As per case facts, the petitioner, a silica sand mining firm, challenged an Environmental Clearance (EC) granted by the Ministry of Environment, Forest and Climate Change. The 7th respondent appealed ...
1
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
&
* THE HON’BLE SRI JUSTICE MAHESWARA RAO
KUNCHEAM
+W.P. Nos.31066 OF 2021
% 08.01.2026
# M/s. Sri Kumaraswamy Silica
Mines, Momidi Village, Chillakur
Mandal, SPSR Nellore District.
……Petitioner.
And:
$1. The Government of India, represented by its Director, Ministry
of Environment, Forest and Climate Change, Indira
Paryavaran Bhavan, Jorbagh Road, Aliganj, New Delhi and
others.
….Respondents.
!Counsel for the petitioner : Sri P. Veera Reddy, Sr.
Advocate assisted by
Sri B. Sarma.
^Counsel for the respondents : Sri G. Sai Narayana Rao, learned counsel for
the respondents 1 and 2
Ms. Anusha, Assistant
Government Pleader for Mines
and Geology for respondents 3
to 6,
Sri Ganta Rama Rao, learned
senior counsel assisted by Sri
Kambampati Ramesh Babu,
learned counsel for the 7
th
respondent.
<Gist:
>Head Note:
? Cases referred:
1.(2017) 9 SCC 499
2
2.2025 SCC OnLine SC 1139
3.(2022) 11 SCC 1
4.(2025) 5 SCC 786
5.(2013) 4 SCC 465
6.2022 SCC OnLine SC 639
7.2013 SCC OnLine NGT 31
8.(2023) 7 SCC 740
9.AIR 1976 SC 578
10.(2023) 6 SCC 615
11.2022 SCC OnLine SC 362
12.2022 SCC OnLine SC 1469
13.2021 SCC OnLine SC 897
14.AIROnline 2021 Bom 4360
15.SLP No. 4127/2021
16.(2012) 8 SCC 524
17.(2019) 18 SCC 494
18.(1998) 8 SCC 1
19.(1997) 3 SCC 261
20.2021 SCC OnLine SC 897
21.2021 SCCOnline SC 7
22.(2006) 11 SCC 356
23.(2004) 2 SCC 65
24.(1998) 7 SCC 66
25.(2006) 6 SCC 430
26.(2020) 16 SCC 446
27.(1991) 2 SCC 716
28. SCC OnLine SC 1789
29.2025 SCC OnLine SC 2474
30.2013 SCC OnLine All 6052
3
HIGH COURT OF ANDHRA PRADESH
* * * *
W.P. Nos.31066 OF 2021
DATE OF JUDGMENT PRONOUNCED: 08.01.2026
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
Yes/No
2. Whether the copies of judgment may be
marked to Law Reporters/Journals
Yes/No
3. Whether Your Lordships wish to see the
fair copy of the Judgment?
Yes/No
____________________
RAVI NATH TILHARI, J
______________________________
MAHESWARA RAO KUNCHEAM ,J
4
THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON’BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
W.P. Nos.31066 OF 2021
JUDGMENT: per the Hon‟ble Sri Justice Ravi Nath Tilhari:
1. Heard Sri P. Veera Reddy, learned senior counsel assisted
by Sri Bargava Sarma, learned counsel for the petitioner, Sri G.
Sai Narayana Rao, learned counsel for the respondents 1 and 2,
Ms.Anusha, learned Assistant Government Pleader for Mines and
Geology for respondents 3 to 6, Sri Ganta Rama Rao, learned
senior counsel assisted by Sri Kambampati Ramesh Babu,
learned counsel for the 7
th
respondent.
I. Facts:
(i) Petitioner’s case:
2. The petitioner Sri Kumaraswamy Silica Mines
Momidi Village, Chillakur Mandal SPSR Nellore District Andhra
Pradesh, represented by its Managing Partner, has filed the
present writ petition under Article 226 of the Constitution of India,
challenging the order passed by the National Green Tribunal,
South Zone (NGTSZ), Chennai, dated 15.11.2021, in Appeal
No.19 of 2020 (SZ) (B. Madan Kumar Reddy vs. Government of
India and others), filed under Section 16 of the National Green
5
Tribunal Act, 2010 (in short, the NGT Act) filed by the present 7
th
respondent, B.M. Reddy, Challenging the Environmental
Clearance (EC) granted, to the present petitioner -7
th
respondent
in the Appeal, by the 1
st
respondent-the Government of India
represented by its Director, Ministry of Environment Forest and
Climate Change, IA Division, New Delhi, vide proceedings
No.F.No.23-238/2018-IA.II(v) dated 16.04.2020.
3. The petitioner firm is a partnership firm carrying on
business of Silica sand mining. Mining lease was originally
granted in the name of V. Rama Chandra Reddy on 24.05.1975
for an extent of Ac.512.01 cents in Sy.No.695/22 and 696 of
Momidi Village, Chillakur Mandal SPSR Nellore District. The
mining lease was executed on 04.09.1975 for a period of 20
years. It was later on transferred in favour of the petitioner‟s firm
by executing, transfer of lease dated 01.07.1985. The lease
period expired on 03.09.1995, and was renewed by the
Government of Andhra Pradesh for another 20 years from
03.09.1995 but for a reduced area of 338.39 acres in
Sy.No.695/22 and 696.
4. The petitioner applied for E.C on 23.11.2013 to the 1
st
respondent as per EIA Notification 2006. The proposal was
6
examined by the Expert Appraisal Committee (EAC), but the
MOEF and CC 1
st
respondent vide letter dated 21.04.2014
directed the petitioner to stop mining activity as the proposal was
said to be in violation of EIA notification. The petitioner filed
W.P.No.4490 of 2014 challenging the order dated 21.04.2014
which was disposed of vide order dated 06.06.2014, observing
that the principles of natural justice were violated and no
opportunity of hearing was given to the petitioner, and so, it was
provided that, the petitioner shall submit a representation to
MOEF & CC, setting out the explanation and the 1
st
respondent
was directed to consider and pass appropriate orders. The
petitioner submitted the representation dated 03.07.2014 to the
1
st
respondent inter alia submitting that the petitioner did not
commit any violation of EIA notification and requested for
issuance of Term of Reference (ToR).
5. In the meantime one Mallikarjuna Reddy filed O.A.No.96 of
2015 before the NGT against 48 Mining Units including against
the petitioner raising the grievance that those units were
operating minings without E.C. The petitioner put in appearance
and took the stand that the petitioner had applied for the E.C
which was pending consideration. It was also the stand that the
7
mining of the petitioner was in operation since before the EIA
notification of 1994 came into force and so there was no legal
requirement to obtain the EC. The NGT vide common interim
order dated 08.07.2015 directed the respondent No.1 to pass
orders on the application for EC. The petitioner‟s further case is
that on the representation dated 13.07.2015 TOR, was issued by
the 1
st
respondent on 10.08.2015 and in the O.A.No.96 of 2015,
the NGT passed the final order dated 07.09.2015, issuing
directions to the 1
st
respondent to pass final orders on the
application for grant of EC. The public hearing was conducted by
the A.P.State Pollution Control Board (in short, the Board) on
29.04.2016. The petitioner made a representation to the EAC in
May, 2016 in respect of its Mining Project. The EAC
recommended issuance of EC subject to the final decision of the
1
st
respondent. The petitioner‟s further case is that the Regional
Director of MOEF & CC, Chennai inspected the minings on
08.07.2016 and gave a report dated 16.08.2016 in petitioner‟s
favour. A joint inspection was also made by the Revenue and
Forest Officials during May, 2016 and a report dated 24.01.2017
was also sent to the District Collector, Nellore observing that the
lease area was altered but the mining was in the leased area
8
only and there was no encroachment. Another joint inspection of
the mining area was conducted by the Forest and Revenue
officials on 14.03.2017 and 15.03.2017 and a report was sent to
the MOEF & CC, observing that the Sy.No.696 was never
classified as reserve forest and it was only Sy.No.692 which was
a reserve forest and no mining had taken place in the reserve
forest. Further, in Sy.No.696, measuring Ac.92.40 cents was
classified as forest reserve poromboke but was subsequently
changed as jungle poromboke. The same was presently treated
as „Adavi‟ (jungle) poromboke. Sy.No.696 to an extent of about
Ac.20.00 cents was classified as government dry land, during the
lease period which was surrendered. The lease of the petitioner
was renewed vide order dated 03.02.2017 up to 2035.
6. The petitioner‟s further case is that the 7
th
respondent filed
W.P.(PIL) No.22 of 2017 before the High Court for the State of
Telangana and Andhra Pradesh, alleging that Sy.No.696 was
classified as reserve forest and fell in the lease area of the
petitioner and therefore the lease should not be renewed. The
petitioner had also filed O.A.No.187 of 2017 against the 1
st
respondent, for not granting EC, which was disposed of by the
NGT directing the 1
st
respondent to pass appropriate orders in
9
accordance with law. The 1
st
respondent issued a letter dated
05.04.2018 that the petitioner would have to apply under violation
category. Though, the petitioner‟s case is that there was no
violation, still the petitioner submitted the application under the
violation category. The proposal of the petitioner was placed
before the EAC in April, 2019 which recommended for grant of
EC observing that the petitioner should furnish a bank guarantee
for a sum of Rs.63,50,000/- in order to satisfy the criteria in the
notification dated 14.03.2017. The 1
st
respondent thereafter
granted EC to the petitioner on 16.04.2020.
(ii). Challenge before National Green Tribunal:
7. The grant of EC dated 16.04.2020 was challenged by the
present 7
th
respondent by filing appeal before the NGT under
Section 16 of the N.G.T.Act.
8. Before the NGT, in response to the appeal filed by the
present 7
th
respondent, the petitioner herein, filed counter raising
the objections inter alia that the appeal was not maintainable. It
was also pleaded that after ensuring that all the requirements
were satisfied the 1
st
respondent granted the EC. The petitioner
already paid a fine of Rs.1,00,000/- in C.C.No.456 of 2018, for
carrying on mining operations without obtaining EC, as also after
10
issuance of additional ToR by the 1
st
respondent. The petitioner
had also furnished the bank guarantee, as was recommended by
the EAC for a sum of Rs.63,50,000/- in order to satisfy the criteria
of the violation category.
9. The NGT allowed the Appeal vide order dated 15.11.2021,
with detailed directions, which shall be referred shortly, and kept
the E.C dated 16.11.2020 in abeyance.
10. The petitioner has filed this Writ Petition challenging the
order of the National Green Tribunal dated 15.11.2021.
iii. Case of the respondents as per the Counter Affidavit:
11 Respondents 3 to 6 filed counter affidavit. The stand taken
is that the Director of Mines and Geology, Ibrahimpatnam vide
notice dated 03.02.2017 decided in principle to grant second
renewal of quarry lease for Silica Sand in favour of the petitioner
for a further period of 20 years with effect from 04.09.2015. It was
not correct to say that the lease was renewed upto the year 2035.
In compliance of the said notice dated 03.02.2017, the petitioner
had submitted approved mining scheme, environmental
clearance, concent for establishment and consent for operation,
and the renewal was under consideration. Their further stand is
that pursuant to the order of the N.G.T in Appeal No.19 of 2020
11
necessary directions have been issued to the concerned
authorities to take immediate necessary action. They have also
submitted that the technical staff conducted survey and
inspection of the subject quarry lease area of the petitioner,
initially on 19.12.2022 to 21.12.2022, which submitted the report.
Further in obedience of the order dated 15.11.2021, the mining
operations over the subject leased area of the petitioner were
stopped and the dispatch permits for transportation of Silica sand
were not being issued.
12. The respondent No.7 has also filed the counter affidavit.
The objection has been raised with respect to the maintainability
of the writ petition on the ground that there is statutory alternative
remedy under Section 22 of the N.G.T Act. The 7
th
respondent
has supported the impugned order of the N.G.T submitting that
the same was passed in a statutory appeal under Section 16 of
the N.G.T Act. The appeal was maintainable as the 7
th
respondent herein (the appellant before the N.G.T) was
aggrieved person being an affected person and had every right to
challenge the environmental clearance granted to the petitioner in
violation of the prescribed procedure, as also without complying
with the judgment of the Hon‟ble Apex Court in the Common
12
Cause vs. Union of India
1
. The further stand of the 7
th
respondent is that there is no violation of the principles of natural
justice in passing the order by the N.G.T before which the
petitioner had the ample opportunity of hearing and after hearing
the present petitioner, the order was passed by the N.G.T.
13. The 7
th
respondent has filed an additional counter affidavit
as well, raising the plea that the mining operations were
conducted by the petitioner without having environmental
clearance which was required under the provisions of the
notification of 1994-2006. He has referred to the report dated
24.01.2017 of the inspection of the mining sent to the District
Collector submitting that in the said report several adverse
observations were made against the petitioner including the one
that the mining activity was done without leaving safety zones
and the other that there shall be an acute scarcity of water both
for irrigation and drinking water due to extensive mining and
machinery.
14. On 23.04.2025, this Court passed the order inter alia
directing the counsel for the respondents 1 and 2 to get
instructions on the point “whether any decision has been taken by
1
(2017) 9 SCC 499
13
the Ministry of Environment, Forest and Climate Change
pursuant to the direction of the N.G.T”. The respondents 1 and 2
have filed the memo dated 20.06.2025 mentioning the action
taken by the respondents 1 and 2 pursuant to the direction of the
N.G.T in its judgment dated 15.11.2021. But, we find that those
correspondences mainly are of the date prior to the judgment of
the N.G.T. Another memo has been filed, in which, in substance,
what has been stated is that “at present, the process of
complying with the N.G.T judgment requires some more time.”
(II). Submissions of the learned counsels:
15. Sri P. Veera Reddy, learned senior counsel for the
petitioner submitted that the appeal by the present 7
th
respondent
before the NGT was not maintainable under Section 16 of the
NGT Act. The 7
th
respondent is not an aggrieved person within
the meaning of Section 16, so as to challenge the grant of EC by
the 1
st
respondent in favour of the petitioner. The appeal was not
maintainable and so the order passed thereon by the NGT is
without jurisdiction.
16. Learned senior counsel for the petitioner submitted that on
various points, the NGT recorded the finding in favour of the
petitioner, but still allowed the appeal of the 7
th
respondent. He
14
submitted that the grounds on which the EC has been kept in
abeyance and the matter has been remitted for fresh
consideration, were not even informed to the petitioner so,
against those grounds the petitioner was not afforded any
opportunity of hearing. The impugned order therefore, suffers
from violation of the principles of natural justice, and deserves to
be set aside.
17. Sri P. Veera Reddy, learned senior counsel for the
petitioner further submitted that the Project is for Silica Sand Mine
which is entirely different mineral to which the Sustainable Sand
Mining Management Guidelines, 2016 (in short SSMMG, 2016)
would not be applicable, which guidelines in his submission are
applicable only to recoveries of sand from the rivers.
18. Learned counsel for the petitioner further submitted that the
E.C was granted prior to the notification dated 07.07.2021 and
consequently notification of 2021 should not govern the
petitioner‟s case. He further submitted that the EC having been
granted under the notification of 2017, it was not open for the
Tribunal to have kept it in abeyance with the directions issued for
consideration on the points mentioned in the order of N.G.T. He
submitted that the E.C (s) granted upto the date of judgment in
15
Vanashakti vs Union of India
2
remained unaffected by and in terms of
the said judgment itself.
19. Learned counsel for the petitioner placed reliance on the
following judgments:-
1. Rajeev Suri vs Delhi Development Auhtority and others
3
2. Union of India vs Parashotam Das
4
3. Ayaaubkhan Noorkhan Pathan vs State of Maharashtra
5
4. Madhya Pradesh High Court Advocates Bar association vs
Union of India
6
5. Rana Sengupta vs Union of India
7
6. S. Narahari vs S. R. Kumar
8
7. JasbhaiMotibhai Desai vs Roshan Kumar
9
8. Electrosteel Steels ltd vs Union of India
10
9. Pahwa Plastics Pvt. Ltd. vs Dastak NGO
11
10. State of Uttar Pradesh vs Uday Education and Welfare Trust
12
ii) For the respondent No.7:
20. Sri Ganta Rama Rao, learned senior advocate assisted by
Sri Kambampati Ramesh Babu, learned counsel for the 7
th
2
2025 SCC OnLine SC 1139
3
(2022) 11 SCC 1
4
(2025) 5 SCC 786
5
(2013) 4 SCC 465
6
2022 SCC OnLine SC 639
7
2013 SCC OnLine NGT 31
8
(2023) 7 SCC 740
9
AIR 1976 SC 578
10
(2023) 6 SCC 615
11
2022 SCC OnLine SC 362
12
2022 SCC OnLine SC 1469
16
respondent raised a preliminary objection, that the order
impugned is subject to appeal before the Hon‟ble Apex Court.
There is alternative remedy under Section 22 of the NGT Act and
so the writ petition deserves not to be entertained.
21. Sri Ganta Rama Rao, learned senior counsel further
submitted that the NGT for the well recorded reasons viz. that,
various relevant aspects were not considered by the EAC
including no-detailed study conducted by the Project Proponent,
and that without ascertaining whether any District Survey was
conducted, the EC was recommended and granted which was in
violation of the SSMM Guidelines, 2016, kept the EC in abeyance
and remitted the matter for fresh consideration. So, there is no
illegality in the order of NGT, which calls for no interference in the
exercise of writ jurisdiction.
22. He further submitted that the respondent No.7 had the
locus being an aggrieved person within the meaning of Section
16 of the N.G.T Act, to maintain the appeal. So, the order of the
N.G.T is not without jurisdiction. He further submitted that in any
case the N.G.T has suo moto power to take note of the
environmental violations and threats and so even if the appeal be
17
not maintainable, the order of the N.G.T would be within
jurisdiction.
23. Learned counsel for the respondents submitted that the
procedure even under the notification of 2017 was not followed.
The expert committee did not act according to the procedure
prescribed in making the recommendations and therefore the
Tribunal having found the irregularities committed and the
necessary measures not having been adopted and the relevant
considerations not having been kept in view, the Tribunal was
right in passing the impugned order and keeping the E.C in
abeyance. So, the submission based on the no applicability of
the notification of 2021 is unsustainable.
24. Learned counsel for the respondents placed reliance on the
following judgments:-
1. Municipal Corporation of Greater Mumbai
13
2. Directorate of Mines and Geology vs Saidas
Khorjuvekar
14
3. Mehra Bal Chikitsalaya Evam NavjatShishu I.C.U. vs
Manoj Upadhyay
15
4. Cicily Kallarackal vs Vehicle Factory
16
13
2021 SCC OnLine SC 897
14
AIROnline 2021 Bom 4360
15
SLP No. 4127/2021
16
(2012) 8 SCC 524
18
5. Madhya Pradesh High Court Advocates Bar association
vs Union of India. (2022 SCC OnLine SC 639)
6. Mantri Techzone Pvt. Ltd. vs Forward Foundation
17
iii) Reply submissions:
25. In response, Sri P. Veera Reddy, learned senior counsel for
the petitioner submitted that the alternative remedy is no bar to
the maintainability or entertainability of the writ petition under
Article 226 of the Constitution of India. Further, the challenge to
the order of the NGT is on the ground of violation of the principles
of natural justice and being without jurisdiction. The writ petition
therefore deserves to be entertained.
26. He further submitted that the writ petition was filed in the
year 2021 and at this stage after four years, the petitioner
deserves not to be relegated to the alternative remedy of appeal.
III. Points for consideration:
27. The following points arise for our consideration and
determination:
(A) Whether the writ petition against the order of the
N.G.T is not maintainable? And if maintainable, it should or
should not be entertained?
17
(2019) 18 SCC 494
19
(B) Whether the impugned order of the N.G.T is without
jurisdiction on the argument that the appeal by 7
th
respondent was not maintainable under Section 16 of the
N.G.T Act?
(C) Whether the impugned order of the N.G.T violates
the principles of natural justice?
(D) Whether the order of the N.G.T calls for interference
in the exercise of the writ jurisdiction?
28. We have considered the aforesaid submissions and
perused the material on record.
IV. Analysis:
Point-A: Maintainability and entertainability of the writ
petition:
29. We would first consider the preliminary objection with
respect to the maintainability of the writ petition against the order
of the N.G.T, in the light of the submission advanced by the
learned counsel for the 7
th
respondent in view of the availability of
statutory remedy of appeal under Section 22 of the N.G.T.
30. Learned counsel for the 7
th
respondent placed reliance in
Directorate of Mines and Geology (supra). The Bombay High
Court held that the scheme of N.G.T Act should not be derailed by
taking recourse to proceed under Article 226 of the Constitution
20
of India and that the judicial prudence demands that the writ
Court refrains from exercising its jurisdiction. It was observed that
the appeal under Section 22 of the NGT Act is not a matter of right
and an appeal can be entertained on one or more of the grounds
mentioned in Section 100 of the Code of the Civil Procedure, but
that by itself would not warrant interdiction by a writ court. The
Bombay High Court declined to exercise the writ jurisdiction and
left the petitioners to avail the remedy of appeal before the Apex
Court or file the review before the Tribunal as provided by the
N.G.T Act in accordance with law. He contended that in view of
the remedy of appeal under Section 22 of the NGT Act, the writ
petition should not be entertained.
31. Learned counsel for the 7
th
respondent further placed
reliance in Cicily Kallarackal (supra), in which it was held that it
is not appropriate for the High Courts to entertain writ petitions
under Article 226 of the Constitution of India against the orders
passed by the Commission under the Consumer Protection Act,
1986, once the legislature had provided for a statutory appeal to
a higher court. It cannot be proper exercise of jurisdiction to
permit the parties to bypass the statutory appeal to a higher court
and entertain writ petitions under Article 226 of the Constitution of
21
India. Reliance was also placed reliance in Mehra Bal
Chikitsalaya Evam Navjat Shishu (supra), in which also, the
principle of law as laid down in Cicily Kallarackal (supra) was
restated and the writ petition was dismissed on the ground of
maintainability in the light of the availability of the statutory
alternative remedy.
32. So far as the maintainability of the writ petition against the
orders of the Tribunal is concerned, the law has been well settled
by the Hon‟ble Apex Court. The existence of the statutory
alternative remedy is no bar to the maintainability of the writ
petition under Article 226 of the Constitution of India. That does
not take away the jurisdiction of this Court though ordinarily, in
view of the statutory alternative remedy, this Court would be
reluctant in invoking the jurisdiction and would first require the
petitioner to avail the statutory alternative remedy. But, that is not
an absolute bar neither to the maintainability nor to the
entertainability of the writ petition. The exceptions to the doctrine
of exhaustion of alternative remedies are also well laid down,
inter alia, when the challenge is on the ground of the impugned
order being without jurisdiction; having been passed in violation
of the principles of natural justice, violation of fundamental rights;
22
utra vires, as laid down in the cases inter alia Whirlpool
Corporation vs. Registrar of Trade Marks, Mumbai
18
and other
various pronouncements of the Hon‟ble Apex Court.
33. In Madhya Pradesh High Court Advocates Bar Association
(supra), one of the issues was:
“A. Whether the NGT seized the High Court‟s jurisdiction
under Section 14 & 22 of the NGT Act.”
34. The Hon‟ble Apex Court referring to the judgment in L.Chandra
Kumar vs. Union of India
19
, reiterated that the NGT like any other
Tribunal is within the jurisdiction of the High Court (s) under Article 226
and 227 of the Constitution of India but it further observed that 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 Corporation (supra). The Hon‟ble
Apex Court further held that there is nothing contained in the N.G.T
Act, either impliedly or explicitly which seized the jurisdiction of the
High Court under Article 226 and 227 of the Constitution of India. The
power of judicial review remains intact and uneffected by the NGT Act.
35. Paras 18 to 22 and 45 of Madhya Pradesh High Court
Advocates Bar Association (supra) read as under:
18
(1998) 8 SCC 1
19
(1997) 3 SCC 261
23
“18. 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?
19. 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 v. 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.”
20. 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
24
behalf of the Union of India has also made submissions consistent
with L. Chandra Kumar [supra] and conceded the legal position.
21. 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 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. v. Registrar of Trade Marks, Mumbai;
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.”
25
22. 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 jurisdiction remain
unaffected, the first question is answered in the negative, against
the petitioners.
45. In consequence of the above analysis, our conclusions
are,
A. The National Green Tribunal under Sections 14 & 22 of
the NGT Act does not oust the High Court‟s jurisdiction under
Article 226 & 227 as the same is a part of the basic structure of
the Constitution.”
36. In Parashotam Dass (supra), one of the issues was with
respect to the power of High Court under Article 226 of the
Constitution of India with respect to the order of the Armed
Forces Tribunal, against which the remedy of appeal was
provided to the Supreme Court under the Armed Forces Tribunal
Act, 2007. The Hon‟ble Apex Court reiterated that the power of
High Court under Article 226 of the Constitution of India is not
inhibited.
26
37. Paras 25 and 26 of Parashotam Dass (supra) read as
under:
“25. While we agree with the aforesaid principle, we are unable
to appreciate the observations in the case of Major General Shri
Kant Sharma & Anr. (supra), which sought to put an embargo
on the exercise of jurisdiction under Article 226 of the
Constitution, diluting a very significant provision of the
Constitution which also forms the part of basic structure. The
principles of basic structure have withstood the test of time and
are emphasized in many judicial pronouncements as an
ultimate test. This is not something that can be doubted. That
being the position, the self-restraint of the High Court under
Article 226 of the Constitution is distinct from putting an
embargo on the High Court in exercising this jurisdiction under
Article 226 of the Constitution while judicially reviewing a
decision arising from an order of the Tribunal.
26. On the legislature introducing the concept of
"Tribunalisation" (one may say that this concept has seen many
question marks vis-a-vis different tribunals, though it has also
produced some successes), the same was tested in L. Chandra
Kumar (supra) case before a Bench of seven Judges of this
Court. Thus, while upholding the principles of "Tribunalisation"
under Article 323A or Article 323B, the Benc h was
unequivocally of the view that decisions of Tribunals would be
subject to the jurisdiction of the High Court under Article 226 of
the Constitution, and would not be restricted by the 42nd
Constitutional Amendment which introduced the aforesaid two
Articles. In our view, this should have put the matter to rest, and
no Bench of less than seven Judges could have doubted the
proposition. The need for the observations in the five-Judges'
Bench in Rojer Mathew (supra) case qua the Armed Forces
27
Tribunal really arose because of the observations made in
Major General Shri Kant Sharma & Anr. (supra) Thus, it is,
reiterated and clarified that the power of the High Court under
Article 226 of the Constitution is not inhibited, and
superintendence and control under Article 227 of the
Constitution are somewhat distinct from the powers of judicial
review under Article 226 of the Constitution.”
38. We thus hold that the writ petition is maintainable. Further,
as the challenge is on the grounds of order being without
jurisdiction and in violation of the principles of natural justice, and
further as the writ petition is pending since 2021 with the affidavit
exchanged, we entertain the writ petition as well.
Point-B( Order if without jurisdiction):
39. The submission of the learned counsel for the petitioner is
that the 7
th
respondent herein does not fall under the expression
„person aggrieved by‟ so as to maintain the appeal under Section
16 of the N.G.T Act and so, the order passed by the N.G.T in the
appeal of 7
th
respondent is without jurisdiction.
40. Section 16 of the N.G.T Act read as under:
Section 16. Tribunal to have appellate jurisdiction.
Any person aggrieved by,--
(a) an order or decision, made, on or after the
commencement of the National Green Tribunal Act, 2010, by the
appellate authority under section 28 of the Water (Prevention
and Control of Pollution) Act, 1974 (6 of 1974);
28
(b) an order passed, on or after the commencement of
the National Green Tribunal Act, 2010, by the State Government
under section 29 of the Water (Prevention and Control of
Pollution) Act, 1974 (6 of 1974);
(c) directions issued, on or after the commencement of
the National Green Tribunal Act, 2010, by a Board, under
section 33A of the Water (Prevention and Control of Pollution)
Act, 1974 (6 of 1974);
(d) an order or decision made, on or after the
commencement of the National Green Tribunal Act, 2010, by the
appellate authority under section 13 of the Water (Prevention
and Control of Pollution) Cess Act, 1977 (36 of 1977);
(e) an order or decision made, on or after the
commencement of the National Green Tribunal Act, 2010, by the
State Government or other authority under section 2 of the
Forest (Conservation) Act, 1980 (69 of 1980);
(f) an order or decision, made, on or after the
commencement of the National Green Tribunal Act, 2010, by the
Appellate Authority under section 31 of the Air (Prevention and
Control of Pollution) Act, 1981 (14 of 1981);
(g) any direction issued, on or after the commencement
of the National Green Tribunal Act, 2010, under section 5 of the
Environment (Protection) Act, 1986 (29 of 1986);
(h) an order made, on or after the commencement of the
National Green Tribunal Act, 2010, granting environmental
clearance in the area in which any industries, operations or
processes or class of industries, operations and processes shall
not be carried out or shall be carried out subject to certain
safeguards under the Environment (Protection) Act, 1986 (29 of
1986);
(i) an order made, on or after the commencement of the
National Green Tribunal Act, 2010, refusing to grant
environmental clearance for carrying out any activity or
29
operation or process under the Environment (Protection) Act,
1986 (29 of 1986);
(j) any determination of benefit sharing or order made, on
or after the commencement of the National Green Tribunal Act,
2010, by the National Biodiversity Authority or a State
Biodiversity Board under the provisions of the Biological
Diversity Act, 2002 (18 of 2003), may, within a period of thirty
days from the date on which the order or decision or direction or
determination is communicated to him, prefer an appeal to the
Tribunal:
Provided that the Tribunal may, if it is satisfied that the
appellant was prevented by sufficient cause from filing the
appeal within the said period, allow it to be filed under this
section within a further period not exceeding sixty days.”
41. Section 16 of the N.G.T Act thus provides that „any person
aggrieved by‟ an order, decision, direction etc. under Clauses (a)
to (j), prefer an appeal to the Tribunal.
42. In Jasbhai Motibhai Desai (supra), on the point of locus
standi, the Hon‟ble Apex held that an applicant may ordinarily fall
in any of these categories; i) persons aggrieved; (ii) strangers;
and (iii) busybodies/meddlesome interlopers. The Hon‟ble Apex
Court observed that there is a distinction between the first and
second categories of applicants, though real, is not always well-
demarcated. The Hon‟ble Apex Court laid down some broad
tests, to determine whether the applicant is a person aggrieved,
30
observing that those tests were not absolute or ultimate
paragraphs 36 to 38 read as under:
36. It will be seen that in the context of locus standi to apply for a
writ of certiorari, an applicant may ordinarily fall in any of these
categories:
(i) “person aggrieved”; (ii) “stranger”; (iii) busybody or meddlesome
interloper. Persons in the last category are easily distinguishable
from those coming under the first two categories. Such persons
interfere in things which do not concern them. They masquerade
as crusaders for justice. They pretend to act in the name of pro
bono publico, though they have no interest of the public or even of
their own to protect. They indulge in the pastime of meddling with
the judicial process either by force of habit or from improper
motives. Often, they are actuated by a desire to win notoriety or
cheap popularity; while the ulterior intent of some applicants in this
category, may be no more than spoking the wheels of
administration. The High Court should do well to reject the
applications of such busybodies at the threshold.
37. The distinction between the first and second categories of
applicants, though real, is not always well-demarcated. The first
category has, as it were, two concentric zones; a solid central zone
of certainty, and a grey outer circle of lessening certainty in a
sliding centrifugal scale, with an outermost nebulous fringe of
uncertainty. Applicants falling within the central zone are those
whose legal rights have been infringed. Such applicants
undoubtedly stand in the category of “persons aggrieved”. In the
grey outer circle the bounds which separate the first category from
the second, intermix, interfuse and overlap increasingly in a
centrifugal direction. All persons in this outer zone may not be
“persons aggrieved”.
31
38. To distinguish such applicants from “strangers”, among them,
some broad tests may be deduced from the conspectus made
above. These tests are not absolute and ultimate. Their efficacy
varies according to the circumstances of the case, including the
statutory context in which the matter falls to be considered. These
are: Whether the applicant is a person whose legal right has been
infringed? Has he suffered a legal wrong or injury, in the sense,
that his interest, recognised by law, has been prejudicially and
directly affected by the act or omission of the authority, complained
of? Is he a person who has suffered a legal grievance, a person
“against whom a decision has been pronounced which has
wrongfully deprived him of something or wrongfully refused him
something, or wrongfully affected his title to something?”
Has he a special and substantial grievance of his own beyond
some grievance or inconvenience suffered by him in common with
the rest of the public? Was he entitled to object and be heard by
the authority before it took the impugned action? If so, was he
prejudicially affected in the exercise of that right by the act of
usurpation of jurisdiction on the part of the authority? Is the
statute, in the context of which the scope of the words “person
aggrieved” is being considered, a social welfare measure
designed to lay down ethical or professional standards of conduct
for the community? Or is it a statute dealing with private rights of
particular individuals?”
43. In Ayaaubkhan Noorkhan Pathan (supra), the Hon‟ble
Apex Court held that only a person who has suffered or suffers
from a legal injury can challenge the act/action/order, etc in a
court of law. It was held that a person who suffers the grievance
must show how he has suffered legal injury.
32
44. Paras 9 to 17 Ayaaubkhan Noorkhan Pathan
(supra) read as under:
Person aggrieved:
“9. It is a settled legal proposition that a stranger cannot be
permitted to mediate or to prosecute or to defend, or to argue
or to file an appeal or a petition within the category of
aggrieved persons. Only a person who has suffered, or
suffers from legal injury can challenge the act/action/order,
etc. in a court of law. A legal right is an interest which the law
protects-an interest enjoyment of which the law protects. It
must be a legally enforceable claim right available for
enforcement, on the basis of which writ jurisdiction is
exercised. The cause of action must, therefore, be germane
to the statutory duty by a public body, using its writ jurisdiction
at the behest of a person, complaining of a wrong and the
court can also go into the question of his on such
performance. The existence of such right is a condition
precedent for invoking the writ jurisdiction of the Court. It is
open to a person to seek such extraordinary jurisdiction that
the relief prayed for must be one to promote a cause and he
must be a person who is or is to be, prejudicially affected by
the exercise of the said jurisdiction by the Court. The legal
right that can be enforced must ordinarily be the right of the
person complaining of the infraction of infraction of such right
and approaches the Court for relief as regards the State,
1999) 7 SCC 725, 746, paras 46 & 47; *M.S. Jayaraj v.
Commissioner of U.P., Calcutta Gas Co. (Proprietary) Ltd. v.
State of W.B., Rajendra v. State of A.P., 2008) 13 SCC 128,
33
143, paras 33 & 34 and Ravi Yashwant Assn. v. SCC
Sekhar).
10. A "legal right" means an entitlement arising out of legal
rules. Thus, it may be defined as an advantage, or a benefit
conferred upon a person by the rule of law. The existence of
some tangible interest is a sine qua non for any person, be it
a psychological or an pecuniary injury, to be an aggrieved
must, therefore, necessarily be one whose right or interest
has been adversely affected or jeopardised. (See: Kumaun
Mandal Vikas Nigam Ltd. v. Home Insurance Co. of New York
and State of Rajasthan v. Union of India.)
11. In Anand Sharadchandra Oka v. University of
Mumbai, (AIR 2008 SC 1289), a similar view was taken by
this Court, observing that, if a person claiming relief is not a
legally aggrieved person, he is not entitled to be a person
aggrieved regarding the selection or the election of other
persons.
12. In A. Subhash Babu v. State of A. P., (AIR 2011 SC
3031), this Court held:
"25. ... The expression 'person aggrieved' cannot be
confined to any elusive concept. It cannot be confined
within the bounds of a rigid, exact and comprehensive
definition. Its scope and meaning depends on diverse,
variable factors such as the content and intent of the
statute of which the infringement is alleged, the nature
of the breach or the wrong done, nature and extent of
the interest of the informant and the nature and the
extent of the prejudice suffered by the
informant/complainant."
34
13. This Court, even as regards the filing of a habeas corpus
petition, has explained that the petition has to be filed by the
person who is in illegal stranger. Such a petition cannot be
filed by one who is a complete stranger to the person who is
in alleged illegal custody. (Vide Charanjit v. Delhi University
v. Union of India, Sunil Batra v. Delhi Admn. v. Nirmal
Choudhary v. State of Bihar, Simranjit Singh Mann v. Union
of India, Karamjeet Singh v. Union of India, and Rishu v.
State of U.P.)
14. This Court has consistently cautioned the courts against
entertaining public interest litigation filed by “meddlesome
persons” or “busy-bodies who do not hesitate to abuse the
process of court. The right of effective access to justice,
which has emerged with the new social justice regime, must
be used to serve basic human rights, which purport to
guarantee legal rights and, therefore, a necessary connect
within the framework of the judicial system must be provided.
Whenever any public interest is involved, the court must
examine the case to ensure that there is, in fact, genuine
public interest involved. The court must restrain strict
vigilance to ensure that there is no abuse of the process of
court and that, “outlandish meddlesome bystanders are not
granted a visa”. Many are legal disputants, others new
prophets of non-redressed grievances, but the court should
make an earnest endeavour to take the broad facts of where
the subjective purpose of the litigant lies. The court must
(Vide P.S.R. Sadhanantham v. Arunachalam, Dalip Singh v.
State of U.P.,State of Uttaranchal v. Balwant Singh Chaufal
and Amar Singh v. Union of India.)
35
15. Even as regards the filing of a public interest litigation,
this Court has consistently held that such a course of action is
not permissible so far as service matters are concerned.
(Vide Duryodhan Sahu v. Jitendra Kumar Mishra, Dattaraj
Natthuji Thaware v. State of Maharashtra and Neetu v.
State of Punjab (2007) 10 SCC 614.)
16. In Ghulam Qadir v. Special Tribunal, this Court
considered a similar issue and observed as under: (SCC p.
54, para 38)
"38. There is no dispute regarding the legal
proposition that the rights under Article 226 of the
Constitution of India can be enforced only by an
aggrieved person except in the case where the writ
prayed for is for habeas corpus or quo warranto.
Another exception to the general rule is the filing of a
writ petition in public interest. The existence of the
legal right of the petitioner which is alleged to have
been violated is the foundation for invoking the
jurisdiction of the High Court under the aforesaid
article. The orthodox rule of interpretation regarding
the locus standi of a person is receding, inter alia,
because of the change which the development of
constitutional law, as our country and the
constitutional courts are, now adopting a liberal
approach in dealing with the cases or dislodging the
claim of a litigant merely on hypertechnical grounds.
In other words, if the person is found to be an offerer,
a stranger having no right whatsoever to any post or
property, he cannot be non-suited on the ground of
his not having the locus standi." (emphasis added).
36
45. In Thammanna (supra), the Hon‟ble Apex Court held that
the expression „person aggrieved‟ may vary according to the
context of the statute at the facts of the case, nevertheless
normally, a „person aggrieved‟ must be a man who has suffered a
legal grievance, a man against whom a decision has been
pronounced which has wrongfully deprived him of something or
wrongfully refused him something, or wrongfully affected his title
to something. Para 16 of Thammanna (supra) reads as under:
“16. Although the meaning of the expression „person
aggrieved‟ may vary according to the context of the
statute at the facts of the case, nevertheless normally,
“a „person aggrieved‟ must be a man who has suffered
a legal grievance, a man against whom a decision has
been pronounced which has wrongfully deprived him of
something or wrongfully refused him something, or
wrongfully affected his title to something.”
46. In Rana Sengupta (supra), the NGT, New Delhi,
considered the meaning of the „aggrieved person‟ and the „locus
standi‟ to prefer the appeal before the N.G.T under Section 16 of
the N.G.T Act was considered. It was held that the expression
“person aggrieved by” imply some or other reason which might
have demonstrated that such person is directly or indirectly
37
concerned with the adverse environmental impact which is likely
to be caused due to granting of EC by the competent authority.
47. In view of the above, the law on the said point can be
summarised to the effect that a person who claims to
intervene, must show how he has suffered legal injury.
Generally, a stranger having no right whatsoever to any post
or property cannot be permitted to intervene in the affairs of
others.
48. The 7
th
respondent in his appeal filed before the
Tribunal specifically stated in para 1 thereof that he was resident
of the concerned village. The 7
th
respondent being the resident of
the village concerned, if for any mining activity, the EC was
issued and violating norms such person will certainly be a person
aggrieved within the meaning of Section 16 of the N.G.T Act. The
7
th
respondent cannot be said to be a stranger. It can also not be
said that he has no legal right. Right to air, water, free of pollution
is a fundamental right of a person enshrined under Article 21 of
the Constitution of India. In case of any infringement thereof or
likely to be infringed, such person shall certainly have a right to
challenge the action and would have the locus standi being
„aggrieved person‟ within the meaning of Section 16 of the N.G.T
38
Act. In Thammanna (supra), it was observed that the meaning of
the expression „person aggrieved‟ may follow according to the
context of the statute at the facts of the case. In the context of
the environmental matter, the resident of the particular place
would have certainly the right to file the appeal under Section 16
of the N.G.T Act. In Pranav Kumar vs. State of U.P and 4
others
20
, it was held as under:
“It cannot be said that the petitioner who is resident of
same village where mining operations are going on, effecting
the pollution and environment, has no right to raise any voice.
As noted above, the petitioner has made a complaint and on
his complaint, the mining operation of the respondent No.5
was stopped…………”
In the said case, it was further held that “…………..as
noted above, the present is a case where operation by the
respondent No.5 in the village where the petitioner is residing
has a direct impact on the environment and pollution. The
petitioner who is affected by environmental degradation and
increases in pollution cannot be said to be a person who has
no interest in the subject matter…………………….”
So, it cannot be said that the impugned order passed by
the N.G.T on the appeal filed by the 7
th
respondent was without
jurisdiction.
20
2013 SCC OnLine All 6052
39
Point-C violation of principles of natural justice and Point-D
order of the N.G.T:
49. The submission of the learned counsel for the petitioner is
that there is violation of the principles of natural justice. The
submission proceeds on the ground that the Tribunal had passed
the order taking into consideration various aspects, which were
not made known to the petitioner. The petitioner had no
opportunity with respect to those aspects which violates the
principles of natural justice of opportunity of hearing. Connected
to the above submissions are the other submissions to challenge
the impugned order. We shall consider those submissions
together under those heads.
50. We shall consider the order on merits for which we refer to the
points framed; the reasons/findings, and the justification recorded by
the NGT in its order.
51. The NGT framed the following points for consideration:
“i) Whether the Environmental Clearance (EC)
granted in favour of 7
th
respondent is liable to be set aside for
any of the reasons stated in the Appeal memorandum and the
submission made by the counsel for the appellant?
(ii) Whether there is any procedural irregularities
committed by MoEF&CC in considering the application as a
violation case as per the procedure provided in the notification
40
issued in this regard on 14.03.2017, if so, what is the nature of
further directions to be issued by this Tribunal in this regard?
(iii) Whether the MoEF&CC was justified in relegating
the power of calculating the compensation amount as directed
by the Hon'ble Apex Court in Common Cause Case to the
Mining Authority without exercising that power by themselves?
(iv) Relief and costs.”
52. On the aforesaid points 1 to 4, the NGT recorded findings
to state briefly, to the following effect:
01. So, the contention that still the appellant‟s land is
included in the lease area appears to be not correct (vide para
100).
02. So, the averments in the memorandum of appeal that
there was suppression of material facts, appears to be not correct
(para 101)
03. So, it cannot be said that on a ground of alleged
suppression of material fact, proper appraisal could not be done
by the EAC and the same is not correct (Para 102).
04. So, on the ground that there was no public hearing
conducted for the violation category and thereby EC granted, is
vitiated, cannot be accepted, as there was earlier public hearing
on the petitioner‟s previous application and also the material
collected on the basis of the compliance filed after getting reports,
will be sufficient and there is no necessity to conduct any further
public hearing as it cannot be said to be a new application but
only a conversion of the original application to violation category
and it can only be said as continuation of earlier application and
as such non conduct of further public hearing is not fatal and on
41
that ground the EC need not be set aside or to be sent for further
public hearing to get further opinion on these subjects (para 103).
53. With respect to the contentions of the petitioner herein (7
th
respondent before the NGT), the N.G.T observed and held as
under to be stated briefly, as in the judgment of the NGT:
01. So, the MOEI was perfectly justified in treating this as
a violation category and having obtained the EC under the
violation category by filing an application and want to enjoy the
benefit of EC, the 7
th
respondent (the present petitioner) is
stopped from contending that he will not fall under the violation
category and such contention raised by the 7
th
respondent is
unsustainable and the same is rejected. (Para 104).
02. The submission of the 7
th
respondent (petitioner
herein) that the common cause case is not applicable and it
applies to the State of Orissa alone and till the EAC was
appointed by the Government in terms of the common cause
case judgment and the recommendations of such committee-7
th
respondent was not liable to comply with the same, was not
acceptable, as also the contention that the dictum laid down in
the common cause case was modified in Alembic
Pharmaceuticals case by the Hon‟ble Apex Court. (Para
No.105). The NGT observed that the 7
th
respondent (petitioner
herein) could not avoid the liability fixed under the common cause
case.
03. The observations made by the NGT in previous
O.A.No.96 of 2015, that the mining and mineral was included in
42
the EIA notification with effect from 01.12.2009 and from that date
onwards the liability to obtain the EC was mandatory, and only
from that date onwards it could be said to have been violated the
EC condition, was also not accepted by the NGT in the present
Appeal No.19 of 2020 (S2).
04. The contention of the 7
th
respondent (petitioner
herein) that it was not liable to pay any compensation and if at all
liable only from 01.12.2009, was rejected by the NGT (Para
No.106).
54. The NGT also recorded in detail, in its judgment the further
relevant aspects/proceedings as under:-
01. That there was lethargic attitude on the part of the
Mining Department in directing the natural resources against over
exploitation and even after the order/recommendation dated
23.01.2017, against the order imposing penalty of Rs.55,28,293/-
by the Government and the matter remitted to the authority
concerned for fresh consideration, no action was taken for
considerable period to adjudicate the aspect of penalty payable
by the present petitioner. The petitioner deposited the amounts
only under protest and not by accepting the liability.
43
02. That the excess mining if any, could not be assessed
by the Mining Department within a reasonable time and unless
that amount was also paid, no Mining Operation could be
permitted. The Expert Appraisal Committee should have
assessed this amount also, instead of relegating the work to the
State Department without providing any supervisory mechanism
as to whether that amount has been paid or not, as a condition in
the EC, will go to the root of the EC itself which also showed the
non-application of mind of that aspect by the EAC as also by the
MoEF&CC.
03. That no compensation was assessed for the loss
occurred due to cutting of 1607 cashew trees. Instead of re-
planting cashew trees, they accepted the mining plan of planting
casuarina trees in that place without considering as to whether it
will be substitute for ecological loss to environmental and
whether it will have any impact on the ground water level and
affect the spring channel that is being available in that area, as
also the liability to pay compensation for the trees apart from the
undertaking to replant the same as an afforestation process
applying the decision of the Hon‟ble Apex Court in T.N.
Godhavarman Thirumalpad (2008) 7 SCC 126 (Para 115).
44
04. That the EAC did not consider the impact of Silica
Mines in that area in a right perspective though the mining plant
proceeds by the Project Proponent showed that, it was a unique
eco sensitive area and certain flora and fauna had to be
protected, under the head, Geology, Hydrology, Demography,
Ecology of Coastal Dunes, Formation of Dunes and Eco Systems.
05. That the EAC did not ascertain as to whether any
District Survey had been conducted by the authorities as per the
guidelines provided under the Sustainable Sand Mining
Management Guidelines, 2020, and the Enforcement and
Monitoring Guidelines for Sand Mining, 2020.
06. That the impact of the large scale mining being
undertaken in that area for the last 40 years had not been
properly considered and no proper study had been conducted in
that regard.
07. That the EAC as well as the Mining Department had
only relied on the study conducted by the Project Proponent
themselves. The aspect of, there being progressive increase of
permissible quantity to be undertaken by the lessee and
ultimately by virtue of the mining lease and EC, the project
proponent was permitted to mine 3,40,000 Silica Sand from the
45
Unique Eco Sensitive Area, around ten times of original quantity.
This aspect was also not properly considered by the EAC or by
MOEF and CC.
08. That the aspect that mechanized mining was not
permissible, was not considered by the EAC which also did not
consider as to whether so much quantity of sand could be mined,
mainly using small escalation policy during the mining period.
55. The N.G.T concluded that the Expert Appraisal Committee
as well as the MOEF and CC had not even considered their own
Sustainable Sand Mining Management Guidelines, 2016; the
directions issued by the NGT in similar nature of sand mining
leases, regarding the responsibility of the authorities to conduct
district survey of the sand available, the rate of depletion and
replenishment of sand in that area so as to ascertain the quantity
available for mining and how much quantity could be permitted for
mining in such areas, before permitting a particular quantity of
sand to be mined from the mining area. The N.G.T observed that
the expert body, is an expert body intended to protect the
environment, which ought to have but did not properly consider
the various aspects and recommended accepting the
Environmental Management Plan submitted by the Project
46
Proponent without properly examining the reports of various
District Collectors. The N.G.T concluded that under the
circumstances a detailed study had to be conducted by the
Project Proponent, which had to appraise the EAC as well as the
MOEF and CC, before ascertaining for allowing such type of
mining of huge quantity.
56. The NGT therefore allowed the appeal in part and kept the
EC dated 16.04.2020 in abeyance as follows:
“130. In the result, the appeal is allowed in part and disposed
of as follows:-
(i) The Environmental Clearance (EC) granted by the 1
respondent vide Order No. F.No.23-238/2018-IA.II(V)
dated 16.04.2020 in favour of the 7th respondent is
directed to be kept in abeyance for a period of 6 (Six)
months or such period till the Ministry of Environment,
Forests & Climate Change (MoEF&CC) or take further
decision after completion of the enquiry as directed by
this Tribunal and compliance with the direction as
directed by the Ministry of Environment, Forests &
Climate Change (MoEF&CC) and the additional
conditions to be imposed whichever is later
(ii) The Ministry of Environment, Forests & Climate Change
(MoEF&CC) is directed to revisit the question of
assessing the compensation for illegal mining without
obtaining Environmental Clearance (EC) as directed by
the Hon'ble Apex Court in Common Cause case on the
basis of the admitted quantity of minerals extracted and
47
transported during that period and impose a condition
that without paying this amount, the Environmental
Clearance (EC) will not come into effect and that too only
on satisfaction of the Regional Office of the Ministry of
Environment, Forests & Climate Change (MoEF&CC)
that the amount has been paid as directed. With further
direction to the Mining Department, State of Andhra
Pradesh to ascertain as to whether any excess mining
has been done in violation of the mining lease and also
under the Metalliferous Mines Regulation Rules, 1961
and if so, recover the amount also from the project
proponent before permitting them to carry out the mining
operation on the basis of the Environmental Clearance
(EC) to be granted after imposing additional conditions.
(iii) The Ministry of Environment, Forests & Climate
Change (MoEF&CC) is also directed to revisit on the
question of imposing compensation for cutting of 1607
cashew trees, apart from fixing the amount for
Environment Management plan and implementation of
the same and also ascertain as to whether planting of
Casuarina Trees in the place of cashew trees will be a
substitute for such ecological loss, after ascertaining the
impact on the ground water level and its impact on the
spring channel available in that area and thereafter,
reassess the amount of Bank Guarantee to be furnished
for implementation of the Environment Management
Plan. But that should not include the NPV (Net Present
Value) of the cashew trees that have been cut and also
ascertain as to whether this has been cut from Sy.No.696
of that village which was identified as the Adavi
48
Poramboke and later included in the revenue records and
omitted from the mining lease applying the principles laid
down by the Apex Court in T.N Godhavarman
Thirumnalpad case taking this as a deemed forest, so as
to apply the Forest (Conservation) Act, 1980.
(iv) The MoEF&CC is directed to issue further direction to
get the details regarding the district survey conducted by
the authorities in that area regarding the availability of
sand as has been directed by the MoEF&CC in the
Sustainable Sand Mining Management Guidelines, 2016
and also by the Principal Bench of National Green
Tribunal, New Delhi in several cases of this nature.
(v) After obtaining the same, they are directed to conduct a
further study as to how much sand will be available for
mining considering the nature of replenishment and
without affecting the unique Dunal wetland ecosystem
available in that area.
(vi) The MoEF&CC is also directed to consider the question
as to whether in an area like this, mechanized mining can
be permissible, as over exploitation of natural resources
of such nature available in that area will have adverse
impact on the Dunal wetland ecosystem.
(vii)After considering these aspects, the MoEF&CC is
directed to form an opinion as to whether the sand mining
could be possible in that area to such a larger extent and
if not, to what extent it can be permissible and the
methodology to be adopted for conducting mining and if
mechanized process is permissible, what are all the
additional conditions to be imposed for that purpose,
taking into account the number of vehicles that are likely
49
to be used for the purpose of transporting the same and
consequential noise as well as air pollution that is likely to
be caused on account of the same and the mitigating
circumstances to be imposed, if it is permissible applying
the "Precautionary Principle and then fix the quantity of
mining that could be permissible which is safe for the
purpose of protecting environment and the unique Dunal
wetland ecosystem as has been admitted by the project
proponent themselves in The Environment Management
Plan. The Corporate Environment Responsibility project
should also be reexamined to incorporate activities for
sustainability of the Dunal wetland ecosystem.
(viii) After considering all these aspects, the Expert
Appraisal Committee (EAC) as well as the Ministry of
Environment, Forests & Climate Change (MoEF&CC) are
directed to impose additional stringent conditions that till
these amounts are paid, the Environmental Clearance
(EC) will not come into effect and the project proponent
has to satisfy the Regional Office, Ministry of
Environment, Forests & Climate Change (MoEF&CC) at
Vijayawada which is having jurisdiction over the State of
Andhra Pradesh before permitting the project proponent
to carry out the mining operation on the basis of the
Environmental Clearance (EC) granted
(ix) The Director of Mines and Geology, State of Andhra
Pradesh is also directed to expedite the process of
assessing the excess mining done as early as possible at
any rate within a period of 6 (Six) months and to assess
the compensation payable for such illegal mining, apart
from payment of royalty and penalty payable under the
50
mining laws applicable to that State and take steps to
recover the amount from the 7 respondent after giving
them an opportunity of hearing as per the Rules and only
on payment of that amount as well, they will have to be
permitted to continue with the mining operation if eligible
as per Rules in vogue
(x) The Andhra Pradesh Pollution Control Board is also
directed to assess compensation for violation of
operating the unit without obtaining Consent to Operate
under the Water (Prevention and Control of Pollution)
Act, 1974 and Air (Prevention and Control of Pollution)
Act, 1981 as it is seen from the counter statement field by
the 7th respondent that they had obtained Consent to
Establish and Consent to Operate only during 2016 and
prior to that, they were operating the same without
obtaining Consent to Establish and Consent to Operate,
as has been held by the Principal Bench in O.A. No.593
of 2017 (Paryavaran Suraksha Samiti & Anr. Vs. Union of
India & Ors.) and followed by this Bench also in several
cases of this nature and recover the amount from the 7th
respondent in accordance with law and till then, they
should not be permitted to operate on the basis of the
Environmental Clearance (EC) granted or the Consent to
Establish and Consent to Operate granted earlier
(xi) Considering the circumstances, the parties are
directed to bear their respective cost in the appeal.
(xii) The Registry is directed to communicate this order to
the Ministry of Environment, Forests & Climate Change
(MoEF&CC), New Delhi, Regional Office, Ministry of
Environment, Forests & Climate Change (MoEF&CC),
51
Vijayawada, the Chief Secretary for State of Andhra
Pradesh, Director of Mines and Geology State of Andhra
Pradesh and Andhra Pradesh Pollution Control Board
immediately by e-mail for their information and
compliance of the direction.
(xiii) The Ministry of Environment, Forests & Climate
Change (MoEF&CC) is directed to take back the file
relating to issuance of Environmental Clearance (EC)
produced before this Tribunal.
131. With the above observations and directions, this
appeal is allowed in part and disposed of accordingly.”
57. In our view, the findings arrived at by the Tribunal, are
raised on consideration of the material on record before it and
therefore the directions issued by the Tribunal keeping the EC in
abeyance till the consideration of the matter by the competent
authorities is not unsustainable nor it suffers from any perversity.
58. The issue before the Tribunal essentially related to
environment ecology. The Tribunal is also having suo moto
power under Sections 14 and 15 of the N.G.T Act to consider all
the relevant aspects, which caused or are likely to cause threat to
the environment.
52
Suo Moto Power of N.G.T:
59. At this stage, Sections 14 of the NGT Act deserves
reference which reads as under:
“Section 14. Tribunal to settle disputes.
(1) The Tribunal shall have the jurisdiction over all civil
cases where a substantial question relating to environment
(including enforcement of any legal right relating to
environment), is involved and such question arises out of the
implementation of the enactments specified in Schedule I.
(2) The Tribunal shall hear the disputes arising from the
questions referred to in sub-section (1) and settle such disputes
and pass order thereon.
(3) No application for adjudication of dispute under this
section shall be entertained by the Tribunal unless it is made
within a period of six months from the date on which the cause
of action for such dispute first arose:
Provided that the Tribunal may, if it is satisfied that the
applicant was prevented by sufficient cause from filing the
application within the said period, allow it to be filed within a
further period not exceeding sixty days.”
60. In Uday Education and Welfare Trust (supra), the Hon‟ble
Apex Court referring to Municipal Corporation of Greater Mumbai
v. Ankita Sinha
21
held that the NGT is empowered to take suo
motu cognizance and that, taking into consideration the nature of
functions of the NGT, it cannot be equated with other Tribunals. In
environmental matters, it will also have a power to take suo motu
21
2021 SCC OnLine SC 897
53
cognizance. Paras 96 and 98 of Uday Education and Welfare
Trust (supra) read as under:
“96. Another aspect that needs consideration is that a serious issue
was raised before the learned NGT by the appellants herein with
regard to the credentials and bonafides of the original applicants.
98. Shri Dhruv Mehta, learned Senior Counsel has rightly relied on the
judgment of this Court in the case of Ankita Sinha and Others (supra)
to submit that the learned NGT is empowered to take suo motu
cognizance. This Court has held that, taking into consideration the
nature of functions of the learned NGT, it cannot be equated with other
Tribunals and in environmental matters, it will also have a power to
take suo motu cognizance. However, when the credentials and
bonafides of a litigant approaching the learned NGT are seriously
raised, the same cannot be ignored.
61. In Mantri Techzone Private Limited (supra), it was held
that the N.G.T Act being a beneficial legislation, the power
bestowed upon the Tribunal would not be read narrowly. An
interpretation which furthers the interests of environment must be
given a broader reading on the scope of the jurisdiction under
Sections 14 and 15 of the Act with the Tribunal. Paras 41 to 46
read as under:
“41. The jurisdiction of the Tribunal is provided under Sections 14, 15 and 16 of the
Act. Section 14 provides the jurisdiction over all civil cases where a substantial
question relating to environment (including enforcement of any legal right relating to
environment) is involved. However, such question should arise out of implementation
of the enactments specified in Schedule I.
42. The Tribunal has also jurisdiction under Section 15(1)(a) of the Act to provide
relief and compensation to the victims of pollution and other environmental damage
54
arising under the enactments specified in Schedule I. Further, under Section 15(1)(b)
and 15(1)(c) the Tribunal can provide for restitution of property damaged and for
restitution of the environment for such area or areas as the Tribunal may think fit. It is
noteworthy that Section 15(1)(b) & (c) have not been made relatable to Schedule I
enactments of the Act. Rightly so, this grants a glimpse into the wide range of powers
that the Tribunal has been cloaked with respect to restoration of the environment.
43. Section 15(1)(c) of the Act is an entire island of power and jurisdiction read with
Section 20 of the Act. The principles of sustainable development, precautionary
principle and polluter pays, propounded by this Court by way of multiple judicial
pronouncements, have now been embedded as a bedrock of environmental
jurisprudence under the NGT Act. Therefore, wherever the environment and ecology
are being compromised and jeopardized, the Tribunal can apply Section 20 for taking
restorative measures in the interest of the environment.
44. The NGT Act being a beneficial legislation, the power bestowed upon the
Tribunal would not be read narrowly. An interpretation which furthers the interests of
environment must be given a broader reading. (See Kishsore Lal v. Chairman,
Employees’ State Insurance Corpn. (2007) 4 SCC 579, para 17). The existence of
the Tribunal without its broad restorative powers under Section 15(1)(c) read with
Section 20 of the Act, would render it ineffective and toothless, and shall betray the
legislative intent in setting up a specialized Tribunal specifically to address
environmental concerns. The Tribunal, specially constituted with Judicial Members as
well as with Experts in the field of environment, has a legal obligation to provide for
preventive and restorative measures in the interest of the environment.
45. Section 15 of the Act provides power & jurisdiction, independent of Section 14
thereof. Further, Section 14(3) juxtaposed with Section 15(3) of the Act, are separate
provisions for filing distinct applications before the Tribunal with distinct periods of
limitation, thereby amply demonstrating that jurisdiction of the Tribunal flows from
these Sections (i.e. Sections 14 and 15 of the Act) independently. The limitation
provided in Section 14 is a period of 6 months from the date on which the cause of
action first arose and whereas in Section 15 it is 5 years. Therefore, the legislative
intent is clear to keep Section 14 and 15 as self contained jurisdictions.
46. Further, Section 18 of the Act recognizes the right to file applications each under
Sections 14 as well as 15. Therefore, it cannot be argued that Section 14 provides
jurisdiction to the Tribunal while Section 15 merely supplements the same with
powers. As stated supra, the typical nature of the Tribunal, its breadth of powers as
provided under the statutory provisions of the Act as well as the Scheduled
enactments, cumulatively, leaves no manner of doubt that the only tenable
55
interpretation to these provisions would be to read the provisions broadly in favour of
cloaking the Tribunal with effective authority. An interpretation that is in favour of
conferring jurisdiction should be preferred rather than one taking away jurisdiction.”
62. In Ankita Sinha (supra), the Hon‟ble Apex Court on the
exercise of suo moto power by the National Green Tribunal held
that 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. The Hon‟ble Apex Court referred to its
judgment in Rajeev Suri vs. DDA
22
. This consideration on
exercise of the suo moto power by the NGT, under paras 51 to 58
of the judgment is re-produced as under:
“51. In addition to the grounds urged in W.P. (C) 510/2020,
the petitioners herein submit that the CVC was functioning under
the chairmanship of ADG (Works) who is not an architect or town
planner and thereby lacks the requisite skills/knowledge required
for considering the said proposal. The argument is supplemented in
the written submissions where it is stated that the nature of duties
entrusted to CVC requires the head of the Committee to be a
professional architect or town planner so as to consider the
proposal in a nuanced manner. To buttress this submission, the
petitioners contend that the meeting was called despite absence of
external experts and it was a deliberate step to avoid professional
scrutiny of the professional, thereby rendering the said no objection
as arbitrary and illegal.
52. The petitioners have also pressed the argument of non-
application of mind, akin to that taken in W.P. (C) 510/2020, on the
ground that no assessment was made by the respondents to consider
22
2021 SCCOnline SC 7
56
the viability and need of a new Parliament building and the entire
process was carried in undue haste. To buttress this argument,
reliance has been placed upon Inderpreet Singh Kahlon & Ors. v.
State of Punjab & Ors.
23
and Bahadursinh Lakhubhai Gohil v.
Jagdishbhai M. Kamalia & Ors.
24
to urge that an action taken in
undue haste could be declared as bad in law.
53. It is further submitted that CVC disregarded the legal
framework for dealing with heritage structures. The petitioners
seek support from clause 7.26 read with Annexure-II of Building
Byelaws to contend that minimum changes are permissible on
Grade-I heritage buildings/precincts and the Committee failed to
take that into consideration. The said no objection is also assailed
on the alleged failure of the Committee to take into consideration
various factors concerning environmental impacts, traffic
assessment etc.
54. During the hearing, Mr. Hegde, appearing for the petitioners,
submitted that CVC, though originally conceived as an advisory
body, has assumed a statutory character owing to its long
functioning and is expected to discharge pivotal role in
development of such projects. In “Supplementary Note on the Role
of Central Vista Committee” submitted by the petitioners, reference
is made to the notice inviting bids and clause 6.4.3 of ZDP for
Zone-D to support the view that CVC was envisaged as a statutory
committee.
55. Alternatively, it is urged that the statutory mandate of CVC is
in line with the doctrine of legitimate expectations in administrative
matters. The petitioners have relied upon National Buildings
Construction Corporation v. S. Raghunathan & Ors.
25
to contend
that this doctrine is premised on the ground of reasonableness and
natural justice, and has now become a source of substantive as well
as procedural rights.
56. In addition to cases noted above, the petitioners have placed
reliance upon R.S. Garg v. State of U.P. & Ors.
26
, Council of
Architecture v. Mukesh Goyal & Ors.
27
and Maharashtra State
23
(2006) 11 SCC 356
24
(2004) 2 SCC 65
25
(1998) 7 SCC 66
26
(2006) 6 SCC 430
27
(2020) 16 SCC 446
57
Board of Secondary and Higher Secondary Education v. K.S.
Gandhi & Ors.
28
57. The argument regarding the statutory character of CVC has
been countered by learned Solicitor General. He would urge that it
is merely an advisory body with a limited mandate to advise the
Government on a proposal submitted for its consideration. It has no
authority to grant approvals or take decisions. Further, merely
because a body has been referred to in the ZDP (Zone-D) or has
been working for a prolonged period, it will not assume a statutory
character on its own until it is so provided by a statute.
58. As regards the argument of non-application of mind, it is
submitted that CVC is not supposed to supply reasons for its
approval in a manner akin to judicial/quasi-judicial bodies and the
fact that CVC, in its decision, had asked the project
proponent/CPWD to ensure that the project is in sync with the
character of Central Vista reveals due application of mind. It is
urged that application of mind must be revealed from a substantial
compliance perspective. The respondents have urged that the
present case is a sui generis one and must be treated accordingly
keeping in mind larger national interest. For brevity, other
submissions of the respondents to this prayer are not being repeated
here.”
63. In Ankita Sinha (supra) the Hon‟ble Apex Court also
considered the role of the N.G.T and held that the N.G.T 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-
28
(1991) 2 SCC 716
58
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. Paras 63 to 67 of Ankita
Sinha (supra) read as under:
“63. The NGT being one of its own kind of forum,
commends us to consider the concept of a sui generis
role, for the institution. The structure of Sui generis
institutions was explained in Paramjit Kaur Vs. State of
Punjab20, wherein Justice S. Saghir Ahmad spoke thus
for a Division Bench, “14. The concept of sui generis is
applied quite often with reference to resolution of
disputes in the context of international law. When the
conventions formulated by compacting nations do not
cover any area territorially or any subject topically, then
the body to which such power to arbiter is entrusted acts
sui generis, that is, on its own and not under any law.”
64. In D G NHAI vs. Aam Aadmi Lokmanch (2020
SCCOnline SC 572), Justice S. Ravindra Bhat
commenting on the sui generis role of the NGT, so
appropriately stated as follows:-
“38. A conjoint reading of Sections 14, 15 and the
Schedules would lead one to infer that the NGT has
circumscribed jurisdiction to deal with, adjudicate, and
wherever needed, direct measures such as payment of
compensation, or make restitutionary directions in cases
where the violation (i.e. harm caused due to pollution or
exposure to hazards, etc.) are the result of infraction of
any enactment listed in the first schedule. Yet, that,
interpretation, in the opinion of this court, is not
warranted.
**** **** **** ****
**** **** **** ****
76. The power and jurisdiction of the NGT under
Sections 15(1)(b) and (c) are not restitutionary, in the
sense of restoring the environment to the position it was
before the practise impugned, or before the incident
occurred. The NGT's jurisdiction in one sense is a
59
remedial one, based on a reflexive exercise of its
powers. In another sense, based on the nature of the
abusive practice, its powers can also be preventive.
77. As a quasi-judicial body exercising both appellate
jurisdiction over regulatory bodies' orders and directions
(under Section 16) and its original jurisdiction under
Sections 14, 15 and 17 of the NGT Act, the tribunal,
based on the cases and applications made before it, is
an expert regulatory body. Its personnel include
technically qualified and experienced members. The
powers it exercises and directions it can potentially issue,
impact not merely those before it, but also state agencies
and state departments whose views are heard, after
which general directions to prevent the future
occurrence of incidents that impact the environment, are
issued.”
65. In that case, this Court repelled the argument for a
restricted jurisdiction for the NGT, and fittingly observed
in paragraph 76 that the powers conferred on the NGT
are both reflexive and preventive and the role of the NGT
was recognized in paragraph 77 as “an expert regulatory
body”, which can issue general directions also albeit
within the statutory framework.
66. The above discussion would advise us to say that
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.
67. 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
60
a flexible institutional mechanism for its effective
exercise.”
64. It is further apt to refer the conclusions in Ankita Sinha
(supra), in paras 97 to 102 as under:
“97. 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.
98. 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.
99. One could admit to the argument of danger of suo motu
jurisdiction, if the NGT was acting outside its domain. But when it is
legitimately working within the contours of its statutory mandate and
with procedurals safeguards clarified above in play, the nature of the
trigger itself viz. a letter or a „suo motu‟ initiation, cannot be the
basis to curtail the role and responsibility of the specialized forum.
100. Institutions which are often addressing urgent concerns
gain little from procedural nitpicking, which are unwarranted in the
face of both the statutory spirit and the evolving nature of
61
environmental degradation. Not merely should a procedure exist but
it must be meaningfully effective to address such concerns. The role
of such an institution cannot be mechanical or ornamental. We must
therefore adopt an interpretation which sustains the spirit of public
good and not render the environmental watchdog of our country
toothless and ineffective.
101. Let us now hark back to the dialogues of the two
protagonists, in Waiting for Godot, the play written by Samuel
Beckett with which, we started this judgment. At the end of the
deliberations, we find ourselves saying that the National Green
Tribunal must act, if the exigencies so demand, without indefinitely
waiting for the metaphorical Godot to knock on its portal. The
preceding discussion advises us to answer the pointed question in
the affirmative. It is accordingly declared that the NGT is vested with
suo motu power in discharge of its functions under the NGT Act.
102. Having answered the common legal issue involved in
all these cases regarding the suo motu jurisdiction of NGT, we direct
delinking of these cases for now being heard separately on merits.
Indeed, if the cases(s) emanate from same/common order of NGT,
such case(s) be heard together. Registry may do the needful and
post the matters on 25.10.2021 for direction and fixing date of
hearing, before the Bench presided over by one of us (Justice A.M.
Khanwilkar). For the purpose of further hearing, the respective
cases shall not be treated as part-heard before this Bench.”
65. From the aforesaid judgments, the law is well settled that
the N.G.T Act is a beneficial legislation. The power vested upon
the N.G.T would not be read narrowly and any interpretation
which furthers the interest of the environmental concerns must
be preferred. The N.G.T has the legal obligation to provide for
preventing and restorative measures. The role of the N.G.T is not
62
simply adjudicatory but is also preventive and remedial. It has
the suo moto power as well to take cognizance of various aspects
and factors consequently in discharge of its functions under the
N.G.T Act, it cannot be said that the N.G.T ought to have
confined only to the objections raised in the appeal. We are of the
view that the N.G.T did not commit any error of law or of
jurisdiction, in keeping in view, the broader aspects, relevant to
the protection and preservation of the environment, to ensure that
there is no environmental degradation and the grant or the
procedure for grant of E.C must be in consonance with the
prescribed procedure and following the laws.
66. We refer to the recent pronouncement of Hon‟ble the Apex
Court in Union Territory of J&K (Previously State of Jammu &
Kashmir) and Another vs. Raja Muzaffar Bhat and others
29
.
67. The Hon‟ble Apex Court held that the absence of a
replenishment study renders a District Survey Report
fundamentally defective. The Hon‟ble Apex Court considered the
Guidelines, 2016 and the Enforcement Monitoring Guidelines for
Sand Mining-2020 and held that without a proper study of the
existing position of the river bed and its sustainability for further
29
2025 SCC OnLine SC 1789
63
sand mining grant of environmental clearances would be
detrimental for the ecology.
68. In the present case, the N.G.T has mentioned about the
lack of a proper study of ecology and the impact of the large scale
mining in that area for last 40 years, as one of the grounds for its
order. Paras 29 to 33 of Raja Muzaffar Bhat (supra) read as
under:
“29. From the foregoing analysis, it is apparent that in light of
Guidelines, 2016 and the Guidelines, 2020, the absence of a
replenishment study renders a DSR fundamentally defective.
These guidelines categorically require that any assessment
of mineable mineral quantity must be premised on scientific
estimation of replenishment rates, failing which the DSR
lacks the foundational data necessary to determine
sustainable extraction limits.
30. Over the past two decades, environmental statutory and
regulatory law in India has undergone significant evolution,
particularly in response to the challenges posed by
unregulated and unsustainable sand mining. Recognizing
the adverse ecological impacts of such activities, successive
legal and policy frameworks have progressively tightened the
requirements for environmental compliance. In order to
appreciate the present controversy, it was necessary to
retrace the legal trajectory. Recently, this Court has
discussed, in detail, the legal regime surrounding the
preparation, nature, scope and importance of DSR in Gaurav
Kumar (supra). However, the focal point for present
64
discussion is the value that must be appended to
replenishment study before EC is granted to mining
operations.
31. Demand for construction-grade sand is growing at a
tremendous rate and it is said that the world is expected to
run out of this resource by 2050. Construction-grade sand,
can be found in aquatic environments, such as rivers and is
a provisioning ecosystem service. Even under controlled
circumstances, the practice of extracting sand from the
riverbed and banks impacts the environment. In the physical
environment, the primary effects are riverbed widening and
lowering. In the biological environment, the overarching
effect is a reduced biodiversity and stretches from the
aquatic and shoreline flora and fauna to the whole floodplain
area. Due to easy access, river sand and gravel have been
used extensively in construction projects. Depending on the
mining operation method as well as morphologic and
hydraulic characteristics of the river, sand mining may cause
bed and bank erosion or other negative consequences for
the river eco-system. It is, therefore, necessary to conduct
appropriate studies, including that of replenishment to
explore sustainable and cost-effective methods for river
mining.
32. Without a proper study of the existing position of the
riverbed and its sustainability for further sand mining, grant
of environmental clearances would be detrimental for the
ecology. It has therefore been held that a detailed study
leading to a preparation of the replenishment report is an
integral part of the DSR. If the DSR becomes the foundation
for consideration of an application for environmental
clearance, then it is compelling to ensure replenishment
65
studies are undertaken in advance and the report forms an
integral part of the DSR.
33. In view of the existing legal regime that mandates
preparation of replenishment report in a scientific manner
and such a report forming an integral part of the District
Survey Report, we hold that a District Survey Report without
a proper replenishment study is equally untenable.”
69. We do not find any jurisdictional error or any improper
exercise of the jurisdiction by the N.G.T, so as to call for our
interference in the exercise of the writ jurisdiction.
Sustainable Sand Mining Management Guidelines, 2016:
70. The next submission of the learned counsel for the
petitioner that Sustainable Sand Mining Management Guidelines,
2016 are not applicable, deserves rejection. The submission was
that those guidelines relate to the sand mining from the river and
since the E.C granted to the petitioner is for sand mining not from
the river those Guidelines, had no application.
71. Learned counsel for the petitioner referred to the objectives
of the Guidelines to emphasise that it relates to the sand mining
from the river. He also referred to the effect of sand river mining
for the same purpose.
66
72. We are not convinced. A perusal of the Guidelines, 2016
clearly show that they apply to the sand mining from the river and
also from other sand sources. The Guidelines have been framed
with the objective to ensure Sustainable Sand Mining
Management Guidelines, 2016 and environment friendly
management tracks, in order to restore and maintain the ecology
of river and other sand sources. A perusal of the „objectives‟, „the
effect of sand and gravel mining‟ does not show that these
guidelines of 2016 are for the sand mining from the river only.
We need not reproduce those guidelines as from perusal it is
evident that they are not confined to the sand mining from the
river but, as a whole to ensure control of the un-control sand
mining and with an objective to protect the environment and the
right of the population to live in clean and safe surroundings.
Violation of the principles of natural justice:
73. Another submission of the learned counsel for the petitioner
that the N.G.T reordered findings on Points 1 to 4 (briefly
narrated in para 52 supra) were recorded in petitioner‟s favour
still the impugned order was passed against the petitioner does
not impress upon us for the reason that the N.G.T has assigned
67
reasons for passing the impugned order which have been briefly
noted by us in paras 53,54 and 55 hereinabove.
74. We are of the view that the Tribunal being an authority
vested with the powers, the jurisdiction and the duty to ensure the
environmental protection, if different aspects come before it, or
are brought to its notice, it has to take into consideration those
various aspects while deciding the lis. Even if it be taken that the
petitioner had no opportunity on certain aspects mentioned in the
order, even then, considering that the Tribunal has not set aside
the EC granted but has only kept it in abeyance while remitting
the matter for fresh consideration, the petitioner cannot succeed
on the ground of alleged violation of the principles of natural
justice, in as much as, while considering the matter by the
competent authority, pursuant to the direction issued by the
Tribunal, the petitioner may avail the opportunity of hearing
before the respondent authorities with respect to those aspects.
E.C granted prior to 2021:
75. The next submission of the learned counsel that the EC
granted was prior to 2021 and as such the N.G.T ought not to
have interfered with the same. The E.C (s) granted even prior to
2021 must confirm the then existing rules, regulations and the
68
notifications, which could not be granted dehors the rules. The
N.G.T has elaborately discussed the illegalities and irregularities
committed in grant of E.C to the petitioner. In view thereof no
immunity can be claimed from interference by the N.G.T on the
well assigned reasons.
Ex-post Facto grant of EC:
76. Learned counsel for the petitioner next submitted that Ex-
post facto EC could be granted. He emphasized in Electrosteel
Steels Limited (supra) to contend that the grant of ex post facto
environmental clearance is not prohibited in appropriate cases,
where the projects are in compliance with, or can be made to
comply with the environment norms.
77. The Hon‟ble Apex Court in Electrosteel Steels Limited
(supra) held that the need to comply with the requirement to
obtain environment clearance is non-negotiable. A project can be
set up or allowed to expand subject to compliance of the requisite
norms. Environmental clearance is granted on condition of the
suitability of the site to set up the project from the environmental
angle, and existence of necessary infrastructural facilities and
69
equipment for compliance of environmental norms. To protect
future generations, it is imperative that pollution laws be strictly
enforced. Under no circumstances, can industries which pollute
be allowed to operate unchecked and degrade the environment.
78. In Electrosteel Steels Limited (supra), considering the
office memorandum of 2021 and the subsequent follow up
proceedings for identification enabled of violation case under
2006 EIA notification, it was observed that in terms of the SOP,
the proposal for grant of EC in case of violations were to be
considered on merits with prospective effect, applying the
principles of proportionally and the principle that the Polluter Pays
Principle and liable for costs of remedial measures. The Hon‟ble
Apex Court, in Electrosteel Steels Limited (supra) observed that
ex post facto EC clearance should not however be granted
routinely but in exclusive circumstances taking into consideration
relevant environmental factors. Whe re the adverse
consequences of ex post facto approval outweigh the
consequences of regularization of operation of an industry by
grant of ex post facto approval and the industry or establishment
concerned otherwise conforms to the requisite pollution norms,
ex- post facto approval should be given in accordance with law, in
70
strict conformity with the applicable rules, regulations and/or
notifications. Ex post facto approval should not be withheld only
as a penal measure. The deviant industry may be penalized by
an imposition of heavy penalty on the principle of “polluter pays”
and the cost of restoration of environment may be recovered.
79. In Pahwa Plastics Pvt Limited (supra) the Hon‟ble Apex
Court observed that the Ex- Post facto Environmental Clearance
should not ordinarily be granted and certainly not for the asking.
80. In Uday Education and Welfare Trust (supra), the
Hon‟ble Apex Court considered the principles of sustainable
development, the precautionary principle and the polluter pays
principle. It was observed that it cannot be disputed that Section
20 of the NGT Act itself directs the learned Tribunal to apply the
principles of sustainable development, the precautionary principle
and the polluter pays principle. Undisputedly, it is the duty of the
State as well as its citizens to safeguard the forest of the country.
The resources of the present are to be preserved for the future
generations. However, one principle cannot be applied in isolation
of the other. It is necessary that, while protecting the
environment, the need for sustainable development has also to
71
be taken into consideration and a proper balance between the
two has to be struck.
81. Learned counsel for the petitioner referred to the judgment
of the Apex Court in Union of India vs. Vanshakti (supra) along
with, Confederation of Real Estate Developers of India
(CREDAI) vs. Vanashakti and another
30
, to contend that the
E.Cs already granted till date under the 2017 notification and the
2021 OM remained unaffected. He contended that the Ex-post
Facto EC can be granted in exceptional circumstances. There is
no absolute bar in grant of Ex-post Facto EC. He submitted that
the EC already granted to the petitioner was prior to notification of
2021. In Vanashakti (supra-2), the E.C (s) granted til the date of
judgment in Vanashakti (supra-2) were saved. So, it was not
open to the N.G.T to interfere with the E.C granted to the
petitioner.
82. In Vanshakti (supra-2), the Hon‟ble Apex Court held that
ex-post facto grant of EC under the notification of 2017 was not
permitted for the projects and activities which were commenced
or continued after 14.03.2017. The provision for grant of ex-post
facto was made only in relation to projects or activities which were
30
2025 SCC OnLine SC 2474
72
in violation as of 14.03.2017. The window which was initially for a
period of six months was eventually extended till completion of 30
days from 14.03.2018. The Hon‟ble Apex Court observed that in
environmental matters, the Courts must take a very strict view of
the violations of the laws relating to the environment. The Hon‟ble
Apex Court further observed that Once there is a violation of the
EIA notification, the project proponent has to compensate,
following the Polluter Pays Principle. Even if, EC is not granted to
him he has to pay for remedial plan to remedy the damage done
to the environment. He has also to pay the penalty. In Vanashkti
(supra-2), the Hon‟ble Apex Court saved the ECs already granted
till date of that judgment by providing that those ECs shall remain
unaffected.
83. The aforesaid judgment in Vanashkti (supra-2) has been
reviewed vide judgment reported in 2025 SCC OnLine SC 2474
(supra).
84. So far as the contention with respect to the Ex- Post facto
grant of EC is concerned, we are of the view that while
considering the matter in terms of the order of the Tribunal,
keeping in view the directions issued, the question of the grant of
EC whether Ex- Post facto, prospective or with retrospective
73
effect, in the light of the various factors, can be taken due care of
by the respondent authorities also keeping in view the latest
position in law in the case of Vanashkti (in Review Petition (C)
No.200 of 2025 Diary No.41929 of 2024 reported in 2025 SCC
OnLine SC 2474. So, at this stage of the writ petition against the
order of the NGT, we are not required to make any observation
on that aspect. It is upon the decision, when taken, by the
authorities, it may be open to the aggrieved party/person to raise
such an issue if so open under law in appropriate proceedings
before appropriate Forum.
V. Conclusions:
85. Thus, considered our conclusions on the points of
determination are as follows:
Point-A:
(i) The writ petition under Article 226 of the Constitution of
India is maintainable against the order of the National
Green Tribunal. The alternative remedy under Section 22
of the N.G.T Act is not an absolute bar.
(ii) We also entertain the writ petition, as the challenge is
on the ground of (a), the order being without jurisdiction,
(b) in Violation of the principles of natural justice and (c)
74
The petition is pending since 2021 and the affidavits have
been exchanged.
Point-B:
The 7
th
respondent (appellant before the N.G.T) is a
„person aggrieved‟ under Section 16 of the N.G.T.Act. The order
passed by the N.G.T in the appeal filed by the 7
th
respondent, is
not without jurisdiction.
Points C & D:
(i) There is no violation of the principles of natural justice,
so as to interfere with the order of the N.G.T.
(ii) Though on some aspects, finding has been recorded
in petitioner‟s favour but merely on that count, it cannot be said
that the N.G.T ought not ot have passed the impugned order.
The N.G.T has for the well assigned reasons, on justifiable
grounds rightly interfered with the grant of the E.C.
(iii) The N.G.T has also the suo moto power. Its role is
not simply adjudicatory in the nature of a lis, but it has also to
perform the vital roles which are preventive and remedial in
nature to save the environment from the degradation.
(iv) The N.G.T rightly took the cognizance of various
aspects in discharge of its statutory function. Its power and
75
jurisdiction while deciding a lis cannot be confined only to the
grounds raised in the appeal before it.
(v) Sustainable Sand Mining Management Guidelines,
2016 are applicable to the sand mining from the river as also from
the other sources. It is not confined only to the mining of sand
from the river only.
(vi) The E.C granted, even prior to 2021 notification has
to be in conformity with the then existing rules, regulations,
notification and the guidelines. Any EC issued in violation, cannot
claim immunity from interference merely because the grant was
prior to 2021 notificaotion.
(vii) Grant of Ex-post Facto E.C, is matter which lies in
the domain of the respondent authorities, for consideration, in
accordance with law, keeping in view the latest pronouncement of
the Hon‟ble Apex Court in the case of Confederation of Real
Estate Developers of India (CREDAI) vs. Vanashakti and
another (2025) SCC OnLine SC 2474).
(viii) No interference is called with the order of the N.G.T,
in the exercise of the writ jurisdiction.
VI. Result:
86. In the result:
76
(a) Writ Petition is dismissed,
(b) The respondent Nos.1 to 6 shall pursuant to the order
dated 15.11.2021, passed by the National Green Tribunal, South
Zone (NGTSZ), Chennai in Appeal No.19 of 2020 (SZ)
(B. Madan Kumar Reddy vs. Government of India and others)
proceed to consider the grant of EC, in accordance with law
keeping in view the directions issued by the N.G.T.
(c) While considering the matter the respondent
authority shall also take into account the latest pronouncement of
the Hon‟ble the Apex Court in Confederation of Real Estate
Developers of India (CREDAI) vs. Vanashakti and another
(2025 SCC OnLine SC 2474).
(d) The petitioner as also the 7
th
respondent shall be
provided with the opportunity of hearing.
87. No order as to costs.
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Consequently, miscellaneous application if any pending
shall also stand closed.
________________________
RAVI NATH TILHARI,J
______________________________
MAHESWARA RAO KUNCHEAM,J
Date:08.01.2026.
Note:
L.R copy to be marked.
B/o.Gk.
78
THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON’BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
W.P. No.31066 OF 2021
Date:08.01.2026.
Gk.
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