If NGT Acts On A Letter Representation, Will It Be A Suo Motu Case? Supreme Court Asks [Hearing Day 2]

The Supreme Court on Thursday 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 to initiate suo motu proceedings based on a letter or newspaper report.

The matter is being adjudicated upon by a Bench comprising Justices AM Khanwilkar, Hrishikesh Roy and CT Ravikumar. Senior Advocate Anand Grover has been made an amicus curiae in the matter. 

The bench is examining legal point if NGT had suo motu jurisdiction, and said that it will not go into the merits of the individual cases

Statutory provisions must be read on a holistic basis: V. Giri

Senior Advocate V Giri representing Thomsun Aggregates and M/S. Crystal Aggregates Pvt. Ltd commenced the arguments on the second day of the hearing. He argued that the NGT has 'no general power of review'. Referring to Section 14 of the NGT Act which outlines the ambit of jurisdiction of the Tribunal, he contended that Section 14(1) of the Act cannot be read in isolation. Instead it was submitted that Section 14(1) and (2) must be read together while deciding upon the extent of jurisdiction of the Tribunal.

Further, referring to Section 14(3) of the NGT Act which lays down the conditions required to be fulfilled for the tribunal to entertain an application, senior counsel Giri contended, "if somebody comes with an application, sub-section (3) has to be fulfilled. Just a letter won't do."

Senior counsel Giri further submitted that in order to appreciate the legislative intent, statutory provisions must be read on a holistic basis. He also relied upon Supreme Court judgments in the Central Vista project and Vedanta-Sterlite cases. He thus opined that an application as per the provision of Section 14(3) is necessary to trigger the jurisdiction of the Tribunal.

NGT is not a tribunal under Article 323A of Constitution: Jaideep Gupta

Senior Advocate Jaideep Gupta, appearing for the State of Kerala, contended that the NGT does not possess the 'judicial review of legislative power' since it is not a tribunal constituted under Article 323A of the Constitution. He also argued that the NGT does not enjoy inherent powers such as the High Court and the Supreme Court under Article 226 and 32 of the Constitution.

Opining that the NGT Act does not envisage any provision conferring suo moto powers upon the Tribunal, he contended, "Statute is silent, there must be express power in the statute for the Tribunal to take suo moto cognisance"

The senior counsel further argued that even civil courts cannot ignore the provisions of the CPC and begin hearing a matter without a civil suit. "Even Courts which have inherent jurisdiction cannot go against statutory provisions unless in extraordinary circumstances', he further submitted. He also placed reliance on the Supreme Court judgment in K.K. Velusamy v. N. Palaanisamy wherein the Apex Court had held that in the absence of 'express statutory provisions', the inherent powers of the Court cannot be exercised. Thus, he contended that a letter petition cannot be taken up by the NGT to initiate suo moto proceedings.

Legislative intent to be deciphered from the language employed in the statute: Dhruv Mehta

Senior advocate Dhruv Mehta appearing for one of the petitioners argued that the NGT does not have power to initiate suo moto proceedings as the legislation does not expressly provide for the same. "Legislative intent to be seen from the language employed in the statute", he argued.

Reliance was also placed on Supreme Court judgment in Rajeev Hitendra Pathak v. Achyut Karekar wherein the Apex Court had held that 'tribunals are creatures of the statute and thus derive their power from the express provisions of the Statute'. Accordingly the Supreme Court had ruled that District Forums and State Commissions do not have the power of review as such powers have not been conferred by the Consumer Protection Act, 1986.

"The Parliament has deliberately not conferred such authority over the Tribunal..provisions of the Act and Rules would have to be cast aside if it is to be said that NGT has suo moto jurisdiction", the senior counsel argued.

To confer suo moto powers upon NGT was not intended by the legislature: Sajan Poovyya 

Senior advocate Sajan Poovyya appearing for one of the petitioners referred to the 186th Law Commission Report to argue that it was the intention of the legislature to not confer suo moto powers upon the NGT. He further submitted that locus requirements have been diluted to give wide powers to the NGT but it still 'falls short of the power to initiate suo moto proceedings'. 

The senior counsel further argued that the legislature intended for the 'invocation of the jurisdiction of the Tribunal to be through original petition and not through suo moto proceedings'. He further quoted from the Law Commission's report wherein the Commission stated, 'we have deliberately kept criminal appellate jurisdiction and judicial review jurisdiction exercised today by the High Courts, beyond the purview of the proposed Courts".

"Suo moto jurisdiction is concomitant to powers under Article 32, 226 of the Constitution, such concomitant powers not contemplated by the legislature' , the senior counsel further contended. 

NGT Rules do not confer suo moto powers: Siddharth Dave 

Senior advocate Siddharth Dave argued before the Court that the NGT (Practice and Procedure) Rules, 2011 do not contemplate any suo moto proceedings and that the only way to trigger the jurisdiction of the NGT is through an application. "Every Rule deals with an application or an appeal', he contended. He further referred to Rule 15(5) which states that 'every notice issued by the Tribunal must be accompanied by the application filed or an impugned order'. 

To this, the Bench remarked, "in all these cases, the initiation of proceedings began on the basis of some communication, if that is treated as an application, what is wrong in such initiation of process? Anybody even a member of the Tribunal can trigger the jurisdiction of the Tribunal that way."

The Bench further opined that if after recipient of such communication, formalities under the NGT Act are complied with, then it would not constitute suo moto proceedings. 

The senior counsel while responding to the contention that Rule 24 confers upon the Tribunal the power to initiate suo moto proceedings, stated that such a 'power if at all finds mention only in the Rules and not in the body of the Act'. As a result, the Tribunal cannot go beyond its statutory limitations. 

NGT has no suo moto powers but its functioning cannot be constrained by procedural law: ASG Aishwarya Bhati 

Additional Solicitor Genereal Aishwarya Bhati, appearing for the Union Government, contended that the NGT does not have 'suo moto powers' however the jurisdiction of the Tribunal cannot be curtailed through procedural limitations. 

'To say that no letter etc can be banked upon to initiate proceedings would be to bind the Tribunal in the constrains of procedural law', the ASG argued. 

To this, the Bench posed a series of questions, 

"Can proceedings before the NGT be imitated on the basis of a press note and not just a communication? Can a Tribunal member initiate proceedings on behalf of an aggrieved party? Can the Tribunal member not be juxtaposed with the party?"

In response, ASG Bhati submitted that the NGT will be 'duty bound' to take cognizance of such communication. She however maintained that the Tribunal does not possess any suo moto powers. She further referred to Section 19(1) of the NGT Act to contend that the functioning of the Tribunal will not be bound by the procedure laid down under the CPC but instead it will be governed by the principles of natural justice. 

Suo moto powers must be exercised only by Constitutional Courts: Anand Grover 

Senior Advocate Anand Grover appearing as an amicus curiae submitted that it would be a 'slippery slope' if members of the NGT are permitted to initiate suo moto proceedings on the basis of media reports. He contended that it would be akin to the 'Tribunal being a judge in its own cause'. Furthermore, he submitted that suo moto powers had been conferred in the NGT vide its preceding legislation i.e. the National Environment Appellate Authority Act, 1997 but it had subsequently been repealed by the National Green Tribunals Act, 2010. This shows that there was express legislative intent to not confer suo moto powers upon the NGT, he further argued. 

He further submitted that the power to initiate suo moto proceedings are generally left to Constitutional courts and not to Tribunals as it confers wide discretion upon the adjudicating body. 

To this the Bench remarked that since the NGT was constituted for environmental matters, if something came to the notice of the Tribunal then proceedings must be initiated as it would help in 'bridging the gap'. 

The matter is slated to be heard next on September 7. 

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

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