SANGHAR ZUBER ISMAILversusMINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE AND ANOTHER

                        [2021] 8 S.C.R. 525                             525


                   SANGHAR ZUBER ISMAIL                                 A
                                 v.
        MINISTRY OF ENVIRONMENT, FORESTS AND
            CLIMATE CHANGE AND ANOTHER
                  (Civil Appeal No. 4543 of 2021)                       B
                         AUGUST 31, 2021
    [DR DHANANJAYA Y CHANDRACHUD, M R SHAH
              AND HIMA KOHLI, JJ.]
       Environmental law: Marine environment – Environmental
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clearance granted on 5 January 2021 in favour of the second
respondent (project proponent) for expansion of capacity of its
refinery situated in the petro-chemical complex at Vadinar, District
Devbhumi Dwarka, Gujarat from 20 MMTPA to 46 MMTPA –
Appellant challenged before the NGT that the expansion was likely
to cause an adverse impact on the marine environment, both in terms     D
of the mangroves and marine biology – Based on the statement of
project proponent that all the EC conditions would be duly complied
with and due mitigation measures would be taken to ensure the safety
of mangroves and marine environment, NGT proceeded to observe
that it did not find any ground to interfere with the grant of the EC
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– It, however, directed the project proponent to ensure that all
necessary safeguards are adopted and EC conditions are duly
complied with – A three member Committee was constituted in that
regard – Held: The NGT merely based its conclusion on the statement
which was made by the project proponent and did not conduct an
independent appraisal of the grounds of challenge – NGT did not         F
deal with the substantive grounds of challenge in the exercise of its
appellate jurisdiction – Constitution of an expert committee did not
absolve the NGT of its duty to adjudicate – The adjudicatory
function of the NGT cannot be assigned to committees, even expert
committees – The decision has to be that of the NGT – The NGT has
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been constituted as an expert adjudicatory authority under an Act
of Parliament – The discharge of its functions cannot be obviated
by tasking committees to carry out a function which vests in the
NGT.

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                                525
526                SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A             CIVIL APPELLATE JURISDICTION: Civil Appeal No.4543 of
      2021.
            From the Judgment and Order dated 08.06.2021 of the National
      Green Tribunal, Principal Bench, New Delhi, in Appeal No.5 of 2021
      (WZ).
B          Purvish Jitendra Malkan, Ms. Dharita P Malkan, Ms. Deepa
      Gorasia, Alok Kumar, Ms. Nandini Chhabra, Ms. Bhavna Sarkar,
      Ms. Khushboo Vinodray Malkan, Advs. for the Appellant.
           Dhruv Mehta, Sr. Adv., Somiran Sharma, Advs. for the
      Respondents.
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              The following Order of the Court was passed
                                      ORDER
              DR DHANANJAYA Y CHANDRACHUD, J.
              1.     Admit.
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              2.     This appeal arises from a judgment of the National Green
                     Tribunal dated 8 June 2021 at the Principal Bench, New
                     Delhi.
              3.     The appeal before the NGT arose from the grant of an
E                    environmental clearance on 5 January 2021 in favour of
                     the second respondent for the expansion of the capacity of
                     its refinery situated in the petro-chemical complex at Vadinar,
                     District Devbhumi Dwarka, Gujarat from 20 MMTPA to
                     46 MMTPA. The main challenge before the NGT, as
                     recorded in paragraph 3 of the decision is that the expansion
F                    was likely to cause an adverse impact on the marine
                     environment, both in terms of the mangroves and marine
                     biology. The NGT noted that its attention been drawn to
                     the EIA/EMP study prepared by CSIR–NEERI. Having
                     extracted from the study, the NGT noted the submission of
G                    senior counsel for the second respondent that all the EC
                     conditions would be duly complied with and due mitigation
                     measures would be taken to ensure the safety of mangroves
                     and marine environment.
              4.     Having recorded the statement of the second respondent,
H                    the NGT proceeded to observe that it did not find any ground
SANGHAR ZUBER ISMAIL v. MINISTRY OF ENVIRONMENT, FORESTS                  527
 AND CLIMATE CHANGE [DR DHANANJAYA Y CHANDRACHUD, J.]


         to interfere with the grant of the EC. It, however, directed     A
         the project proponent to ensure that all necessary safeguards
         are adopted and EC conditions are duly complied with. A
         three member Committee was constituted in that regard.
   5.    The NGT was seized with a substantive appeal under the
         provisions of Section 16 of the National Green Tribunal Act      B
         2010. Section 16(h) reads thus:
               “16. Any person aggrieved by –
               (a) to (g)     xxx              xxx               xxx
               (h) an order made, on or after the commencement            C
               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          D
               1986.”
   6.    The specific ground before the NGT was that the expansion
         of the refinery will cause serious hazards to both the marine
         biology and to mangroves. The NGT observed that the
         project was already in existence and there was no                E
         continuing grievance against its functioning insofar as
         environmental norms are concerned. This observation would
         not conclude the issue as to whether the expansion of the
         project would have a deleterious impact on the environment.
   7.    Having regard to the nature of its appellate power, the NGT      F
         has to apply its mind to the substantive grounds of challenge.
         The NGT has merely based its conclusion on the statement
         which has been made by the project proponent and has not
         conducted an independent appraisal of the grounds of
         challenge.
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   8.    As a matter of fact, Mr Dhruv Mehta, learned senior
         counsel, who appears on behalf of the second respondent,
         states that the appellant had not produced a copy of the
         correct EIA before the NGT and an application has been
         filed on behalf of the second respondent for clarifying the
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528               SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A                     position. Be that it may, the NGT has not dealt with the
                      substantive grounds of challenge in the exercise of its
                      appellate jurisdiction. Constitution of an expert committee
                      does not absolve the NGT of its duty to adjudicate. The
                      adjudicatory function of the NGT cannot be assigned to
                      committees, even expert committees. The decision has to
B
                      be that of the NGT. The NGT has been constituted as an
                      expert adjudicatory authority under an Act of Parliament.
                      The discharge of its functions cannot be obviated by tasking
                      committees to carry out a function which vests in the tribunal.
             9.       We accordingly allow the appeal and set aside the impugned
C                     order dated 8 June 2021. Appeal No 5/2021(WZ) is
                      accordingly restored to the file of the NGT for disposal
                      afresh. All the rights and contentions of the parties on the
                      merits are kept open.
             10.      Pending application(s), if any, stand disposed of.
D

      Devika Gujral                                                    Appeal allowed.




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