# M/S INDIAN OIL CORPORATION LIMITED v. V. B. R. MENON & OTHERS

- **Citation:** [2023] 5 S.C.R. 215
- **Court:** Supreme Court of India
- **Decided:** 2023-03-14
- **Case number:** Civil Appeal No. 421 of 2022
- **Bench:** Sudhanshu Dhulia, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-indian-oil-corporation-limited-v-v-b-r-menon-others-37170
- **Pages:** 28

## Headnote

National Green Tribunal Act, 2010 - ss. 14, 15, 25, 26, 27,
28, 29, 30(1)(b), 36 - Environment (Protection) Act, 1986 - s. 2(a),
3(3), 5, 5A - National Green Tribunal (Practices and Procedures)
Rules, 2011 - Rule 24 - Water (Prevention and Control of Pollution)
Act, 1974 - s.25 - Air (Prevention and Control of Pollution) Act,
1981 - s. 21 - The Principle Bench of the NGT in the O.A.No.147
of 2016 issued directions to install Stage-I and Stage-II vapour
recovery devices (VRD) at all fuel stations, distribution centers,
terminals, railway loading/unloading facilities and airports in the
National Capital Territory of Delhi - Thereafter, respondent no.2-a
resident of Chennai, filed O.A.No.138 of 2020(SZ) raising issue in
regard to the non-installation of Vapour Recovery Systems (VRS) in
the petroleum outlets by the oil marketing companies (OMCs) - The
NGT, Chennai, inter-alia, directed the Central Pollution Control
Board (CPCB) as well as the State Pollution Control Boards to issue
directions to make it mandatory to obtain Consent to Establish (CTE)
and the Consent to Operate(CTO) for new retail petroleum outlets
as well as the existing retail outlets - Issue before the Supreme Court;
whether the NGT has the jurisdiction to direct the CPCB that it
should in exercise of its powers u/s. 5 of the Act 1986 make obtaining
of the CTE and CTO resply mandatory for all the petroleum retail
outlets across the country - Held: All the appellants have installed
VRS and VRD at their sites and retail outlets - Respondent no.2
had not prayed before the NGT, Chennai to make CTE and CTO
mandatory - The fact that CPCB in consultation with Ministry of
Petroleum and Natural Gas has issued circulars/guidelines from
time to time for installation of VRS - Directions issued by the NGT,
Chennai in regard to installation of the VRS in the impugned
judgment are not inclined to be disturbed - CPCB directed to ensure
that these directions are scrupulously followed - NGT in its impugned
order had noted that the oil industry is characterized as "green
[2023] 5 S.C.R. 215
215
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category" and the CTE and CTO was not required - Apprehension
on the part of the NGT that the installation of VRS may not be strictly
monitored by the State Pollution Control Boards, led the NGT to
issue directions making obtaining the CTE and CTO mandatory -
However, it is not necessary to make obtaining of CTE and CTO
mandatory, accordingly directions in this regard are set aside -
Instead, CPCB directed to instruct all the State Pollution Control
Boards to ensure that the guidelines issued by the office memorandum
dated 07.01.2020 are strictly adhered to - NGT has the power to
direct the CPCB that it should exercise its power u/s. 5 of the Act
1986 for the purpose of protecting environment and it was well
within its jurisdiction
Disposing of the appeals, the Court
HELD: 1. It is noticed that all the appellants have installed
VRS and VRD at their sites and retail outlets. It is also noticed
that the respondent No. 2 (original applicant) had not prayed before
the NGT, Chennai to make CTE and CTO mandatory. The prayers
in O.A. No. 138 of 2020 (SZ) were limited to the State of Tamil
Nadu only. However, the NGT, Chennai by its impugned order
has directed all the petroleum ROs in cities having more than 10
lakh population to install VRS mechanism which are having
turnover of more than 300 KL/Month. This Court also takes
notice of the fact that the CPCB in consultation with the Ministry
of Petroleum and Natural Gas has issued circulars/guidelines from
time to time for installation of VRS (also known as Vapour
Recovery Device circular). This Court is not inclined to disturb
the impugned directions issued by the NGT, Chennai in regard
to installation of the VRS. The CPCB shall ensure that these
directions are scrupulously followed and complied with. [Para
45][240-F-H; 241-A]
2. What is important to note is that in the directions/
guideline

## Text

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M/S INDIAN OIL CORPORATION LIMITED
v.
V. B. R. MENON & OTHERS
(Civil Appeal No. 421 of 2022)
MARCH 14, 2023
[SUDHANSHU DHULIA AND J. B. PARDIWALA, JJ.]
National Green Tribunal Act, 2010 - ss. 14, 15, 25, 26, 27,
28, 29, 30(1)(b), 36 - Environment (Protection) Act, 1986 - s. 2(a),
3(3), 5, 5A - National Green Tribunal (Practices and Procedures)
Rules, 2011 - Rule 24 - Water (Prevention and Control of Pollution)
Act, 1974 - s.25 - Air (Prevention and Control of Pollution) Act,
1981 - s. 21 - The Principle Bench of the NGT in the O.A.No.147
of 2016 issued directions to install Stage-I and Stage-II vapour
recovery devices (VRD) at all fuel stations, distribution centers,
terminals, railway loading/unloading facilities and airports in the
National Capital Territory of Delhi - Thereafter, respondent no.2-a
resident of Chennai, filed O.A.No.138 of 2020(SZ) raising issue in
regard to the non-installation of Vapour Recovery Systems (VRS) in
the petroleum outlets by the oil marketing companies (OMCs) - The
NGT, Chennai, inter-alia, directed the Central Pollution Control
Board (CPCB) as well as the State Pollution Control Boards to issue
directions to make it mandatory to obtain Consent to Establish (CTE)
and the Consent to Operate(CTO) for new retail petroleum outlets
as well as the existing retail outlets - Issue before the Supreme Court;
whether the NGT has the jurisdiction to direct the CPCB that it
should in exercise of its powers u/s. 5 of the Act 1986 make obtaining
of the CTE and CTO resply mandatory for all the petroleum retail
outlets across the country - Held: All the appellants have installed
VRS and VRD at their sites and retail outlets - Respondent no.2
had not prayed before the NGT, Chennai to make CTE and CTO
mandatory - The fact that CPCB in consultation with Ministry of
Petroleum and Natural Gas has issued circulars/guidelines from
time to time for installation of VRS - Directions issued by the NGT,
Chennai in regard to installation of the VRS in the impugned
judgment are not inclined to be disturbed - CPCB directed to ensure
that these directions are scrupulously followed - NGT in its impugned
order had noted that the oil industry is characterized as "green
[2023] 5 S.C.R. 215
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category" and the CTE and CTO was not required - Apprehension
on the part of the NGT that the installation of VRS may not be strictly
monitored by the State Pollution Control Boards, led the NGT to
issue directions making obtaining the CTE and CTO mandatory -
However, it is not necessary to make obtaining of CTE and CTO
mandatory, accordingly directions in this regard are set aside -
Instead, CPCB directed to instruct all the State Pollution Control
Boards to ensure that the guidelines issued by the office memorandum
dated 07.01.2020 are strictly adhered to - NGT has the power to
direct the CPCB that it should exercise its power u/s. 5 of the Act
1986 for the purpose of protecting environment and it was well
within its jurisdiction
Disposing of the appeals, the Court
HELD: 1. It is noticed that all the appellants have installed
VRS and VRD at their sites and retail outlets. It is also noticed
that the respondent No. 2 (original applicant) had not prayed before
the NGT, Chennai to make CTE and CTO mandatory. The prayers
in O.A. No. 138 of 2020 (SZ) were limited to the State of Tamil
Nadu only. However, the NGT, Chennai by its impugned order
has directed all the petroleum ROs in cities having more than 10
lakh population to install VRS mechanism which are having
turnover of more than 300 KL/Month. This Court also takes
notice of the fact that the CPCB in consultation with the Ministry
of Petroleum and Natural Gas has issued circulars/guidelines from
time to time for installation of VRS (also known as Vapour
Recovery Device circular). This Court is not inclined to disturb
the impugned directions issued by the NGT, Chennai in regard
to installation of the VRS. The CPCB shall ensure that these
directions are scrupulously followed and complied with. [Para
45][240-F-H; 241-A]
2. What is important to note is that in the directions/
guidelines issued by the CPCB dated 30.04.2020 and 07.03.2016
resply the automobile fuel outlets have been classified as "green"
which may be exempted from consent management. The Solicitor
General submitted that it is only after due consideration and
deliberations that the CPCB issued the said directions. The NGT
itself in para 66 of its impugned order has noted that the oil
industry is characterized as "green category" and the CTE and
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CTO was not required. It appears that the apprehension on the
part of the NGT that the installation of VRS may not be strictly
monitored by the State Pollution Control Boards, led the NGT to
issue directions to the CPCB & State Pollution Control Boards
to issue a circular making it mandatory for obtaining the CTE
and CTO as a condition precedent for establishing new petroleum
outlets. The Court is convinced that it is not necessary to make
obtaining of CTE and CTO mandatory. It is also impressed upon
the CPCB to ensure that its guidelines referred to above are
scrupulously followed and once the guidelines are scrupulously
adhered to, no direction to obtain CTE and CTO for starting/
operating a RO is warranted. [Para 46][241-B-D]
3. In such circumstances, while holding that the National
Green Tribunal has the power to direct the CPCB that it should
exercise its powers under Section 5 of the Act 1986 for the
purpose of protecting the environment, this Court is inclined to
modify the impugned directions issued by the NGT, Chennai as
contained in para 69(iii) and 69(iv) resply of the impugned order
regarding making it mandatory to obtain Consent to Establish
and Consent to Operate for new petroleum outlets to be
established in future and even to those which are under the
preparation of establishment and directions that all the existing
Retail Petroleum Outlets irrespective of its turnover to obtain
Consent to Operate for the existing outlets within a period of 6
(Six) Months. [Para 47][241-F; 221-D, F]
4. In view of the aforesaid, this Court disposes of the Civil
Appeal No. 2039 of 2022 in the following terms:- (a) The CPCB
shall ensure that all the retail petroleum outlets located in
different cities having population of more than 10 lakh and having
turn over of more than 300 KL/Month shall install the VRS
mechanism within the fresh timeline as prescribed in its Circular
dated 04.06.2021. To put it in other words, the CPCB shall ensure
that the directions issued by the NGT as contained in para 69(i)
and (ii) of the impugned order is fully complied with. It shall be
the legal obligation of all the State Pollution Control Boards to
ensure that the directions issued by the NGT in regard to the
installation of the VRS mechanism is complied with within the
fresh timeline as prescribed by the CPCB.
M/S INDIAN OIL CORPORATION LIMITED v. V. B. R. MENON
& OTHERS
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(b) The directions issued by the NGT in the impugned order
as contained in para 69(iii) and (iv) are set aside. Instead, the
CPCB directed to instruct all the State Pollution Control Boards
to ensure that the guidelines issued by it vide the Office
Memorandum dated 07.01.2020 are strictly adhered to. If there
is breach of any of the guidelines issued by the CPCB vide Office
Memorandum dated 07.01.2020, then the concerned State
Pollution Control Board shall proceed against the erring outlet
in accordance with law at the earliest. [Para 48][241-G-H; 242A-D]
Gyanprakhash @ Pappu Singh v. GoI & Ors. O.A. No.
86 of 2019; Municipal Corporation of Greater Mumbai
v. Ankita Sinha 2021 SCC OnLine SC 897 - referred
to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 421 of
2022.
From the Judgment and Order dated 23.12.2021 of the National
Green Tribunal Southern Zone, Chennai, Tamil Nadu in Original
Application No. 138 of 2020 (S.Z.).
With
Civil Appeal Nos. 494, 1695, 2039, 1758 and 1912 of 2022
Tushar Mehta, SG, K. M Nataraj, ASG, Amit Anand Tiwari, AAG,
Jay Savla, Pinaki Mishra, A Sirajudeen, Sr. Advs., T. Sundar Ramanathan,
Vivek Pandey, Ms. Sukanya Viswanathan, Ms. Aastha Sardana, Sanjay
Kapur, Ms. Megha Karnwal, Surya Prakash, Arjun Bhatia, Balaji
Srinivasan, Jasdeep Singh Dhillon, Rahul Gupta, Prabhat Chaurasia, K.
R. Sasiprabhu, Vishnu Sharma, Tushar Bhardwaj, Prakhar Agarwal,
Baijnath Patel, Keshari, Ms. Manjeet Chawla, Mrs. Usha Pant Kukreti,
Dr. Joseph Aristotle S., Shobhit Dwivedi, Ms. Devyani Gupta, Ms. Tanvi
Anand, Saurabh Mishra, Rakesh Chander, Nirbhay Tewari, Abhishek
Pandey, Ms. Priya Kaushik, Mrs. Indira Bhakar, Vinayak Sharma,
Akshay Amritanshu, Ishaan Sharma, Amrish Kumar, Sanjay Kapur,
Ms. Megha Karnwal, Surya Prakash, Arjun Bhatia, Ms. Akshata Joshi,
Advs. for the appearing parties.
Respondent-in-person
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The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
Since the issues raised in all the captioned appeals are the same
and the challenge is also to the self same order passed by the National
Green Tribunal, Southern Zone, Chennai, (for short, "NGT, Chennai"),
those were taken up for hearing analogously and are being disposed of
by this common judgment and order.
2. For the sake of convenience, the Civil Appeal No. 2039 of
2022 is treated as the lead matter.
3. This appeal is filed by an oil marketing company viz. the Reliance
BP Mobility Limited incorporated under the Companies Act, 2013 and is
directed against the judgment and order dated 23.12.2021 passed by the
NGT, Chennai in the Original Application No. 138 of 2020 (SZ) insofar
as the impugned order directs the Central Pollution Control Board (CPCB)
as well as the State Pollution Control Boards to issue directions to make
it mandatory to obtain Consent to Establish ("CTE") and the Consent to
Operate ("CTO") for new retail petroleum outlets as well as the existing
retail petroleum outlets.
FACTUAL MATRIX:
4. It appears from the materials on record that the respondent
No. 2 herein Mr. V.B.R. Menon, a resident of Chennai, filed the Original
Application No. 138 of 2020 (SZ) before the NGT, Chennai raising the
issue in regard to the non-installation of Vapour Recovery Systems (VRS)
in the petroleum outlets by the oil marketing companies (OMCs). In the
Original Application No. 138 of 2020, the applicant (respondent No. 2
herein) prayed for the following reliefs:-
"Reliefs:
A. Injunct the respondents 5 to 9 from commissioning and operating
any new petroleum retail outlets in Tamil Nadu without installing
Vapour Recovery Systems, Stage 1 and 2 in good working
condition, pending disposal of this application and
B. Pass such further order or orders as may fit proper and
necessary in the facts and circumstances of the case
M/S INDIAN OIL CORPORATION LIMITED v. V. B. R. MENON
& OTHERS
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Prayer
A. Direct the respondent oil marketing companies R-5 to R-9 to
install and operate Vapour Recovery Systems, Stage 1 and 2, in
good working condition before opening and commissioning of any
new petroleum retail outlets in Tamil Nadu.
B. Direct the respondent oil marketing companies R-5 to R-9 to
install and operate Vapour Recovery Systems Stage 1 and 2, in all
the existing petroleum outlets in Tamil Nadu within a time schedule
to be prescribed by this Hon'ble Tribunal for each city, town and
rural area situated in Tamil Nadu.
C. Pass such further order or orders as may be fit proper and
necessary in the facts and circumstances of the case and thus
render justice."
5. The basis for filing of the original application as aforesaid before
the NGT, Chennai was the order passed by the Principal Bench of the
NGT in the Original Application No. 147 of 2016 wherein the Principal
Bench of the NGT issued directions to install Stage-I and Stage-II vapour
recovery devices (VRD) at all fuel stations, distribution centers, terminals,
railway loading/unloading facilities and airports in the National Capital
Territory of Delhi. Vide order dated 28.09.2018 passed in the O.A. No.
147 of 2016 by the Principal Bench of the National Green Tribunal, the
time line of installation of VRD was extended.
6. The NGT, Chennai adjudicated the O.A. No. 138 of 2020 (SZ)
and disposed of the same vide order dated 23.12.2021 by issuing the
following directions:-
"69. In the result, this application is disposed of as follows:-
i. We made it clear that all the Retail Petroleum Outlets which are
located in cities having more than 10 Lakh population should have
installed the VRS mechanism which are having turnover of more
than 300 KL/Month and above, as insisted by the Central Pollution
Control Board in consultation with the Ministry of Petroleum and
Natural Gas as per circular dated 12.12.2016. If any of the Retail
Petroleum Outlets had not installed the same within the time frame
fixed by the CPCB or extended by the Hon'ble Apex Court in this
regard, then CPCB is directed to take appropriate action against
those petroleum outlets/storage depot which have not complied
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with the same by imposing environmental compensation as directed
by the Principal Bench of National Green Tribunal, New Delhi in
O.A. No.147 of 2016 (Aditya N. Prasad & Ors. Vs. Union of
India & Ors.).
ii. As regards the new petroleum outlets of Stage 1 and Stage 2
(having 100 KL/Month to 300 KL/Month) and for Stage 1A
(Storage depots) are concerned, the same will have to be installed
within the extended time fixed by the CPCB both by public sector
undertaking and private sector undertaking and if there is any
violation found, then they are directed to take appropriate action
for such violation as directed by the Principal Bench of National
Green Tribunal, New Delhi in O.A. No.147 of 2016 (Aditya N.
Prasad & Ors. Vs. Union of India & Ors.).
iii. The Central Pollution Control Board (CPCB) as well as the
State Pollution Control Boards are directed to issue direction under
Section 5 of the Environment (Protection) Act, 1986 and Section
18 of the Water (Prevention and Control of Pollution) Act, 1974
and Air (Prevention and Control of Pollution) Act, 1981 to make it
mandatory to obtain Consent to Establish and Consent to Operate
for new petroleum outlets to be established in future and even to
those which are under the preparation of establishment, but not
started construction as has been done by the State Pollution Control
Board, Kerala and such a direction should be issued within a period
of 3 (Three) months and till then, all the new Retail Petroleum
Outlets are directed to apply for Consent to Establish and Consent
to Operate before its establishment.
iv. We also direct all the existing Retail Petroleum Outlets
irrespective of its turnover to obtain Consent to Operate for the
existing outlets within a period of 6 (Six) Months. If it is not
obtained, then the concerned State Pollution Control Board is
directed to take appropriate action against such petrol pumps in
accordance with law.
v. Considering the circumstances, parties are directed to bear their
respective cost in the application.
vi. The Registry is directed to communicate this order to the
Ministry of Environment, Forests & Climate Change (MoEF&CC),
Central Pollution Control Board, New Delhi, Integrated Regional
M/S INDIAN OIL CORPORATION LIMITED v. V. B. R. MENON
& OTHERS [J. B. PARDIWALA, J.]
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Office of the Central Pollution Control Board, Bangalore and
Chennai, State Pollution Control Boards of Tamil Nadu, Kerala,
Andhra Pradesh, Telangana, Karnataka and also to the Pollution
Control Committee of Union Territory of Puducherry for their
information and compliance of the direction."
7. Being dissatisfied with the aforesaid directions issued by the
NGT, Chennai, the appellant is here before this Court.
8. The other oil marketing companies (OMCs) before this Court
seeking to challenge the very self same order passed by the NGT are :
(1) M/s Indian Oil Corporation Limited, (2) M/s Hindustan Petroleum
Corporation Limited; (3) M/s Bharat Petroleum Corporation Limited,
(4) M/s Nayara Energy Limited, and (5) M/s Shell India Markets Private
Ltd.
Submissions on behalf of the appellant:
9. At the outset, the learned counsel appearing on behalf of the
appellant herein submitted that it does not seek to challenge the directions
contained in para 69(i) and 69(ii) resply of the impugned order i.e.
regarding the installation of the VRS/VRD. The learned counsel would
like to confine his challenge only to the direction issued in para 69(iii)
and para 69(iv) resply referred to above i.e. in regard to the Consent to
Establish (CTE) and Consent to Operate (CTO).
10. The learned counsel submitted that the present appeal gives
rise to three substantial questions of law which read thus:-
A. Whether the NGT can issue directions which are in the nature
of legislative functions?
B. Whether the public sector and private sector OMCs and/or
ROs (Retail Outlets) are required to obtain Consent to Establish
and/or Consent to Operate for operation, establishment and
carrying on the business of ROs?
C. Whether the NGT can impose requirement of obtaining an
additional approval merely to provide for a regulating mechanism
to supervise compliance of the existing guidelines issued by the
CPCB?
11. The learned counsel submitted that the directions issued in
para 69(iii) and 69(iv) resply of the impugned order are legislative in
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nature and therefore beyond the jurisdiction of the NGT. He would submit
that the directions issued by the NGT, Chennai to the CPCB making it
mandatory to obtain CTE and CTO for ROs would amount to enacting
a law under the guise of judicial order. It was further submitted that
there is no rational basis to issue the directions making it mandatory for
the ROs to obtain CTE and/or CTO. According to the learned counsel,
the only basis for the NGT to issue such directions is to ensure proper
regulatory mechanism and/or to secure compliance of the guidelines
issued by the CPCB regarding installation of VRS, etc. It was also
submitted that the impugned directions are directly in conflict with the
object with which the reclassification of industries has been done by the
CPCB. It was pointed out that the petroleum retail outlets fall within the
green zone and for any industry falling within the green zone, it is not
mandatory to obtain CTO and/or CTE. It was further submitted that the
process of setting up of a RO requires obtaining of numerous approvals
and the same takes a considerable period of time. For instance, even
prior to the construction of ROs, the OMCs are required to obtain
approvals from inter alia (1) Petroleum & Explosives Safety
Organisation (PESO), (2) Town and Country Planning Officers, (3)
National Highway Authority of India, (4) District/Divisional Forest
Officer/Regional Forest Officer, (5) approvals from the State Cabinet,
etc. Furthermore, the OMCs are also required to obtain No-Objection
Certificate from the concerned District Magistrate. Such NOC from
the District Magistrate comprises of approvals from various authorities,
such as - the fire department, Police Department, PWD, Health and
Safety, concerned Municipality and/or any other authority that the District
Magistrate may consider necessary. Thereafter, upon construction of
the ROs, the OMCs are required to obtain final approvals from inter alia
PESO, National Highway Authority of India, Legal Metrology
Department Labour Department and the concerned Municipality. The
timelines for some of the aforesaid approvals range over 120 to 240
days. In such circumstances, according to the learned counsel, by making
it mandatory to obtain the CTO and CTE for setting up/operating a RO
would cause lot of hardship and also delay the setting of ROs.
12. The learned counsel laid much stress on the fact that the
CPCB its vide Office Memorandum dated 07.01.2020 had issued
guidelines for setting up of new petroleum pumps in compliance of the
order passed by the NGT dated 18.01.2019 in O.A. No. 86 of 2019 titled
Gyanprakhash @ Pappu Singh v. GoI & Ors. The guidelines are
M/S INDIAN OIL CORPORATION LIMITED v. V. B. R. MENON
& OTHERS [J. B. PARDIWALA, J.]
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very exhaustive and they take care of the apprehension expressed by
the NGT in its impugned order. Once these guidelines are scrupulously
observed and followed, there is no need thereafter to obtain CTO and/or
CTE.
13. In such circumstances referred to above, the learned counsel
appearing for the appellant prayed that there being merit in his appeal,
the same may be allowed and the directions issued in para 69(iii) and
para 69(iv) of the impugned order passed by the NGT, Chennai be set
aside.
Submissions on behalf of the respondent No. 2 - the original
applicant before the NGT:
14. The learned counsel appearing for the respondent No. 2 (the
original applicant) vehemently submitted that no error, not to speak of
any error of law, could be said to have been committed by the NGT in
issuing the impugned directions. It was submitted that no interference is
warranted at the hands of this Court in an appeal filed under Section 22
of the National Green Tribunal Act, 2010 (for short, 'the NGT Act').
According to the learned counsel, an appeal under Section 22 of the
NGT Act is restricted to substantial questions of law. There is no
substantial question of law involved in the present appeal. In such
circumstances referred to above, the learned counsel prays that there
being no merit in the present appeal, the same may be dismissed.
Submissions on behalf of the respondent No. 1- CPCB:
15. Mr. Tushar Mehta, the learned Solicitor General submitted
that there was no need for the NGT to issue the impugned directions as
contained in para 69(iii) and para 69(iv) resply, more particularly in view
of the detailed guidelines issued by the CPCB vide the Office
Memorandum dated 07.01.2020. According to Mr. Mehta, what is sought
to be achieved by asking the ROs to obtain CTE and/or CTO can very
well be taken care of by ensuring that all the existing ROs and the ROs
that may come up in future scrupulously abide by the guidelines issued
by the CPCB. The CPCB has ensured that all the State Pollution Control
Boards keep a very strong vigil on the ROs across the country so as to
ensure that the guidelines issued by it are scrupulously followed. Even,
according to Mr. Mehta, to ask all the existing ROs to obtain CTO is
something very unreasonable. According to Mr. Mehta, the same requires
a lot of paper work and is very time consuming.
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16. Mr. Mehta would submit that it is highly debatable that the
NGT could have directed the CPCB that it should in exercise of powers
under Section 5 of the Environment (Protection) Act, 1986 (for short,
'the Act 1986') make it mandatory to obtain CTE and/or CTO.
17. Mr. Mehta in the last submitted that so far as directions
contained in para 69(i) & 69(ii) resply are concerned, the same shall be
complied with in its true perspective and the State Pollution Control Boards
shall ensure due compliance of the same. He would submit that the
CPCB shall also ensure that the guidelines issued by it referred to above
are strictly adhered to by the all State Pollution Control Boards and, if
there is any lapse at the end of any retail outlet, then necessary action
shall be taken in accordance with law.
18. In such circumstances referred to above, Mr. Mehta prays
that the directions contained in para 69(iii) and 69(iv) may be set aside
or modified appropriately.
Analysis:
19. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question that
falls for our consideration is : (i) whether the NGT has the jurisdiction to
direct the CPCB that it should in exercise of its powers under Section 5
of the Act 1986 make obtaining of the CTE and CTO resply mandatory
for all the petroleum retail outlets across the country?
20. This Court, while issuing notice vide order dated 07.02.2022
in one of the connected appeals i.e. Civil Appeal 494 of 2022, observed
thus:-
"Issue notice, returnable in six weeks.
Meanwhile, the directions issued vide impugned order of the
National Green Tribunal dated 23.12.2021 shall remain stayed
provided the petitioner complies with the directions issued by the
Central Pollution Control Board (CPCB) dated 04.06.2021
prescribing fresh timeline for completion of installation of Vapor
Recovery Devises (VRD).
Mr. Sanjay Kapur, learned counsel appearing for the appellant
has stated that in terms of the said directions of CPCB dated
04.06.2021, Vapor Recovery Devises have already been installed
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in 50% retail outlets by December, 2021 in the specified category
and the remaining timeline shall also be complied with."
21. As the principal argument of all the learned counsel appearing
for the respective oil marketing companies in the present litigation is in
regard to the jurisdiction of the NGT to issue the impugned directions, it
is necessary to first understand the entire scheme of the NGT Act.
Scheme of the NGT Act, 2010:
22. The preamble to the NGT Act reads as follows:-
"An Act to provide for the establishment of a National Green
Tribunal for the effective and expeditious disposal of cases relating
to environmental protection and conservation of forests and other
natural resources including enforcement of any legal right relating
to environment and giving relief and compensation for damages
to persons and property and for matters connected therewith or
incidental thereto.
AND WHEREAS India is a party to the decisions taken at the
United Nations Conference on the Human Environment held at
Stockholm in June, 1992, in which India participated, calling upon
the States to provide effective access to judicial and administrative
proceedings, including redress and remedy and to develop national
laws regarding liability and compensation for the victims of
population and other environmental damage;
AND WHEREAS in the judicial pronouncement in India, the right
to healthy environment has been construed as a part of the right
to life under article 21 of the Constitution.
AND WHEREAS it is considered expedient to implement the
decisions taken at the aforesaid conference and to have a National
Green Tribunal in view of the involvement of multi-disciplinary
issues relating to the environment."
23. The jurisdiction and powers of the NGT are to be found in
Sections 14 to 20 resply. A close look at these provisions would show
that the NGT has both original as well as appellate jurisdiction. The
range of powers that the NGT has include:-
(i) the power to adjudicate upon civil cases where a substantial
question relating to environment is involved (Section 14(1));
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(ii) the power to grant relief and compensation to the victims of
pollution (Section 15(1)(a); and
(iii) the power to order restitution of either property damaged or
of the environment (Section 15(1)(b).
24. A person in whose favour the NGT passes an award or order,
is entitled to two types of remedies, if the award or order or the decision
of the NGT is not complied with. The first is a right to seek execution of
the award under Section 25 and the second is to seek the prosecution of
the offenders before a criminal court under Section 26.
25. Apart from the bar of jurisdiction of civil courts under Section
29, the NGT Act is also conferred the overriding effect upon any other
law under Section 33, which reads as follows:
"Section 33. Act to have overriding effect:-The provisions
of this Act, shall have effect notwithstanding anything inconsistent
contained in any other law for the time being in force or in any
instrument having effect by virtue of any law other than this Act."
26. Sub-section (1) of Section 38 of the NGT Act repeals the
following enactments:-
(i) The National Environment Tribunal Act, 1995
(ii) The National Environment Appellate Authority Act, 1997
27. Apart from repealing the above two enactments expressly
under sub-section (1) of Section 38, the NGT Act also contains a provision
in sub-Section (8) of Section 38 which deals with implied repeal. SubSection (8) of Section 38 reads as follows:-
"(8) The mention of the particular matters referred to in subsections (2) to (7) shall not be held to prejudice or affect the
general application of section 6 of the General Clauses Act, 1897
(10 of 1897) with regard to the effect of repeal."
28. In so far as the execution of the orders of NGT are concerned,
Section 25 confers two types of powers as noted below:-
(a) The power to execute the award by itself, as if the award is a
decree of a civil court and
(b) The power to transmit the award to a civil court for its
execution.
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29. As stated earlier, the failure of any person to comply with the
award of the NGT is also made punishable under Section 26, with
imprisonment for a term that may extend to three years or with fine
which may extend to ten crore rupees or with both. Section 27 makes
every company and every person directly in charge of the affairs of the
company liable to prosecution. Section 28 makes even the Government
Departments liable to be prosecuted and punished. Such powers are not
available for the Loss of Ecology Authority.
30. Though Sub-Section (2) of Section 26 makes offences under
the AGT Act known cognizable, Section 30(1)(b) entitles any person
who has given notice of not less than sixty days in the prescribed manner,
of the alleged offences and of his intention to prosecute, to file a complaint
before the competent court. Interestingly, Section 30(1)(b) does not even
use the expression "aggrieved person". It uses only an expression "any
person".
31. The 186th Report of the Law Commission, submitted in 2003,
eventually paved the way for the enactment of the NGT Act. This can
be seen from the relevant portion of the Statement of Objects and
Reasons of the NGT Act which read as follows:-
"4. The National Environment Tribunal Act, 1995 was enacted to
provide for strict liability for damages arising out of any accident
occurring while handling any hazardous substance and for the
establishment of a National Environment Tribunal for effective
and expeditious disposal of cases arising from such accident, with
a view to giving relief and compensation for damages to persons,
property and the environment. However, the National Environment
Tribunal, which had a very limited mandate, was not established.
The National Environment Appellate Authority Act, 1997 was
enacted to establish the National Environment Appellate Authority
to hear appeals with respect to restriction of areas in which any
industries, operations or processes or class of industries, operations
or processes shall not be carried out or shall be carried out subject
to certain safeguards under the Environment (Protection) Act,
1986. The National Environment Appellate Authority has a limited
workload because of the narrow scope of its jurisdiction.
5. Taking into account the large number of environmental cases
pending in higher courts and the involvement of multidisciplinary
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issues in such cases, the Supreme Court requested the Law
Commission of India to consider the need for constitution of
specialised environmental courts. Pursuant to the same, the Law
Commission has recommended the setting up of environmental
courts having both original and appellate jurisdiction relating to
environmental laws.
6. In view of the foregoing paragraphs, a need has been felt to
establish a specialised tribunal to handle the multidisciplinary issues
involved in environmental cases. Accordingly, it has been decided
to enact a law to provide for the establishment of the National
Green Tribunal for effective and expeditious disposal of civil cases
relating to environmental protection and conservation of forests
and other natural resources including enforcement of any legal
right relating to environment."
32. From the 186th Report of the Law Commission and the salient
features of the Act, the following could be deduced:
(1) The creation of the National Green Tribunal, was in pursuance
of the repeated directions issued by this Court in at least four cases
namely, M.C. Mehta v. Union of India [(1986) 2 SCC 176], Indian
Council for Enviro Legal Action v. Union of India [(1996) 3 SCC
212], A.P. Pollution Control Board v. M. V. Nayudu [(1999) 2 SCC
718], A.P. Pollution Control Board v. M.V. Nayudu [(2001) 2 SCC
62].
(2) The object of creation of the National Green Tribunal was to
provide, what could be called a one-stop-shop solution, for all types
of issues such as Environmental clearances, settlement of disputes
relating to environment, relief and compensation for victims of
pollution and environmental damage, restitution of property,
restitution of environment etc.
(3) The Tribunal was to have both original and Appellate jurisdiction,
with enormous powers not only to execute its orders as decrees
of civil courts, but also to punish those who fail to comply with its
orders.
(4) The Tribunal was to collect a court fee and entertain claims
preferred within a period of limitation.
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33. Under the NGT Act, the Act 1986 was also amended. By
Section 36 of the NGT Act, Section 5A was inserted in the Act 1986.
Under this Section, any direction issued by the Central Government under
Section 5, either for the closure, prohibition or regulation of any industry,
operation or process or the stoppage or regulation of the supply of
electricity or water or any other service, was made appealable to the
National Green Tribunal.
34. The legal effect of Section 5A of the Act 1986, if juxtaposed
in to Section 5 read with Section 3(3) will be:-
(1) that Central Government is competent to issue certain directions
under Section 5;
(2) that the power under Section 5 can also be exercised by the
Authority constituted under Section 3(3); and
(3) that the directions issued under Section 5, either by the Central
Government itself or by the Authority constituted under Section
3(3) are amenable to the appellate jurisdiction of the National
Green Tribunal.
35. We now proceed to consider whether the NGT has the power
& jurisdiction to issue directions to the CPCB/its delegates to take all
such measures if in a given case the NGT finds that such directions are
necessary in the interest of justice.
36. Section 3 of the Act 1986 expressly empowers the Central
Government or its delegate, as the case may be, to "take all such measures
as it deems necessary or expedient for the purpose of protecting and
improving the quality of environment.........". Section 5 clothes the Central
Government or its delegate with the power to issue directions for achieving
the objects of the Act. Read with the wide definition of "environment" in
Section 2(a), Sections 3 and 5 resply clothe the Central Government
with all such powers as are "necessary or expedient for the purpose of
protecting and improving the quality of the environment". The Central
Government is empowered to take all measures and issue all such
directions as are called for the above purpose.
37. We take notice of the fact that the Central Government has
framed the National Green Tribunal (Practices and Procedures) Rules,
2011 (for short, 'the NGT Rules'). For our purpose, Rule 24 is important
which reads thus:-
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"Rule 24. Order and directions in certain cases.- The
Tribunal may make such orders or give such directions as may be
necessary or expedient to give effect to its order or to prevent
abuse of its process or to secure the ends of justice."
38. The aforesaid Rule 24 fell for the consideration of this Court
in Municipal Corporation of Greater Mumbai v. Ankita Sinha, 2021
SCC OnLine SC 897. We quote the few relevant observations made
by this Court in Ankita Sinha (supra) as regards the powers of the
National Green Tribunal:-
"16.3 The said Rules make it clear that the NGT has been given
wide discretionary powers to secure the ends of justice. This power
is coupled with the duty to be exercised for achieving the
objectives. The intention understandably being to preserve and
protect the environment and the matters connected thereto.
16.4 By choosing to employ a phrase of wide import, i.e. secure
the ends of justice, the legislature has nudged towards a liberal
interpretation. Securing justice is a term of wide amplitude and
does not simply mean adjudicating disputes between two rival
entities. It also encompasses inter alia, advancing causes of
environmental rights, granting compensation to victims of
calamities, creating schemes for giving effect to the environmental
principles and even hauling up authorities for inaction, when need
be.
16.5 Moreover, unlike the civil courts which cannot travel beyond
the relief sought by the parties, the NGT is conferred with power
of moulding any relief. The provisions show that the NGT is vested
with the widest power to appropriate relief as may be justified in
the facts and circumstances of the case, even though such relief
may not be specifically prayed for by the parties.
21.6 ... The above would show that from the very inception, the
role of the NGT was not simply adjudicatory in the nature of a lis
but to perform equally vital roles which are preventative,
ameliorative or remedial in 17 (1999) 2 SCC 718 nature. The
functional capacity of the NGT was intended to leverage wide
powers to do full justice in its environmental mandate.
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IX. AUTHORITY WITH SELF-ACTIVATING CAPABILITY
25.1 Given the multifarious role envisaged for the NGT and the
purposive interpretation which ought to be given to the statutory
provisions, it would be fitting to regard the NGT as having the
mechanism to set in motion all necessary functions within its
domain and this, as would follow from the discussion below, should
necessarily clothe it with the authority to take suo motu cognizance
of matters, for effective discharge of its mandate.
25.7 The duty to safeguard Article 21 rights cannot stand on a
narrow compass of interpretation. Procedural provisions must be
allowed to fall in step with the substantive rights that are invoked
in the environmental domain, in larger public interest. The
specialized forum is bestowed with the responsibility to ensure
protection of the environment. To be effective in its domain, we
need to ascribe to the NGT a public responsibility to initiate action
when required, to protect the substantive right of a clean
environment and the procedural law should not be obstructive in
its application.
26.3 As earlier seen, S.20 of the NGT Act which includes the
term "decision", in addition to "order" and "award", also require
the Tribunal to apply the 'Precautionary Principle' and the statutory
mandate being relevant is extracted:-
"20.