Supreme Court of India
TAMIL NADU POLLUTION CONTROL BOARDversusSTERLITE INDUSTRIES (I) LTD. & ORS.
- Citation
- 2019 INSC 220
- Decided
- 18 February 2019
- Disposal
- Disposed off
- Bench
- R F NARIMAN
Holding
The NGT lacks jurisdiction to entertain direct appeals from original orders of the TNPCB; appeals must first be made to the statutory appellate authority, and therefore the NGT judgments are set aside.
Summary
The Supreme Court examined whether the National Green Tribunal (NGT) could entertain direct appeals (leapfrog appeals) against original orders of the Tamil Nadu Pollution Control Board (TNPCB) under the Air and Water Acts, specifically the refusal to renew consent for Sterlite Industries' copper smelter. The Court held that an appeal is a creature of statute and that only orders or decisions of the statutory appellate authority (under Section 28 of the Water Act or Section 31 of the Air Act) are appealable to the NGT under Section 33B and Section 31B respectively, read with Section 16 of the NGT Act. Since no appellate authority order had been made before the NGT intervened, the NGT lacked jurisdiction to set aside the original TNPCB orders. The Court also rejected the doctrine of necessity as a basis for a leapfrog appeal and clarified that directions under Section 31A of the Air Act are not appealable to the NGT, nor are orders under Section 18 of the Water Act. Consequently, the NGT judgments were set aside and the TNPCB order dated 22.01.2019 was also set aside. The appeals were disposed of, leaving the original orders operative and permitting the respondents to seek relief through writ petitions in the High Court.
Issues considered
- Whether a direct (leapfrog) appeal to the NGT is maintainable when an appellate authority under the Air or Water Acts exists.
- Whether orders or directions under Section 31A of the Air Act are appealable to the NGT.
- Whether an order made under Section 18 of the Water Act is appealable to the NGT.
- Whether the doctrine of necessity can justify a leapfrog appeal to the NGT.
- Whether the NGT possesses powers of judicial review akin to a High Court under Article 226.
Legislation cited
- Air (Prevention and Control of Pollution) Act, 1981s. 21, s. 31, s. 31A, s. 31B
- National Green Tribunal Act, 2010s. 14, s. 15, s. 16, s. 29, s. 33
- Water (Prevention and Control of Pollution) Act, 1974s. 18, s. 25, s. 26, s. 27, s. 28, s. 29, s. 33A, s. 33B
Subjects
environmental lawNational Green Tribunalappeal jurisdictionleapfrog appealAir ActWater Actstatutory interpretationjudicial reviewdoctrine of necessitypollution control
Judgment
[2019] 3 S.C.R. 777 777
TAMIL NADU POLLUTION CONTROL BOARD A
v.
STERLITE INDUSTRIES (I) LTD. & ORS.
(Civil Appeal Nos. 4763-4764 of 2013)
FEBRUARY 18, 2019
B
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Environment – Air (Prevention and Control of Pollutions) Act,
1981 – ss. 21, 31, 31A and 31B – Water (Prevention and Control of
Pollution) Act, 1974 – ss.18, 25, 26, 27, 28, 29, 33A and 33B –
National Green Tribunal Act, 2010 – ss. 14, 15, 16, 29 and 33 –
C
Leapfrog appeal before the National Green Tribunal (NGT) –
Maintainability of – Respondent was operating a copper smelter
plant – Tamil Nadu Pollution Control Board (TNPCB) directed
closure of the unit under the various provisions of the Air Act and
Water Act – Composite appeals against the six orders passed against
the respondent were filed u/s.16 of the NGT Act – NGT set aside the D
six orders in the composite appeals – State and TNPCB contended
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 – On appeal, held: It is clear that an appeal is a creature
of statute and an appellate tribunal has to act strictly within the
E
domain prescribed by statute – It is obvious that an appeal would
lie from an order or decision of the appellate authority u/s.28 of the
Water Act to the NGT only u/s.33B(a) of the Water Act r/w. s.16(a)
of the NGT Act – Similarly, an appeal would lie from an order or
decision of the appellate authority u/s.31 of the Air Act to the NGT
only u/s.31B of the Air Act read with s.16(f) of the NGT Act – Since F
no order or decision had been made by the appellate authority under
either the Water Act or the Air Act, any direct appeal against an
original order to the NGT would be incompetent – NGT’s jurisdiction
being strictly circumscribed by s.33B of the Water Act, r/w. s.31B of
the Air Act, r/w. s.16(a) and (f) of the NGT Act, would make it clear
G
that it is only orders or decisions of the appellate authority that are
appealable, and not original orders – 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.
H
777
778 SUPREME COURT REPORTS [2019] 3 S.C.R.
A National Green Tribunal Act, 2010 – Powers of judicial review
– Held: Under the NGT Act, the Tribunal exercising appellate
jurisdiction cannot strike down rules or regulations made under
this Act – It would be fallacious to state that the Tribunal has powers
of judicial review akin to that of a High Court exercising
constitutional powers u/Art. 226 of the Constitution of India –
B
Constitution of India – Art.226.
Doctrines/Principles – Doctrine of Necessity – NGT stated
that the doctrine of necessity would take over if an appellate
authority under the Act is not properly constituted – Held: If an
appellate authority is either not yet constituted, or not properly
C constituted, a leapfrog appeal to the NGT cannot be countenanced
– 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 – National Green Tribunal Act, 2010 – Water
(Prevention and Control of Pollution) Act, 1974 – Air (Prevention
D and Control of Pollution) Act,1981.
Disposing of the appeals, the Court
HELD: 1. Order dated 09.04.2018 is an order which
rejected renewal of consent to operate, and therefore, is traceable
to Section 27 of the Water (Prevention and Control of Pollution)
E Act, 1974 and Section 21 of the Air (Prevention and Control of
Pollution) Act,1981. 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 order or decision of the appellate authority under Section
F 28, it is then appealable to the National Green Tribunal (NGT).
This is made clear also by Section 16(a) of the National Green
Tribunal Act, 2010. 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
G appellate authority’s order, to the NGT, under Section 31B of the
Air Act and Section 16(f) of the NGT Act. [Para 21][813-B-C]
2. As has been stated hereinabove, it is clear that an appeal
to the appellate authority under the Air Act and the Water Act
was preferred. While these appeals were pending before the
appellate authority, the composite Appeals were filed before the
H
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 779
INDUSTRIES (I) LTD.
NGT inter alia against the order of refusal of consent to operate A
dated 09.04.2018. While it is argued 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, the said order expressly states that the appeals
could not be decided at this juncture and were hence adjourned
B
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. What becomes clear is the fact that while
an appeal was still pending before the appellate authority, the C
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. [Paras
22 and 23][813-D-H]
3. It is clear that an appeal is a creature of statute and an D
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 E
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 or the Air Act, any direct appeal against an
original order to the NGT would be incompetent. NGT’s F
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 G
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. [Para
31][820-B-F] H
780 SUPREME COURT REPORTS [2019] 3 S.C.R.
A Kundur Rudrappa v. Mysore Revenue Appellate Tribunal
and Ors. (1975) 2 SCC 411; Cellular Operators
Association of India and Ors. v. Union of India and
Ors. (2003) 3 SCC 186 : [2002] 5 Suppl. SCR 222; B.
Himmatlal Agrawal v. Competition Commission of India
[2018] 4 SCR 496; Raja Soap Factory v. S.P.
B
Shantharaj [1965] 2 SCR 800; Northern Plastics Ltd.
v. Hindustan Photo Films Mfg. Co. Ltd. and Ors. (1997)
4 SCC 452 : [1997] 2 SCR 252; Manohar Lal v.
Ugrasen (2010) 11 SCC 557 : [2010] 7 SCR 346; Arcot
Textile Mills Ltd. v. Regional Provident Fund
C Commissioner (2013) 16 SCC 1 : [2013] 11 SCR 371
– relied on.
S Franses Ltd. v. The Cavendish Hotel (London) Ltd.
[2018] UKSC 62 – referred to.
4. The orders dated 12.04.2018, 23.05.2018, and
D 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 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
E
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
F 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. Respondent’s argument
G
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
H appellate jurisdiction. Also, to state generally that the subject
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 781
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matter of environment lies with the NGT, is an argument of despair A
that must be dismissed, an appeal being a creature of statute, a
statute either confers a right of appeal or it does not. In the present
case, 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
B
Respondent 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. All the
appellate proceedings to the NGT, whether under the Air Act, C
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
D
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 the Act and are E
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. [Para 35][822-C-H; 823-A-
D]
5. So far as the order dated 28.05.2018 is concerned, this F
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, respondents have 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 G
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 respondents are correct in this argument, it is
clear that such order can only be set aside in a suit by a Civil H
782 SUPREME COURT REPORTS [2019] 3 S.C.R.
A Court, or under Article 226 of the Constitution of India by a High
Court. Therefore, this order can only be set aside either in a
suit, or by the High Court in the exercise of judicial review. [Para
39][826-A-C]
State of Punjab v. Gurdev Singh (1991) 4 SCC 1
B : [1991] 3 SCR 663; Tayabbhai M. Bagasarwalla v.
Hind Rubber Industries (P) Ltd. (1997) 3 SCC 443
: [1997] 2 SCR 152; Pune Municipal Corpn. v. State
of Maharashtra (2007) 5 SCC 211 : [2007] 3 SCR 277;
Krishnadevi Malchand Kamathia v. Bombay
Environmental Action Group (2011) 3 SCC 363 : [2011]
C 3 SCR 291; Kandla Port v. Hargovind Jasraj (2013) 3
SCC 182 : [2013] 1 SCR 589 – referred to.
Smith v. East Elloe Rural District Council [1956] 1 All
E.R. 855 – referred to.
6. Respondents then argued that this Court in L. Chandra
D Kumar case 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. It is important
E to notice that L. Chandra Kumar 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
F 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. Article 323B of the
Constitution of India also provides for Tribunals for certain other
G 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
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. Thus,
H a conjoint reading of Section 14 and Section 29 of the NGT Act
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 783
INDUSTRIES (I) LTD.
must be contrasted with a conjoint reading of Section 14 and A
Section 28 of the Administrative Tribunals Act, 1985. In Bharat
Sanchar Nigam Limited v. Telecom Regulatory Authority of India
and Ors., 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
B
power to hear and dispose of appeals against any direction,
decision, or order of the TRAI. 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 C
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 High Court exercising constitutional powers
D
under Article 226 of the Constitution of India. For this reason
also, 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, the NGT has no
general power of judicial review akin to that vested under Article E
226 of the Constitution of India possessed by the High Courts of
this country. Respondent’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
F
without merit, and therefore, rejected. [Paras 40, 42][826-F-H;
827-A; 829-C-D; 830-C-D; 831-G-H; 832-A-B, E-G]
Bharat Sanchar Nigam Limited v. Telecom Regulatory
Authority of India and Ors. (2014) 3 SCC 222 : [2013]
12 SCR 999 – relied on.
G
7. In conclusion, this Court is cognizant of the fact that the
respondent’s plant has been shut down since 09.04.2018. Since
the impugned judgments of the NGT on the ground of
maintainability have been set aside and the order dated 22.01.2019
passed by the TNPCB, being a consequential order, is also set
H
784 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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 this Court is setting aside the NGT
judgments involved in these appeals on the ground of
B
maintainability, 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. [Para 45][833-F-H]
C Kanhiya Lal Omar v. R.K. Trivedi (1985) 4 SCC 678 :
[1985] 3 Suppl. SCR 1; Maharashtra State Board of
Secondary and Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth (1984) 4 SCC 27 : [1985] 1 SCR
29; Galada Power & Telecommunication Ltd. v. United
D India Insurance Co. Ltd. (2016) 14 SCC 161; Allokam
Peddabbayya v. Allahabad Bank (2017) 8 SCC 272
: [2017] 8 SCR 121; Garikapati Veeraya v. N. Subbiah
Choudhury [1957] SCR 488 – distinguished.
L. Chandra Kumar v. Union of India and Ors. (1997) 3
SCC 261 : [1997] 2 SCR 1186; Re: Special Reference
E
[1965] 1 SCR 413 – referred to.
Case Law Reference
[1997] 2 SCR 1186 referred to Para 13
(1975) 2 SCC 411 relied on Para 24
F [2002] 5 Suppl. SCR 222 relied on Para 25
[2018] 4 SCR 496 relied on Para 26
[1965] 2 SCR 800 relied on Para 27
[1997] 2 SCR 252 relied on Para 28
[2010] 7 SCR 346 relied on Para 29
G
[2013] 11 SCR 371 relied on Para 30
[1985] 3 Suppl. SCR 1 distinguished Para 35
[1985] 1 SCR 29 distinguished Para 36
(2016) 14 SCC 161 distinguished Para 37
H
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 785
INDUSTRIES (I) LTD.
[2017] 8 SCR 121 distinguished Para 37 A
[1957] SCR 488 distinguished Para 38
[1991] 3 SCR 663 referred to Para 39
[1997] 2 SCR 152 referred to Para 39
[2007] 3 SCR 277 referred to Para 39
B
[2011] 3 SCR 291 referred to Para 39
[2013] 1 SCR 589 referred to Para 39
[2013] 12 SCR 999 relied on Para 42
[1965] 1 SCR 413 referred to Para 42
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4763- C
4764 of 2013.
From the Judgment and Order dated 31.05.2013 of the Principal
Bench of National Green Tribunal, New Delhi in Appeal No. 57 of 2013
(Appeal No. 22 of 2013 and Appeal No. 58 of 2013 (Appeal No. 23 of
2013 (SZ). D
WITH
Civil Appeal Nos. 8773-8774/2013, 9542-9543/2013, 5782/2014,
1552-1554/2019, 23/2019 and 1582/2019.
Balaji Srinivasan, AAG, C. S. Vaidyanathan, K. V. Viswanathan,
Guru Krishnakumar, C. A. Sundaram, R. Raizada, Sr. Advs., M. Yogesh E
Kanna, Siddhanth Kohli, Ms. Vrinda Bhandari, Ravi Raghunath,
Venkatraman, Akshay Nagarajan, G. Sivabalamurugan, G. Ananda
Selvam, Vasantha Kumar, Karuppaiah, Vivek Bharathi, Vinodh Kanna
B., R. Nedumaran, Beno Bencigar, Parijat Kishore, Santosh Kumar
Tripathi, Ms. Rohini Musa, Abhishek Gupta, Zaffar Inayat, Arjun Singh, F
Deepak Goel, Ashutosh Kumar Sharma, Rajeev Dubey, Kamlendra
Mishra, Mrs. Rachna Gupta, Nikhil Nayyar, Ms. K. V. Bharathi
Upadhyaya, Advs. for the appearing parties.
Mr. Vaiko, Appellant in-person
The Judgment of the Court was delivered by G
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, and 15.12.2018. The brief facts necessary to
appreciate the controversy raised in the present case are as follows.
H
786 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B
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
C 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, 5769/1997, and 16961/1998. On
D
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
E 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.
F
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
G and directed closure of the unit under Section 31A of the Air Act on
29.03.2013. This order was stayed by the NGT 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,
H on 08.08.2013, the NGT set aside the TNPCB order dated 29.03.2013,
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 787
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against which, Civil Appeal Nos. 8773-8774 of 2013 were filed, which A
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
B
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 C
under the Air Act and the Water Act which, apparently, was not pursued.
On 06.09.2017, an inspection report by the TNPCB was 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 D
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 E
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: F
“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) G
Department Dated: 28.5.2018, directing the Tamilnadu Pollution
Control Board to close the plant permanently, we feel it is not
appropriate to hear the Appeals and decide the issue at this
juncture.
H
788 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B 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:
C “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 1st, 2nd and 3rd interveners.
D 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
E which is subject matter of these appeals pending before this
Appellate 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
F 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
G 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.
H Subsequently, on 23.5.2018, Tamil Nadu Pollution Control Board
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 789
INDUSTRIES (I) LTD. [R. F. NARIMAN, J.]
has also issued directions for closure and disconnection of power A
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 B
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 Control Board and also direct the Tamil
Nadu Pollution Control Board to seal the unit and close the plant C
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.
D
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
E
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 F
the Meghalaya High Court, together with two experts, one being a
representative of the Central Pollution Control Board [“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:
G
“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
H
790 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B 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
C 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. No notice or opportunity of
hearing was given to the appellant.
D 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.
E 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-
F 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.
G 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
H
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 791
INDUSTRIES (I) LTD. [R. F. NARIMAN, J.]
academicians as per condition no.43 of Consent Order dated A
19-04-2005.
d) Both the reports should be sent by TNPCB to CPCB for
analysis. Recommendations made by CPCB should be
followed.
e) Copper slag dumped at all the eleven sites including the B
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
C
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 D
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 E
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
F
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.
i) Application of the Company for obtaining valid authorization
G
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 H
792 SUPREME COURT REPORTS [2019] 3 S.C.R.
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
B 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
C
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”
D
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
Nadu State Government and TNPCB. Such reports should
be furnished to NGT in a time-bound manner.
E 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
F 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.
G 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.
H
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 793
INDUSTRIES (I) LTD. [R. F. NARIMAN, J.]
r) Directions/ regulation may be framed for import of high grade A
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. B
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 premises should be done in a closed C
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
D
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.
E
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.”
F
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 the TNPCB G
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 H
794 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B 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
C 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 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
D 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
E 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
F 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 of the Water Act, Air Act, and NGT Act, that all the
G 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
H an appeal could not be argued before the appellate authority.
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 795
INDUSTRIES (I) LTD. [R. F. NARIMAN, J.]
Consequently, a leapfrog appeal would not be maintainable before the A
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
B
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 relevant provisions C
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 D
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 E
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 F
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 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 G
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,
H
could be passed under the said Section, and not an order to shut down
796 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B
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
this is an order which, though binding on the TNPCB, would also impact
C 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
D
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
E 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:
F “18. Powers to give directions.—(1) In the performance of its
functions under this Act—
(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
G 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.
H xxx xxx xxx”
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 797
INDUSTRIES (I) LTD. [R. F. NARIMAN, J.]
“25. Restrictions on new outlets and new discharges.—(1) A
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 B
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
(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
D
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 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 E
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. F
(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 G
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
H
798 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B establishing or taking any steps to establish any industry,
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
C (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
D
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
E 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,
F 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.
G
(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 four months of the making of an
application in this behalf complete in all respects to the State Board.
H
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 799
INDUSTRIES (I) LTD. [R. F. NARIMAN, J.]
(8) For the purposes of this section and Sections 27 and 30,— A
(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
(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),
C
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 D
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 E
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 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)
F
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 G
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 H
800 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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.
B (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,
C 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:
Provided that the appellate authority may entertain the appeal
after the expiry of the said period of thirty days if such authority is
D
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.
E
(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
F 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
G 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
H reasonable;
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 801
INDUSTRIES (I) LTD. [R. F. NARIMAN, J.]
(b) where the appeal is in respect of the unreasonableness of A
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.”
“29. Revision.—(1) The State Government may at any time B
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: C
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 D
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 E
“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 F
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—
G
(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.”
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802 SUPREME COURT REPORTS [2019] 3 S.C.R.
A “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 (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
C 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:
D “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
E 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 the said period of three months,
F 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
G 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
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from the date of such declaration) as may be prescribed and where A
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 B
(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
C
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 D
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 reasonable opportunity
of being heard shall be given to the person concerned.
(5) Every person to whom consent has been granted by the State E
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 F
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 G
(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;
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804 SUPREME COURT REPORTS [2019] 3 S.C.R.
A (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:
B 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—
C (a) after the installation of any control equipment in accordance
with the specifications under clause (i), or
(b) after the alteration or replacement of any control equipment
in accordance with the directions of the State Board under
clause (ii), or
D (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.
E (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
F
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
G 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
H the State Board under this Act may, within thirty days from the
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date on which the order is communicated to him, prefer an appeal A
to such authority (hereinafter referred to as the 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 B
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 C
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
D
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 E
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 F
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.” G
“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
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806 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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,—
B 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,—
C
(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
D
(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”
E “14. Tribunal to settle disputes.—(1) The Tribunal shall have
the jurisdiction over all civil cases where a substantial question
relating to environment (including enforcement of any legal right
relating to environment), is involved and such question arises out
of the implementation of the enactments specified in Schedule I.
(2) The Tribunal shall hear the disputes arising from the questions
F
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
G 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.”
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“15. Relief, compensation and restitution.—(1) The Tribunal A
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
(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 C
(1) shall be in addition to the relief paid or payable under the
Public Liability Insurance Act, 1991 (6 of 1991).
(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 D
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
E
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. F
(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 G
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); H
808 SUPREME COURT REPORTS [2019] 3 S.C.R.
A (b)an order passed, on or after the commencement of the
National Green Tribunal Act, 2010, by the State Government
under Section 29 of the Water (Prevention and Control of
Pollution) Act, 1974 (6 of 1974);
(c)directions issued, on or after the commencement of the
B 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
C
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);
D
(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
E 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
F processes or class of industries, operations and processes
shall not be carried out or shall be carried out subject to
certain safeguards under the Environment (Protection) Act,
1986 (29 of 1986);
(i) an order made, on or after the commencement of the
G 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
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Act, 2010, by the National Biodiversity Authority or a State A
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: B
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 C
“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.
D
(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 by or
before the Tribunal in respect of the settlement of such dispute or E
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 F
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 G
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 H
810 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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,
B
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 situation created by issuance of the order dated
29th March, 2013, to avail of its right to appeal without any undue
C 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
D
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
E 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
F
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
G 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).
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63. We are unable to contribute ourselves to the contention raised A
that a direction passed under 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
B
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, 9th 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 C
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 D
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 E
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.” F
20. Insofar as the judgment dated 15.12.2018 is concerned, the
NGT, on maintainability, held as follows:
“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 G
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
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812 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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.
B
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
C 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
D [(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
E 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 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
F
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
G 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
H Authority having declined to proceed with the matter and the order
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of closure being appealable before this Tribunal, there is no ground A
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 B
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 order or decision
of the appellate authority under Section 28, it is then appealable to the
C
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 D
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, E
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 appeals could not be decided at F
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. G
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
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814 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B
appellate authority adjourning the 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
C 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.
D 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 . . .
E
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.”
F
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.
5. Appeal is a creature of the statute. There is no dispute that
G
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
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act necessarily following the grant of the permit. The appeals A
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
B
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 C
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: D
“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 E
authority in terms of sub-section (2) of Section 14 as 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 F
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.” G
(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:
H
816 SUPREME COURT REPORTS [2019] 3 S.C.R.
A “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
B
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
C 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 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
D
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
E 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.”
F (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
G 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
H jurisdiction only in those matters in respect of which by special
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Acts it has been specifically invested with jurisdiction. The High A
Court is competent to exercise original jurisdiction under Section
105 of the Trade and Merchandise Marks Act 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
B
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 C
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, D
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.”
E
(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 F
of points which arise out of an order or decision. In 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 G
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 H
818 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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……”
B
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
C 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
D 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 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
E 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:
F (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:
G “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
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appellate or revisional authority takes upon itself the task of the A
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 B
under the Employees’ Provident Funds and Miscellaneous 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: C
“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 D
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. E
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 F
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 G
SCC 348], Super Cassettes Industries Ltd. v. State of U.P. [(2009)
10 SCC 531 : (2009) 4 SCC (Civ) 280], Raj Kumar Shivhare v.
Directorate of Enforcement [(2010) 4 SCC 772 : (2010) 3 SCC
(Civ) 712], Competition Commission of India v. SAIL [(2010)
10 SCC 744].)”
H
820 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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.
B
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
C 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 or the Air
D 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
E 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.
F 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:
G “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—
(a) that the relevant conditions are fulfilled in relation to his
decision in those proceedings or that the conditions in
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subsection (3A) (“the alternative conditions”) are satisfied in A
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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B
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— C
(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D
(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— E
(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
F
(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 judgments given
by the Court of Appeal or the Supreme Court (as the case
may be) in those previous proceedings.
G
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
H
822 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B 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
C 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
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
D 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
E 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
F 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 being a creature of statute, a
G 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
H Act is nothing but an “order”, and would, therefore, be appealable as
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such under Section 31B of the Air Act read with Section 16(f) of the A
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
B
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 C
Act. Directions are issued in the exercise of powers and performance
of functions under 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,
D
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 E
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
F
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 paragraph 17, where this Court held, referring
to Article 324(1) of the Constitution of India, that a “direction” may be G
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 H
824 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B
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
C as possible, avoid any decision or 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,
D 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
E 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
F 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.
G 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:
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“From the decisions cited above the following principles clearly A
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. B
(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. C
(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 D
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 provides expressly or by E
necessary 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 F
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 G
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
H
826 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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 on its forehead, as has been
held in Smith v. East Elloe Rural District Council, [1956] 1 All E.R.
B
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
C 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
D
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
E 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 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
F 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
G 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
H to the matters specified in Article 323A. This is further made clear by a
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conjoint reading of Section 14 and Section 28 of the Administrative A
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 appointed day, all the jurisdiction, powers B
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 C
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
D
(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
E
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
F
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 Government or any local or other authority or any G
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. H
828 SUPREME COURT REPORTS [2019] 3 S.C.R.
A (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
B
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
C 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
D 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
E other authority or corporation or society; and
(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
F 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
G
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—
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(a) the Supreme Court; or A
(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 B
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 C
323A or Article 323B of the Constitution, but is a statutory 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 D
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: E
“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 F
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 G
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
unconstitutional. In such cases alone, the High Court concerned
H
830 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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
B
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
C 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
D 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
E 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 “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
F 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
G 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
H it. Since the High Court while hearing appeal did not have the
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 831
INDUSTRIES (I) LTD. [R. F. NARIMAN, J.]
power of judicial review of subordinate legislation, the transferee A
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 B
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 C
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 include
regulations framed under Section 36, which are in the nature of
subordinate legislation.” D
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 E
(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. F
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.” G
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, H
832 SUPREME COURT REPORTS [2019] 3 S.C.R.
A the Tribunal exercising appellate jurisdiction cannot strike down rules or
regulations made under this Act. Therefore, it would be fallacious to
state that the Tribunal has powers of judicial review akin to that of a
High Court exercising constitutional powers under Article 226 of the
Constitution of India. We must never forget the distinction between a
superior court of record and courts of limited jurisdiction that was, in the
B
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
C 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
D 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]”.
E (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
F (supra), we are of the view that the NGT has no general power of
judicial review akin to that vested under Article 226 of the Constitution
of India possessed by the High Courts of this country. 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
G 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
H been no necessity to file an appeal before the NGT against such order.
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE 833
INDUSTRIES (I) LTD. [R. F. NARIMAN, J.]
We have seen, however, that this order has been challenged on merits A
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
B
to bring the NGT in by the backdoor, as it were, would, therefore, have
to be rejected. Also, to argue that as against a writ court acting under
Article 226 of the Constitution of India, the NGT is an expert body set
up only to deal with environmental matters, 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 C
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 D
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 E
of first appeal. Where there is no such order, the NGT has no jurisdiction.
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 F
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 G
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
H
834 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 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 case of challenge to the 09.04.2018 order of
the TNPCB. The appeals are disposed of accordingly.
B
Ankit Gyan Appeals disposed of.
C
D
E
F
G
H
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