Madhya Pradesh High Court Advocates Bar Association and Anr. vs Union of India and Anr.

2. The power of judicial review under Articles 226, 227, and 32 are part of the basic structure of the Constitution and the same is inviolable. The NGT is within the purview of Article 226 and 227 jurisdiction of the High Courts. The High Courts have been entertaining petitions under Article 226 and 227 of the Constitution against orders of the NGT. While exercising such jurisdiction, the Courts necessarily exercise due discretion on whether to entertain or to reject the petition. Nothing contained in the NGT Act either impliedly or explicitly, ousts the jurisdiction of the High Courts under Article 226 and 227 and the power of judicial review remains intact and unaffected by the NGT Act. The prerogative of writ jurisdiction of High Courts is neither taken away nor it can be ousted, as without any doubt, it is definitely a part of the basic structure of the Constitution. The High Court’s exercise their discretion in tandem with the law depending on the facts of each particular case. Since the High Court’s jurisdiction remain unaffected, the first question is answered in the negative, against the petitioners. [Paras 1215][314-C, G-H; 315-A, F-H; 316-A] L Chandra Kumar v. UOI 1997 (3) SCC 261 : [1997]

(2) SCR 1186 – relied on.

Whether a seat of the NGT should be in every State? If yes, should they invariably be established at the principal seat of High Court, which in this case would be Jabalpur instead of Bhopal?

3.1 The NGT caters to a limited number of cases unlike the CAT, where the volume of cases is substantially higher. The volume of cases handled by the NGT and the CAT are not comparable. Looking at the large volume of service-related cases, it was suggested that the Benches of the CAT should be located at the seat of each High Court. But such logic cannot apply to the NGT, where the zone wise pendency in aggregate is only 2237 cases as on 31.3.2022 from the date of its inception. [Paras 17 and 19][316-G; 317-E]

3.2 With the low case load, if the NGT Benches are set up in all 28 States and 8 union territories, the judges and other members in these forums might be left twiddling their thumbs. Accordingly, no basis is seen to allow one NGT bench in every State. [Para 21][317-H; 318-A]

3.3 The petitioner put forth that the seat of the NGT must be at Jabalpur where the principal seat of the Madhya Pradesh High Court is located. The Bhopal Bench caters to multiple States. In such a situation, the location of the Bench to the extent possible, should be convenient and accessible to litigants of all three States. Here the respondents project that Bhopal is centrally located in relation to Rajasthan, Madhya Pradesh, & Chhattisgarh. Moreover, Bhopal being the capital of Madhya Pradesh, is well connected and accessible without much difficulty. This would commend that Bhopal is a sound locational choice for the NGT which caters to the litigants from three States. [Para 22][318-B-D]

3.4 The low case load in the Bhopal Bench, do not match with the strident plea of the petitioners to locate the Bench at Jabalpur. This is therefore perceived as an attempt by the petitioners (who are practicing lawyers in Jabalpur), to primarily espouse their professional interest. No other rational basis is seen for the Association’s plea for relocation of the NGT Bench to Jabalpur from Bhopal. There is no justification to grant such relief to the petitioners. [Para 23][318-E]

S.P. Sampath Kumar vs. Union of India (1987) 1 SCC

124 : [1987] (1) SCR 435 – held inapplicable. Whether the remedy of direct appeal to the Supreme Court from the decisions of the NGT under Section 22 of the NGT Act is ultra vires to the Constitution? Whether an appeal mechanism be provided to the High Courts from the decisions of the NGT?

4.1 It needs to be observed that even when a direct appeal to the Supreme Court is provided by a statute against the decision of a tribunal , the remedy under Article 226 or 227 before the High Court remains unextinguished. Moreover, the Appeal under Section 22 of the NGT Act, is limited to the grounds under Section

100 of the CPC and the Supreme Court does not function as a regular first appellate Court. However, under Article 226 or 227, remedies on issues of jurisdiction and also under the principles set out in Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, are available for an aggrieved party. Subject to discretion being exercised, the affected litigants can move High Court under Article 226 or 227 and in such cases, a SLP under Article 136 of the Constitution could also be maintained to the Supreme Court from the High Court’s verdict. Also importantly, the right to appeal before the High Court is a creature of the statute and is not an inherent right. The provision for appeal to High Court should not therefore be created by issuing a writ of Mandamus as that would be legislating through judicial order, and would impinge upon the well-founded concept of separation of powers. The options available to a litigant to either move to the Supreme Court in a case where a substantial question of law arises or proceed under Article 226 or 227 must not also be overlooked. If necessary, a party can also approach this Court by way of an Article 136 petition. With such choices being available for a party no rational justification is found for striking down Section 22 of the Act which provides for a direct appeal to the Supreme Court. [Paras 24-26][319-A-E]

4.2 A litigating party must also realise that in any event, if the opposite side approaches the Supreme Court, the litigant on the other side would have to defend his case before this Court and at that stage they cannot be complaining about the distance to Delhi. Thus, the remedy of direct appeal to the Supreme Court under the NGT Act from the NGT’s decision cannot be seen as denial of access to justice to the litigants in the field of environmental law. [Para 27][319-F]

4.3 It must also be underscored that the ground raised by the Petitioners about Supreme Court being inaccessible, would equally apply to litigants, from all across the country, who have to travel to the Supreme Court, either by way of Article 136 or Article

32 or any other provision. Despite the provision under Article

130 of the Constitution, the Supreme Court has no other bench away from Delhi. In these circumstances by pleading inaccessibility, the petitioners are also incidentally questioning, the location of the Supreme Court at New Delhi. Such a contention on the face of it would be irrational and not acceptable. [Para 30][320-D-E]

4.4 It cannot also be overlooked that it is the Supreme Court itself which had recommended the setting up of environmental court with direct appeals to the Supreme Court. This would also support the proposition on constitutional validity of Section 22 of the NGT Act and that it is not ultra vires to the Constitution. [Para 31][320-F]

Whether Section 3 of the NGT Act is ultra vires to the Constitution as suffering from the vice of excessive delegation?

5.1 It must be borne in mind that the operationalization of the NGT, including the location of its Benches, was closely monitored by the Supreme Court. It is further seen that the Union Government is to specify the ordinary place of sitting of NGT and its territorial jurisdiction under Section 3 of the NGT Act being mindful of the demand for environment litigation within a particular territorial area. The Government is also to be guided by the objects of the Act as also the directions given by the Supreme Court from time to time. Since, the Government is acting on the issue with the guidance of this Court, and the Government is obliged to follow the objectives of the NGT Act, adequate safeguards are seen to guide the government. The Court is therefore of the opinion that Section 3 of the NGT Act is not a case of excessive delegation. [Para 32][321-A-C] (2014) 10 SCC 1 : [2014] (10) SCR 1 – held

inapplicable.

5.2 Section 3 of the NGT Act is found to be intra vires to the Constitution of India. However, it is clarified that the conclusion is based on the specific facts of this case. [Para 36][322F] M.C. Mehta v. Union of India (1986) 2 SCC 176 : [1986]

(1) SCR 312; Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212 : [1996] (2) SCR 503; Vellore Citizens’ Welfare Forum v. Union of India (1996) 5 SCC 647 : [1996] (5) Suppl. SCR 241; A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718 : [1999] (1) SCR 235; A.P. Pollution Control Board II v. Prof. M.V. Nayudu (2001) 2 SCC 62 : [2000]

(5) Suppl. SCR 249; Union of India Vs. Vimal Bhai SLP(C) No. 12065 of 2009; Municipal Corporation of Greater Mumbai vs. Ankita Sinha & Ors. 2021 SCC Online SC 897; Mantri Techzone (P) Ltd. vs. Forward Foundation (2019) 18 SCC 494; Whirlpool Corpn. Vs. Registrar of Trade Marks, Mumbai and Others (1998)

8 SCC 1 : [1998] (2) Suppl. SCR 359; Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation [1948] 1 KB 223; R.K. Jain v. Union of India (1993) 4 SCC 119 : [1993] (3) SCR 802; Rojer Mathew v. South Indian Bank Ltd. (2020) 6 SCC 1 : [2019] (16) SCR 1 - referred to.