# MADHYA PRADESH HIGH COURT ADVOCATES BAR ASSOCIATION AND ANR v. UNION OF INDIA AND ANR

- **Citation:** [2022] 15 S.C.R. 299
- **Court:** Supreme Court of India
- **Decided:** 2022-05-18
- **Bench:** K. M. Joseph, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madhya-pradesh-high-court-advocates-bar-association-and-anr-v-union-of-india-35561
- **Pages:** 25

## Headnote

National Green Tribunal Act, 2010:
ss. 14, 21 - Jurisdiction of the High Court, if ousted by the
NGT - Held:Nothing contained in the NGT Act either impliedly or
explicitly, ousts the jurisdiction of the High Courts u/Arts. 226 and
227 - Power of judicial review remains intact and unaffected by
the NGT Act -Prerogative of writ jurisdiction of High Courts is
neither taken away nor it can be ousted, as it is a part of the basic
structure of the Constitution - Constitution of India - Arts. 226 and
227.
National Green Tribunal - Seat of the NGT - Plea that there
should be NGT Bench in every State - Held: Seat of the NGT benches
can be located as per exigencies and it is not necessary to locate
them in every State - Prayer for relocating the Bhopal NGT to
Jabalpur is unmerited and is rejected.
s.22 - Remedy of direct appeal to the Supreme Court from the
decisions of the NGT u/s. 22 - Held: Remedy of direct appeal to the
Supreme Court u/s. 22 is ultra vires the Constitution - As regards,
the appeal mechanism to the High Court from the decisions of the
NGT, the remedy before the High Court for a litigant u/Art. 226 and
227 continues to be available notwithstanding the enactment of the
NGT Act and the provision for appeal to the Supreme Court u/s. 22
- Constitution of India.
s. 3 - Validity of - Held: s. 3 is not a case of excessive
delegation of power to the Central Government - s. 3 is found to be
ultra vires the Constitution - Constitution of India.
Dismissing the writ petition, the Court
HELD: 1. The National Green Tribunal under Section 14
& 22 of the National Green Tribunal Act, 2010 does not oust the
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High Court's jurisdiction under Article 226 & 227 as the same is
a part of the basic structure of the Constitution. The remedy of
direct appeal to the Supreme Court under Section 22 of the NGT
Act is intra vires the Constitution of India. Section 3 of the NGT
Act is not a case of excessive delegation of power to the Central
Government. The seat of the NGT benches can be located as per
exigencies and it is not necessary to locate them in every State.
The prayer for relocating the Bhopal NGT to Jabalpur is
unmerited and is rejected. [Para 38][233-G-H; 323-A-C]
Whether the NGT ousts the High Court's jurisdiction under
Sections 14 & 22 of the NGT Act?
2. The power of judicial review under Articles 226, 227,
and 32 are part of the basic structure of the Constitution and the
same is inviolable. The NGT is within the purview of Article 226
and 227 jurisdiction of the High Courts. The High Courts have
been entertaining petitions under Article 226 and 227 of the
Constitution against orders of the NGT. While exercising such
jurisdiction, the Courts necessarily exercise due discretion on
whether to entertain or to reject the petition. Nothing contained
in the NGT Act either impliedly or explicitly, ousts the jurisdiction
of the High Courts under Article 226 and 227 and the power of
judicial review remains intact and unaffected by the NGT Act.
The prerogative of writ jurisdiction of High Courts is neither
taken away nor it can be ousted, as without any doubt, it is
definitely a part of the basic structure of the Constitution. The
High Court's exercise their discretion in tandem with the law
depending on the facts of each particular case. Since the High
Court's jurisdiction remain unaffected, the first question is
answered in the negative, against the petitioners. [Paras 1215][314-C, G-H; 315-A, F-H; 316-A]
L Chandra Kumar v. UOI 1997 (3) SCC 261 : [1997]
(2) SCR 1186 - relied on.
Whether a seat of the NGT should be in every State? If
yes, should they invariably be established at the principal seat of
High Court, which in this case would be Jabalpur instead of
Bhopal?
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3.1 The NGT caters to a limited number of cases unlike
the CAT, where the volume of cases is substantially higher. The
volume of cases handled by the NGT and the CAT are not
comparable. Looking at the l

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[2022] 15 S.C.R. 299
299
MADHYA PRADESH HIGH COURT ADVOCATES BAR
ASSOCIATION AND ANR.
v.
UNION OF INDIA AND ANR.
(Writ Petition (Civil) No. 433 of 2012)
MAY 18, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
National Green Tribunal Act, 2010:
ss. 14, 21 - Jurisdiction of the High Court, if ousted by the
NGT - Held:Nothing contained in the NGT Act either impliedly or
explicitly, ousts the jurisdiction of the High Courts u/Arts. 226 and
227 - Power of judicial review remains intact and unaffected by
the NGT Act -Prerogative of writ jurisdiction of High Courts is
neither taken away nor it can be ousted, as it is a part of the basic
structure of the Constitution - Constitution of India - Arts. 226 and
227.
National Green Tribunal - Seat of the NGT - Plea that there
should be NGT Bench in every State - Held: Seat of the NGT benches
can be located as per exigencies and it is not necessary to locate
them in every State - Prayer for relocating the Bhopal NGT to
Jabalpur is unmerited and is rejected.
s.22 - Remedy of direct appeal to the Supreme Court from the
decisions of the NGT u/s. 22 - Held: Remedy of direct appeal to the
Supreme Court u/s. 22 is ultra vires the Constitution - As regards,
the appeal mechanism to the High Court from the decisions of the
NGT, the remedy before the High Court for a litigant u/Art. 226 and
227 continues to be available notwithstanding the enactment of the
NGT Act and the provision for appeal to the Supreme Court u/s. 22
- Constitution of India.
s. 3 - Validity of - Held: s. 3 is not a case of excessive
delegation of power to the Central Government - s. 3 is found to be
ultra vires the Constitution - Constitution of India.
Dismissing the writ petition, the Court
HELD: 1. The National Green Tribunal under Section 14
& 22 of the National Green Tribunal Act, 2010 does not oust the
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High Court's jurisdiction under Article 226 & 227 as the same is
a part of the basic structure of the Constitution. The remedy of
direct appeal to the Supreme Court under Section 22 of the NGT
Act is intra vires the Constitution of India. Section 3 of the NGT
Act is not a case of excessive delegation of power to the Central
Government. The seat of the NGT benches can be located as per
exigencies and it is not necessary to locate them in every State.
The prayer for relocating the Bhopal NGT to Jabalpur is
unmerited and is rejected. [Para 38][233-G-H; 323-A-C]
Whether the NGT ousts the High Court's jurisdiction under
Sections 14 & 22 of the NGT Act?
2. The power of judicial review under Articles 226, 227,
and 32 are part of the basic structure of the Constitution and the
same is inviolable. The NGT is within the purview of Article 226
and 227 jurisdiction of the High Courts. The High Courts have
been entertaining petitions under Article 226 and 227 of the
Constitution against orders of the NGT. While exercising such
jurisdiction, the Courts necessarily exercise due discretion on
whether to entertain or to reject the petition. Nothing contained
in the NGT Act either impliedly or explicitly, ousts the jurisdiction
of the High Courts under Article 226 and 227 and the power of
judicial review remains intact and unaffected by the NGT Act.
The prerogative of writ jurisdiction of High Courts is neither
taken away nor it can be ousted, as without any doubt, it is
definitely a part of the basic structure of the Constitution. The
High Court's exercise their discretion in tandem with the law
depending on the facts of each particular case. Since the High
Court's jurisdiction remain unaffected, the first question is
answered in the negative, against the petitioners. [Paras 1215][314-C, G-H; 315-A, F-H; 316-A]
L Chandra Kumar v. UOI 1997 (3) SCC 261 : [1997]
(2) SCR 1186 - relied on.
Whether a seat of the NGT should be in every State? If
yes, should they invariably be established at the principal seat of
High Court, which in this case would be Jabalpur instead of
Bhopal?
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3.1 The NGT caters to a limited number of cases unlike
the CAT, where the volume of cases is substantially higher. The
volume of cases handled by the NGT and the CAT are not
comparable. Looking at the large volume of service-related cases,
it was suggested that the Benches of the CAT should be located
at the seat of each High Court. But such logic cannot apply to the
NGT, where the zone wise pendency in aggregate is only 2237
cases as on 31.3.2022 from the date of its inception. [Paras 17
and 19][316-G; 317-E]
3.2 With the low case load, if the NGT Benches are set up
in all 28 States and 8 union territories, the judges and other
members in these forums might be left twiddling their thumbs.
Accordingly, no basis is seen to allow one NGT bench in every
State. [Para 21][317-H; 318-A]
3.3 The petitioner put forth that the seat of the NGT must
be at Jabalpur where the principal seat of the Madhya Pradesh
High Court is located. The Bhopal Bench caters to multiple States.
In such a situation, the location of the Bench to the extent
possible, should be convenient and accessible to litigants of all
three States. Here the respondents project that Bhopal is
centrally located in relation to Rajasthan, Madhya Pradesh, &
Chhattisgarh. Moreover, Bhopal being the capital of Madhya
Pradesh, is well connected and accessible without much difficulty.
This would commend that Bhopal is a sound locational choice for
the NGT which caters to the litigants from three States. [Para
22][318-B-D]
3.4 The low case load in the Bhopal Bench, do not match
with the strident plea of the petitioners to locate the Bench at
Jabalpur. This is therefore perceived as an attempt by the
petitioners (who are practicing lawyers in Jabalpur), to primarily
espouse their professional interest. No other rational basis is
seen for the Association's plea for relocation of the NGT Bench
to Jabalpur from Bhopal. There is no justification to grant such
relief to the petitioners. [Para 23][318-E]
S.P. Sampath Kumar vs. Union of India (1987) 1 SCC
124 : [1987] (1) SCR 435 - held inapplicable.
MADHYA PRADESH HIGH COURT ADVOCATES BAR
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Whether the remedy of direct appeal to the Supreme
Court from the decisions of the NGT under Section 22 of the
NGT Act is ultra vires to the Constitution? Whether an appeal
mechanism be provided to the High Courts from the decisions
of the NGT?
4.1 It needs to be observed that even when a direct appeal
to the Supreme Court is provided by a statute against the decision
of a tribunal , the remedy under Article 226 or 227 before the
High Court remains unextinguished. Moreover, the Appeal under
Section 22 of the NGT Act, is limited to the grounds under Section
100 of the CPC and the Supreme Court does not function as a
regular first appellate Court. However, under Article 226 or 227,
remedies on issues of jurisdiction and also under the principles
set out in Associated Provincial Picture Houses Ltd. vs. Wednesbury
Corporation, are available for an aggrieved party. Subject to
discretion being exercised, the affected litigants can move High
Court under Article 226 or 227 and in such cases, a SLP under
Article 136 of the Constitution could also be maintained to the
Supreme Court from the High Court's verdict. Also importantly,
the right to appeal before the High Court is a creature of the
statute and is not an inherent right. The provision for appeal to
High Court should not therefore be created by issuing a writ of
Mandamus as that would be legislating through judicial order,
and would impinge upon the well-founded concept of separation
of powers. The options available to a litigant to either move to
the Supreme Court in a case where a substantial question of law
arises or proceed under Article 226 or 227 must not also be
overlooked. If necessary, a party can also approach this Court by
way of an Article 136 petition. With such choices being available
for a party no rational justification is found for striking down
Section 22 of the Act which provides for a direct appeal to the
Supreme Court. [Paras 24-26][319-A-E]
4.2 A litigating party must also realise that in any event, if
the opposite side approaches the Supreme Court, the litigant on
the other side would have to defend his case before this Court
and at that stage they cannot be complaining about the distance
to Delhi. Thus, the remedy of direct appeal to the Supreme Court
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under the NGT Act from the NGT's decision cannot be seen as
denial of access to justice to the litigants in the field of
environmental law. [Para 27][319-F]
4.3 It must also be underscored that the ground raised by
the Petitioners about Supreme Court being inaccessible, would
equally apply to litigants, from all across the country, who have to
travel to the Supreme Court, either by way of Article 136 or Article
32 or any other provision. Despite the provision under Article
130 of the Constitution, the Supreme Court has no other bench
away from Delhi. In these circumstances by pleading
inaccessibility, the petitioners are also incidentally questioning,
the location of the Supreme Court at New Delhi. Such a contention
on the face of it would be irrational and not acceptable. [Para
30][320-D-E]
4.4 It cannot also be overlooked that it is the Supreme Court
itself which had recommended the setting up of environmental
court with direct appeals to the Supreme Court. This would also
support the proposition on constitutional validity of Section 22 of
the NGT Act and that it is not ultra vires to the Constitution.
[Para 31][320-F]
Whether Section 3 of the NGT Act is ultra vires to the
Constitution as suffering from the vice of excessive delegation?
5.1 It must be borne in mind that the operationalization of
the NGT, including the location of its Benches, was closely
monitored by the Supreme Court. It is further seen that the Union
Government is to specify the ordinary place of sitting of NGT
and its territorial jurisdiction under Section 3 of the NGT Act
being mindful of the demand for environment litigation within a
particular territorial area. The Government is also to be guided
by the objects of the Act as also the directions given by the
Supreme Court from time to time. Since, the Government is acting
on the issue with the guidance of this Court, and the Government
is obliged to follow the objectives of the NGT Act, adequate
safeguards are seen to guide the government. The Court is
therefore of the opinion that Section 3 of the NGT Act is not a
case of excessive delegation. [Para 32][321-A-C]
MADHYA PRADESH HIGH COURT ADVOCATES BAR
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Madras Bar Association vs. Union of India and Anr.
(2014) 10 SCC 1 : [2014] (10) SCR 1 - held
inapplicable.
5.2 Section 3 of the NGT Act is found to be intra vires to
the Constitution of India. However, it is clarified that the
conclusion is based on the specific facts of this case. [Para 36][322F]
M.C. Mehta v. Union of India (1986) 2 SCC 176 : [1986]
(1) SCR 312; Indian Council for Enviro-Legal Action
v. Union of India (1996) 3 SCC 212 : [1996] (2) SCR
503; Vellore Citizens' Welfare Forum v. Union of India
(1996) 5 SCC 647 : [1996] (5) Suppl. SCR 241; A.P.
Pollution Control Board v. Prof. M.V. Nayudu (1999) 2
SCC 718 : [1999] (1) SCR 235; A.P. Pollution Control
Board II v. Prof. M.V. Nayudu (2001) 2 SCC 62 : [2000]
(5) Suppl. SCR 249; Union of India Vs. Vimal Bhai
SLP(C) No. 12065 of 2009; Municipal Corporation of
Greater Mumbai vs. Ankita Sinha & Ors. 2021 SCC
Online SC 897; Mantri Techzone (P) Ltd. vs. Forward
Foundation (2019) 18 SCC 494; Whirlpool Corpn. Vs.
Registrar of Trade Marks, Mumbai and Others (1998)
8 SCC 1 : [1998] (2) Suppl. SCR 359; Associated
Provincial Picture Houses Ltd. vs. Wednesbury
Corporation [1948] 1 KB 223; R.K. Jain v. Union of
India (1993) 4 SCC 119 : [1993] (3) SCR 802; Rojer
Mathew v. South Indian Bank Ltd. (2020) 6 SCC 1 :
[2019] (16) SCR 1 - referred to.
Case Law Reference
[1986] (1) SCR 312
referred to
Para 5.1
[1996] (2) SCR 503
referred to
Para 5.1
[1996] (5) Suppl. SCR 241
referred to
Para 5.1
[1999] (1) SCR 235
referred to
Para 5.1
[2000] (5) Suppl. SCR 249
referred to
Para 5.1
(2019) 18 SCC 494
referred to
Para 8
[1997] (2) SCR 1186
relied on
Paras 12, 13, 14
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[1998] (2) Suppl. SCR 359
referred to
Para 14
[1987] (1) SCR 435
held inapplicable
Paras 19, 22
[1993] (3) SCR 802
referred to
Para 28
[2019] (16) SCR 1
referred to
Para 29
[2014] (10) SCR 1
held inapplicable
Para 34
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
433 of 2012.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
Siddhartha R. Gupta, Mrigank Prabhakar, Shivam Singh Baghel,
Ms. Sakshi Banga, Advs. for the Appellants.
K. K. Venugopal, AG, Ms. Aishwarya Bhati, ASG, Saurabh Mishra,
Amol Chandan, Ms. Vanshaja Shukla, Ms. Shivika Mehra, Aman Sharma,
Manvendra Singh, Gurmeet Singh Makker, Mishra Saurabh, Rajan Kumar
Chourasia, Sunny Choudhary, Advs. for the Respondents.
The Judgment of the Court was delivered by
HRISHIKESH ROY, J.
1. Through this writ petition filed under Article 32 of the
Constitution of India, the petitioners who are the Madhya Pradesh High
Court Advocates Bar Association and the District Bar Association, both
with their registered offices at Jabalpur, have raised a challenge to the
vires of the National Green Tribunal Act, 2010 (hereinafter referred
to as "the NGT Act"), and pray for the following reliefs: -
"(a) Issue an appropriate writ of certiorari or any other writ of
similar nature directing that the Bench of National Green Tribunal
be set up at all the places where the principal seat of High Court
is situated.
(b) Hold and declare that the proposed sitting up of Bench of
NGT at Bhopal is not constitutionally and/or sustainable,
(c) Declare the provision of Section 14 r/w 22 of the National
Green Tribunal Act, as unconstitutional insofar as they purport to
exclude the writ jurisdiction of High Court under Article 226/227
of the Constitution of India."
MADHYA PRADESH HIGH COURT ADVOCATES BAR
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2. The issues to be considered in this writ petitionare:-
A.
Whether the National Green Tribunal (hereinafter
referred to as "the NGT") ousts the High Court's
jurisdiction under Sections 14& 22 of the NGT Act?
B.
Whether a seat of the NGT should be in every State? If
yes, should they invariably be established at the
principal seat of High Court, which in this case would
be Jabalpur instead ofBhopal?
C.
Whether the remedy of direct appeal to the Supreme
Court from the decisions of the NGT under Section 22
of the NGT Act is ultra vires to the Constitution?Whether
an appeal mechanism be provided to the High Courts
from the decisions of the NGT?
D.
Whether Section 3 of the NGT Act is ultra vires to the
Constitutionas suffering from the vice of excessive
delegation?
3. We have heard Mr. Siddhartha R. Gupta, the learned counsel
for the petitioners. The Union of India is represented by Mr. K.K.
Venugopal, the learned Attorney General for India together with Ms.
Aishwarya Bhati, learned Additional Solicitor General. The State of
Madhya Pradesh (respondent No. 2) is represented by Mr. Sunny
Choudhary, learned counsel.
Arguments on behalf of Petitioners
4.1 The petitioners, who are espousing the cause of the Jabalpur
based lawyers practicing before the High Court and the Civil Courts,
contend that the Bhopal Bench of the NGT is located arbitrarily and the
decision is inconsistent with the direction in S.P. Sampath Kumar vs.
Union of India1 where this Court observed that for ensuring the efficacy
and efficiency of any Tribunal, its seat should be at a place where the
principal seat of the High Court is situated. As the Bench of the NGT is
set up at Bhopal for catering to the environment related cases covering
three States i.e., Madhya Pradesh, Chhattisgarh, and Rajasthan, the
petitioners pray for setting up the Benches of the NGT at the principal
seats of the High Courts in each of the three States and for their State of
MP, the petitioners want it at Jabalpur.
1 (1987) 1 SCC 124, Para. 8.
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4.2 According to the petitioners, environmental litigation is
predominantly related to local factors and therefore, an easily accessible
and available forum is necessary to be constituted, without requiring the
litigants to move to distant places to secure environmental justice.
4.3 The petitioners argue that through incorporation of Section 14
and Section 22 in the NGT Act, the jurisdiction and the role of the High
Courts under Article 226/227 is extinguished. This, therefore, has
impacted the basic feature of the Constitution and as such the provisions
of Section 14 read with Section 22 of the NGT Act should be struck
down to the extent they divest the High Courts of their power as a
superior Court.
4.4 Adverting to the power of the Central Government to identify
the ordinary place of sitting of the NGT and specifying their respective
territorial jurisdiction under Section 4(3) of the NGT Act, the petitioners
argue that such power being unguided, suffers from the vice of excessive
delegation. Laying stress on location of the NGT Bench at Jabalpur
where adequate infrastructure is available, the petitioners question the
choice of the seat at Bhopal instead of at Jabalpur, which is the principal
seat of the Madhya Pradesh High Court. According to the petitioners,
this impacts the right of the litigant in the field of environmental law, to
access justice.
4.5 The remedy of appeal to the Supreme Court under Section 22
of the NGT Act in the petitioner's perception, practically amounts to
denial of access to justice for the economically vulnerable litigants and
this is contended to defeat the inherent objective of access to justice by
bypassing the conveniently accessible remedy before the High Courts
under Article 226 and 227 of the Constitution of India.
4.6 The petitioners next argue that the NGT does not enjoy the
authority and autonomy available to judges in the High Courts and bearing
in mind the conditions of service, tenure, and other aspects of the judicial
and non-judicial members of the NGT, according to the petitioners, it is
neither an effective nor an appropriate substitute of the High Courts,
which were entertaining environmental disputes through respective Green
Benches, prior to the enactment of the NGT Act. More specifically, the
process of appointment, service conditions and other related provisions
for appointment of presiding members of the NGT are not at par with
the judges of the High Court and therefore, the NGT can only play a
MADHYA PRADESH HIGH COURT ADVOCATES BAR
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"supplemental or subservient role instead of being an effective and
appropriate substitute for the High Courts."
Arguments on behalf of Respondent
5.1 Per contra, Mr. K K Venugopal, the learned Attorney General
leading the arguments for the respondent's project that the NGT was
set up because of the prodding and recommendations made by the
Supreme Court while dealing with environmental cases and the
Parliament was repeatedly entreated by the Court to create specialized
environmental court with qualified judges and technical experts on the
Bench.The learned Attorney General refers to the exhortations made
by the Supreme Court in M.C. Mehta v. Union of India2, Indian
Council for Enviro-Legal Action v. Union of India3, Vellore Citizens'
Welfare Forum v. Union of India4, A.P. Pollution Control Boardv.
Prof. M.V. Nayudu5 and A.P. Pollution Control Board II v. Prof. M.V.
Nayudu6 and their acceptance by the Parliament, following the 186th
Report of the Law Commission which lead tothe establishment of
environmental courts. The Law Commission suggested in its Report that
appeals from the environmental courts should lie before the Supreme
Court. It is in this backdrop the learned AG submits that the NGT Act
was enacted and the environmental cases which were hitherto heard by
green benches in the High Court, were ordered to be transferred to the
NGT by the Supreme Court itself as the same would help in rendering
expeditious and specialized justice in the field of environment.
5.2 Insofar as the creation and setting up of the NGT and the
location of their Benches, the learned AG submits that this was done
under the active supervision of the Supreme Court and only after the
proposed places ofsitting recommended by the Central Government
received the concurrence of this Court, the concerned Benches and
their place of sitting was notified by the Central Government. It is therefore
argued that the related notification had the imprimatur of the Supreme
Court. The respondents point out that the Supreme Court monitored and
oversaw the implementation of the NGT Act and setting up of its Benches
in Union of India Vs. Vimal Bhai (SLP(C) No. 12065 of 2009) and
the various orders passed on 19.9.2011, 6.12.2012 and 15.3.2013 by this
2 (1986) 2 SCC 176, Para. 22.
3 (1996) 3 SCC 212, Para. 6.
4 (1996) 5 SCC 647, Para. 25.
5 (1999) 2 SCC 718, Para. 23, 42, 47, 48, 52.
6 (2001) 2 SCC 62, Para. 73.
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Court would reflect that individual Bench of the NGT was set up to
cater to multiple States and the location so chosen for the NGT at
Bhopal,also had the approval of the Supreme Court.
5.3 The learned Attorney General next contends that the remedy
before the High Court for a litigant under Article 226 and 227 continues
to be available notwithstanding the enactment of the NGT Act and the
provision for appeal to the Supreme Court under Section 22 of the NGT
Act.It is specifically submitted by the learned AG that the High Court's
power of judicial review remains unaffected by the NGT Act as it is a
part of the basic structure of our constitution, as was declared in L
Chandra Kumar v. UOI7.
BACKDROP OF THE NATIONAL GREEN TRIBUNAL
6. The precursor to the NGT Act was the 186th Report of the
Law Commission of India dated 29.3.2003 which came after the Supreme
Court repeatedly urged Parliament through various judgments to establish
specialized environmental courts, with qualified judges and technical
experts on the bench. The Supreme Court also put forward that there
should be direct appeals to the Supreme Court from such environmental
courts. The Law Commission then recommended creation of a
specialized court to deal with the environmental issues. The Law
Commission expressed the view that it is not convenient for the High
Courts and the Supreme Court to make local inquiries or to receive
evidence. Moreover, the superior Courts will not have access to expert
environmental scientists on permanent basis to assist them. The NGT
was conceived as a complementary specialized forum to deal with all
multi-disciplinary environmental issues, both as original as well as an
appellate authority.The specialized forum was also made free from the
rules of evidence applicable to normal courts and was permitted to lay
down its own procedure to entertain oral and documentary evidence,
consult experts etc., with specific mandate to observe the principles of
natural justice.
7. In order to understand the objective of the NGT Act, we may
usefully extract the following from the Municipal Corporation of
Greater Mumbai vs. Ankita Sinha & Ors.8 where the following was
stated by one of us (Justice Hrishikesh Roy) for the 3 Judges Bench: -
7 1997 (3) SCC 261.
8 2021 SCC Online SC 897.
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"24 The Statement of Objects and Reasons of the NGT Act
will now require attention. Paras 2,3,4,5 and 6 of the Statement
of Objects and Reasons being relevant are extracted
hereinbelow: -
"2. India is a party to the decisions taken at the United
Nations Conference on the Human Environment held at
Stockholm in June, 1972, in which India participated,
calling upon the States to take appropriate steps for the
protection and improvement of the human environment. The
United Nations Conference on Environment and
Development held at Rio de Janeiro in June, 1992, in which
India participated, has also called 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 pollution and other environmental damage.
3. The right to healthy environment has been construed as
a part of the right to life under article 21 of the Constitution
in the judicial pronouncement in India.
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 Environmental 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.
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5. Taking into account account the large number of
environmental cases pending in higher courts and the
involvement of multidisciplinary issues in such cases, the
Supreme Court requested the Law Commission of India to
consider the need for constitution of specialized
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 specialized 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."
25. A reading of the Statement of Objects and Reasons shows
that paragraph 4 thereof refers to the National Environmental
Tribunal Act, 1995 (NET) which provided for strict liability
and damages arising out of accidents occurring while
handling hazardous substances. In the same context it was
observed that the NET had a very limited and narrow mandate
and jurisdiction. Thereafter, in Para 5 it has been recorded
that a large number of environmental cases are pending in
higher Courts which involve multi-disciplinary issues and, in
such cases, the Supreme Court had requested the Law
Commission of India to consider the need for constitution of
specialized environmental Courts.
26. Significantly, the Statement of Objects and Reasons also
refers to right to a healthy environment being a part of the
right to life under Article 21 of the Constitution of India. This
was consistent with the earlier mentioned 186th Law
Commission Report highlighting that the body so created,
would aim to "achieve the objectives of Article 21, 47, 48A,
51A (g) of the Constitution of India by means of a fair, fast
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and satisfactory judicial procedure". An institution concerned
with a significant aspect of right to life necessarily should be
given the most liberal construction.
27. The paragraph 2 of the Statement of Objects and Reasons
refers to the United Nations Conference on the Human
Environment held at Stockholm in June 1972 which called
upon governments and peoples to exert common efforts for
the preservation and improvement of the human environment
when it involved people and for their posterity. Therefore,
the municipal law enacted with such a laudatory objective of
not only preventing damage to the environment but also to
protect it, must be provided with the wherewithal to discharge
its protective, preventive and remedial function towards
protection of the environment. The mandate and jurisdiction
of the NGT is therefore conceived to be of the widest amplitude
and it is in the nature of a sui generis forum.
28. The United Nations Conference on Environment and
Development held at Rio De Janeiro in June, 1992 where India
participated, impressed upon the States to provide effective
access to judicial and administrative proceedings, lay out
redress and remedy and to develop national laws regarding
liability and compensation for the victims of pollution and
other environmental damage. The Preamble of the Act
significantly emphasized on construing the right to healthy
environment as a part of the Right to Life under Article 21 of
the Constitution which was accepted by various judicial
pronouncements in India. The National Green Tribunal was
born in our country with such lofty dreams to deal with multidisciplinary issues, relating to the environment.
29. The limited mandate conferred on the earlier forum i.e.
the NET and the narrow scope of jurisdiction of the National
Environment Appellate Authority along with the involvement
of multi-disciplinary issues arising in environmental cases,
were intended to be addressed through the constitution of the
NGT."
8. Explaining the purpose to constitute the specialized court to
deal with environmental issues, in Mantri Techzone (P) Ltd. vs.
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Forward Foundation9, Justice S. Abdul Nazeer writing for the three
Judges Bench made the following pertinent observation, on the status
of the NGT: -
"40. The Tribunal has been established under a constitutional
mandate provided in Schedule VII List I Entry 13 of the
Constitution of India, to implement the decision taken at the
United Nations Conference on Environment and Development.
The Tribunal is a specialised judicial body for 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 the environment. The right to healthy environment has been
construed as a part of the right to life under Article 21 by
way of judicial pronouncements. Therefore, the Tribunal has
special jurisdiction for enforcement of environmental rights."
9. The NGT is set up under the constitutional mandate under Entry
13 List I of Schedule VII to enforce Article 21 in regard to the
environment and the Tribunal was conferred special jurisdiction for
enforcement of environmental rights. It thus appears that the role of the
NGT was not simply adjudicatory, but it also had the equally vital role
which is preventive, ameliorative, or of the remedial category. The
functional capacity of the NGT was intended to leverage wide powers
to do full justice in the field of environment.The NGT came into existence
as a sui generis institution established for the enforcement of environmental
rights emanating from Article 21 of the Constitution10.
10. After the NGT was set up, the Supreme Court pertinently
directed the transfer of environmental cases pending before the High
Courts to the NGT for expeditious and specialized justice for all
concerned. The Supreme Court also actively oversaw the implementation
of the Act and creation of the NGT itself through various Orders11.
Those also pertained to, inter-alia, the location of the NGT benches. In
other words, the Supreme Court was not only conscious of the location
of the benches of the NGT but also had given its imprimatur to the
NGT's creation and other aspects.
9 (2019) 18 SCC 494.
10 2021 SCC OnLine 897, Para. 44, 98.
11 SLP (C) 12065 of 2009.
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11. With the above prefatory contexts in mind, we may now look
at the challenge.
ISSUE WISE DISCUSSION
A.
Whether the NGT ousts the High Court's jurisdiction
under Sections 14 & 22 of the NGT Act?
12. Insofar as the contention of the petitioners that there is ouster
of jurisdiction of the High Courts under Article 226 and 227 of the
Constitution because of Sections 14 & 22 of the NGT Act, it must be
recalled that in L. Chandra Kumar vs. Union of India[supra], it has
been categorically declared that the power of judicial review under
Articles 226, 227, and 32 are part of the basic structure of our constitution
and the same is inviolable.The following pertinent opinion rendered by
the 7 Judges' bench of this Court must be remembered on this aspect: -
"78.........We, therefore, hold that the power of judicial review
over legislative action vested in the High Courts under Article
226 and in this Court under Article 32 of the Constitution is
an integral and essential feature of the Constitution,
constituting part of its basic structure. Ordinarily, therefore,
the power of High Courts and the Supreme Court to test the
constitutional validity of legislations can never be ousted or
excluded.
79. We also hold that the power vested in the High Courts to
exercise judicial superintendence over the decisions of all
courts and tribunals within their respective jurisdictions is
also part of the basic structure of the Constitution. This is
because a situation where the High Courts are divested of all
other judicial functions apart from that of constitutional
interpretation, is equally to be avoided."
13. Apart from the clear enunciation on legal position to the effect
that the NGT is within the purview of Article 226 and 227 jurisdiction of
the High Courts, the learned Attorney General on behalf of the Union of
India has also made submissions consistent with L. Chandra
Kumar[supra] and conceded the legal position.
14. It can further be noted that in terms of the above ratio in L.
Chandra Kumar [supra], the High Courts have been entertaining
petitions under Article 226 and 227 of the Constitution against orders of
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the NGT. While exercising such jurisdiction, the Courts necessarily
exercise due discretion on whether to entertain or to reject the petition,
as per the test broadly laid down in Whirlpool Corpn. Vs. Registrar of
Trade Marks, Mumbai and Others12;
"14. The power to issue prerogative writs under Article 226
of the Constitution is plenary in nature and is not limited by
any other provision of the Constitution. This power can be
exercised by the High Court not only for issuing writs in the
nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari for the enforcement of any of the
Fundamental Rights contained in Part III of the Constitution
but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court,
having regard to the facts of the case, has a discretion to
entertain or not to entertain a writ petition. But the High Court
has imposed upon itself certain restrictions one of which is
that if an effective and efficacious remedy is available, the
High Court would not normally exercise its jurisdiction. But
the alternative remedy has been consistently held by this Court
not to operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement of
any of the Fundamental Rights or where there has been a
violation of the principle of natural justice or where the order
or proceedings are wholly without jurisdiction or the vires of
an Act is challenged. There is a plethora of case-law on this
point but to cut down this circle of forensic whirlpool, we
would rely on some old decisions of the evolutionary era of
the constitutional law as they still hold the field."
15. It is also noteworthy that nothing contained in the NGT Act
either impliedly or explicitly, ousts the jurisdiction of the High Courts
under Article 226 and 227 and the power of judicial review remains
intact and unaffected by the NGT Act.The prerogative of writ jurisdiction
of High Courts is neither taken away nor it can be ousted, as without
any doubt, it is definitely a part of the basic structure of the Constitution.
The High Court's exercise their discretion in tandem with the law
depending on the facts of each particular case. Since the High Court's
12 (1998) 8 SCC 1.
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jurisdiction remain unaffected, the first question is answered in the
negative, against the petitioners.
B.
Whether a seat of the NGT should bein every State? If
yes, should they invariably be established at the
principal seat of High Court, which in this case would
be Jabalpur instead of Bhopal?
16. The petitioners in pleading for a NGT Bench in each state,
place heavy reliance on S.P. Sampath[supra]. To appreciate this, the
Court's following observation needs consideration in the context of
administrative tribunals: -
"8. I may also add that if the Administrative Tribunal is to be
an equally effective and efficacious substitution for the High
Court on the basis of which alone the impugned Act can be
sustained, there must be a permanent or if there is not sufficient
work, then a Circuit Bench of the Administrative Tribunal at
every place where there is a seat of the High Court. I would,
therefore, direct the government to set up a permanent Bench
and if that is not feasible having regard to the Vol. of work,
then at least a circuit Bench of the Administrative Tribunal
wherever there is a seat of the High Court, on or before March
31, 1987. That would be necessary if the provisions of the
impugned Act are to be sustained. So far as rest of the points
dealt with in the judgment of Ranganath Misra, J. are
concerned, I express my entire agreement with the view taken
by him."
17. As is seen, Justice Bhagwati made the above observation in
the case where the Supreme Court was concerned with the Central
Administrative Tribunal [in short, "CAT"] where the volume of litigation
is substantially higher.This is why the direction to establish permanent
benches or circuit benches in every State is predicated on assessing
feasibility by reference to the volume of litigation. Here we must follow
the principle of proportionality. To underscore the issue, the CAT have
17 Benches and 21 Circuit Benches as opposed to only five Benches of
the NGT. The NGT caters to a limited number of cases unlike the CAT,
where the volume of cases is substantially higher. As per the report13
tabled in Rajya Sabha by the Parliamentary Standing Committee on
13 100_2020_9_11.pdf (rajyasabha.nic.in)
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Personnel, Public Grievances, Law and Justice, the CAT have over 48,000
cases pending as on 6th March, 2020.
18. While on this, we may also notice the data available on the
website of the National Green Tribunal14 which reflects the pendency of
cases before the NGT as on 28.02.2022: -
19. As is apparent from the above chart the volume of cases
handled by the NGT and the CAT are not comparable. Looking at the
large volume of service-related cases, it was suggested that the Benches
of the CAT should be located atthe seat of each High Court.