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No General Power to NGT for Judicial Review similar to High Courts : Held by Supreme Court

Team SoOLEGAL 19 Feb 2019 11:41am

No General Power to NGT for Judicial Review similar to High Courts : Held by Supreme Court

Appeals were filed by Tamil Nadu Pollution Control Board regarding jurisdiction of National Green Tribunal in the matters which arose out of different provisions of Air Act and Water Act. The matter was to be heard by a bench comprising of Justice Rohinton Fali Nariman and Justice Navin Sinha.

Some orders made under the Act by National Green Tribunal were:

1.    One of the orders rejected renewal of consent to operate was made under Section 27 of the Water Act and Section 21 of the Air Act.

2.    TNPCB passed another set of impugned orders under Section 33A and Section 31A of the Water Act and Air Act.

3.    Another order which was impugned before NGT was made under Section 18 of the Water Act.

The Apex Court observed that

There was an appeal pending before the appellate authority. But during the pendency of appeal, took up the matter was taken up by NGT and it was against the original order. The original order was challenged even before it could decide on it.

The statute provides for appeal while directions issued under Section 33A are not appealable. Also, an order made under Section 18 is not appealable under either of the Acts to the NGT. It can be set aside only by a Civil Court via a suit under Article 226 of the Constitution. To this, the Court held that:

"This being the case, all the aforesaid orders, being composite orders issued under both the Water Act and the Air Act, it will not be possible to split the aforesaid orders and say that so far as they affect water pollution, they are appealable to the NGT, but so far as they affect air pollution, a suit or a writ petition would lie against such orders…it is not possible for us to provide an appeal where there is none in the guise of making an appellate system workable in practice."

The Counsel argued that the Tribunals have the power of judicial review, except a challenge to the vires of the legislation under which they are set up. But the Court rejected this argument and said that the NGT is not a Tribunal set up under the concerned Acts, but is a statutory Tribunal set up under the NGT Act itself. To this, the Court held:

"It is clear, therefore, that under the NGT Act, the Tribunal exercising appellate jurisdiction cannot strike down rules or regulations made under this Act. Therefore, it would be fallacious to state that the Tribunal has powers of judicial review akin to that of a High Court exercising constitutional powers under Article 226 of the Constitution of India…we are of the view that the NGT has no general power of judicial review akin to that vested under Article 226 of the Constitution of India possessed by the High Courts of this country".

Another contention was that as against a writ court acting under Article 226 of the Constitution of India, the NGT is an expert body set up only to deal with environmental matters. Rejecting this contention also, it said:

"An appeal being a creature of statute, an order passed under Section 18 of the Water Act is either appealable or it is not. If it is not, no general argument as to the NGT being an expert body set up to hear environmental matters can be of any help."

The Court also disagreed with NGT that the necessity doctrine would overtake if the appellate Authority is not properly constituted. The purpose of such overriding is to give an option of appeal to the parties.

The Supreme Court thus on Monday set aside the order of the National Green Tribunal, which permitted the re-opening of the Vedanta-Sterlite plant at Tuticorin.

Tagged: tamilnadu   appeal   NGT   WaterAct   AirAct  
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