# MUNICIPAL CORPORATION OF GREATER MUMBAI v. ANKITA SINHA & ORS

- **Citation:** [2021] 10 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2021-10-07
- **Case number:** Civil Appeal Nos. 12122-12123 of 2018
- **Bench:** A. M. Khanwilkar, Hrishikesh Roy, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/municipal-corporation-of-greater-mumbai-v-ankita-sinha-ors-34632
- **Pages:** 58

## Headnote

National Green Tribunal Act, 2010: History of legislation -
Preamble and Statement of Objects and Reasons of the Act -
Contours of the jurisdiction of the NGT - Discussed.
National Green Tribunal Act, 2010: Interpretation of -
Purposive interpretation - The provision must be read with the
intention to accentuate them, especially as they concern protections
of rights under Art.21 and also deal with vital environmental policy
and its regulatory aspects.
National Green Tribunal Act, 2010: Salient features -
Discussed.
National Green Tribunal Act, 2010: Role of National Green
Tribunal - The Schedule I of the NGT Act is concerned with
implementation of few environmental related enactments such as
the Water Act, the Air Act, the Environment Act, the Forest
Conservation Act etc - As one looks at these enactments, an
expanded role for the NGT is clearly discernible - The activities of
the NGT are not only geared towards the protection of the
environment but also to ensure that the developments do not cause
serious and irreparable damage to the ecology and the environment
- NGT is primarily concerned with protection of the environment
and also preservation of the natural resources - As the specialized
forum, the NGT would be expected to take preventive action, besides
settling and adjudicating disputes and pass orders on all environment
related questions - NGT is not just an adjudicatory body but has to
perform wider functions in the nature of prevention, remedy and
amelioration.
National Green Tribunal Act, 2010: Power of National Green
Tribunal - In case of environmental events causing damage - The
[2021] 10 S.C.R. 1
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NGT is empowered to carry out restitutive exercise for compensating
persons adversely affected by environmental events - The larger
discourse which informs such functions is related to distributive
and corrective justice - Even in the absence of harm inflicted by
human agency, in a situation of a natural calamity, the NGT will be
required to devise a plan for alleviating damage - An inquisitorial
function is also available for the NGT, within and without adversarial
significance - Many of these functions do not require an active
"dispute", but the formulation of decisions.
National Green Tribunal: Suo motu power, exercise of - The
specialized tribunal's exercise of suo motu powers is somewhat
distinct from those exercised by the constitutional Courts - The
Supreme Court and High Courts can foray into any issues under
their constitutional mandate but the NGT cannot naturally travel
beyond its environmental domain in reference to the scheduled
enactments - However, as long as the sphere of action is not
breached, the NGT's powers must be understood to be of the widest
amplitude.
National Green Tribunal: Uniqueness of NGT vis-a-vis other
Tribunals - The statutory Tribunals are categorized to fall under
four subheads; Administrative Tribunals under Art.323A; Tribunals
under Art.323B; Specialized sector Tribunals and most prominently;
Tribunals to safeguard rights under Art.21 - The duties of NGT
brings it within the ambit of the fourth category, creating a
compelling proposition for wielding much broader powers as
delineated by the statute.
National Green Tribunal: Sui Generis role of NGT - NGT is a
specialised forum - The NGT is a Tribunal with sui generis
characteristic, with the special and all-encompassing jurisdiction
to protect the environment - Besides its adjudicatory role as an
appellate authority, it is also conferred with the responsibility to
discharge role of supervisory body and to decide substantial
questions relating to the environment - The necessity of having a
specialized body, with the expertise to handle multi-dimensional
environmental issues allows for an all-encompassing framework
for environmental justice - The technical expertise that may be
required to address evolving environmental concerns would
definitely require a flexible institutional m

## Text

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1
MUNICIPAL CORPORATION OF GREATER MUMBAI
v.
ANKITA SINHA & ORS.
(Civil Appeal Nos. 12122-12123 of 2018)
OCTOBER 07, 2021
[A. M. KHANWILKAR, HRISHIKESH ROY AND
C. T. RAVIKUMAR, JJ.]
National Green Tribunal Act, 2010: History of legislation -
Preamble and Statement of Objects and Reasons of the Act -
Contours of the jurisdiction of the NGT - Discussed.
National Green Tribunal Act, 2010: Interpretation of -
Purposive interpretation - The provision must be read with the
intention to accentuate them, especially as they concern protections
of rights under Art.21 and also deal with vital environmental policy
and its regulatory aspects.
National Green Tribunal Act, 2010: Salient features -
Discussed.
National Green Tribunal Act, 2010: Role of National Green
Tribunal - The Schedule I of the NGT Act is concerned with
implementation of few environmental related enactments such as
the Water Act, the Air Act, the Environment Act, the Forest
Conservation Act etc - As one looks at these enactments, an
expanded role for the NGT is clearly discernible - The activities of
the NGT are not only geared towards the protection of the
environment but also to ensure that the developments do not cause
serious and irreparable damage to the ecology and the environment
- NGT is primarily concerned with protection of the environment
and also preservation of the natural resources - As the specialized
forum, the NGT would be expected to take preventive action, besides
settling and adjudicating disputes and pass orders on all environment
related questions - NGT is not just an adjudicatory body but has to
perform wider functions in the nature of prevention, remedy and
amelioration.
National Green Tribunal Act, 2010: Power of National Green
Tribunal - In case of environmental events causing damage - The
[2021] 10 S.C.R. 1
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NGT is empowered to carry out restitutive exercise for compensating
persons adversely affected by environmental events - The larger
discourse which informs such functions is related to distributive
and corrective justice - Even in the absence of harm inflicted by
human agency, in a situation of a natural calamity, the NGT will be
required to devise a plan for alleviating damage - An inquisitorial
function is also available for the NGT, within and without adversarial
significance - Many of these functions do not require an active
"dispute", but the formulation of decisions.
National Green Tribunal: Suo motu power, exercise of - The
specialized tribunal's exercise of suo motu powers is somewhat
distinct from those exercised by the constitutional Courts - The
Supreme Court and High Courts can foray into any issues under
their constitutional mandate but the NGT cannot naturally travel
beyond its environmental domain in reference to the scheduled
enactments - However, as long as the sphere of action is not
breached, the NGT's powers must be understood to be of the widest
amplitude.
National Green Tribunal: Uniqueness of NGT vis-a-vis other
Tribunals - The statutory Tribunals are categorized to fall under
four subheads; Administrative Tribunals under Art.323A; Tribunals
under Art.323B; Specialized sector Tribunals and most prominently;
Tribunals to safeguard rights under Art.21 - The duties of NGT
brings it within the ambit of the fourth category, creating a
compelling proposition for wielding much broader powers as
delineated by the statute.
National Green Tribunal: Sui Generis role of NGT - NGT is a
specialised forum - The NGT is a Tribunal with sui generis
characteristic, with the special and all-encompassing jurisdiction
to protect the environment - Besides its adjudicatory role as an
appellate authority, it is also conferred with the responsibility to
discharge role of supervisory body and to decide substantial
questions relating to the environment - The necessity of having a
specialized body, with the expertise to handle multi-dimensional
environmental issues allows for an all-encompassing framework
for environmental justice - The technical expertise that may be
required to address evolving environmental concerns would
definitely require a flexible institutional mechanism for its effective
exercise.
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National Green Tribunal: An Authority to take suo motu
cognizance of matter - NGT is not required to be triggered into
action by an aggrieved or interested party alone - The exercise of
power by the NGT is not circumscribed by receipt of application -
When substantial questions relating to the environment arise and
the issue is civil in nature and those relate to the enactments in
Schedule I of the Act, the NGT even in the absence of an application,
can self-ignite action either towards amelioration or towards
prevention of harm.
Environmental law: Precautionary Principle - Application of
- Held: The principle must apply in the widest amplitude to ensure
that it is not only resorted to for adjudicatory purposes but also for
other 'decisions' or 'orders' to governmental authorities or polluters,
when they fail to "to anticipate, prevent and attack the causes of
environmental degradation - Two aspects must therefore be
emphasized i.e. that the NGT is itself required to carry out preventive
and protective measures, as well as hold governmental and private
authorities accountable for failing to uphold environmental interests
- Thus, a narrow interpretation for NGT's powers should be
eschewed to adopt one which allows for full flow of the forum's
power within the environmental domain - Doctrines/Principles.
Environmental law: Environmental justice and equity - When
substantive justice is elusive for a large segment, disengaging with
substantive rights at the very altar, for a perceived procedural
lacuna, would surely bring in a process, which furthers inequality,
both economic and social - An "equal footing" conception may
not, therefore, be feasible to adequately address the asymmetrical
relationship between the polluters and those affected by their actions
- Instead, a recognition of the historical experience of marginalized
classes of persons while accessing and effectively using the legal
system, will allow for necessary appreciation of social realities and
balancing the arm of justice.
Directing to post the matters on 25.10.2021 for further
directions and answering the common legal issue regarding suo
motu jurisdiction of NGT, the Court
HELD: 1.1 The 186th Report of the Law Commission of
India dated 23.9.2003, the Law Commission had made the
pertinent observation espousing the case for the creation of a
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specialized Court to deal with environmental issues. The
observations in the Report suggest that the Law Commission
was of the opinion that it was not convenient for the High Courts
and the Supreme Court to make local inquiries or receive
evidence. Moreover, the superior courts would not have access
to expert environmental scientists on permanent basis to assist
them. Therefore, NGT was conceived as a complimentary
specialized forum to deal with all environmental multi-disciplinary
issues both as original and also as an appellate authority, which
complex issues were hitherto dealt with by the High Courts and
the Supreme Court. The NGT, therefore, was intended to be the
competent forum for dealing with environmental issues instead
of those being canvassed under the writ jurisdiction of the Courts.
It was explicitly noted that the creation of the NGT would allow
for the Supreme Court and High Court to avoid intervening under
their inherent jurisdiction when an alternative efficacious remedy
would become available before the specialized forum. [Paras 13.2,
13.3, 13.4][28-D; 29-D-E, F]
1.2 The power of judicial review was omitted to ensure
avoidance of High Courts' interference with the Tribunal's orders
by way of a mid-way scrutiny by the High Court, before the matter
travels to the Supreme Court where NGT's orders can be
challenged. The streamlining of the mechanism was to arrest the
growing tide of litigation before High Courts and the Supreme
Court and shift such issues to the domain of the NGT. This is
how the proposed forum was made free from the rules of evidence
and the NGT was permitted to lay down its own procedure to
entertain oral and documentary evidence, consult experts etc.
The observance of the principles of natural justice was however
mandated. [Paras 13.4 and 13.5][30-B-C; 30-D]
2.1 A reading of the Statement of Objects and Reasons of
NGT Act 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
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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. 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 and satisfactory judicial procedure".
[Paras 14.2, 14.3][31-G-H; 32-A-C]
2.2 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. [Para 14.4][32-C-E]
2.3 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 multi-disciplinary issues, relating to the environment. The
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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 multidisciplinary issues arising in environmental cases, were intended
to be addressed through the constitution of the NGT. [Paras 14.5,
14.6][32-E-H; 33-A]
3.1 The NGT is intended to address wide ranging societal
concerns. The Statute has to be read in its entirety and each
provision of the Act must be given its due meaning by
comprehending the mischief it intends to remedy. The application
of the Heydon's Rule could adequately aid here as the Rule directs
adoption of that construction which "shall suppress the mischief
and advance the remedy". [Paras 15.1, 15.3] [33-B-C, G]
Bengal Immunity Co. v. State of Bihar [1955] 2 SCR
603; AIR 1955 SC 661 - followed.
Francis Bennion Statutory Interpretation described;
Panama Refining Co. v. Ryan 47 Columbia Law
Review 527 - referred to.
3.2 The laudatory objectives for creation of the NGT would
implore to adopt such an interpretive process which will achieve
the legislative purpose and will eschew procedural impediment
or so to say incapacity. The precedents of this Court, suggest a
construction which fulfills the object of the Act. The choice for
this Court would be to lean towards the interpretation that would
allow fructification of the legislative intention and is forward
looking. The provisions must be read with the intention to
accentuate them, especially as they concern protections of rights
under Article 21 and also deal with vital environmental policy
and its regulatory aspects. [Para 15.6][34-G; 35-A-B]
4.1 Section 14 gives original jurisdiction to the NGT to
decide a substantial question relating to environment; Section
15 deals with relief, compensation and restitution whereby besides
providing relief to the victims of pollution, the NGT can direct
restitution of property damage and restitution of environment
for such area(s) "as the Tribunal may think fit". Section 16 gives
appellate jurisdiction to the Tribunal against the orders passed
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under various enactments. Section 17 provides for liability to pay
relief or compensation in certain cases, Section 18 specifies who
can move application/appeal before the Tribunal. It includes,
among others, 18(2)(d) "any person aggrieved including any
representative body / organization" and the locus standi is not
limited only to the aggrieved party. Section 19 provides for
procedure and powers of the Tribunal. Section 19(1) significantly
says that the Tribunal shall not be bound by procedures laid down
in the CPC and shall be bound by the Principles of Natural Justice.
Section 19(2) provides that subject to the provisions of the Act,
the Tribunal shall have powers to regulate its own procedure.
Section 19(3) mentions that the Tribunal shall not be bound by
the rules of evidence contained in the Evidence Act, 1872. While
discharging functions under Section 19(4), besides summoning,
enforcing attendance, examining persons on oath, requiring
discovery and production of documents, receiving evidence on
oath, the NGT also has powers to review its decision, to pass
interim orders as well as pass cease and desist orders. Section
20 says that while adjudicating issues, the Tribunal shall apply
the environmental principles, namely, sustainable development
principles, precautionary principles and polluter pays principle.
Under Section 25, the Tribunal can execute its order/decision as
a decree of the Civil Court and for that purpose shall have all the
powers of a Civil Court. Section 29 bars the jurisdiction of the
Civil Court to entertain all environmental matters covered by
the Tribunal. Under Section 33, the NGT Act has an overriding
effect over other laws. [Para 16.1][35-B-H; 36-A-B]
4.2 While on the statutory provisions, it is seen that the
Central Government has framed the National Green Tribunal
(Practice & Procedure) Rules, 2011. 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. 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
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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. 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. [Paras 16.2, 16.3, 16.4, 16.5][36-B-C, D-G]
4.3 Another distinguishing feature of the environmental
forum is on the aspect of locus standi which was made as wide as
is available to the High Courts and the Supreme Court. Thus,
any person or organization who may be interested in the subject
matter is permitted to approach the NGT. The provisions of the
NGT Act and the NGT Rules demonstrate that myriad roles are
to be discharged by the NGT, as was encapsulated in the Law
Commission Report, the Preamble and the Statement of Objects
and Reasons. This is also forthcoming from the international
obligation and commitment by India to implement the decision
taken at the Stockholm and the Rio De Janeiro Conventions
towards protection of the environmental rights under Article 21
of the Constitution. [Paras 16.6, 16.7][36-G-H, 37-A-B]
5. NON-ADJUDICATORY ROLES OF NGT
5.1 As can be seen, the Parliament intended to confer wide
jurisdiction on the NGT so that it can deal with the multitude of
issues relating to the environment which were being dealt with
by the High Courts under Article 226 of the Constitution or by
the Supreme Court under Article 32 of the Constitution. The
Tribunal is also expected to proceed with such matters with the
understanding that environment and environmental principles are
part of Article 21 of the Constitution.[Para 17.1][37-B-D]
Vellore Citizens' Welfare Forum v. UOI (1996) 5 SCC
647 : [1996] 5 Suppl. SCR 241 - relied on.
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5.2 The Schedule I of the NGT Act is concerned with
implementation of few environmental related enactments such
as the Water Act, the Air Act, the Environment Act, the Forest
Conservation Act etc. As one looks at these enactments, an
expanded role for the NGT is clearly discernible. The activities
of the NGT are not only geared towards the protection of the
environment but also to ensure that the developments do not
cause serious and irreparable damage to the ecology and the
environment. These would suggest a broad canvas for the NGT
Act as also its creation. [Para 17.2][37-D-F]
5.3 For the environmental forum, tasked with
implementation of the statutes mentioned in Schedule I of the
NGT Act, the concept of lis, would obviously be beyond the usual
understanding in civil cases where there is a party (whether private
or government) disturbing the environment and the other one
(could be an individual, a body or the government itself), who has
concern for the protection of environment. Therefore, the NGT
is primarily concerned with protection of the environment and
also preservation of the natural resources. As the specialized
forum, the NGT would be expected to take preventive action,
besides settling and adjudicating disputes and pass orders on all
environment related questions. The NGT is not just
an adjudicatory body but has to perform wider functions in the
nature of prevention, remedy and amelioration. [Paras 17.3,
17.4][37-F-G; 38-A]
5.4 The NGT is empowered to carry out restitutive exercise
for compensating persons adversely affected by environmental
events. The larger discourse which informs such functions is
related to distributive and corrective justice. Even in the absence
of harm inflicted by human agency, in a situation of a natural
calamity, the Tribunal will be required to devise a plan for
alleviating damage. An inquisitorial function is also available for
the Tribunal, within and without adversarial significance.
Importantly, many of these functions do not require an active
"dispute", but the formulation of decisions. [Para 18][38-D-F]
Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union
of India (2012) 8 SCC 326 : [2012] 12 SCR 947
- relied on.
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6. EXERCISE OF SUO MOTU POWER BY NGT
The specialized tribunal's exercise of suo motu powers is
somewhat distinct from those exercised by the constitutional
Courts. The Supreme Court and High Courts can foray into any
issues under their constitutional mandate but the NGT cannot
naturally travel beyond its environmental domain in reference to
the scheduled enactments. However, as long as the sphere of
action is not breached, the NGT's powers must be understood to
be of the widest amplitude. 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 nature. The functional capacity of the NGT was
intended to leverage wide powers to do full justice in its
environmental mandate. [Paras 20, 21.6][39-F-H; 41-F-G]
Mantri Techzone (P) Ltd. v. Forward Foundation (2019)
18 SCC 494; Rajeev Hitendra Pathak v. Achyut
Kashinath (2011) 9 SCC 541 : [2011] 10 SCR 513;
Rajeev Suri v. DDA 2021 SCC Online SC 7; Andhra
Pradesh Pollution Control Board v. Prof. M. V. Nayudu
(Retd.) and Ors. (1999) 2 SCC 718 : [1999] 1 SCR
235 - relied on.
7. UNIQUENESS OF NGT VIS-A-VIS OTHER TRIBUNALS
While there are many tribunals functioning within their
specified domains, variances do exist in the manner in which they
are designed to function. The statutory Tribunals were categorized
to fall under four subheads; Administrative Tribunals under Article
323A; Tribunals under Article 323B; Specialized sector Tribunals
and most prominently; Tribunals to safeguard rights under Article
21. The duties of NGT brings it within the ambit of the fourth
category, creating a compelling proposition for wielding much
broader powers as delineated by the statute. The ideal was to
create a fairly proactive and responsive Institution which could
step into varying roles, as the situation demanded. During the
course of its functioning, the NGT has been recognized as one of
the most progressive Tribunals in the world. This jurisprudential
leap has allowed our country to enter a rather exclusive group of
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nations which have set up such institutions with broad powers.
[Para 22.1, 22.2, 22.3][41-G-H; 42-A-C; 43-B-C]
State of Meghalaya v. All Dimasa Students Union (2019)
8 SCC 177 : [2019] 8 SCR 297 - relied on.
8. THE SUI GENERIS ROLE OF NGT
8.1 The NGT was conceived as a specialized forum not only
as a like substitute for a civil court but more importantly to take
over all the environment related cases from the High Courts and
the Supreme Court. Many of those cases transferred to the NGT,
emanated in the superior courts and it would be appropriate thus
to assume that similar power to initiate suo motu proceedings
should also be available with the NGT. [Para 24.4][44-G-H;
45-A]
Paramjit Kaur v. State of Punjab (1999) 2 SCC 131 :
[1998] 1 Suppl. SCR 538; DG NHAI v. Aam Aadmi
Lokmanch 2020 SCC Online SC 572 - relied on.
8.2 The NGT is a Tribunal with sui generis characteristic,
with the special and all-encompassing jurisdiction to protect the
environment. Besides its adjudicatory role as an appellate
authority, it is also conferred with the responsibility to discharge
role of supervisory body and to decide substantial questions
relating to the environment. The necessity of having a specialized
body, with the expertise to handle multi-dimensional
environmental issues allows for an all-encompassing framework
for environmental justice. The technical expertise that may be
required to address evolving environmental concerns would
definitely require a flexible institutional mechanism for its effective
exercise. [Para 24.5][45-B-C]
9. AUTHORITY WITH SELF-ACTIVATING CAPABILITY
9.1 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, should necessarily clothe it with the
authority to take suo motu cognizance of matters, for effective
discharge of its mandate. Section 14(1) of the NGT Act deals
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with jurisdiction, and the jurisdictional provision conspicuously
omits to specify that an application is necessary to trigger the
NGT into action. In situations where the three prerequisites of
Section 14(1) i.e., Civil cases; involvement of substantial question
of environment; and implementation of the enactments in
Schedule I are satisfied, the jurisdiction and power of the NGT
gets activated. On these material aspects, the NGT is not required
to be triggered into action by an aggrieved or interested party
alone. It would therefore be logical to conclude that the exercise
of power by the NGT is not circumscribed by receipt of application.
When substantial questions relating to the environment arise and
the issue is civil in nature and those relate to the enactments in
Schedule I of the Act, the NGT even in the absence of an
application, can self-ignite action either towards amelioration or
towards prevention of harm. [Paras 25.1, 25.3][45-D-E; 46-B-D]
9.2 Section 14(1) exists as a standalone feature, not
constricted by the operational mechanism of the subsequent
subsections. The sub Section (2) of Section 14 functions as a
corollary and comes into play when a dispute arises from the
questions referred to in Section 14(1). Likewise sub Section (3)
thereafter, refers to the period of limitation concerning
applications, when they are addressed to the NGT. Where
adjudication is involved, the adjudicatory function under Section
14(2) comes into play. When it is a case warranting NGT's
intervention, or may be a situation calling for decisions to meet
certain exigencies, the functions under Section 14(1) can be
undertaken and those may not involve any formal application or
an adjudicatory process. However, the later provisions may not
work in similar fashion. Therefore, care must be taken to ensure
unrestricted discharge of the responsibilities under Section 14(1)
and that wide arena of NGT's functioning. [Para 25.4][46-D-G]
9.3 The other pertinent provisions relating to, inter-alia,
jurisdiction, interim orders, payment of compensation and review,
do not require any application or appeal, for the NGT to pass
necessary orders. These crucial powers are expected to be
exercised by the NGT, would logically suggest that the action/
orders of the NGT need not always involve any application or
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appeal. To hold otherwise would not only reduce its effectiveness
but would also defeat the legal mandate given to the forum. It
may also be relevant to bear in mind that while dealing with
contested cases, the NGT is required to pass "award" and
"order" and the statute repeatedly uses the word "decision".
Therefore, it is appropriate to correlate the word "decision" to
the NGT, in its non-adversarial or inquisitorial role, as was
suggested by the Law Commission and recognized in DG, NHAI.
[Paras 25.5, 25.6][46-G-H; 47-B]
9.4 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. [Para 25.7][47-C-D]
State of Punjab & Anr. v. Shamlal Murari & Anr. (1976)
1 SCC 719 : [1976] 2 SCR 82 - relied on.
9.5 While discussing the NGT's power and responsibility,
it is essential to keep in mind the Principle 10 of the Rio
Declaration which speaks of three fundamental rights i.e., access
to information, access to public participation and access to justice,
as key pillars of environmental governance. Access to justice,
may however be curtailed by illiteracy, lack of mobility, poverty
or even the lack of technical knowledge on the part of citizens.
Another deterrence is the likelihood of polluters/violators being
powerful entities with adequate wherewithal to skirt regulations.
Thus, it may not always be feasible for individuals to knock on
the doors of the Tribunal, and NGT in such exigencies must not
be made dysfunctional. [Para 25.8][47-F-H]
10. THE PRECAUTIONARY PRINCIPLE
10.1 The origin of the Precautionary Principle itself is rooted
as an institutional obligation, by holding them primarily
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responsible for the environmental concerns and remedies. Section
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' . [Paras 26.2 and 26.3][48-D-E]
10.2 The principle must apply in the widest amplitude to
ensure that it is not only resorted to for adjudicatory purposes
but also for other 'decisions' or 'orders' to governmental authorities
or polluters, when they fail to "to anticipate, prevent and attack
the causes of environmental degradation.". Two aspects must
therefore be emphasized i.e. that the Tribunal is itself required
to carry out preventive and protective measures, as well as hold
governmental and private authorities accountable for failing to
uphold environmental interests. Thus, a narrow interpretation
for NGT's powers should be eschewed to adopt one which allows
for full flow of the forum's power within the environmental domain.
[Para 26.4][48-F-G; 49-A-B]
10.3 It is an important legal onus on the Tribunal to act
with promptitude to deal with environmental exigencies. The
responsibility is not just to resolve legal ambiguities but to arrive
at a reasoned and fair result for environmental problems which
are adversarial as well as non-adversarial. [Para 26.5][49-B-C]
11. ENVIRONMENTAL JUSTICE AND ENVIROMENTAL
EQUITY
11.1 The conceptual frameworks of environmental justice
and equity should merit consideration vis-à-vis the NGT's domain
and how its functioning and decisions can have wide implications
in socio-economic dimensions of people at large. The concept of
environmental justice is a trifecta of distributive justice,
procedural justice and justice as recognition. Environmental
equity as a developing concept has focused on the
disproportionate implications of environmental harms on the
economically or socially marginalized groups. The concerns of
human rights and environmental degradation overlap under this
umbrella term, to highlight the human element, apart from
economic and environmental ramifications. Environmental equity
thus stands to ensure a balanced distribution of environmental
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risks as well as protections, including application of sustainable
development principles. [Para 27.1][49-E-G]
11.2 When substantive justice is elusive for a large
segment, disengaging with substantive rights at the very altar,
for a perceived procedural lacuna, would surely bring in a process,
which furthers inequality, both economic and social. An "equal
footing" conception may not therefore be feasible to adequately
address the asymmetrical relationship between the polluters and
those affected by their actions. Instead, a recognition of the
historical experience of marginalized classes of persons while
accessing and effectively using the legal system, will allow for
necessary appreciation of social realities and balancing the arm
of justice. [Para 27.3][50-F-G]
12. ENVIRONMENTAL JURISPRUDENCE IN INDIA
12.1 By expanding the scope of Articles 21, 32, 48A,
51A(g), this Court has guaranteed the right to a pollution free
environment for a holistic existence. Most crucially, the
expansion of Right to Life under Article 21 by this Court has
become a touchstone to determine many environmental concerns.
Adopting international principles and moulding them to Indian
realities also became a focal concern, given the lacunae in regimes
which may be exploited by those who may not have much concern
for environmental degradation. Creation of the 'Absolute Liability
Principle' by this Court is a well recognized testament for this. It
would thus be appropriate to state that much of the principles,
institutions and mechanisms in this sphere have been created,
on account of this Court's initiative. [Paras 28.2, 28.3][52-A-B,
C-D]
12.2 The Supreme Court adopted the role of an "amicus
environment" by threading together human rights and
environmental concerns, resultingly developing a sui generis
environmental discourse. There were both procedural and
substantive innovations made, by entertaining PIL petitions,
seeking remedies, including guidelines and directions in the
absence of legislation. Many of the landmark cases which hold
the fort to this day, were in recognition of the 'at risk' nature of
some populations. The creation of the NGT itself was due in large
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part to the need expressed by this Court for such a forum.[Para
28.4][52-F; 53-A-B]
12.3 Environmental jurisprudence in India has been
intrinsic to advancing a democratic, welfare oriented legal regime.
Issues affecting the ecology and the environment must have a
broad perspective and should have a society centric approach.
Furthermore, the very nature of ecological and environmental
issues has the propensity for rapid deterioration. Many such
sensitive matters, stood transferred to the NGT, with the aim
that those would be dealt with expediently with the required
technical expertise and legal sophistication. The proactiveness
of the superior Court was surely expected to be seen in the
Tribunal's approach. [Para 28.6][53-E-F]
H.P. Bus Stand Management & Development Authority
v. Central Empowered Committee (2021) 4 SCC 309
- relied on.
12.4 The NGT is the institutionalization of the developments
made by this Court in the field of environment law. The
progressive steps have allowed it to inherit a very broad
conception of environmental concerns. Its functions therefore,
must not be viewed in a cribbed manner, which detracts from the
progress already made in the Indian environmental jurisprudence.
[Para 28.8][55-A-B]
13.1 The NGT Act, when read as a whole, gives much
leeway to the NGT to go beyond a mere adjudicatory role. The
Parliament's intention is clearly discernible to create a
multifunctional body, with the capacity to provide redressal for
environmental exigencies. Accordingly, the principles of
environmental justice and environmental equity must be explicitly
acknowledged as pivotal threads of the NGT's fabric. The NGT
must be seen as a sui generis institution and not unus multorum,
and its special and exclusive role to foster public interest in the
area of environmental domain delineated in the enactment of 2010
must necessarily receive legal recognition of this Court.
[Para 30][55-C-E]
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13.2 The environmental impacts on climate change are
gaining increasing visibility in the shape of uncertain rains,
species extinction, loss of natural habitat and so on. These also
have the propensity to diminish fresh water resources, reduce
agricultural yields and impact public health, particularly in the
cities. The flooding and erosion in riverine and coastal areas are
matters of serious concern. Governmental assessment of India's
increased vulnerability to such changes in the near future also
exists with many countries declaring climate emergencies and
many others being urged to follow suit. Therefore, the nature of
ecological imbalance which is visible even in our own times may
cascade, and the unforeseen injustice of the future may not be
capable of being handled within the frontiers set forth today. The
long term and very often irreparable environmental damage which
are expected to be arrested by the NGT, urge this Court to advert
to what is termed as the 'Seventh Generation' sustainability
principle,or the 'Great Law of the Iroquois' (as it originates from
the Iroquois Tribe) which requires all decision making to
withstand for the benefit of seven generations down the line.
[Paras 31, 32][55-E-G; 56-A-B]
13.3 It is vital for the well being of the nation and its people,
to have a flexible mechanism to address all issues pertaining to
environmental damage and resultant climate change so that a
better environmental legacy is left behind, for our children, and
the generations thereafter. In circumstances, where adverse
environmental impact may be egregious, but the community
affected is unable to effectively get the machinery into action, a
forum created specifically to address such concerns should surely
be expected to move with expediency, and of its own accord. The
potentiality of disproportionate harm imposes a higher obligation
on authorities to preserve rights which may be waylaid due to
such restrictive access. The "global impacts of climate change
will fall disproportionately on minority and low-income
communities". Thus, an affirmative role, beyond mere adjudication
at the instance of applicant, is certainly required for serving the
ends of environmental justice, as the statute itself requires of the
NGT. [Paras 33, 34][56-B-E]
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13.4 The NGT, with the distinct role envisaged for it, can
hardly afford to remain a mute spectator when no-one knocks on
its door. The forum itself has correctly identified the need for
collective stratagem for addressing environmental concerns. Such
a society centric approach must be allowed to work within the
established safety valves of the principles of natural justice and
appeal to the Supreme Court. The hands-off mode for the NGT,
when faced with exigencies requiring immediate and effective
response, would debilitate the forum from discharging its
responsibility and this must be ruled out in the interest of justice.
It would be procedural hairsplitting to argue (as it has been) that
the NGT could act upon a letter being written to it, but learning
about an environmental exigency through any other means cannot
trigger the NGT into action. To endorse such an approach would
surely be rendering the forum procedurally shackled or
incapacitated. [Paras 35, 36][56-F-H; 57-A-B]
13.5 When the Registry of the NGT does indeed receive a
communication or letter, including matters published in media, it
may cause to initiate suo motu action by inviting attention of NGT
to such matters in the form of office report. Such circumstances
would however require a notice to be given to the sender of the
communication or author of the news item, as the case may be, to
assist the NGT in the course of hearing and to substantiate the
factual matters. It must also be said that the exercise of suo motu
jurisdiction does not mean eschewing with the principles of
natural justice and fair play. In other words, the party likely to be
affected should be afforded due opportunity to present their side,
before suffering adverse orders.