Does NGT Have Jurisdiction To Take Suo Motu Cognizance Without An Application? Supreme Court To Examine

The bench of Justices A. M. Khanwilkar and Sanjiv Khanna was hearing a string of SLPs and appeals before it.  The question to be addressed was whether the NGT can exercise suo motu jurisdiction without a formal application, like a Constitutional court.

On Tuesday, Senior Advocate A. N. S. Nadkarni told the bench that the NGT needs an applicant or a claimant before it to be able to take cognisance of an issue. It cannot, like a constitutional court, commence proceedings of its own accord. It was his case that the NGT Act requires the existence of a 'lis' between two parties, a dispute where one party is asking for something and the other is denying; that the jurisdiction of the NGT under the Act does not have the wording of the constitutional jurisdiction under Articles 32 or 226.

"Your Lordships have held that a tribunal is an authority which decides a 'lis' between parties. Your Lordships has held the same for the Administrative Tribunal and others. That is the distinction between a court and a tribunal. Otherwise, the tribunal will also be a civil court", he pressed.

He relied on the 2017 Supreme Court decision in Rajendra Singh Bhandari's case where its was observed that,

"On a combined reading of all these provisions (of the NGT Act), it is clear to us that there must be a substantial question relating to the environment and that question must arise in a dispute – it should not be an academic question. There must also be a claimant raising that dispute which dispute is capable of settlement by the NGT by the grant of some relief which could be in the nature of compensation or restitution of property damaged or restitution of the environment and any other incidental or ancillary relief connected therewith"

To this, Justice Khanwilkar remarked that the above is 'not a statement of law or a binding precedent' and that it 'must have been a passing remark'. The judge expressed that the jurisdiction of the NGT, as defined in section 14 of the statute, does not say that only on the filing of an original application can the tribunal take notice of an issue. Justice Khanwilkar indicated that section 14(1) states that 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.

Such question arises out of the implementation of the enactments specified in Schedule I.

"It says 'implementation of the enactments specified in Schedule I'. The Tribunal can of course exercise only those powers which are conferred on it under the statute and which relate to the Acts in the Schedule. But to say that it has no suo motu power, that is a very wide statement. Which judgement says that the NGT cannot look into environmental problems and issues? Suo motu may also be possible", reflected Justice Khanwilkar.

Justice Khanwilkar continued that,

"The purpose and intent of the NGT Act also has to be kept in mind. The other tribunal which you mentioned is concerned with disputes between the government and government servants and the government servants inter se. Here, the tribunal is concerned with the common man who is the victim of pollution. Why can the NGT not take responsibility and give helps to the victims? There might be a variety of reasons for which an OS may not be filed..."

Justice Khanna also added that to be able say the NGT has no suo motu jurisdiction would tantamount to curtailing the powers of the Tribunal which has been accorded a significant and wide role. The judge was of the view that for this purpose, the nature and functions of the Tribunal, the powers conferred on it, its duties will have to be analysed.

Justice Khanna indicated that sub-section 1 of section 14 confers jurisdiction on the NGT but it does not talk of an applicant.

"It is only the later provisions which say that there can be an applicant. But is there anything to suggest that without an applicant, the jurisdiction of the tribunal cannot be exercised?", he observed. The judge indicated section 15(1)(a) of the Act which says that the Tribunal may grant relief, compensation and restitution to the victims of pollution and other environmental damage. "It says 'victims of pollution' and not 'applicant'", pointed out Justice Khanna.

The bench then asked the parties to file written submissions on the statutory provisions and the authorities on which they intend to rely. "Also give us material on the objects and reasons of the Act", said Justice Khanwilkar. The bench clarified that the written note shall not be more than 5 pages, though there may be judgements annexed to it. The bench then posted the matter to August 25 for hearing on the limited aspect of the suo motu jurisdiction of the NGT.

The lead SLP listed before the bench on Tuesday has its genesis in the 2018 order of the NGT where its Principal Bench, perusing an article titled 'Garbage Gangs of Deonar: The Kingpins and Their Multi-Crore Trade', had taken cognisance of the same and treated the same as application under Section 14 of the NGT Act, 2010.

"The article states that there is illegal disposal of waste from the dumping zones of the garbage at Deonar in Mumbai. The unregulated and unauthorized activities are carried out for profiteering which results in massive fires, adversely affecting the environment and the health and lives of inhabitants. This also results in violation of Air (Prevention and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974, Solid Waste Management Rules, 2016 and Hazardous Waste Management Rules, 2016. These matters require consideration", the NGT had recorded.

A joint inspection was directed to be conducted by the Central Pollution Control Board (CPCB) and the Maharashtra Pollution Control Board (MPCB), along with the Collector of the area and a representative of the Municipal Corporation Greater, Mumbai. Direction was also issued to prepare an action plan for remediation of legacy waste and report of the steps taken.

Noting that the Joint inspection report shows that there was huge amount of legacy waste and fire accidents taken place, causing huge air pollution which was a clear failure of the Municipal Corporation Greater Mumbai. The damage to the public health was self-evident, and for the acknowledged violation of law and damage to the environment, compensation of Rs. 5 crore was required to be paid by the Municipal Corporation Greater Mumbai by way of deposit with the CPCB, within one month for environment restitution. The amount could be recovered from the polluters or the erring officers.

Further, in view of past failure to adhere to the timeline for taking follow-up rectification action, the NGT had in December, 2018 deemed it necessary for protection of environment and the rule of law that the Municipal Corporation is put to terms by directing the Municipal Corporation, Greater Mumbai to furnish a performance guarantee to the satisfaction of CPCB in the sum of Rs. 100 crore.

This impugned order of the NGT was stayed by the Supreme Court in 2019.

Along with the lead matter, certain petitions filed against the National Green Tribunal increasing the distance limit of quarries from residential units as 200 meter from 50 meter. The NGT had passed the order acting on a representation.

Senior Advocates Krishnan Venugopal and V Giri mentioned those appeals before the bench. The bench agreed to consider them along with the lead matter on August 25.

Case Title :MUNICIPAL CORPORATION OF GR. MUMBAI v. ANKITA SINHA(Civil Appeal No. 12122/2018 and connected matters)