'Why Is NGT Sitting In A Combination of 5 Judges?It Can Have Two Benches And Do Double Work': Supreme Court

Senior Advocate, Mr. Dushyant Dave and Mr. Arvind Datar, appearing on behalf of the NGT indicated that the requirement of transfers is predominantly because of the staggering vacancies in sanction posts at the Tribunal.

The matter was listed before a Bench comprising Justices B.R. Gavai and B.V. Nagarathna.

As Senior Advocate, Ms. Indira Jaising apprised the Bench that 3 members of the Northern Zone Bench of NGT, which is being claimed to be the 'Special Bench' sitting with 2 members of the Western Zone Bench were hearing matters that have been essentially transferred from the Western Zone, Justice Gavai remarked -

"…If the Tribunal is so much concerned about vacancies, why is it sitting in a combination of 5. It can have two benches and do double work."

He added -

"Day in and day out we are seeing orders passed by 4 judges (member), 5 judges (member)."

Staggering Vacancies In Sanctioned Posts At NGT

A significant concern that was raised and deliberated upon during the hearing was the vacancies at NGT as well as other Tribunals across the country.

Mr. Dave submitted that judicial notice has been taken of the staggering vacancies at the Tribunals including the NGT and Centre has been asked to make appointments promptly, but in vain.

"It is frustrating. What do we do?"

Mr. Datar added -

"Order after order of the Supreme Court is not being complied with."

Expressing his view on the impact of tribunalisation, Mr. Dave submitted, "Tribunalisation of the administration of justice has done great damage to administration of justice."

Appearing to agree with the Counsel, Justice Gavai noted, "We don't know if the purpose stands solved because all the matters again come before the High Court and before this Court."

Mr. Dave pointed out that the mechanism of transfer was in fact to facilitate the hearing of urgent cases. He averred that often, due to vacancies, the concerned regional bench might not have sufficient judicial and technical members to hear a matter, in such circumstances it was thought fit that the urgent matters be not kept pending indefinitely and be taken up by the Special Bench. In this regard, he submitted -

"As a Chairperson is it not my concern that people who have approached the NGT about the vital issues regarding protection of environment be heard expeditiously. Or should I allow environmental damages to continue because the government is unable to make appointments."

Vacancies And Members Of Other Benches Joining Hearing Through VC

In order to provide a brief background of the lis, Mr. Datar submitted that because there was no regional Bench of the NGT in the Western region, the original petitioners had filed the Writ Petition before the Bombay High Court. Multiple orders were passed by the High Court to fill up the vaccines, which were eventually complied with. Thereafter, the said petitioners amended their writ petition and challenged the notifications, which have now been quashed. It was emphasised that the quashing of the notifications would have a pan-India ramification.

One of these notifications stated that matters prior to 31.12.2017, with the consultation of the concerned Bench can be transferred to the Special Bench. The Bombay High Court, in essence, held that the Western Zone Bench can function only in Pune by physically sitting in Pune. Mr. Datar vehemently assailed the order as it required physical sitting of the Western Zone Bench in Pune. He apprised the Apex Court that even some time back, the Pune Bench did not have a judicial member. So, a member from the Chennai Bench was joining the technical member of the Pune Bench through Video Conferring (VC) for the hearings.

"There was an expert member in Pune and another member used to log in from Chennai virtually and hear the matters. Now Bombay High Court says it has to be physical sitting only in Pune."

Mr. Datar was concerned that if the impugned order is affirmed then it would have a pan-India ramification, affecting hearings of the different regional Benches of NGT, where due to vacancies, members of other benches are joining in through VC.

Number of Members In A Bench

Mr. Datar submitted that referring to proviso of Section 4(4)(c) of the National Green Tribunal Act, the Bombay High Court observed that the Act and the Rules thereunder do not permit a Bench of an odd number of members. He argued that in observing so the High Court ignored the import of Section 3 of the NGT Act, which reads as under -

"3. Distribution of business amongst the different ordinary place or places of sittings of Tribunal.—

(1) The Chairperson may constitute a bench of two or more Members consisting of at least one Judicial Member and one Expert Member:

Provided that in exceptional circumstances the chairperson may constitute a single Member bench.

(2) The Chairperson shall have the power to decide the distribution of the business of the Tribunal amongst the Members of the Tribunal sitting at different places by order and specify the matters which may be dealt with by each such sitting in accordance with the provisions of clause (d) of sub- section (4) of section 4 of the Act.

(3) If any question arises as to whether any matter falls within the purview of the business allocated to a place of sitting, the decision of the Chairperson shall be final.

Explanation.—The expression "matter" includes application for interim relief."

Acknowledging his submission, Justice Gavai opined -

"It makes more sense that it sits in odd numbers. If they sit in even numbers and there is split judgment, then again the matter will go to a larger bench and be heard again."

Mr. Datar emphasised that the ultimate aim of the lis is to devise a workable mechanism so that the NGT can function effectively.

"Do we just fold our hands and wait for the appointments to be made? Can't the Chairperson say that this is an urgent matter, I will take it up and decide."

Territorial Jurisdiction

Justice Nagarathna pointed out the significance of territorial jurisdiction in law. She stated that though with the virtual hearings the territorial boundaries are seizing to exist, territorial 'jurisdiction' is sacrosanct in law and is required to be maintained.

Assuring the Judge that territorial jurisdiction is not being compromised with, Mr. Datar explained -

"If there are two members functioning in Pune then there is no question of transfer, you file it in Pune only. Now suppose a very old matter has to be heard urgently though 2 members are there in Pune they have huge workload, then if there are surplus members in Delhi, then the matter can be heard there."

Justice Gavai interjected noting, "That will amount to cherry-picking."

Mr. Datar submitted that in the present petition, the Apex Court has to, precisely, devise a mechanism for hearing by the NGT Benches wherein sanctioned posts are lying vacant at the moment. He averred that when a matter of the Pune Bench is heard by the Special Bench in Delhi, it is only being 'de facto' heard in Delhi, but is 'de jure' decided by the Pune Bench. And, the order would be subjected to the territorial High Court.

Justice Nagarathna was apprehensive that if the matters from the Zonal Benches are transferred then the vacancies in the regional Benches might not be filled up. It was observed that the transfers would also dilute the purpose of constituting regional Benches.

"Then you will keep the Pune Bench vacant. Why do we have these regional benches? So that person around Pune can access it."

After hearing the parties the Division Bench of the Apex Court has issued notice in the plea and stayed the operative part of the impugned judgment, clarifying that since two members, one judicial and one expert member, are now available for the Western Zone Bench, all matters pertaining to Western Zone including matters arising out of the States of Goa and Maharashtra would be heard by the Pune Bench sitting at Pune.

[Case Title: NGT And Anr. v. Goa Foundation And Ors. SLP(C) No. 17931/2022]

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