NGT Can't Exercise Suo Motu Powers On Letters, Media Reports : Amicus Curiae Tells Supreme Court [Hearing Day 3]

The Supreme Court on Tuesday continued hearing a batch of petitions on the issue whether the National Green Tribunal (NGT) has jurisdiction under the provisions of the National Green Tribunal Act, 2010 (NGT Act) to initiate suo motu proceedings based on a letter or a newspaper report.

The matter is being adjudicated upon by a Bench comprising Justices AM Khanwilkar, Hrishikesh Roy and CT Ravikumar and it has been made clear that the Bench would only examine the legal issue in consideration and would not delve into the merits of the individual cases. 

The cases being adjudicated upon are: 

1. An appeal filed by the Municipal Corporation of Greater Mumbai against an order of the NGT on waste disposal passed on the basis of an article published in 'The Quint'.

2 .  Batch of appeals arising from an order passed by the NGT on the basis of a letter representation increasing the minimum distance rule for quarries in Kerala as 200 meters from 50 meters from residential units. The Kerala High Court had held that NGT has suo motu jurisdiction; however it limited the operation of the order to new quarries and allowed existing quarries to operate as per earlier distance limit till the term of their license.

Conferring suo moto powers on the NGT will emasculate authorities/boards specified in Schedule 1 of the NGT Act: Anand Grover 

Senior Advocate Anand Grover who has been made an amicus curiae in the matter submitted before the Court that only Constitutional courts have been reposed the power to initiate suo moto proceedings. He thus maintained that under the provisions of the NGT Act, the Tribunal does not have the power to take suo moto cognisance of communications, media reports etc. 

He further asserted that the 'plain meaning' of the legislation must be given credence to in order to ascertain the intention of the legislature. The Court must start with the presumption that the legislature did not make a mistake, the senior counsel further argued. Furthermore, it was contended that the NGT can exercise jurisdiction only in the presence of a lis or dispute. 

"Unless a person is aggrieved and approaches the Tribunal, the Tribunal cannot exercise suo moto powers", senior advocate Gorver further argued. 

To this, the Bench observed, "No express suo moto powers are there, we take it. However, we are not saying that the Tribunal has suo moto powers per se. What if a communication is received in the office of the Registrar, not in Form 1 as required and accordingly the communication is placed before the Tribunal. Then the Tribunal has to pass a formal order where the Tribunal can ask for the defects to be cured and formalities to be completed..does the Tribunal have the power to do that?

In response, the senior counsel remarked, "At a personal level, I would want such access to be liberal but in light of the provisions of the Act, it is difficult'. He also submitted before the Court that one of the main concerns is that often the respondents are not notified when the NGT takes suo moto cognisance of a matter. He further argued that in case the Tribunal takes suo moto cognisance of communications, then 'an external source is a must'. 

"If the process is triggered by an external source, then the form of the communication is irrelevant", the senior counsel further added. 

Abating the concern raised, the Bench remarked, "the other side will be notified in case the Tribunal takes suo moto cognisance". 

Referring to the Section 14 of the NGT Act wherein it has been stated that the Tribunal shall have jurisdiction in matters that involve a substantial question arising out of the implementation of the enactments specified in Schedule I, the senior counsel submitted that authorities specified in the statutes mentioned in Schedule 1 such as the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 etc have all been granted independent powers. 

"Powers conferred upon these authorities will be truncated, they will be emasculated if the Tribunal is granted suo moto powers", senior counsel Gorver further added. Assuming such powers take away powers at a lower level, it was further contended. 

Process of law should never defeat the purpose of law; NGT has suo moto powers: Nidhesh Gupta 

Senior advocate Nidhesh Gupta appearing for one of the parties submitted before the Court that the NGT has complete suo moto powers and that exercise of such powers is not restricted to merely taking cognisance of a communication or a media report. He referred to the 186th Law Commission Report wherein it had been enumerated, 

"However, the High Courts, even if they are approached under Art. 226 either in individual cases or in PIL cases, where orders of environmental authorities could be questioned, may refuse to intervene on the ground that there is an effective alternative remedy before the specialist Environmental Court." Thus the senior counsel argued that the Law Commission intended to impose suo moto powers upon the NGT so that such 'environmental courts' could conduct spot inspections, have an independent statutory panel of environmental scientists, receive independent advice on scientific matters, something that High Courts would otherwise be constrained to do.

The senior counsel further apprised the Court that the Law Commission had intended for the NGT to have power to 'mould any appropriate relief'. "Normally, Civil Courts do not grant relief which is not prayed for. But, like Writ Courts, these environment Courts must be able to mould any relief appropriate to the facts and circumstances of the case", the law commission report had stated. 

The senior counsel further placed reliance on Section 19 of the NGT Act to contend that the NGT cannot be constrained by procedural limitations and that it shall be guided only by principles of natural justice. "Section 19 shows that the intent of the Parliament was to ensure that matters pertaining to the environment are not bound by shackles of procedure", the senior counsel further added. 

Referring to Section 14(1) of the NGT Act, the senior counsel submitted, "this provision gives the mandate to the NGT to exercise suo moto powers'. He further argued, "if one person starts polluting a river and no person complains, will the NGT not be able to interfere? That was not the intention of the Legislature". 

Furthermore, senior counsel Gupta contended that pursuant to Rule 24 of the NGT (Practice and Procedure) Rules, 2011, the NGT can  decide on the merits of a case even in the absence of an application as wide powers have been conferred upon the Tribunal. He also disagreed with the contention that a person who writes a letter or a communication to the NGT, must be asked to comply with formal requirements of an application before the NGT can take suo moto cognisance. 

"If the letter has to be followed up with a formal application then the purpose of the legislation will be defeated. What if the person does not want to do anything more besides writing the letter?", the senior counsel argued. 

The senior counsel thus concluded his submissions by contending that interpretation of the statute that confers jurisdiction on the Tribunal must be allowed instead of one that takes away such a jurisdiction. 

"Process of law should never defeat the purpose of law, it is a belief I hold personally. Protecting the environment will be defeated if suo moto powers are not conferred", senior counsel Gupta submitted. 

NGT has a duty to address public injury even in the absence of a lis: Sanjay Parikh 

Senior advocate Sanjay Parikh appearing for an Advocate who frequently practices before the NGT contended that the NGT has the power to take cognisance and exercise jurisdiction based on a media report or letter or any other communication. "Whatever the nomenclature is , in substance the Tribunal has jurisdiction", he argued. 

To this the Bench remarked, "we will say that the Tribunal has suo generis jurisdiction. It has the jurisdiction to implement enactments specified in Schedule 1 as well as appellate jurisdiction.. mixture of both". 

The Bench further enquired from the senior counsel, "Section 14(1) of the NGT Act does not talk about an application, is there a restriction that there has to be an application?"

In response the senior counsel contended that the NGT had been established to redress State's inaction in environmental matters and to remedy a public injury. Furthermore, placing reliance on the Supreme Court judgment in S.P Gupta v. Union of India, he argued, "there does not have to be a lis in the traditional sense, there has to be injury caused to the society. Any person in society can initiate proceedings."

The Bench further observed, "the NGT has suo generis jurisdiction..it can address a public injury as well as the cause of a private legal right". 

Senior counsel Parikh further submitted before the Court that right to environment is a fundamental right under Article 21 of the Constitution and that the NGT has a 'duty' to redress such public injury. "If there is no lis, but there is public injury, it becomes a duty of NGT to address it", he added further. 

The Bench opined, "There are also authorities created under the enactments in Schedule 1, the NGT is an umbrella authority, NGT can step in if the authorities fail to issue directions or take remedial action. But the NGT cannot exercise powers that the authorities have been conferred with under the respective enactments..in that sense it becomes suo generis powers" 

The senior counsel further placed reliance on the Supreme Court judgment in A.R. Antulay v. R.S. Nayak wherein it had been held, 

"It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised otherwise. So far as the position in this country is concerned conferment of jurisdiction is possible either by the provisions of the Constitution or by specific laws enacted by the Legislature." 

Thus, the senior counsel contended that suo moto powers can be conferred on the Tribunal even vide specific legislations that it does not always have to emanate from the Constitution. 

The Bench ended the hearing on Tuesday by posing a question to senior advocate Parikh, "What happens to the restitution powers of the Tribunal when there is an Act of God, suppose there is an earthquake..we are just putting thoughts in your head", the Court remarked.

The matter is slated to be heard next on September 8. 

Case Title: Municipal Corporation of Gr. Mumbai v. Ankita Sinha & Ors. and other connected cases

For report of hearing of Day 1: Can NGT Take Suo Motu Cognizance Based On A Letter Or News Report? Supreme Court Starts Hearing

For report of hearing of Day 2: If NGT Acts On A Letter Representation, Will It Be A Suo Motu Case? Supreme Court Asks

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