The present appeals arise in the Supreme Court of India out of orders that have been passed by the National Green Tribunal.
No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4763-4764 OF 2013
TAMIL NADU POLLUTION
CONTROL BOARD … APPELLANT(S)
VERSUS
STERLITE INDUSTRIES (I) LTD. & ORS. … RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 8773-8774 OF 2013
CIVIL APPEAL NOS. 9542-9543 OF 2013
CIVIL APPEAL NO. 5782 OF 2014
CIVIL APPEAL NOS. 1552-1554 OF 2019
CIVIL APPEAL NO. 23 OF 2019
CIVIL APPEAL NO. 1582 OF 2019
J U D G M E N T
R.F. NARIMAN, J.
1. The present appeals arise out of orders that have been passed
by the National Green Tribunal [“NGT”] dated 31.05.2013, 08.08.2013,
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and 15.12.2018. The brief facts necessary to appreciate the
controversy raised in the present case are as follows.
2. The respondent, Sterlite Industries (India) Ltd. / Vedanta Ltd.,
was operating a copper smelter plant at the State Industries Promotion
Corporation of Tamil Nadu Ltd. (SIPCOT) Industrial Complex at
Thoothukudi, Tamil Nadu. On 01.08.1994, the respondent received a
No-Objection Certificate [“NOC”] from the Tamil Nadu Pollution Control
Board [“TNPCB”] for the production of blister copper and sulphuric
acid. The environmental clearance to the project by the Ministry of
Environment, Forest, and Climate Change [“MoEF”] followed on
16.01.1995. On 17.05.1995, the State MoEF also granted
environmental clearance to the respondent. The TNPCB granted its
consent under the Air (Prevention and Control of Pollution) Act, 1981
[“Air Act”] and Water (Prevention and Control of Pollution) Act, 1974
[“Water Act”] on 22.05.1995. After obtaining the requisite permissions,
the consent to operate the plant was issued on 14.10.1996 by the
TNPCB. Production commenced on 01.01.1997. However, the
environmental clearances that were granted were challenged before
the Madras High Court in Writ Petition Nos.15501-15503/1996,
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5769/1997, and 16961/1998. On 20.05.1999, the TNPCB granted its
consent for production of two more products, namely, phosphoric acid
and hydrofluorosilicic acid. On 21.09.2004, a Supreme Court
Monitoring Committee was constituted to verify the compliance status
of hazardous waste management. It recommended to the MoEF that
the environmental clearance for the proposed expansion should not be
granted, and if granted, should be revoked. On 19.04.2005, the
TNPCB issued consent to operate, subject to fulfillment of various
conditions for the expanded capacity. Meanwhile, the Madras High
Court, on 28.09.2010, allowed the various writ petitions that had been
filed and quashed the environmental clearances granted to the
respondent and directed the TNPCB to close down the plant.
3. Meanwhile, on 23.03.2013, the residents of nearby areas
started complaining of irritation, throat infection, severe cough,
breathing problem, nausea etc. due to emissions from Sterlite
Industries. Reports were obtained after inspection of the premises by
the TNPCB. Based on these reports, the TNPCB issued a show-cause
notice dated 24.03.2013 and directed closure of the unit under Section
31A of the Air Act on 29.03.2013. This order was stayed by the NGT
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on 31.05.2013, allowing the respondent to commence production
subject to certain conditions. Against this, the TNPCB filed Civil Appeal
Nos.4763-4764 of 2013, which will be disposed of by the judgment
delivered in this case. Finally, on 08.08.2013, the NGT set aside the
TNPCB order dated 29.03.2013, against which, Civil Appeal Nos.
8773-8774 of 2013 were filed, which again will be disposed of by this
judgment. It is important to note that the appellants herein raised the
issue of maintainability of the respondent’s appeal before the NGT,
stating that an appeal should have been filed first before the appellate
authority under the Air Act / the National Green Tribunal Act, 2010
[“NGT Act”]. This ground of maintainability was decided against the
appellants by the impugned order dated 08.08.2013.
4. Owing to various interim orders passed by the NGT, the
respondent continued to operate its plant. On 13.04.2016, the TNPCB
granted consent to operate the plant for one year subject to certain
conditions. Post inspection of the unit of the respondent in March
2017, the TNPCB issued a show-cause notice dated 14.03.2017 for
violations under the Air Act and the Water Act which, apparently, was
not pursued. On 06.09.2017, an inspection report by the TNPCB was
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made, and an order passed on 07.09.2017, granting renewal of
consent to operate only till 31.03.2018 subject to various conditions.
Meanwhile, a protest had been organized in March 2018 by some
persons against the proposed expansion sought by the respondent.
The respondent, therefore, had to file Writ Petition No.7313 of 2018
before the Madurai Bench of the Madras High Court for police
protection. This Writ Petition was disposed of by an order dated
04.04.2018 with a direction to consider the respondent’s application.
On 09.04.2018, the TNPCB refused renewal of consent to operate to
the respondent’s unit based on non-compliance with certain conditions
that were laid down under the Air Act and the Water Act. On
12.04.2018, the respondent filed Appeal Nos.36-37 of 2018 before the
appellate authority under Section 28 of the Water Act. In these
appeals, various orders were passed, until, on 06.06.2018, the
following order was passed:
“APPLICATIONS 28 & 29 / 2018, APPLICATIONS 30
& 31 / 2018 AND APPEALS 36 & 37 / 2018:
Heard.
In view of the Government Order passed by the
Government of Tamilnadu in G.O. Ms. No: 72,
Environment & Forests (EC-3) Department Dated:
28.5.2018, directing the Tamilnadu Pollution Control
Board to close the plant permanently, we feel it is not
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appropriate to hear the Appeals and decide the issue
at this juncture.
Hence the Appeals and applications are
adjourned to 10.7.2018.”
On 10.07.2018, the matter was further adjourned as follows:
“APPLICATIONS 28 & 29 / 2018, APPLICATIONS 30
& 31 / 2018 AND APPEALS 36 & 37 / 2018:
In view of the remarks made in the adjudication
proceedings on 6.6.2018 and as the position is same
now, the Appeals and Applications are adjourned to
21.8.2018.”
Finally, on 18.12.2018, i.e., three days after the impugned order was
passed by the NGT on 15.12.2018, an order passed by the appellate
authority was as follows:
“APPLICATIONS 28, 29, 30 & 31 / 2018 AND
APPEALS 36 & 37 / 2018:
Ms. Janani, counsel for the appellant and Mr. V.
Vasanthakumar, counsel for the respondent-Board are
present. None is present on behalf of the 1
st
, 2
nd
and
3
rd
interveners.
Counsel for the appellant seeks permission to
withdraw the Appeals. She has also filed a memo to
that effect.
In view of the order passed by the Hon’ble
National Green Tribunal, Principal Bench, New Delhi
on 15.12.2018 in Appeal No. 87 of 2018 setting aside
the impugned order dated 9.4.2018 which is subject
matter of these appeals pending before this Appellate
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Authority, the Appeals have become infructuous and
hence they are closed.”
5. On 12.04.2018, an order was passed by the TNPCB under
Section 33A of the Water Act and Section 31A of the Air Act directing
that the respondent’s unit shall not resume production without
obtaining prior approval/renewal or consent from the TNPCB. This was
followed by two orders, both dated 23.05.2018, again issued under the
same Sections, this time to close down the respondent’s unit and
disconnect power supply to it. Finally, on 28.05.2018, an order was
issued by the Government of Tamil Nadu under Section 18(1)(b) of the
Water Act stating:
“It is brought to the notice of the Government that
Tamil Nadu Pollution Control Board did not renew the
Consent to Operate to M/s.Vedanta Limited, Copper
Smelter Plant, SIPCOT Industrial Complex,
Thoothukudi District in its order dated 9.4.2018.
Subsequently, on 23.5.2018, Tamil Nadu Pollution
Control Board has also issued directions for closure
and disconnection of power supply to the Unit. The
power supply has been disconnected on 24.5.2018.
2. Under Article 48-A of the Constitution,
“the State shall endeavour to protect and
improve the environment and to safeguard
the forests and wildlife of the country”.
3. Under sections, 18(1)(b) of the Water Act, 1974
in the larger public interest, the Government endorse
the closure direction of the Tamil Nadu Pollution
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Control Board and also direct the Tamil Nadu Pollution
Control Board to seal the unit and close the plant
permanently.”
6. On the same date, the TNPCB issued a letter to the District
Collector, inter alia, directing him to seal the respondent’s unit. These
six orders became the subject matter of a composite Appeal No. 87 of
2018 under Section 16 of the NGT Act.
7. A writ petition was filed by the respondent before the Madurai
Bench of the Madras High Court on 18.06.2018 so that the respondent
could access its unit to maintain its plant. This was dismissed as
withdrawn on 09.07.2018.
8. The appellants then took up a plea of maintainability of the
composite appeal. As this was not being disposed of by the NGT, this
Court, by its order dated 17.08.2018, directed the NGT to render its
final findings, both on maintainability as well as on merits. On
20.08.2018, the NGT constituted a Committee to go into the material
produced by the parties to the Civil Appeal and to visit the site. This
Committee was ultimately headed by Justice Tarun Agarwala, former
Chief Justice of the Meghalaya High Court, together with two experts,
one being a representative of the Central Pollution Control Board
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[“CPCB”] and another a representative of the MoEF. Aggrieved by this
order, the appellants knocked on the doors of this Court. This Court
disposed of this appeal on 10.09.2018, by stating:
“By our order dated 17.08.2018, we had made it clear
that the NGT may continue to hear the matter both on
merits as well as on maintainability and finally decide
the matter on both counts.
Since our order is not referred to in the order dated
20.08.2018 passed by the NGT, we need only to state
that once the Committee’s report is given to the
Tribunal, it will proceed to decide the matter in
accordance with our order dated 17.08.2018.
xxx xxx xxx”
A review petition that was filed against this order was dismissed.
9. The Committee constituted by the NGT then inspected the site
on various dates in September/October, 2018, and heard all
concerned parties as well as intervenors. It then came out with a
detailed Enquiry Report dated 20.11.2018, in which it concluded as
follows:
“On the basis of the site visit, public hearing and after
hearing the appellant Company, State of Tamil Nadu,
Tamil Nadu Pollution Control Board, and the interveners
and, upon consideration of the issues raised, the
Committee is of the opinion:
1. The impugned orders cannot be sustained as
it is against the principles of natural justice.
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No notice or opportunity of hearing was given
to the appellant.
2. The grounds mentioned in the impugned
orders are not that grievous to justify
permanent closure of the factory.
3. Other issues raised also does not justify the
closure of the factory even if the appellant
was found to be violating the
conditions/norms/directions.
4. In the event the Hon’ble Tribunal is of the
opinion that the factory should commence
production, the committee is of the opinion
that the following directions may be issued.
a) As per condition No.44 of the Consent
Order dated 19-04-2005, the appellant
should be directed to monitor ground
water quality including heavy metals
such as Arsenic, Cadmium, Silver,
Copper, Fluoride, etc. in and around the
factory premises and nearby villages
once a month and such report should be
furnished to the TNPCB.
b) The sampling of the above should be
taken in the presence of an official from
TNPCB.
c) In addition to the above, the sampling of
effluent/emission and solid waste should
also be done by a monitoring group to be
constituted by TNPCB comprising a
representative of the District Collector,
an official of TNPCB, NGOs and
academicians as per condition no.43 of
Consent Order dated 19-04-2005.
d) Both the reports should be sent by
TNPCB to CPCB f or analysis.
Recommendations made by CPCB
should be followed.
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e) Copper slag dumped at all the eleven
sites including the Uppar River should be
removed. If copper slag has been used
for landfill purposes, then the excess
amount of the slag over and above the
level of ground would be removed and
thereafter the landfill should be
compacted with one feet of soil, so that
the copper slag is not blown away by the
strong winds.
f) The dead stock of copper slag lying in
the dump yard inside the factory
premises which has solidified should be
removed in a time bound manner.
Thereafter, the bottom of the dump yard
and the side walls should be covered
with HDPE liner. Further, the Company
should ensure that the generation and
disposal of copper slag is maintained in
the ratio of 1:1 and that the Company at
best, can retain 10 days generation of
copper slag in its dump yard.
g) The dead stock of gypsum lying in the
dump yard inside the factory premises
which has solidified should be removed
in a time bound manner. Thereafter, the
bottom of the dump yard and the side
walls should be covered with HDPE
liner. Further, the Company should
ensure that the generation and disposal
of gypsum is maintained in the ratio of
1:1 and that the Company at best, can
retain 10 days generation of gypsum in
its dump yard.
h) The Company before disposing copper
slag, gypsum (or) any other waste
product will seek previous permission
from the TNPCB.
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i) Application of the Company for obtaining
valid authorization for disposal of
hazardous waste under Hazardous &
Other Wastes (Management, &
Transboundary Movement) Rules, 2016
should be disposed of by the TNPCB in
a time bound manner.
j) Even though there is no requirement of
analyzing the air samples through an
accredited laboratory nonetheless a
direction should be issued to the
appellant that they will conduct a
periodical survey for ambient air quality/
noise level/ stack emission through
accredited laboratories of
MoEF&CC/NABL and furnish such report
to the TNPCB.
k) The appellant company should be
directed that they shall develop a green
belt of 25 metres width around the
battery limits of its factory by planting
native and high foliage tree and also in
and around the factory.
l) The State of Tamil Nadu/ TNPCB should
collect data from their primary health
centres and Govt. Hospitals to monitor
the various ailments that are being
complaint of by the inhabitants living in
and around the factory premises.
m) The State Government should specify
the module to the appellant for
conducting the proper and designed
health monitoring study.
n) The direction no. (iii) on “Source
Apportionment Study” and direction no.
(ix) on “conducting a study on health
hazards” passed by the NGT in its
judgment dated 8/8/2013 in Appeal 58 of
2013 should be carried out by the Tamil
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Nadu State Government and TNPCB.
Such reports should be furnished to NGT
in a time-bound manner.
o) The appellant should be directed to start
the construction of gypsum pond
immediately and complete the same in a
time bound manner as per the conditions
laid down in the guidelines given by
CPCB in October, 2014.
p) The appellant shall undertake a fresh
detailed hydrogeological study for
determining aquifer vulnerability and
migration of leachate from the existing
phosphogypsum pond through a reputed
organization approved by the TNPCB as
per condition No.15 of the Consent
Order dated 19/04/2005.
q) Direction should be given to the TNPCB
as well as to the appellant to take
independent ground water samples from
the same points for the purpose of
finding out groundwater pollution if any.
Such reports should then be compared
by the CPCB. Recommendations made
by CPCB should be followed.
r) Directions/ regulation may be framed for
import of high grade copper ore.
s) Irrespective of the norms, stack height in
any case be increased in order to
remove the ambiguity and the grievance
of inhabitants of the people of the
Tuticorin with regard to emission of SO2.
t) Till such time, the stack height is not
increased, the production of copper as
well as sulphuric acid should be
restricted/reduced to match the existing
stack height.
u) The transportation of copper ore
concentrate from the port to the factory
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premises should be done in a closed
conveyance or through a pipe conveyor
system.
v) Self-monitoring mechanism needs to be
prepared by the appellant for the
periodic monitoring of Ambient Air
Quality/ Stack emissions/ Fugitive
emissions/ ground water quality/ surface
water quality/ soil quality/ slag analysis
through third party and report shall be
furnished to the concerned regulatory
agencies.
w) All the monitoring data, compliance
reports of CTE/CTO/EC and
environmental statement shall be
uploaded on the website of the
Company.
x) TNPCB should be directed to
commission “Regional Environmental
Impact Assessment Study” in and
around Tuticorin District by engaging a
reputed national agency.
y) CPCB recommendations as contained in
the order of NGT, dated 20.08.2018 to
be complied with.”
Both the respondent as well as the appellants made their detailed
comments on the Committee’s report. The NGT then heard final
arguments and dictated the impugned order on 15.12.2018, in which it
substantially accepted the Committee’s recommendations. In doing so,
it set aside the six impugned orders in the composite appeal. One
major bone of contention of both the State of Tamil Nadu as well as
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the TNPCB in this case is that the appeal before the NGT is not
maintainable and hence, the order dated 15.12.2018 is without
jurisdiction.
10. As a postscript to this order, the TNPCB looked into the matter
again, and issued yet another rejection letter dated 22.01.2019, by
which the respondent’s application seeking renewal of consent to
operate was rejected, stating that the conditions of various previous
consents over the last 20 years had not been followed.
11. We have heard wide-ranging arguments from learned counsel
appearing on behalf of all the parties as well as the intervenors, on
maintainability as well as on merits. Since we will be deciding this case
on maintainability alone, we have not ventured to state anything on the
merits of the case.
12. Shri C.S. Vaidyanathan, learned Senior Advocate appearing on
behalf of the TNPCB, showed us various provisions of the Water Act,
Air Act, and the NGT Act and argued that the six impugned orders
before the NGT were orders which could not have been corrected by
the NGT. Insofar as the first order dated 09.04.2018 was concerned,
an appeal was pending before the appellate authority, as a result of
16
which, the NGT, when it set aside the said order, could not have done
so. Similarly, the orders dated 12.04.2018, 23.05.2018, and
28.05.2018, made under Section 33A of the Water Act and Section
31A of the Air Act, were composite orders issued. As orders under
Section 31A of the Air Act were not appealable to the NGT either
under the Air Act or under Section 16 of the NGT Act, the Tribunal
acted without jurisdiction in interfering with these orders. Further, the
order dated 28.05.2018, issued by the Government of Tamil Nadu
under Section 18 of the Water Act, was certainly not an appealable
order under either the Water Act or the NGT Act, and could only have
been corrected in judicial review in a writ petition filed under Article
226 of the Constitution of India or in a suit before a Civil Court.
According to him, therefore, the setting aside of such an order was
also completely without jurisdiction. Shri K.V. Viswanathan, learned
Senior Advocate appearing on behalf of the State of Tamil Nadu,
added to these submissions. He cited some of our judgments as well
as statutes and judgments of the English Courts to show that once an
appeal is available to an appellate authority, after which an appeal lies
to the NGT, a party cannot leapfrog directly to the NGT. Apart from
this, the learned Senior Advocate also argued, based on the scheme
17
of the Water Act, Air Act, and NGT Act, that all the appeals filed before
the NGT were incompetent. Shri Guru Krishnakumar, learned Senior
Advocate appearing on behalf of the TNPCB, also went on to criticize
the order passed by the NGT dated 08.08.2013 on maintainability.
According to him, no doctrine of necessity could be imported if an
appellate tribunal was not constituted, as a result of which an appeal
could not be argued before the appellate authority. Consequently, a
leapfrog appeal would not be maintainable before the NGT. According
to the learned Senior Advocate, this order also had to be set aside for
the reason that even assuming that the appellate authority was not
constituted on the date on which an appeal could have been preferred
to it, the NGT, being a second appellate tribunal, would not have
jurisdiction, and that either a suit or a writ petition under Article 226
would have to be filed against the original order.
13. As against these arguments, Shri C.A. Sundaram, learned
Senior Advocate appearing on behalf of the respondents in all three
appeals, sought to sustain the order of the NGT in these three
appeals. The learned Senior Advocate painstakingly took us through
all the orders that were impugned before the NGT, together with the
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relevant provisions of the Air Act, the Water Act, and the NGT Act.
According to the learned Senior Advocate, so far as the order dated
09.04.2018 is concerned, thanks to a government affidavit filed, the
appeal before the appellate authority had become infructuous, as a
result of which, a direct appeal to the NGT would obviously become
maintainable. Insofar as the combined orders under Sections 33A and
31A of the Water Act and the Air Act, respectively, are concerned,
according to him, an express appeal is provided to the NGT against
orders passed under Section 33A of the Water Act, and even if there is
no appeal provided under Section 31A of the Air Act, yet, as four out of
five items in these orders dealt with the Water Act, the order could be
stated to be substantially an order under the Water Act, and therefore,
appealable as such. He added that, in any case, such orders could be
corrected under Section 14 of the NGT Act to avoid piecemeal
litigation. Further, in any case, according to the learned Senior
Advocate, a direction made under Section 31A of the Air Act is
undoubtedly equivalent to an order made under Section 31 of the Air
Act, and therefore, would be expressly appealable under Section 16 of
the NGT Act. Another without prejudice argument was made, that
assuming all other arguments failed, these matters are only
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procedural, and therefore, appeals must necessarily land up before the
expert tribunal which is so constituted as an expert tribunal to deal with
all matters relating to the environment. For this, he referred to and
relied strongly upon Sections 14, 15, 29, and 33 of the NGT Act.
Insofar as the attack made upon the order dated 28.05.2018 of the
Government of Tamil Nadu under Section 18 of the Water Act is
concerned, Shri Sundaram argued that on a proper construction of
Section 18 read with the other provisions of the Water Act, only a
general order, dealing with general matters, could be passed under the
said Section, and not an order to shut down one particular industry.
Since the Section 18 order purports to deal with only one particular
industry, it is non est and liable to be ignored. An alternate argument
made is that even though the order states that it is made under
Section 18, it can otherwise be traced to Section 29 of the Water Act
as an order made in revision, and would, therefore, be appealable as
such. The learned Senior Advocate then argued that, in any case, this
is an order by which a direction has been made by the State
Government to the TNPCB and, therefore, does not directly affect his
client. He also argued that when this order was challenged before the
NGT, the defence of the Government and the TNPCB would be that
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this is an order which, though binding on the TNPCB, would also
impact the respondent. This being the case, the NGT could always go
into whether such a defence is a valid defence, and could, therefore,
decide the matter. He also went on to state that the NGT is an expert
body constituted specifically under a special Act, which is far better
equipped than the High Court under Article 226 exercising its powers
in the writ jurisdiction, and therefore, all matters dealing with the
environment should necessarily be decided by the NGT alone. He also
relied upon our judgment in L. Chandra Kumar v. Union of India and
Ors., (1997) 3 SCC 261 [“L. Chandra Kumar”], in which it has been
made clear that Tribunals can exercise powers of judicial review and
that, therefore, being the equivalent of a High Court, the NGT could, in
exercise of its powers of judicial review, have interfered with the State
Government’s orders passed under Section 18 of the Water Act.
14. Having heard learned counsel for all parties, it is important first
to advert to the provisions of the three Acts in question.
15. The relevant Sections of the Water Act are as follows:
“18. Powers to give directions .—(1) In the
performance of its functions under this Act—
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(a) the Central Board shall be bound by such
directions in writing as the Central Government
may give to it; and
(b) every State Board shall be bound by such
directions in writing as the Central Board or the
State Government may give to it:
Provided that where a direction given by the State
Government is inconsistent with the direction given by
the Central Board, the matter shall be referred to the
Central Government for its decision.
xxx xxx xxx”
“25. Restrictions on new outlets and new
discharges.—(1) Subject to the provisions of this
section, no person shall, without the previous consent
of the State Board,—
(a) establish or take any steps to establish any
industry, operation or process, or any
treatment and disposal system or any
extension or addition thereto, which is likely
to discharge sewage or trade effluent into a
stream or well or sewer or on land (such
discharge being hereafter in this section
referred to as discharge of sewage); or
(b) bring into use any new or altered outlet for
the discharge of sewage; or
(c) begin to make any new discharge of
sewage:
Provided that a person in the process of taking any
steps to establish any industry, operation or process
immediately before the commencement of the Water
(Prevention and Control of Pollution) Amendment Act,
1988, for which no consent was necessary prior to
such commencement, may continue to do so for a
period of three months from such commencement or, if
he has made an application for such consent, within
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the said period of three months, till the disposal of
such application.
(2) An application for consent of the State Board under
sub-section (1) shall be made in such form, contain
such particulars and shall be accompanied by such
fees as may be prescribed.
(3) The State Board may make such inquiry as it may
deem fit in respect of the application for consent
referred to in sub-section (1) and in making any such
inquiry shall follow such procedure as may be
prescribed.
(4) The State Board may—
(a) grant its consent referred to in sub-section
(1), subject to such conditions as it may
impose, being—
(i) in cases referred to in clauses (a)
and (b) of sub-section (1) of
Section 25, conditions as to the
point of discharge of sewage or
as to the use of that outlet or any
other outlet for discharge of
sewage;
(ii) in the case of a new discharge,
conditions as to the nature and
composition, temperature, volume
or rate of discharge of the effluent
from the land or premises from
which the discharge or new
discharge is to be made; and
(iii) that the consent will be valid only
for such period as may be
specified in the order,
and any such conditions imposed shall be
binding on any person establishing or
taking any steps to establish any industry,
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operation or process, or treatment and
disposal system or extension or addition
thereto, or using the new or altered outlet,
or discharging the effluent from the land or
premises aforesaid; or
(b) refuse such consent for reasons to be
recorded in writing.
(5) Where, without the consent of the State Board, any
industry, operation or process, or any treatment and
disposal system or any extension or addition thereto,
is established, or any steps for such establishment
have been taken or a new or altered outlet is brought
into use for the discharge of sewage or a new
discharge of sewage is made, the State Board may
serve on the person who has established or taken
steps to establish any industry, operation or process,
or any treatment and disposal system or any extension
or addition thereto, or using the outlet, or making the
discharge, as the case may be, a notice imposing any
such conditions as it might have imposed on an
application for its consent in respect of such
establishment, such outlet or discharge.
(6) Every State Board shall maintain a register
containing particulars of the conditions imposed under
this section and so much of the register as relates to
any outlet, or to any effluent, from any land or
premises shall be open to inspection at all reasonable
hours by any person interested in, or affected by such
outlet, land or premises, as the case may be, or by any
person authorised by him in this behalf and the
conditions so contained in such register shall be
conclusive proof that the consent was granted subject
to such conditions.
(7) The consent referred to in sub-section (1) shall,
unless given or refused earlier, be deemed to have
been given unconditionally on the expiry of a period of
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four months of the making of an application in this
behalf complete in all respects to the State Board.
(8) For the purposes of this section and Sections 27
and 30,—
(a) the expression “new or altered outlet”
means any outlet which is wholly or partly
constructed on or after the commencement
of this Act or which (whether so
constructed or not) is substantially altered
after such commencement;
(b) the expression “new discharge” means a
discharge which is not, as respects the
nature and composition, temperature,
volume, and rate of discharge of the
effluent substantially a continuation of a
discharge made within the preceding
twelve months (whether by the same or a
different outlet), so however that a
discharge which is in other respects a
continuation of previous discharge made
as aforesaid shall not be deemed to be a
new discharge by reason of any reduction
of the temperature or volume or rate of
discharge of the effluent as compared with
the previous discharge.”
“26. Provision regarding existing discharge of
sewage or trade effluent.—Where immediately
before the commencement of this Act any person was
discharging any sewage or trade effluent into a stream
or well or sewer or on land, the provisions of Section
25 shall, so far as may be, apply in relation to such
person as they apply in relation to the person referred
to in that section subject to the modification that the
application for consent to be made under sub-section
(2) of that section shall be made on or before such
25
date as may be specified by the State Government by
notification in this behalf in the Official Gazette.”
“27. Refusal or withdrawal of consent by State
Board.—(1) A State Board shall not grant its consent
under sub-section (4) of Section 25 for the
establishment of any industry, operation or process, or
treatment and disposal system or extension or addition
thereto, or to the bringing into use of a new or altered
outlet unless the industry, operation or process, or
treatment and disposal system or extension or addition
thereto, or the outlet is so established as to comply
with any conditions imposed by the Board to enable it
to exercise its right to take samples of the effluent.
(2) A State Board may from time to time review—
(a) any condition imposed under Section 25 or
Section 26 and may serve on the person to
whom a consent under Section 25 or
Section 26 is granted a notice making any
reasonable variation of or revoking any
such condition;
(b) the refusal of any consent referred to in
sub-section (1) of Section 25 or Section 26
or the grant of such consent without any
condition, and may make such orders as it
deems fit.
(3) Any condition imposed under Section 25 or Section
26 shall be subject to any variation made under sub-
section (2) and shall continue in force until revoked
under that sub-section.”
“28. Appeals.—(1) Any person aggrieved by an order
made by the State Board under Section 25, Section 26
or Section 27 may, within thirty days from the date on
which the order is communicated to him, prefer an
appeal to such authority (hereinafter referred to as the
26
appellate authority) as the State Government may
think fit to constitute:
Provided that the appellate authority may entertain
the appeal after the expiry of the said period of thirty
days if such authority is satisfied that the appellant
was prevented by sufficient cause from filing the
appeal in time.
(2) An appellate authority shall consist of a single
person or three persons, as the State Government
may think fit, to be appointed by that Government.
(3) The form and manner in which an appeal may be
preferred under sub-section (1), the fees payable for
such appeal and the procedure to be followed by the
appellate authority shall be such as may be
prescribed.
(4) On receipt of an appeal preferred under sub-
section (1), the appellate authority shall, after giving
the appellant and the State Board an opportunity of
being heard, dispose of the appeal as expeditiously as
possible.
(5) If the appellate authority determines that any
condition imposed, or the variation of any condition, as
the case may be, was unreasonable, then,—
(a) where the appeal is in respect of the
unreasonableness of any condition
imposed, such authority may direct either
that the condition shall be treated as
annulled or that there shall be substituted
for it such condition as appears to it to be
reasonable;
(b) where the appeal is in respect of the
unreasonableness of any variation of a
condition, such authority may direct either
that the condition shall be treated as
continuing in force unvaried or that it shall
be varied in such manner as appears to it
to be reasonable.”
27
“29. Revision.—(1) The State Government may at any
time either of its own motion or on an application made
to it in this behalf, call for the records of any case
where an order has been made by the State Board
under Section 25, Section 26 or Section 27 for the
purpose of satisfying itself as to the legality or
propriety of any such order and may pass such order
in relation thereto as it may think fit:
Provided that the State Government shall not pass any
order under this sub-section without affording the State
Board and the person who may be affected by such
order a reasonable opportunity of being heard in the
matter.
(2) The State Government shall not revise any order
made under Section 25, Section 26 or Section 27
where an appeal against that order lies to the
appellate authority, but has not been preferred or
where an appeal has been preferred such appeal is
pending before the appellate authority.”
xxx xxx xxx
“33A. Power to give directions.—Notwithstanding
anything contained in any other law, but subject to the
provisions of this Act, and to any directions that the
Central Government may give in this behalf, a Board
may, in the exercise of its powers and performance of
its functions under this Act, issue any directions in
writing to any person, officer or authority, and such
person, officer or authority shall be bound to comply
with such directions.
Explanation.—For the avoidance of doubts, it is
hereby declared that the power to issue directions
under this section includes the power to direct—
(a) the closure, prohibition or regulation of any
industry, operation or process; or
28
(b) the stoppage or regulation of supply of
electricity, water or any other service.”
“33B. Appeal to National Green Tribunal.—Any
person aggrieved by,—
(a) an order or decision of the appellate
authority under Section 28, made on or
after the commencement of the National
Green Tribunal Act, 2010; or
(b) an order passed by the State Government
under Section 29, on or after the
commencement of the National Green
Tribunal Act, 2010; or
(c) directions issued under Section 33-A by a
Board, on or after the commencement of
the National Green Tribunal Act, 2010,
may file an appeal to the National Green Tribunal
established under Section 3 of the National Green
Tribunal Act, 2010, in accordance with the provisions
of that Act.”
16. The relevant Sections of the Air Act are as follows:
“21. Restrictions on use of certain industrial
plants.—(1) Subject to the provisions of this section,
no person shall, without the previous consent of the
State Board, establish or operate any industrial plant in
an air pollution control area:
Provided that a person operating any industrial
plant in any air pollution control area immediately
before the commencement of Section 9 of the Air
(Prevention and Control of Pollution) Amendment Act,
1987, for which no consent was necessary prior to
such commencement, may continue to do so for a
period of three months from such commencement or, if
he has made an application for such consent within
29
the said period of three months, till the disposal of
such application.
(2) An application for consent of the State Board under
sub-section (1) shall be accompanied by such fees as
may be prescribed and shall be made in the
prescribed form and shall contain the particulars of the
industrial plant and such other particulars as may be
prescribed:
Provided that where any person, immediately
before the declaration of any area as an air pollution
control area, operates in such area any industrial plant
such person shall make the application under this sub-
section within such period (being not less than three
months from the date of such declaration) as may be
prescribed and where such person makes such
application, he shall be deemed to be operating such
industrial plant with the consent of the State Board
until the consent applied for has been refused.
(3) The State Board may make such inquiry as it may
deem fit in respect of the application for consent
referred to in sub-section (1) and in making any such
inquiry, shall follow such procedure as may be
prescribed.
(4) Within a period of four months after the receipt of
the application for consent referred to in sub-section
(1), the State Board shall, by order in writing and for
reasons to be recorded in the order, grant the consent
applied for subject to such conditions and for such
period as may be specified in the order, or refuse such
consent:
Provided that it shall be open to the State Board to
cancel such consent before the expiry of the period for
which it is granted or refuse further consent after such
expiry if the conditions subject to which such consent
has been granted are not fulfilled:
Provided further that before cancelling a consent or
refusing a further consent under the first proviso, a
30
reasonable opportunity of being heard shall be given
to the person concerned.
(5) Every person to whom consent has been granted
by the State Board under sub-section (4), shall comply
with the following conditions, namely:—
(i) the control equipment of such
specifications as the State Board may
approve in this behalf shall be installed and
operated in the premises where the
industry is carried on or proposed to be
carried on;
(ii) the existing control equipment, if any, shall
be altered or replaced in accordance with
the directions of the State Board;
(iii) the control equipment referred to in clause
(i) or clause (ii) shall be kept at all times in
good running condition;
(iv) chimney, wherever necessary, of such
specifications as the State Board may
approve in this behalf shall be erected or
re-erected in such premises;
(v) such other conditions as the State Board
may specify in this behalf; and
(vi) the conditions referred to in clauses (i), (ii)
and (iv) shall be complied with within such
period as the State Board may specify in
this behalf:
Provided that in the case of a person operating any
industrial plant in an air pollution control area
immediately before the date of declaration of such
area as an air pollution control area, the period so
specified shall not be less than six months:
Provided further that—
(a) after the installation of any control
equipment in accordance with the
specifications under clause (i), or
31
(b) after the alteration or replacement of any
control equipment in accordance with the
directions of the State Board under clause
(ii), or
(c) after the erection or re-erection of any
chimney under clause (iv),
no control equipment or chimney shall be altered or
replaced or, as the case may be, erected or re-erected
except with the prior approval of the State Board.
(6) If due to any technological improvement or
otherwise the State Board is of the opinion that all or
any of the conditions referred to in sub-section (5)
require or requires variation (including the change of
any control equipment, either in whole or in part), the
State Board shall, after giving the person to whom
consent has been granted an opportunity of being
heard, vary all or any of such conditions and
thereupon such person shall be bound to comply with
the conditions as so varied.
(7) Where a person to whom consent has been
granted by the State Board under sub-section (4)
transfers his interest in the industry to any other
person, such consent shall be deemed to have been
granted to such other person and he shall be bound to
comply with all the conditions subject to which it was
granted as if the consent was granted to him
originally.”
xxx xxx xxx
“31. Appeals.—(1) Any person aggrieved by an order
made by the State Board under this Act may, within
thirty days from the date on which the order is
communicated to him, prefer an appeal to such
authority (hereinafter referred to as the Appellate
Authority) as the State Government may think fit to
constitute:
32
Provided that the Appellate Authority may entertain
the appeal after the expiry of the said period of thirty
days if such authority is satisfied that the appellant
was prevented by sufficient cause from filing the
appeal in time.
(2) The Appellate Authority shall consist of a single
person or three persons as the State Government may
think fit to be appointed by the State Government.
(3) The form and the manner in which an appeal may
be preferred under sub-section (1), the fees payable
for such appeal and the procedure to be followed by
the Appellate Authority shall be such as may be
prescribed.
(4) On receipt of an appeal preferred under sub-
section (1), the Appellate Authority shall, after giving
the appellant and the State Board an opportunity of
being heard, dispose of the appeal as expeditiously as
possible.”
“31A. Power to give directions.—Notwithstanding
anything contained in any other law, but subject to the
provisions of this Act and to any directions that the
Central Government may give in this behalf a Board
may, in the exercise of its powers and performance of
its functions under this Act, issue any directions in
writing to any person, officer or authority, and such
person, officer or authority shall be bound to comply
with such directions.
Explanation.—For the avoidance of doubts, it is
hereby declared that the power to issue directions
under this section includes the power to direct—
(a) the closure, prohibition or regulation of any
industry, operation or process; or
(b) the stoppage or regulation of supply of
electricity, water or any other service.”
33
“31B. Appeal to National Green Tribunal.—Any
person aggrieved by an order or decision of the
Appellate Authority under Section 31, made on or after
the commencement of the National Green Tribunal
Act, 2010, may file an appeal to the National Green
Tribunal established under Section 3 of the National
Green Tribunal Act, 2010, in accordance with the
provisions of that Act.”
17. The relevant Sections of the NGT Act are as follows:
“2. Definitions.—(1) In this Act, unless the context
otherwise requires,—
xxx xxx xxx
(m) “substantial question relating to environment”
shall include an instance where,—
(i) there is a direct violation of a specific
statutory environmental obligation by a
person by which,—
(A) the community at large other than
an individual or group of
individuals is affected or likely to
be affected by the environmental
consequences; or
(B) the gravity of damage to the
environment or property is
substantial; or
(C) the damage to public health is
broadly measurable;
(ii) the environmental consequences
relate to a specific activity or a point
source of pollution;
xxx xxx xxx”
“14. Tribunal to settle disputes.—(1) The Tribunal
shall have the jurisdiction over all civil cases where a
34
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.”
“15. Relief, compensation and restitution.—(1) The
Tribunal may, by an order, provide,—
(a) relief and compensation to the victims of
pollution and other environmental damage
arising under the enactments specified in
the Schedule I (including accident
occurring while handling any hazardous
substance);
(b) for restitution of property damaged;
(c) for restitution of the environment for such
area or areas,
as the Tribunal may think fit.
(2) The relief and compensation and restitution of
property and environment referred to in clauses (a), (b)
and (c) of sub-section (1) shall be in addition to the
relief paid or payable under the Public Liability
Insurance Act, 1991 (6 of 1991).
35
(3) No application for grant of any compensation or
relief or restitution of property or environment under
this section shall be entertained by the Tribunal unless
it is made within a period of five years from the date on
which the cause for such compensation or relief 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.
(4) The Tribunal may, having regard to the damage to
public health, property and environment, divide the
compensation or relief payable under separate heads
specified in Schedule II so as to provide compensation
or relief to the claimants and for restitution of the
damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under
this Act shall intimate to the Tribunal about the
application filed to, or, as the case may be,
compensation or relief received from, any other court
or authority.”
“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);
(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);
36
(c) directions issued, on or after the
commencement of the National Green
Tribunal Act, 2010, by a Board, under
Section 33-A 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);
37
(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 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.”
xxx xxx xxx
“29. Bar of jurisdiction.—(1) With effect from the date
of establishment of the Tribunal under this Act, no civil
court shall have jurisdiction to entertain any appeal in
respect of any matter, which the Tribunal is
empowered to determine under its appellate
jurisdiction.
(2) No civil court shall have jurisdiction to settle dispute
or entertain any question relating to any claim for
granting any relief or compensation or restitution of
property damaged or environment damaged which
may be adjudicated upon by the Tribunal, and no
injunction in respect of any action taken or to be taken
38
by or before the Tribunal in respect of the settlement of
such dispute or any such claim for granting any relief
or compensation or restitution of property damaged or
environment damaged shall be granted by the civil
court.”
xxx xxx xxx
“33. Act to have overriding effect.—The provisions
of this Act, shall have effect notwithstanding anything
inconsistent contained in any other law for the time
being in force or in any instrument having effect by
virtue of any law other than this Act.”
18. It is important now to advert to both the orders dated
08.08.2013 and 15.12.2018, insofar as they deal with the
maintainability of the appeals before them.
19. By the judgment of the NGT dated 08.08.2013, the NGT
disposed of the plea on maintainability as follows:
“62. Another aspect that would support the view that
we are taking is the doctrine of necessity. Wherever in
the facts and circumstances of the case, it is
absolutely inevitable for a person to exercise another
right available to it under the statute and where it is
unable to exercise the preliminary right of appeal
because of non-existence or non-proper constitution of
the appellate authority and for its effective and
efficacious exercise of right, it becomes necessary for
the appellant-company to invoke another remedy, then
the same would be permitted unless it was so
specifically barred by law governing the subject and
the rights of the parties. It was upon the appellant-
company, particularly keeping in view the emergent
39
situation created by issuance of the order dated
29
th
March, 2013, to avail of its right to appeal without
any undue delay and as was rightly done by it within
two days of the passing of the order. The unit of the
appellant-company had been directed to be shut down
and the appellant-company obviously could not have
taken recourse to the remedy under Section 31 of the
Air Act as the authority itself was not properly
constituted and was not functional. Besides the aid of
the doctrine of necessity, the appellant-company has
also placed its reliance on Section 31B of the Air Act.
An appeal against the order passed by the appellate
authority in exercise of its powers under Section 31 of
the Air Act lies to the NGT in terms of Section 31B of
the Air Act. In other words, the appellate order passed
by the proper authority under Section 31 of the Air Act
is appealable to the NGT in terms of Section 31B.
Thus, the NGT is the appellate authority of the
appellate authority constituted under Section 31 of the
Air Act by the State Government. The appellant-
company has itself given up its right of first appeal
before the appellate authority in view of the peculiar
facts and circumstances of the case. The respondents
have placed reliance upon the judgment of the
Supreme Court in Manohar Lal v. Union of India,
(2010) 11 SCC 557 where the Court had taken the
view that no higher authority in the hierarchy or an
appellate or revisional authority can exercise the
power of the statutory authority nor the superior
authority can mortgage its wisdom and direct the
statutory authority to act in a particular manner. Firstly
this judgment on facts and law has no application to
the present case. Secondly, the non-constitution of the
authority itself would bring the present case outside
the application of the judgment of the Supreme Court
in the case of Manohar Lal (supra).
63. We are unable to contribute ourselves to the
contention raised that a direction passed under
40
Section 31A of the Air Act is not covered under the
expression ‘order’ used in Section 31 of the Air Act.
Any direction essentially would contain an element of
order as it requires and calls upon the parties to
comply with the same. ‘Direction’ itself means an
order; an instruction how to proceed, like the judge's
direction to the jury, while ‘Order’ is defined as a
command, direction or instruction. This is how
the Black's Law Dictionary, 9
th
Edition, refers to these
two expressions. In other words, they can be used as
synonyms. They are not conflicting terms and one can
be read into the other. Thus, we find no substance in
this contention raised on behalf of the respondents.
64. An appellate authority, which is constituted under
the statute, is completely distinct and different from an
administrative authority constituted otherwise even to
deal with adjudicatory proceedings. In the case of an
appellate authority, it must satisfy the existence de
facto and must function de jure, in accordance with
law. If the appellate authority itself was not in
conformity with the notification, it cannot be said that it
could function in accordance with law without
constitution of the three Member appellate authority.
The cumulative effect of this discussion is that the
objection in regard to maintainability is without any
substance and is liable to be rejected. In view of this
finding, it is not necessary for us to examine whether
this could be treated as a petition under Section 14 of
the National Green Tribunal Act (for short ‘the NGT
Act’) even if it was not maintainable in view of the
objection taken by the respondent in regard to
maintainability of the present appeal.”
20. Insofar as the judgment dated 15.12.2018 is concerned, the
NGT, on maintainability, held as follows:
41
“44. It is undisputed that this Tribunal is an Appellate
Authority as far as orders of closure under the Air Act
and the Water Act are concerned. The impugned
orders dated 12.04.2018, 23.05.2018 and 28.05.2018
are such orders. Mere fact that an appeal against the
order declining renewal of Consent to Operate is
provided for and was filed cannot be in the facts and
circumstances of the present case, be a bar to
exercise of powers of the Appellate Authority by this
Tribunal. As already noted, the Appellate Authority has
declined to proceed with the matter. The grounds in
the impugned orders dated 09.04.2018, 12.04.2018,
23.05.2018 and 28.05.2018 are identical. If the
appeals are held to be not maintainable, the appellant
will be without any remedy against the order of
closure. Order of the Appellate Authority is also
appealable before this Tribunal under Section 16(f) of
the NGT Act, 2010. We, thus, do not find any merit in
this case in the objections of the respondent.
45. Mere fact that the State of Tamil Nadu also
endorsed the order of the TNPCB and that order of the
State is not appealable to this Tribunal, does not
deviate from the legal position that order of TNPCB is
appealable to this Tribunal. Moreover, order of the
State of Tamil Nadu is not a policy matter but mere
endorsement of order of the TNPCB.
46. The judgments relied upon by the respondents are
distinguishable. Unlike Educanti Kistamma v. Deokar’s
Distillery [(2003) 5 SCC 669], this is not a case where
the first order has not been challenged. Challenge
before us is to the first order as well as subsequent
orders. Basis for all the orders is common.
xxx xxx xxx
48. The order of the Government of Tamil Nadu issued
under Section 18(1)(b) of the Water Act also cannot be
said to be an independent order but relied on and
endorsing the views of the TNPCB which is under
42
challenge and that are not sufficient for ordering
closure or refusal to grant even consent. If there are
no other materials for the Government of Tamil Nadu
to arrive at conclusion of closure on the ground of
irreversible pollution being caused to the environment
allowing the unit to function, then it cannot be said to
be a policy decision to close down the industry
permanently and if any order was passed based on
the order by the Pollution Control Board, without
independent application of mind and arbitrarily, then
that can also be incidentally considered by the
Tribunal for the purpose of deciding the question of
legality of that order. So, under the present
circumstances, it is not a case of this Tribunal
entertaining the appeals where there is inherent lack of
jurisdiction to entertain the same.
49. In the present proceedings, as already noted, the
Appellate Authority having declined to proceed with
the matter and the order of closure being appealable
before this Tribunal, there is no ground to reject the
appeal on the ground of maintainability so as to
deprive the appellant any judicial remedy in the
matter.”
(I) RE: ORDER DATED 09.04.2018
21. This order is an order which rejected renewal of consent to
operate, and therefore, is traceable to Section 27 of the Water Act and
Section 21 of the Air Act. There is no doubt whatsoever that an appeal
against an order made under Section 27 of the Water Act is
appealable to the appellate authority under Section 28 of the said Act.
Under Section 33B(a) of the said Act, if a person is aggrieved by an
43
order or decision of the appellate authority under Section 28, it is then
appealable to the NGT. This is made clear also by Section 16(a) of the
NGT Act. Equally, an order refusing consent under Section 21 of the
Air Act is appealable to the appellate authority under Section 31 of the
Air Act, and thereafter, from the said appellate authority’s order, to the
NGT, under Section 31B of the Air Act and Section 16(f) of the NGT
Act.
22. As has been stated hereinabove, it is clear that an appeal to the
appellate authority under the Air Act and the Water Act was, in fact,
preferred, being Appeal Nos. 36-37 of 2018. While these appeals were
pending before the appellate authority, the composite Appeal No. 87 of
2018 was filed on 22.06.2018 before the NGT inter alia against the
order of refusal of consent to operate dated 09.04.2018. Shri
Sundaram, however, argued before us that the order dated 06.06.2018
made by the appellate authority, which we have set out hereinabove,
makes it clear that the appeals could not be heard since the State
Government had passed an order dated 28.05.2018 directing the
TNPCB to close down the plant permanently. What is missed by Shri
Sundaram is the fact that the said order expressly states that the
44
appeals could not be decided at this juncture and were hence
adjourned to 10.07.2018. The said appeals on 10.07.2018 were further
adjourned, and it is only on 18.12.2018 that they were finally
withdrawn as being infructuous in view of the fact that the NGT had
passed its order on 15.12.2018 in which it had set aside the order
dated 09.04.2018.
23. What becomes clear from the above narration of facts is the
fact that while an appeal was still pending before the appellate
authority, the NGT took up a matter directly against the original order
dated 09.04.2018 which was challenged before the appellate authority
even before the appellate authority could decide the same. However,
Shri Sundaram referred to Section 28(4) of the Air Act and Section
31(4) of the Water Act to argue that appeals to the appellate authority
must be decided expeditiously, and if they were not so decided, an
appeal would lie to the NGT against a decision by the appellate
authority not to decide the matter before it expeditiously. This
argument must also be negatived as, in point of fact, no appeal was
preferred from any orders of the appellate authority adjourning the
45
proceedings. As we have seen, an appeal was directly filed from the
order of the TNPCB dated 09.04.2018.
24. At this point, it is important to advert to a few judgments of this
Court. In Kundur Rudrappa v. Mysore Revenue Appellate Tribunal
and Ors., (1975) 2 SCC 411, this Court, while dealing with Section 64
of the Motor Vehicles Act, 1939, stated:
“4. The point that arises for consideration is whether
any appeal lay under Section 64 of the Act to the State
Transport Appellate Tribunal against the issue of a
permit in pursuance of an earlier resolution of the
Regional Transport Authority granting the permit. It is
only necessary to read Section 64(1)(a) which is
material for the purpose of this appeal:
“64. (1)(a) Any person aggrieved by the
refusal of the State or a Regional Transport
Authority to grant a permit, or by any
condition attached to a permit granted to him
. . .
may within the prescribed time and in the
prescribed manner, appeal to the State
Transport Appellate Tribunal constituted
under sub-section (2), who shall, after giving
such person and the original authority an
opportunity of being heard, give a decision
thereon which shall be final.”
We are not required to consider the other clauses of
Section 64(1) which are admittedly not relevant.
Section 64 has to be read with Rule 178 of the Rules
which prescribes the procedure for appeal to the
various authorities.
46
5. Appeal is a creature of the statute. There is no
dispute that Section 64 of the Act is the only section
creating rights of appeal against the grant of permit
and other matters with which we are not concerned
here. There is no appeal provided for under Section 64
against an order issuing a permit in pursuance of the
order granting the permit. Issuance of the permit is
only a ministerial act necessarily following the grant of
the permit. The appeals before the State Transport
Appellate Tribunal and the further appeal to the
Mysore Revenue Appellate Tribunal are, therefore, not
competent under Section 64 of the Act and both the
tribunals had no jurisdiction to entertain the appeals
and to interfere with the order of the Regional
Transport Authority granting the permit which had
already been affirmed in appeal by the State Transport
Appellate Tribunal and further in second appeal by the
Mysore Revenue Appellate Tribunal. There was,
therefore, a clear error of jurisdiction on the part of
both the Tribunals in interfering with the grant of the
permit to the appellant. The High Court was, therefore,
not right in dismissing the writ application of the
appellant which ought to have been allowed.”
(emphasis supplied)
25. Similarly, in a concurring judgment of Sinha, J., in Cellular
Operators Association of India and Ors. v. Union of India and
Ors., (2003) 3 SCC 186, the learned Judge observed:
“27. TDSAT was required to exercise its jurisdiction in
terms of Section 14-A of the Act. TDSAT itself is an
expert body and its jurisdiction is wide having regard to
sub-section (7) of Section 14-A thereof. Its jurisdiction
extends to examining the legality, propriety or
correctness of a direction/order or decision of the
authority in terms of sub-section (2) of Section 14 as
47
also the dispute made in an application under sub-
section (1) thereof. The approach of the learned
TDSAT, being on the premise that its jurisdiction is
limited or akin to the power of judicial review is,
therefore, wholly unsustainable. The extent of
jurisdiction of a court or a tribunal depends upon the
relevant statute. TDSAT is a creature of a statute. Its
jurisdiction is also conferred by a statute. The purpose
of creation of TDSAT has expressly been stated by
Parliament in the amending Act of 2000. TDSAT, thus,
failed to take into consideration the amplitude of its
jurisdiction and thus misdirected itself in law.”
(emphasis supplied)
26. In B. Himmatlal Agrawal v. Competition Commission of
India, Civil Appeal No. 5029/2018 [decided on 18.05.2018], this Court,
while dealing with Section 53B of the Competition Act, 2002 held:
“7. The aforesaid provision, thus, confers a right upon
any of the aggrieved parties mentioned therein to
prefer an appeal to the Appellate Tribunal. This
statutory provision does not impose any condition of
pre-deposit for entertaining the appeal. Therefore, right
to file the appeal and have the said appeal decided on
merits, if it is filed within the period of limitation, is
conferred by the statute and that cannot be taken
away by imposing the condition of deposit of an
amount leading to dismissal of the main appeal itself if
the said condition is not satisfied. Position would have
been different if the provision of appeal itself contained
a condition of pre-deposit of certain amount. That is
not so. Subsection (3) of Section 53B specifically cast
a duty upon the Appellate Tribunal to pass order on
appeal, as it thinks fit i.e. either confirming, modifying
or setting aside the direction, decision or order
appealed against. It is to be done after giving an
48
opportunity of hearing to the parties to the appeal. It,
thus, clearly implies that appeal has to be decided on
merits. The Appellate Tribunal, which is the creature of
a statute, has to act within the domain prescribed by
the law/statutory provision. This provision nowhere
stipulates that the Appellate Tribunal can direct the
appellant to deposit a certain amount as a condition
precedent for hearing the appeal. In fact, that was not
even done in the instant case. It is stated at the cost of
repetition that the condition of deposit of 10% of the
penalty was imposed insofar as stay of penalty order
passed by the CCI is concerned. Therefore, at the
most, stay could have been vacated. The Appellate
Tribunal, thus, had no jurisdiction to dismiss the
appeal itself.”
(emphasis supplied)
27. In Raja Soap Factory v. S.P. Shantharaj, (1965) 2 SCR 800,
the plaintiffs instituted an action in the nature of passing off against the
defendants in the High Court of Mysore, stating that they are exclusive
owners of a particular trade mark. This Court found that exercise of
jurisdiction by the High Court of Mysore is governed by Mysore Act 5
of 1962. Holding that the said High Court does not exercise any
original jurisdiction, this Court held:
“The High Court of Mysore is by its constitution
primarily a court exercising appellate jurisdiction: it is
competent to exercise original jurisdiction only in those
matters in respect of which by special Acts it has been
specifically invested with jurisdiction. The High Court is
competent to exercise original jurisdiction under
Section 105 of the Trade and Merchandise Marks Act
49
43 of 1958 if it is invested with the ordinary original
civil jurisdiction of a District Court, and not otherwise,
and the High Court of Mysore not being invested by
any statute of under its constitution with that
jurisdiction was incompetent to entertain a passing off
action.
But it was urged that in a State the High Court is at the
apex of the hierarchy of civil courts and has all the
powers which the subordinate courts may exercise,
and it is competent to entertain all actions as a Court
of original jurisdiction which may lie in any court in the
State. For this exalted claim, there is no warrant in our
jurisprudence. Jurisdiction of a court means the extent
of the authority of a court to administer justice
prescribed with reference to the subject-matter,
pecuniary value and local limits. Barring cases in
which jurisdiction is expressly conferred upon it by
special statutes, e.g. the Companies Act; the Banking
Companies Act, the High Court of Mysore exercises
appellate jurisdiction alone. As a court of appeal it
undoubtedly stands at the apex within the State, but
on that account it does not stand invested with original
jurisdiction in matters not expressly declared within its
cognizance.”
(at page 802)
28. In Northern Plastics Ltd. v. Hindustan Photo Films Mfg. Co.
Ltd. and Ors., (1997) 4 SCC 452, Section 129-D of the Customs Act,
1962 was referred to, under which, the Board of Excise and Customs
may direct a Collector to apply to the Appellate Tribunal for
determination of points which arise out of an order or decision. In
50
repelling an argument that even without such direction, the Union of
India may file an appeal directly, this Court held:
“10. …… The aforesaid provisions of the Act leave no
room for doubt that they represent a complete scheme
or code for challenging the orders passed by the
Collector (Customs) in exercise of his statutory
powers. …… So far as departmental authorities
themselves are concerned including the Collector of
Customs no direct right of appeal is conferred on the
Collector to prefer appeal against his own order before
the CEGAT. However there is sufficient safeguard
made available to the Revenue by the Act for placing
in challenge erroneous orders of adjudication as
passed by the Collector of Customs by moving the
Central Board of Excise and Customs under Section
129-D(1) for a direction to the Collector to apply to the
CEGAT for determination of such point arising out of
the decision or order as may be specified by the Board
of Revenue in this connection……”
xxx xxx xxx
“12. …… But even if it is so, the statutory procedure
laid down by Parliament in its wisdom for enabling the
challenge to the adjudication order of the Collector of
Customs by way of appeals or revisions as per the
aforesaid relevant statutory provisions, to which we
have made a mention, has got to be followed in such
an eventuality. Bypassing the said statutory procedure
a direct frog leap to CEGAT is contra-indicated by the
statutory scheme of the Act. If such direct appeals are
permitted the very scheme of Section 129-D(1) would
get stultified. It must, therefore, be held that direct
appeal filed by the Union of India through Industries
Ministry to CEGAT under Section 129-A(1) was clearly
incompetent. It may be added that the Union of India
51
could have used the mode set out in Section 129-D,
but it did not do so.”
29. In Manohar Lal v. Ugrasen, (2010) 11 SCC 557, one of the
questions involved, under sub-paragraph 2(a) of the judgment, was as
follows:
“2. In these appeals, three substantial questions of law
for consideration of this Court are involved. They are,
namely:
(a) As to whether the State Government, a
revisional authority under the statute, could
take upon itself the task of a lower statutory
authority?
xxx xxx xxx”
After reviewing a number of cases, this Court then concluded:
“23. Therefore, the law on the question can be
summarised to the effect that no higher authority in the
hierarchy or an appellate or revisional authority can
exercise the power of the statutory authority nor can
the superior authority mortgage its wisdom and direct
the statutory authority to act in a particular manner. If
the appellate or revisional authority takes upon itself
the task of the statutory authority and passes an order,
it remains unenforceable for the reason that it cannot
be termed to be an order passed under the Act.”
30. In Arcot Textile Mills Ltd. v. Regional Provident Fund
Commissioner, (2013) 16 SCC 1, appeals lay to the Tribunal
constituted under the Employees’ Provident Funds and Miscellaneous
52
Provisions Act, 1952, under Section 7-I of the Act. Whereas appeals
lay against orders passed under Section 7-A of the Act, which
provided for determination of monies due from employers, no appeal
lay against orders made under Section 7-Q of the said Act, which
spoke of interest payable by the employer. This Court held:
“20. On a scrutiny of Section 7-I, we notice that the
language is clear and unambiguous and it does not
provide for an appeal against the determination made
under Section 7-Q. It is well settled in law that right of
appeal is a creature of statute, for the right of appeal
inheres in no one and, therefore, for maintainability of
an appeal there must be authority of law. This being
the position a provision providing for appeal should
neither be construed too strictly nor too liberally, for if
given either of these extreme interpretations, it is
bound to adversely affect the legislative object as well
as hamper the proceedings before the appropriate
forum. Needless to say, a right of appeal cannot be
assumed to exist unless expressly provided for by the
statute and a remedy of appeal must be legitimately
traceable to the statutory provisions. If the express
words employed in a provision do not provide an
appeal from a particular order, the court is bound to
follow the express words. To put it otherwise, an
appeal for its maintainability must have the clear
authority of law and that explains why the right of
appeal is described as a creature of statute. (See
Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393], Gujarat
Agro Industries Co. Ltd. v. Municipal Corpn. of the City
of Ahmedabad [(1999) 4 SCC 468], State of Haryana
v. Maruti Udyog Ltd. [(2000) 7 SCC 348], Super
Cassettes Industries Ltd. v. State of U.P. [(2009) 10
SCC 531 : (2009) 4 SCC (Civ) 280], Raj Kumar
53
Shivhare v. Directorate of Enforcement [(2010) 4 SCC
772 : (2010) 3 SCC (Civ) 712], Competition
Commission of India v. SAIL [(2010) 10 SCC 744].)”
In paragraph 21, this Court further went on to hold that in case an
order under Section 7-A speaks of delay in payment as well as
interest, a composite order passed would be amenable to appeal
under Section 7-I, as interest is only parasitic on the principal sum due
under Section 7-A. However, if an independent order is passed under
Section 7-Q for interest alone, the same was held to be not
appealable.
31. From the above authorities, it is clear that an appeal is a
creature of statute and an appellate tribunal has to act strictly within
the domain prescribed by statute. It is obvious that an appeal would lie
from an order or decision of the appellate authority under Section 28 of
the Water Act to the NGT only under Section 33B(a) of the Water Act
read with Section 16(a) of the NGT Act. Similarly, an appeal would lie
from an order or decision of the appellate authority under Section 31 of
the Air Act to the NGT only under Section 31B of the Air Act read with
Section 16(f) of the NGT Act. Obviously, since no order or decision
had been made by the appellate authority under either the Water Act
54
or the Air Act, any direct appeal against an original order to the NGT
would be incompetent. NGT’s jurisdiction being strictly circumscribed
by Section 33B of the Water Act, read with Section 31B of the Air Act,
read with Section 16(a) and (f) of the NGT Act, would make it clear
that it is only orders or decisions of the appellate authority that are
appealable, and not original orders. On the facts of the present case, it
is clear that an appeal was pending before the appellate authority
when the NGT set aside the original order dated 09.04.2018. This
being the case, the NGT’s order being clearly outside its statutory
powers conferred by the Water Act, the Air Act, and the NGT Act,
would be an order passed without jurisdiction.
32. In fact, in the United Kingdom, there are several Acts under
which a leapfrog appeal is permitted if a point of law of general public
importance is involved. Thus, the Administration of Justice Act, 1969
states that such a leapfrog appeal directly to the Supreme Court may
be filed on grant of certificate by the Trial Judge in the following terms:
“12. Grant of certificate by trial judge.
(1) Where on the application of any of the parties to
any proceedings to which this section applies the
judge is satisfied—
55
(a) that the relevant conditions are fulfilled in
relation to his decision in those
proceedings or that the conditions in
subsection (3A) (“the alternative conditions”)
are satisfied in relation to those proceedings,
and
(b) that a sufficient case for an appeal to
the Supreme Court under this Part of this Act
has been made out to justify an application
for leave to bring such an appeal, ...
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the judge, subject to the following provisions of this
Part of this Act, may grant a certificate to that effect.
(2) This section applies to any civil proceedings in the
High Court which are either—
(a) proceedings before a single judge of the
High Court (including a person acting as
such a judge under section 3 of
the Judicature Act 1925), or
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) proceedings before a Divisional Court.
(3) Subject to any Order in Council made under the
following provisions of this section, for the purposes of
this section the relevant conditions, in relation to a
decision of the judge in any proceedings, are that a
point of law of general public importance is involved in
that decision and that that point of law either—
(a) relates wholly or mainly to the
construction of an enactment or of a statutory
instrument, and has been fully argued in the
proceedings and fully considered in the
judgment of the judge in the proceedings, or
(b) is one in respect of which the judge is
bound by a decision of the Court of Appeal or
of the Supreme Court in previous
proceedings, and was fully considered in the
56
judgments given by the Court of Appeal or
the Supreme Court (as the case may be) in
those previous proceedings.
xxx xxx xxx”
33. To similar effect are sections of the Tribunals, Courts and
Enforcement Act, 2007, and the Employment Tribunals Act, 1996.
Such appeals in the U.K. are referred to as “leapfrog appeals” [see S
Franses Ltd. v. The Cavendish Hotel (London) Ltd., [2018] UKSC
62 (at paragraph 7)].
34. It is, therefore, clear that no such provisions, as are contained
in the U.K. Acts, being present in any of the Acts that we are
concerned with, such leapfrog appeals to the NGT would necessarily
be without jurisdiction.
(II) RE: ORDERS PASSED UNDER SECTION 33A OF THE WATER ACT AND
SECTION 31A OF THE AIR ACT
35. We have referred to the orders dated 12.04.2018, 23.05.2018,
and 28.05.2018 passed by the TNPCB under Sections 33A and 31A of
the Water Act and Air Act respectively. At this juncture, it is important
to state that Section 33B of the Water Act and Section 31B of the Air
57
Act were both enacted on 18.10.2010, which is the very date on which
the NGT Act came into force. What is important to note is that whereas
Section 33B(c) of the Water Act read with Section 16(c) of the NGT Act
make it clear that directions issued under Section 33A of the Water Act
are appealable to the NGT, directions issued under Section 31A of the
Air Act are not so appealable. In fact, the statutory scheme is that
directions given under Section 31A of the Air Act are not appealable.
This being the case, all the aforesaid orders, being composite orders
issued under both the Water Act and the Air Act, it will not be possible
to split the aforesaid orders and say that so far as they affect water
pollution, they are appealable to the NGT, but so far as they affect air
pollution, a suit or a writ petition would lie against such orders. Shri
Sundaram’s argument that these orders being substantially relatable to
the Water Act would, therefore, not hold, as such orders are composite
orders made both under the Water Act and the Air Act. Equally
disingenuous is the reference to Section 14 of the NGT Act which only
refers to the original jurisdiction of the NGT and not to its appellate
jurisdiction. Also, to state generally that the subject matter of
environment lies with the NGT, is an argument of despair that must be
dismissed for the reason that as held by us hereinabove, an appeal
58
being a creature of statute, a statute either confers a right of appeal or
it does not. In the present case, we have seen that so far as directions
issued under Section 31A of the Air Act are concerned, there is no
right of appeal conferred by the Air Act read with the NGT Act. The
ingenious argument made by Shri Sundaram that, in any case, a
“direction” under Section 31A of the Air Act is nothing but an “order”,
and would, therefore, be appealable as such under Section 31B of the
Air Act read with Section 16(f) of the NGT Act would drive a coach-
and-four through the statutory scheme that has just been adverted to.
We have seen how all the appellate proceedings to the NGT, whether
under the Air Act, the Water Act, or the NGT Act have been brought
into force on the same date. Whereas the identical power to give
directions by the Board under the Water Act is appealable to the NGT,
the same power to give directions by the Board under the Air Act is not
so appealable. The absence of any mention of Section 31A in Section
31B of the Air Act, given the statutory scheme as aforesaid, makes it
clear that even this argument must be rejected. Also, “directions” that
are issued under Section 31A of the Air Act are of a different quality
from “orders” referred to in Section 31 of the same Act. Directions are
issued in the exercise of powers and performance of functions under
59
the Act and are not quasi-judicial in nature, whereas orders that are
appealed against under Section 31 are quasi-judicial orders made,
inter alia, under Section 21 of the Air Act. For this reason also, we
cannot accept the aforesaid argument of Shri Sundaram. However,
Shri Sundaram argued, with particular reference to the explanation to
Section 31A of the Air Act that “directions” partake of the nature of
“orders” when closure of any particular industry or stoppage of supply
of electricity qua any single industry is made, and therefore, such
directions are appealable as orders under Section 31 of the Air Act.
This argument is also of no avail as Section 33A of the Water Act
contains an identical explanation to that contained in Section 31A of
the Air Act. Despite this, the legislative scheme, as stated
hereinabove, is that so far as directions under the Water Act are
concerned, they are appealable, but so far as directions under the Air
Act are concerned, they are not appealable. Hence, reference made
to P. Ramanatha Aiyer’s Law Lexicon and Black’s Law Dictionary,
which state that in certain circumstances, orders are also directions
and vice versa, would not apply to the present case, given the express
statutory scheme. In this connection, Shri Sundaram cited Kanhiya
Lal Omar v. R.K. Trivedi, (1985) 4 SCC 678, and relied upon
60
paragraph 17, where this Court held, referring to Article 324(1) of the
Constitution of India, that a “direction” may be equated with a specific
or a general order. The context of Article 324 being wholly different, it
is obvious that this authority also has no application, given the
statutory scheme in the present case.
36. Shri Sundaram then cited Maharashtra State Board of
Secondary and Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth, (1984) 4 SCC 27. In this judgment, the High
Court had struck down Regulation 104 of the Maharashtra Secondary
and Higher Secondary Boards Regulations, 1977, by which, no re-
evaluation of an answer book given in an examination can be
undertaken. In setting aside the High Court judgment, this Court stated
that the process of re-evaluation of answer papers is extremely time
consuming, would involve several thousand man-hours, and is bound
to throw the entire system out of gear. Further, it is in public interest
that the results of public examinations, when published, should have
some finality attached to them [see paragraph 27]. It is in this context
that this Court held:
“29. …… It is equally important that the Court should
also, as far as possible, avoid any decision or
61
interpretation of a statutory provision, rule or bye-law
which would bring about the result of rendering the
system unworkable in practice. ……”
To bodily lift the aforesaid sentence and apply it to the fact situation
here would be a huge leap which we are not prepared to make.
Further, given the statutory scheme as aforesaid, it is not possible for
us to provide an appeal where there is none in the guise of making an
appellate system workable in practice.
37. Shri Sundaram then relied upon this Court’s judgments in
Galada Power & Telecommunication Ltd. v. United India
Insurance Co. Ltd., (2016) 14 SCC 161 and Allokam Peddabbayya
v. Allahabad Bank, (2017) 8 SCC 272 for the proposition that the right
of appeal is a statutory right, and like all other statutory rights, it can be
waived, unless its waiver is detrimental to public interest. The question
in these appeals is not whether an appellant may waive a statutory
right of appeal. The question is whether the NGT, which is only
invested with the jurisdiction of entertaining an appeal from an order of
an appellate authority, is jurisdictionally capable of entertaining an
appeal directly from the original authority. It is clear, as has been held
by us, that the NGT possesses no such jurisdiction.
62
38. One further argument was made that these matters are only
procedural, and therefore, substantially, an appeal to the NGT would
be maintainable. It is well settled that the right to appeal is not a
procedural matter but a substantive one. In Garikapati Veeraya v. N.
Subbiah Choudhury, 1957 SCR 488, this Court held:
“From the decisions cited above the following
principles clearly emerge:
(i) That the legal pursuit of a remedy, suit,
appeal and second appeal are really but
steps in a series of proceedings all connected
by an intrinsic unity and are to be regarded
as one legal proceeding.
(ii) The right of appeal is not a mere matter of
procedure but is a substantive right.
(iii) The institution of the suit carries with it the
implication that all rights of appeal then in
force are preserved to the parties thereto till
the rest of the career of the suit.
(iv) The right of appeal is a vested right and
such a right to enter the superior court
accrues to the litigant and exists as on and
from the date the lis commences and
although it may be actually exercised when
the adverse judgment is pronounced such
right is to be governed by the law prevailing
at the date of the institution of the suit or
proceeding and not by the law that prevails at
the date of its decision or at the date of the
filing of the appeal.
(v) This vested right of appeal can be taken
away only by a subsequent enactment, if it so
63
provides expressly or by necessar y
intendment and not otherwise.”
(at pp. 514-515)
This argument must, therefore, be rejected.
(III) RE: ORDER PASSED UNDER SECTION 18 OF THE WATER ACT
39. So far as the order dated 28.05.2018 is concerned, this order is
expressly stated to be made under Section 18 of the Water Act. There
is no doubt whatsoever that such an order is not appealable to the
NGT either under the Water Act or under the NGT Act. However, Shri
Sundaram has argued that Section 18 is referable to orders generally
made, and falls under Chapter IV of the Water Act, which deals with
powers and functions of Boards, as opposed to the Sections that
follow in Chapter V, which deals with prevention and control of water
pollution, which orders are made against individuals and individual
industries. On the assumption that Shri Sundaram is correct in this
argument, it is clear that such order can only be set aside in a suit by a
Civil Court, or under Article 226 of the Constitution of India by a High
Court. It is not possible to agree with the argument of Shri Sundaram
that such orders can be ignored, being non est. It is settled that an
administrative order, when made, does not bear the brand of invalidity
64
on its forehead, as has been held in Smith v. East Elloe Rural
District Council, [1956] 1 All E.R. 855 (at page 871), which has been
followed by this Court in State of Punjab v. Gurdev Singh, (1991) 4
SCC 1 (at page 6); Tayabbhai M. Bagasarwalla v. Hind Rubber
Industries (P) Ltd., (1997) 3 SCC 443 (at page 455); Pune Municipal
Corpn. v. State of Maharashtra, (2007) 5 SCC 211 (at page 225);
Krishnadevi Malchand Kamathia v. Bombay Environmental Action
Group, (2011) 3 SCC 363 (at page 369); and Kandla Port v.
Hargovind Jasraj, (2013) 3 SCC 182 (at page 193). Therefore, this
order can only be set aside either in a suit, or by the High Court in the
exercise of judicial review. Faced with this, Shri Sundaram then
argued that though the said order states that it is traceable to Section
18 of the Water Act, it can, in fact, be traced to Section 29 of the same
Act. Section 29 deals with the revisional power, in which the State
Government is to pass a quasi-judicial order after hearing both the
State Board and the person who is affected. Quite obviously, this order
is not a quasi-judicial order as the State Government has not found it
necessary to hear either the State Board, or any person affected by
such order. Further, such order does not purport to be an order which
either affirms or sets aside any order made under Sections 25, 26, or
65
27 of the Water Act. This argument of despair, therefore, must also be
rejected.
40. Shri Sundaram then argued that this Court in L. Chandra
Kumar (supra) made it clear that Tribunals that are set up, generally
have the power of judicial review, save and except a challenge to the
vires of the legislation under which such Tribunals are themselves set
up. For this, he relied strongly upon paragraphs 90 and 93 of the
judgment in L. Chandra Kumar (supra). It is important to notice that L.
Chandra Kumar (supra) pertained to a Tribunal that was set up under
Article 323A of the Constitution of India. Under Article 323A(2)(d), the
Administrative Tribunal so set up would be able to exercise the
jurisdiction of all courts except the jurisdiction of the Supreme Court
under Article 136 of the Constitution. This would mean that the
Administrative Tribunal so set up could exercise the jurisdiction of all
High Courts when it came to the matters specified in Article 323A. This
is further made clear by a conjoint reading of Section 14 and Section
28 of the Administrative Tribunals Act, 1985, which read as follows:
“14. Jurisdiction, powers and authority of the
Central Administrative Tribunal.—(1) Save as
otherwise expressly provided in this Act, the Central
Administrative Tribunal shall exercise, on and from the
66
appointed day, all the jurisdiction, powers and
authority exercisable immediately before that day by
all courts (except the Supreme Court) in relation to—
(a) recruitment, and matters concerning
recruitment, to any All-India Service or to any
civil service of the Union or a civil post under
the Union or to a post connected with
defence or in the defence services, being, in
either case, a post filled by a civilian;
(b) all service matters concerning—
(i) a member of any All -India
Service; or
(ii) a person not being a member of
an All-India Service or a person
referred to in clause (c) appointed to
any civil service of the Union or any
civil post under the Union; or
(iii) a civilian not being a member of
an All-India Service or a person
referred to in clause (c) appointed to
any defence services or a post
connected with defence,
and pertaining to the service of such
member, person or civilian, in connection with
the affairs of the Union or of any State or of
any local or other authority within the territory
of India or under the control of the
Government of India or of any corporation or
society owned or controlled by the
Government;
(c) all service matters pertaining to service in
connection with the affairs of the Union
concerning a person appointed to any service
or post referred to in sub-clause (ii) or sub-
clause (iii) of clause (b), being a person
whose services have been placed by a State
67
Government or any local or other authority or
any corporation or society or other body, at
the disposal of the Central Government for
such appointment.
Explanation.—For the removal of doubts, it is hereby
declared that references to “Union” in this sub-section
shall be construed as including references also to a
Union Territory.
(2) The Central Government may, by notification, apply
with effect from such date as may be specified in the
notification the provisions of sub-section (3) to local or
other authorities within the territory of India or under
the control of the Government of India and to
corporations or societies owned or controlled by
Government, not being a local or other authority or
corporation or society controlled or owned by a State
Government:
Provided that if the Central Government considers it
expedient so to do for the purpose of facilitating
transition to the scheme as envisaged by this Act,
different dates may be so specified under this sub-
section in respect of different classes of, or different
categories under any class of, local or other authorities
or corporations or societies.
(3) Save as otherwise expressly provided in this Act,
the Central Administrative Tribunal shall also exercise,
on and from the date with effect from which the
provisions of this sub-section apply to any local or
other authority or corporation or society, all the
jurisdiction, powers and authority exercisable
immediately before that date by all courts (except the
Supreme Court) in relation to—
(a) recruitment, and matters concerning
recruitment, to any service or post in
connection with the affairs of such local or
other authority or corporation or society; and
68
(b) all service matters concerning a person
other than a person referred to in clause (a)
or clause (b) of sub-section (1) appointed to
any service or post in connection with the
affairs of such local or other authority or
corporation or society and pertaining to the
service of such person in connection with
such affairs.”
xxx xxx xxx
“28. Exclusion of jurisdiction of courts except the
Supreme Court under Article 136 of the
Constitution.—On and from the date from which any
jurisdiction, powers and authority becomes exercisable
under this Act by a Tribunal in relation to recruitment
and matters concerning recruitment to any Service or
post or service matters concerning members of any
Service or persons appointed to any Service or post,
no court except—
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or
other authority under the Industrial Disputes
Act, 1947 or any other corresponding law for
the time being in force,
shall have, or be entitled to exercise any jurisdiction,
powers or authority in relation to such recruitment or
matters concerning such recruitment or matters
concerning such recruitment or such service matters.”
Article 323B of the Constitution of India also provides for Tribunals for
certain other matters which are specified by sub-clause (2) thereof.
Suffice it to say that the NGT is not a Tribunal set up either under
Article 323A or Article 323B of the Constitution, but is a statutory
69
Tribunal set up under the NGT Act. That such a Tribunal does not
exercise the jurisdiction of all courts except the Supreme Court is clear
from a reading of Section 29 of the NGT Act (supra). Thus, a conjoint
reading of Section 14 and Section 29 of the NGT Act must be
contrasted with a conjoint reading of Section 14 and Section 28 of the
Administrative Tribunals Act, 1985.
41. It is in the context of Article 323A and the Administrative
Tribunals Act, 1985 that this Court in L. Chandra Kumar (supra) has
observed in paragraph 93 as follows:
“93. Before moving on to other aspects, we may
summarise our conclusions on the jurisdictional
powers of these Tribunals. The Tribunals are
competent to hear matters where the vires of statutory
provisions are questioned. However, in discharging
this duty, they cannot act as substitutes for the High
Courts and the Supreme Court which have, under our
constitutional set-up, been specifically entrusted with
such an obligation. Their function in this respect is only
supplementary and all such decisions of the Tribunals
will be subject to scrutiny before a Division Bench of
the respective High Courts. The Tribunals will
consequently also have the power to test the vires of
subordinate legislations and rules. However, this
power of the Tribunals will be subject to one important
exception. The Tribunals shall not entertain any
question regarding the vires of their parent statutes
following the settled principle that a Tribunal which is a
creature of an Act cannot declare that very Act to be
70
unconstitutional. In such cases alone, the High Court
concerned may be approached directly. All other
decisions of these Tribunals, rendered in cases that
they are specifically empowered to adjudicate upon by
virtue of their parent statutes, will also be subject to
scrutiny before a Division Bench of their respective
High Courts. We may add that the Tribunals will,
however, continue to act as the only courts of first
instance in respect of the areas of law for which they
have been constituted. By this, we mean that it will not
be open for litigants to directly approach the High
Courts even in cases where they question the vires of
statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is
challenged) by overlooking the jurisdiction of the
Tribunal concerned.”
42. In Bharat Sanchar Nigam Limited v. Telecom Regulatory
Authority of India and Ors., (2014) 3 SCC 222 [“BSNL”], this Court
had to construe the appellate power that is contained in Section 14 of
the Telecom Regulatory Authority of India Act, 1997, by which, the
TDSAT was conferred with the power to hear and dispose of appeals
against any direction, decision, or order of the TRAI. In this context,
after distinguishing the judgment in L. Chandra Kumar (supra), this
Court held:
“108. Before the 2000 Amendment, the applications
were required to be filed under Section 15 which also
contained detailed procedure for deciding the same.
While sub-section (2) of Section 15 used the word
71
“orders”, sub-sections (3) and (4) thereof used the
word “decision”. In terms of sub-section (5), the orders
and directions of TRAI were treated as binding on the
service providers, Government and all other persons
concerned. Section 18 provided for an appeal against
any decision or order of TRAI. Such an appeal could
be filed before the High Court. The Amendment made
in 2000 is intended to vest the original jurisdiction of
TRAI in TDSAT and the same is achieved by Section
14(a). The appellate jurisdiction exercisable by the
High Court is also vested in TDSAT by virtue of Section
14(b) but this does not include decision made by TRAI.
Section 14-N provides for transfer to all appeals
pending before the High Court to TDSAT and in terms
of clause (b) of sub-section (2), TDSAT was required to
proceed to deal with the appeal from the stage which
was reached before such transfer or from any earlier
stage or de novo as considered appropriate by it.
Since the High Court while hearing appeal did not
have the power of judicial review of subordinate
legislation, the transferee adjudicatory forum
i.e. TDSAT cannot exercise that power under Section
14(b).”
xxx xxx xxx
“114. …… From the above-extracted portion of the
order it is evident that the Bench, which decided the
matter, felt that the view taken by TDSAT would
encourage rampant violation of the orders without any
penal consequence and the entire scheme of the TRAI
Act would become unworkable. The word “directions”
used in Section 29 of the TRAI Act was interpreted to
include orders and regulations in the context of the
factual matrix of that case and the apprehension of the
Court that Section 29 would otherwise become
unworkable, but the same cannot be read as laying
down a proposition of law that the words “direction”,
“decision” or “order” used in Section 14(b) would
72
include regulations framed under Section 36, which
are in the nature of subordinate legislation.”
xxx xxx xxx
“123. In Union of India v. Madras Bar Assn. [(2010) 11
SCC 1] and State of Gujarat v. Gujarat Revenue
Tribunal Bar Assn. [(2012) 10 SCC 353 : (2012) 4
SCC (Civ) 1229 : (2013) 1 SCC (Cri) 35 : (2013) 1
SCC (L&S) 56 : (2012) 10 Scale 285], this Court
applied the principles laid down in L. Chandra Kumar
case [L. Chandra Kumar v. Union of India, (1997) 3
SCC 261 : 1997 SCC (L&S) 577] and reiterated the
importance of tribunals created for resolution of
disputes but these judgments too have no bearing on
the decision of the question formulated before us.
124. In the result, the question framed by the Court is
answered in the following terms: in exercise of the
power vested in it under Section 14(b) of the TRAI
Act, TDSAT does not have the jurisdiction to entertain
the challenge to the regulations framed by TRAI under
Section 36 of the TRAI Act.”
In the present case, it is clear that Section 16 of the NGT Act is cast in
terms that are similar to Section 14(b) of the Telecom Regulatory
Authority of India Act, 1997, in that appeals are against the orders,
decisions, directions, or determinations made under the various Acts
mentioned in Section 16. It is clear, therefore, that under the NGT Act,
the Tribunal exercising appellate jurisdiction cannot strike down rules
or regulations made under this Act. Therefore, it would be fallacious to
state that the Tribunal has powers of judicial review akin to that of a
73
High Court exercising constitutional powers under Article 226 of the
Constitution of India. We must never forget the distinction between a
superior court of record and courts of limited jurisdiction that was, in
the felicitous language of Gajendragadkar, C.J., in Re: Special
Reference, (1965) 1 SCR 413, made in the following words:
“We ought to make it clear that we are dealing with the
question of jurisdiction and are not concerned with the
propriety or reasonableness of the exercise of such
jurisdiction. Besides, in the case of a superior Court of
Record, it is for the court to consider whether any
matter falls within its jurisdiction or not. Unlike a Court
of limited jurisdiction, the superior Court is entitled to
determine for itself questions about its own jurisdiction.
“Prima facie”, says Halsbury, “no matter is deemed to
be beyond the jurisdiction of a superior court unless it
is expressly shown to be so, while nothing is within the
jurisdiction of an inferior court unless it is expressly
shown on the face of the proceedings that the
particular matter is within the cognizance of the
particular court [Halsbury’s Laws of England, vol. 9, p.
349]”.
(at page 499)
For this reason also, we are of the view that the State Government
order made under Section 18 of the Water Act, not being the subject
matter of any appeal under Section 16 of the NGT Act, cannot be
“judicially reviewed” by the NGT. Following the judgment in BSNL
(supra), we are of the view that the NGT has no general power of
74
judicial review akin to that vested under Article 226 of the Constitution
of India possessed by the High Courts of this country. Shri Sundaram’s
strong reliance on the NGT judgment dated 17.07.2014 in Wilfred v.
Ministry of Environment and Forests must also be rejected as this
NGT judgment does not state the law on this aspect correctly. This
contention is also without merit, and therefore, rejected.
43. Shri Sundaram then argued that, in any case, this order is an
order made by the State Government against the TNPCB, and is
therefore, a direction to the TNPCB and not a direction to his client. If
this were so, and the order had no effect on his client, there would
have been no necessity to file an appeal before the NGT against such
order. We have seen, however, that this order has been challenged on
merits by the respondent before the NGT. To then say that this order
which is challenged would be defended on certain grounds, as a result
of which, the NGT then gets vested with the jurisdiction to decide the
same, is again to put the cart before the horse. It is clear that no
appeal is provided against orders made under Section 18 of the Water
Act, and the attempt to bring the NGT in by the backdoor, as it were,
would, therefore, have to be rejected. Also, to argue that as against a
75
writ court acting under Article 226 of the Constitution of India, the NGT
is an expert body set up only to deal with environmental matters, again
does not answer the specific issue before this Court. As we have held
earlier, an appeal being a creature of statute, an order passed under
Section 18 of the Water Act is either appealable or it is not. If it is not,
no general argument as to the NGT being an expert body set up to
hear environmental matters can be of any help.
44. Equally, so far as the order dated 08.08.2013 is concerned, we
have seen how the NGT stated that the doctrine of necessity would
take over if an appellate authority under the Act is not properly
constituted so that no appeal can then be effectively preferred. This,
again, is an argument that cannot be countenanced. If an appellate
authority is either not yet constituted, or not properly constituted, a
leapfrog appeal to the NGT cannot be countenanced. As has been
held by us supra, the NGT is only conferred appellate jurisdiction from
an order passed in exercise of first appeal. Where there is no such
order, the NGT has no jurisdiction.
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45. In conclusion, we are cognizant of the fact that the respondent’s
plant has been shut down since 09.04.2018. Since we have set aside
the impugned judgments of the NGT on the ground of maintainability,
the order dated 22.01.2019 passed by the TNPCB, being a
consequential order, is also set aside. The respondents are relegated
to the position that the six orders impugned before the NGT, dealt with
by the impugned judgment dated 15.12.2018, and the order dated
29.03.2013, dealt with by the final judgment dated 08.08.2013, are
alive and operative. Given the fact that we are setting aside the NGT
judgments involved in these appeals on the ground of maintainability,
we state that it will be open for the respondents to file a writ petition in
the High Court against all the aforesaid orders. If such writ petition is
filed, it will be open for the respondent to apply for interim reliefs
considering that their plant has been shut down since 09.04.2018.
Also, since their plant has been so shut down for a long period, and
they are exporting a product which is an important import substitute,
the respondent may apply to the Chief Justice of the High Court for
expeditious hearing of the writ petition, which will be disposed of on
merits notwithstanding the availability of an alternative remedy in the
77
case of challenge to the 09.04.2018 order of the TNPCB. The appeals
are disposed of accordingly.
……………………J.
(R.F. Nariman)
……………………J.
New Delhi (Navin Sinha)
February 18, 2019
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