherwise be traced to Section 29 of the Water Act as an order made in revision, and would, therefore, be appealable as such. The learned Senior Advocate then argued that, in any case, this is an order by which a direction has been made by the State Government to the TNPCB and, therefore, does not directly affect his client. He also argued that when this order was challenged before the NGT, the defence of the Government and the TNPCB would be that this is an order which, though binding on the TNPCB, would also impact the Respondent. This being the case, the NGT could always go into whether such a defence is a valid defence, and could, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsent 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 may be prescribed. (3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in Sub-section (1) and in making any such inquiry shall follow such procedure as may be prescribed. (4) The State Board may-- (a) grant its consent referred to in Sub-section (1), subject to such conditions as it may impose, being-- (i) in cases referred to in Clauses (a) and (b) of Sub-section (1) of Section 25, conditions as to the point of discharge of sewage or as to the use of that outlet or any other outlet for discharge of sewage; (ii) in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; (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 by reason of any reduction of the temperature or volume or rate of discharge of the effluent as compared with the previous discharge. 26. Provision regarding existing discharge of sewage or trade effluent.-- Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a stream or well or sewer or on land, the provisions of Section 25 shall, so far as may be, apply in relation to such person as they apply in relation to the person referred to in that Section subject to the modification that the application for consent to be made Under Sub-section (2) of that Section shall be made on or before such date as may be specified by the State Government by notification in this behalf in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal 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 respect of the unreasonableness of any variation of a condition, such authority may direct either that the condition shall be treated as continuing in force unvaried or that it shall be varied in such manner as appears to it to be reasonable. 29. Revision.-- (1) The State Government may at any time either of its own motion or on an application made to it in this behalf, call for the records of any case where an order has been made by the State Board Under Section 25, Section 26 or Section 27 for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it may think fit: Provided that the State Government shall not pass any order unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion) 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 such other particulars as may be prescribed: Provided that where any person, immediately before the declaration of any area as an air pollution control area, operates in such area any industrial plant such person shall make the application under this Sub-section within such period (being not less than three months from the date of such declaration) as may be prescribed and where such person makes such application, he shall be deemed to be operating such industrial plant with the consent of the State Board until the consent applied for has been refused. (3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, after giving the person to whom consent has been granted an opportunity of being heard, vary all or any of such conditions and thereupon such person shall be bound to comply with the conditions as so varied. (7) Where a person to whom consent has been granted by the State Board Under Sub-section (4) transfers his interest in the industry to any other person, such consent shall be deemed to have been granted to such other person and he shall be bound to comply with all the conditions subject to which it was granted as if the consent was granted to him originally. xxx xxx xxx 31. Appeals.-- (1) Any person aggrieved by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,-- 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 xxx 14. Tribunal to settle disputes.-- (1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I. (2) The Tribunal shall hear the disputes arising from the questions referred to in Sub-section (1) and settle such disputes and pass order thereon. (3) No application for adjudication of dispute under this Section shall be entertained by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llution) 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 of 1977); (e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority Under Section 2 of the Forest (Conservation) Act, 1980 (69 of 1980); (f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority Under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981); (g) any direction issued, on or after the commencement of the National Green Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appeal because of non-existence or non-proper constitution of the appellate authority and for its effective and efficacious exercise of right, it becomes necessary for the Appellant-company to invoke another remedy, then the same would be permitted unless it was so specifically barred by law governing the subject and the rights of the parties. It was upon the Appellant-company, particularly keeping in view the emergent situation created by issuance of the order dated 29th March, 2013, to avail of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 constitution of the three Member appellate authority. The cumulative effect of this discussion is that the objection in regard to maintainability is without any substance and is liable to be rejected. In view of this finding, it is not necessary for us to examine whether this could be treated as a petition Under Section 14 of the National Green Tribunal Act (for short 'the NGT Act') even if it was not maintainable in view of the objection taken by the Respondent in regard to maintainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any judicial remedy in the matter. (I) Re: Order dated 09.04.2018 21. This order is an order which rejected renewal of consent to operate, and therefore, is traceable to Section 27 of the Water Act and Section 21 of the Air Act. There is no doubt whatsoever that an appeal against an order made Under Section 27 of the Water Act is appealable to the appellate authority Under Section 28 of the said Act. Under Section 33B(a) of the said Act, if a person is aggrieved by an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him ... may within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted Under Sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final. We are not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied. Position would have been different if the provision of appeal itself contained a condition of pre-deposit of certain amount. That is not so. Sub-section (3) of Section 53B specifically cast a duty upon the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Customs Act, 1962 was referred to, under which, the Board of Excise and Customs may direct a Collector to apply to the Appellate Tribunal for determination of points which arise out of an order or decision. In repelling an argument that even without such direction, the Union of India may file an appeal directly, this Court held: 10. ... The aforesaid provisions of the Act leave no room for doubt that they represent a complete scheme or code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 7-I, we notice that the language is clear and unambiguous and it does not provide for an appeal against the determination made Under Section 7-Q. It is well settled in law that right of appeal is a creature of statute, for the right of appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. This being the position a provision providing for appeal should neither be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 importance is involved. Thus, the Administration of Justice Act, 1969 states that such a leapfrog appeal directly to the Supreme Court may be filed on grant of certificate by the Trial Judge in the following terms: 12. Grant of certificate by trial judge. (1) Where on the application of any of the parties to any proceedings to which this Section applies the judge is satisfied-- (a) that the relevant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B 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 aforesaid orders and say that so far as they affect water pollution, they are appealable to the NGT, but so far as they affect air pollution, a suit or a writ petition would lie against such orders. Shri Sundaram's argument that these orders being substantially relatable to the Water Act would, therefore, not hold, as such orders are composite orders made both under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 direction may be equated with a specific or a general order. The context of Article 324 being wholly different, it is obvious that this authority also has no application, given the statutory scheme in the present case. 36. Shri Sundaram then cited Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing 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 of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. (at pp. 514-515) This argument must, therefore, be reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Constitution. This would mean that the Administrative Tribunal so set up could exercise the jurisdiction of all High Courts when it came to the matters specified in Article 323A. This is further made clear by a conjoint reading of Section 14 and Section 28 of the Administrative Tribunals Act, 1985, which read as follows: 14. Jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt: 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 other authority or corporation or society; and (b) all service matters concerning a person other than a person referred to in Clause (a) or Clause (b) of Sub-section (1) appointed to any service or post in connection with the affairs of such local or other authority or corporation or society and pertaining to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. 42. In Bharat Sanchar Nigam Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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(b) of the TRAI Act, TDSAT does not have the jurisdiction to entertain the challenge to the Regulations framed by TRAI Under Section 36 of the TRAI Act. In the present case, it is clear that Section 16 of the NGT Act is cast in terms that are similar to Section 14(b) of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution of India, the NGT is an expert body set up only to deal with environmental matters, again does not answer the specific issue before this Court. As we have held earlier, an appeal being a creature of statute, an order passed Under Section 18 of the Water Act is ei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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