A division bench of Justices K.M. Joseph and Hrishikesh Roy was ruling on a writ petition filed by the Madhya Pradesh High Court Advocates Bar Association and the District Bar Association, Jabalpur, challenging the provisions of the NGT Act.
EARLIER today, the Supreme Court turned down a challenge to the provisions of the National Green Tribunal [NGT] Act, 2010, and held that Sections 14 and 22 of the NGT Act did not oust the High Court’s jurisdiction under Articles 226 and 227 of the Constitution. Besides, the court held that section 22 of the NGT Act, which provides for a direct appeal to the Supreme Court, is valid. It also upheld the validity of Section 3 of the NGT Act as not being a case of excessive delegation of power to the Union Government, as had been challenged by the petitioners.
On the issue of shifting the seat of the NGT bench to Jabalpur from Bhopal, the Court held that the seat of the NGT benches can be located as per exigencies and it is not necessary to locate them in every state. It thus rejected the request for relocating the Bhopal NGT bench to Jabalpur as an unmerited request.
A two-judge division bench of Justices K.M. Joseph and Hrishikesh Roy was ruling on a writ petition filed by the Madhya Pradesh High Court Advocates Bar Association and the District Bar Association, Jabalpur, challenging the provisions of the NGT Act. The bench framed the following four issues:
“Whether the [NGT] ousts the High Court’s jurisdiction under Sections 14 & 22 of the NGT Act?
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?
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?
Whether Section 3 of the NGT Act is ultra vires to the Constitution as suffering from the vice of excessive delegation?”
Responding to the first question, the court noticed that a seven-judge Constitution bench of the court, in L. Chandra Kumar versus Union of India (1997), held that the power of judicial review under Articles 226, 227, and 32 of the Constitution is part of the basic structure of our Constitution, and the same is inviolable. It also took note of the submission of the Attorney General, appearing for the union government, who conceded the legal position that the NGT is within the purview of the writ jurisdiction of the high courts. The bench also stated that high courts have been entertaining petitions under Articles 226 and 227 against orders of the NGT. It added that nothing contained in the NGT Act either implicitly or explicitly ousts the jurisdiction of the high courts under Articles 226 and 227, and the power of judicial review remains intact and unaffected by the NGT Act. The court thus answered the first question in negative against the petitioners.
Answering the second question in negative as well, the court held that the total disposal by all benches of the NGT was 2,799 cases during the 12 months period of March 2021 to February 2022. The pendency figure for this period is 2,237 only, the court noted. It observed that the rate of disposal being higher than the pendency, no major backlog is seen at the NGT. The strikingly small number of 107 cases before the NGT’s Bhopal bench was taken note of by the court. It concluded that these data do not provide for a reasonable basis to entertain a prayer for an NGT bench at Jabalpur or for that matter, an individual NGT bench in each of Madhya Pradesh, Chhattisgarh and Rajasthan, as requested by the petitioners. The court thus opined that petitioners sought to espouse their professional interest.
On the third issue, that is, of direct appeal to the Supreme Court, the court held that even though a direct appeal to the Supreme Court is provided by the NGT Act against the decision of the tribunal, the remedy under Articles 226 or 227 before the High Court remains unextinguished.
“The Appeal under Section 22 of the NGT Act, is limited to the grounds under Section 100 of the [Civil Procedure Code] and the Supreme Court does not function as a regular first appellate Court”, the court said.
The court said that 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 the High Court should not, therefore, be created by issuing a writ of Mandamus as that would be legislating through a judicial order, and would impinge upon the well-founded concept of separation of powers. Besides, it held that 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 Articles 226 or 227, must not also be overlooked.
“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 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”, the bench opined.
The Supreme Court also took note of its decision in R.K. Jain versus Union of India (1993), in which it was recommended that an appeal mechanism should be provided from a tribunal’s decision to a division bench of the High Court. The court in R.K. Jain, however, refrained from issuing a direction for the creation of appeal provisions to the High Courts, which was perceived to be an impermissible judicial function.
On the argument that the Supreme Court is inaccessible, the bench found it irrational by holding that inaccessibility would equally apply to litigants from all across the country, who have to travel to the Supreme Court, either by way of Articles 136 or 32, or any other provision of the Constitution.
On the last issue concerning the validity of section 3 of the NGT Act, the court held that the operationalization of the NGT, including the location of its benches, was closely monitored by the Supreme Court. Section 3 confers power upon the union government to establish NGT. Upholding Section 3, the court observed: “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”.
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