Municipal Corporation of Greater Mumbai vs Ankita Sinha & Ors.

National Green Tribunal Act, 2010: Power of National Green Tribunal – In case of environmental events causing damage – The NGT is empowered to carry out restitutive exercise for compensating persons adversely affected by environmental events – The larger discourse which informs such functions is related to distributive and corrective justice – Even in the absence of harm inflicted by human agency, in a situation of a natural calamity, the NGT will be required to devise a plan for alleviating damage – An inquisitorial function is also available for the NGT, within and without adversarial significance – Many of these functions do not require an active “dispute”, but the formulation of decisions. National Green Tribunal: Suo motu power, exercise of – The specialized tribunal’s exercise of suo motu powers is somewhat distinct from those exercised by the constitutional Courts – The Supreme Court and High Courts can foray into any issues under their constitutional mandate but the NGT cannot naturally travel beyond its environmental domain in reference to the scheduled enactments – However, as long as the sphere of action is not breached, the NGT’s powers must be understood to be of the widest amplitude.

National Green Tribunal: Uniqueness of NGT vis-a-vis other Tribunals – The statutory Tribunals are categorized to fall under four subheads; Administrative Tribunals under Art.323A; Tribunals under Art.323B; Specialized sector Tribunals and most prominently; Tribunals to safeguard rights under Art.21 – The duties of NGT brings it within the ambit of the fourth category, creating a compelling proposition for wielding much broader powers as delineated by the statute.

National Green Tribunal: Sui Generis role of NGT – NGT is a specialised forum – The NGT is a Tribunal with sui generis characteristic, with the special and all-encompassing jurisdiction to protect the environment – Besides its adjudicatory role as an appellate authority, it is also conferred with the responsibility to discharge role of supervisory body and to decide substantial questions relating to the environment – The necessity of having a specialized body, with the expertise to handle multi-dimensional environmental issues allows for an all-encompassing framework for environmental justice – The technical expertise that may be required to address evolving environmental concerns would definitely require a flexible institutional mechanism for its effective exercise.

National Green Tribunal: An Authority to take suo motu cognizance of matter – NGT is not required to be triggered into action by an aggrieved or interested party alone – The exercise of power by the NGT is not circumscribed by receipt of application – When substantial questions relating to the environment arise and the issue is civil in nature and those relate to the enactments in Schedule I of the Act, the NGT even in the absence of an application, can self-ignite action either towards amelioration or towards prevention of harm.

Environmental law: Precautionary Principle – Application of – Held: The principle must apply in the widest amplitude to ensure that it is not only resorted to for adjudicatory purposes but also for other ‘decisions’ or ‘orders’ to governmental authorities or polluters, when they fail to “to anticipate, prevent and attack the causes of environmental degradation – Two aspects must therefore be emphasized i.e. that the NGT is itself required to carry out preventive and protective measures, as well as hold governmental and private authorities accountable for failing to uphold environmental interests – Thus, a narrow interpretation for NGT’s powers should be eschewed to adopt one which allows for full flow of the forum’s power within the environmental domain – Doctrines/Principles.

Environmental law: Environmental justice and equity – When substantive justice is elusive for a large segment, disengaging with substantive rights at the very altar, for a perceived procedural lacuna, would surely bring in a process, which furthers inequality, both economic and social – An “equal footing” conception may not, therefore, be feasible to adequately address the asymmetrical relationship between the polluters and those affected by their actions – Instead, a recognition of the historical experience of marginalized classes of persons while accessing and effectively using the legal system, will allow for necessary appreciation of social realities and balancing the arm of justice.

Directing to post the matters on 25.10.2021 for further directions and answering the common legal issue regarding suo motu jurisdiction of NGT, the Court

HELD: 1.1 The 186th Report of the Law Commission of India dated 23.9.2003, the Law Commission had made the pertinent observation espousing the case for the creation of a specialized Court to deal with environmental issues. The observations in the Report suggest that the Law Commission was of the opinion that it was not convenient for the High Courts and the Supreme Court to make local inquiries or receive evidence. Moreover, the superior courts would not have access to expert environmental scientists on permanent basis to assist them. Therefore, NGT was conceived as a complimentary specialized forum to deal with all environmental multi-disciplinary issues both as original and also as an appellate authority, which complex issues were hitherto dealt with by the High Courts and the Supreme Court. The NGT, therefore, was intended to be the competent forum for dealing with environmental issues instead of those being canvassed under the writ jurisdiction of the Courts. It was explicitly noted that the creation of the NGT would allow for the Supreme Court and High Court to avoid intervening under their inherent jurisdiction when an alternative efficacious remedy would become available before the specialized forum. [Paras 13.2, 13.3, 13.4][28-D; 29-D-E, F]

1.2 The power of judicial review was omitted to ensure avoidance of High Courts’ interference with the Tribunal’s orders by way of a mid-way scrutiny by the High Court, before the matter travels to the Supreme Court where NGT’s orders can be challenged. The streamlining of the mechanism was to arrest the growing tide of litigation before High Courts and the Supreme Court and shift such issues to the domain of the NGT. This is how the proposed forum was made free from the rules of evidence and the NGT was permitted to lay down its own procedure to entertain oral and documentary evidence, consult experts etc. The observance of the principles of natural justice was however mandated. [Paras 13.4 and 13.5][30-B-C; 30-D]

2.1 A reading of the Statement of Objects and Reasons of NGT Act shows that paragraph 4 thereof refers to the National Environmental Tribunal Act, 1995 (NET) which provided for strict liability and damages arising out of accidents occurring while handling hazardous substances. In the same context it was observed that the NET had a very limited and narrow mandate and jurisdiction. Thereafter, in Para 5 it has been recorded that a large number of environmental cases are pending in higher Courts which involve multi-disciplinary issues and, in such cases, the Supreme Court had requested the Law Commission of India to consider the need for constitution of specialized environmental Courts. Significantly, the Statement of Objects and Reasons also refers to right to a healthy environment being a part of the right to life under Article 21 of the Constitution of India. This was consistent with the earlier mentioned 186th Law Commission Report highlighting that the body so created, would aim to “achieve the objectives of Article 21, 47, 48A, 51A (g) of the Constitution of India by means of a fair, fast and satisfactory judicial procedure”. [Paras 14.2, 14.3][31-G-H; 32-A-C]

2.2 The paragraph 2 of the Statement of Objects and Reasons refers to the United Nations Conference on the Human Environment held at Stockholm in June 1972 which called upon governments and peoples to exert common efforts for the preservation and improvement of the human environment when it involved people and for their posterity. Therefore, the municipal law enacted with such a laudatory objective of not only preventing damage to the environment but also to protect it, must be provided with the wherewithal to discharge its protective, preventive and remedial function towards protection of the environment. The mandate and jurisdiction of the NGT is therefore conceived to be of the widest amplitude and it is in the nature of a sui generis forum. [Para 14.4][32-C-E]

2.3 The United Nations Conference on Environment and Development held at Rio De Janeiro in June, 1992 where India participated, impressed upon the States to provide effective access to judicial and administrative proceedings, lay out redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. The Preamble of the Act significantly emphasized on construing the right to healthy environment as a part of the Right to Life under Article 21 of the Constitution which was accepted by various judicial pronouncements in India. The National Green Tribunal was born in our country with such lofty dreams to deal with multi-disciplinary issues, relating to the environment. The limited mandate conferred on the earlier forum i.e. the NET and the narrow scope of jurisdiction of the National Environment Appellate Authority along with the involvement of multidisciplinary issues arising in environmental cases, were intended to be addressed through the constitution of the NGT. [Paras 14.5, 14.6][32-E-H; 33-A]

3.1 The NGT is intended to address wide ranging societal concerns. The Statute has to be read in its entirety and each provision of the Act must be given its due meaning by comprehending the mischief it intends to remedy. The application of the Heydon’s Rule could adequately aid here as the Rule directs adoption of that construction which “shall suppress the mischief and advance the remedy”. [Paras 15.1, 15.3] [33-B-C, G] Bengal Immunity Co. v. State of Bihar [1955] 2 SCR 603; AIR 1955 SC 661 – followed.

Francis Bennion Statutory Interpretation described; Panama Refining Co. v. Ryan 47 Columbia Law

Review 527 – referred to.

3.2 The laudatory objectives for creation of the NGT would implore to adopt such an interpretive process which will achieve the legislative purpose and will eschew procedural impediment or so to say incapacity. The precedents of this Court, suggest a construction which fulfills the object of the Act. The choice for this Court would be to lean towards the interpretation that would allow fructification of the legislative intention and is forward looking. The provisions must be read with the intention to accentuate them, especially as they concern protections of rights under Article 21 and also deal with vital environmental policy and its regulatory aspects. [Para 15.6][34-G; 35-A-B]

4.1 Section 14 gives original jurisdiction to the NGT to decide a substantial question relating to environment; Section

15 deals with relief, compensation and restitution whereby besides providing relief to the victims of pollution, the NGT can direct restitution of property damage and restitution of environment for such area(s) “as the Tribunal may think fit”. Section 16 gives appellate jurisdiction to the Tribunal against the orders passed under various enactments. Section 17 provides for liability to pay relief or compensation in certain cases, Section 18 specifies who can move application/appeal before the Tribunal. It includes, among others, 18(2)(d) “any person aggrieved including any representative body / organization” and the locus standi is not limited only to the aggrieved party. Section 19 provides for procedure and powers of the Tribunal. Section 19(1) significantly says that the Tribunal shall not be bound by procedures laid down in the CPC and shall be bound by the Principles of Natural Justice. Section 19(2) provides that subject to the provisions of the Act, the Tribunal shall have powers to regulate its own procedure. Section 19(3) mentions that the Tribunal shall not be bound by the rules of evidence contained in the Evidence Act, 1872. While discharging functions under Section 19(4), besides summoning, enforcing attendance, examining persons on oath, requiring discovery and production of documents, receiving evidence on oath, the NGT also has powers to review its decision, to pass interim orders as well as pass cease and desist orders. Section

20 says that while adjudicating issues, the Tribunal shall apply the environmental principles, namely, sustainable development principles, precautionary principles and polluter pays principle. Under Section 25, the Tribunal can execute its order/decision as a decree of the Civil Court and for that purpose shall have all the powers of a Civil Court. Section 29 bars the jurisdiction of the Civil Court to entertain all environmental matters covered by the Tribunal. Under Section 33, the NGT Act has an overriding effect over other laws. [Para 16.1][35-B-H; 36-A-B]

4.2 While on the statutory provisions, it is seen that the Central Government has framed the National Green Tribunal (Practice & Procedure) Rules, 2011. The said Rules make it clear that the NGT has been given wide discretionary powers to secure the ends of justice. This power is coupled with the duty to be exercised for achieving the objectives. The intention understandably being to preserve and protect the environment and the matters connected thereto. By choosing to employ a phrase of wide import, i.e. secure the ends of justice, the legislature has nudged towards a liberal interpretation. Securing justice is a term of wide amplitude and does not simply mean adjudicating disputes between two rival entities. It also encompasses inter alia, advancing causes of environmental rights, granting compensation to victims of calamities, creating schemes for giving effect to the environmental principles and even hauling up authorities for inaction, when need be. Moreover, unlike the civil courts which cannot travel beyond the relief sought by the parties, the NGT is conferred with power of moulding any relief. The provisions show that the NGT is vested with the widest power to appropriate relief as may be justified in the facts and circumstances of the case, even though such relief may not be specifically prayed for by the parties. [Paras 16.2, 16.3, 16.4, 16.5][36-B-C, D-G]

4.3 Another distinguishing feature of the environmental forum is on the aspect of locus standi which was made as wide as is available to the High Courts and the Supreme Court. Thus, any person or organization who may be interested in the subject matter is permitted to approach the NGT. The provisions of the NGT Act and the NGT Rules demonstrate that myriad roles are to be discharged by the NGT, as was encapsulated in the Law Commission Report, the Preamble and the Statement of Objects and Reasons. This is also forthcoming from the international obligation and commitment by India to implement the decision taken at the Stockholm and the Rio De Janeiro Conventions towards protection of the environmental rights under Article 21 of the Constitution. [Paras 16.6, 16.7][36-G-H, 37-A-B]

5. NON-ADJUDICATORY ROLES OF NGT

5.1 As can be seen, the Parliament intended to confer wide jurisdiction on the NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by the High Courts under Article 226 of the Constitution or by the Supreme Court under Article 32 of the Constitution. The Tribunal is also expected to proceed with such matters with the understanding that environment and environmental principles are part of Article 21 of the Constitution.[Para 17.1][37-B-D] Vellore Citizens’ Welfare Forum v. UOI (1996) 5 SCC

647 : [1996] 5 Suppl. SCR 241 – relied on.

5.2 The Schedule I of the NGT Act is concerned with implementation of few environmental related enactments such as the Water Act, the Air Act, the Environment Act, the Forest Conservation Act etc. As one looks at these enactments, an expanded role for the NGT is clearly discernible. The activities of the NGT are not only geared towards the protection of the environment but also to ensure that the developments do not cause serious and irreparable damage to the ecology and the environment. These would suggest a broad canvas for the NGT Act as also its creation. [Para 17.2][37-D-F]

5.3 For the environmental forum, tasked with implementation of the statutes mentioned in Schedule I of the NGT Act, the concept of lis, would obviously be beyond the usual understanding in civil cases where there is a party (whether private or government) disturbing the environment and the other one (could be an individual, a body or the government itself), who has concern for the protection of environment. Therefore, the NGT is primarily concerned with protection of the environment and also preservation of the natural resources. As the specialized forum, the NGT would be expected to take preventive action, besides settling and adjudicating disputes and pass orders on all environment related questions. The NGT is not just an adjudicatory body but has to perform wider functions in the nature of prevention, remedy and amelioration. [Paras 17.3, 17.4][37-F-G; 38-A]

5.4 The NGT is empowered to carry out restitutive exercise for compensating persons adversely affected by environmental events. The larger discourse which informs such functions is related to distributive and corrective justice. Even in the absence of harm inflicted by human agency, in a situation of a natural calamity, the Tribunal will be required to devise a plan for alleviating damage. An inquisitorial function is also available for the Tribunal, within and without adversarial significance. Importantly, many of these functions do not require an active “dispute”, but the formulation of decisions. [Para 18][38-D-F] Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India (2012) 8 SCC 326 : [2012] 12 SCR 947 – relied on.

6. EXERCISE OF SUO MOTU POWER BY NGT

The specialized tribunal’s exercise of suo motu powers is somewhat distinct from those exercised by the constitutional Courts. The Supreme Court and High Courts can foray into any issues under their constitutional mandate but the NGT cannot naturally travel beyond its environmental domain in reference to the scheduled enactments. However, as long as the sphere of action is not breached, the NGT’s powers must be understood to be of the widest amplitude. From the very inception, the role of the NGT was not simply adjudicatory in the nature of a lis but to perform equally vital roles which are preventative, ameliorative or remedial in nature. The functional capacity of the NGT was intended to leverage wide powers to do full justice in its environmental mandate. [Paras 20, 21.6][39-F-H; 41-F-G] Mantri Techzone (P) Ltd. v. Forward Foundation (2019)

18 SCC 494; Rajeev Hitendra Pathak v. Achyut Kashinath (2011) 9 SCC 541 : [2011] 10 SCR 513; Rajeev Suri v. DDA 2021 SCC Online SC 7; Andhra Pradesh Pollution Control Board v. Prof. M. V. Nayudu (Retd.) and Ors. (1999) 2 SCC 718 : [1999] 1 SCR

235 – relied on.

7. UNIQUENESS OF NGT VIS-A-VIS OTHER TRIBUNALS While there are many tribunals functioning within their specified domains, variances do exist in the manner in which they are designed to function. The statutory Tribunals were categorized to fall under four subheads; Administrative Tribunals under Article 323A; Tribunals under Article 323B; Specialized sector Tribunals and most prominently; Tribunals to safeguard rights under Article

21. The duties of NGT brings it within the ambit of the fourth category, creating a compelling proposition for wielding much broader powers as delineated by the statute. The ideal was to create a fairly proactive and responsive Institution which could step into varying roles, as the situation demanded. During the course of its functioning, the NGT has been recognized as one of the most progressive Tribunals in the world. This jurisprudential leap has allowed our country to enter a rather exclusive group of nations which have set up such institutions with broad powers. [Para 22.1, 22.2, 22.3][41-G-H; 42-A-C; 43-B-C]

State of Meghalaya v. All Dimasa Students Union (2019)

8 SCC 177 : [2019] 8 SCR 297 – relied on.

8. THE SUI GENERIS ROLE OF NGT

8.1 The NGT was conceived as a specialized forum not only as a like substitute for a civil court but more importantly to take over all the environment related cases from the High Courts and the Supreme Court. Many of those cases transferred to the NGT, emanated in the superior courts and it would be appropriate thus to assume that similar power to initiate suo motu proceedings should also be available with the NGT. [Para 24.4][44-G-H; 45-A]

Paramjit Kaur v. State of Punjab (1999) 2 SCC 131 : [1998] 1 Suppl. SCR 538; DG NHAI v. Aam Aadmi Lokmanch 2020 SCC Online SC 572 – relied on.

8.2 The NGT is a Tribunal with sui generis characteristic, with the special and all-encompassing jurisdiction to protect the environment. Besides its adjudicatory role as an appellate authority, it is also conferred with the responsibility to discharge role of supervisory body and to decide substantial questions relating to the environment. The necessity of having a specialized body, with the expertise to handle multi-dimensional environmental issues allows for an all-encompassing framework for environmental justice. The technical expertise that may be required to address evolving environmental concerns would definitely require a flexible institutional mechanism for its effective exercise. [Para 24.5][45-B-C]

9. AUTHORITY WITH SELF-ACTIVATING CAPABILITY

9.1 Given the multifarious role envisaged for the NGT and the purposive interpretation which ought to be given to the statutory provisions, it would be fitting to regard the NGT as having the mechanism to set in motion all necessary functions within its domain and this, should necessarily clothe it with the authority to take suo motu cognizance of matters, for effective discharge of its mandate. Section 14(1) of the NGT Act deals with jurisdiction, and the jurisdictional provision conspicuously omits to specify that an application is necessary to trigger the NGT into action. In situations where the three prerequisites of Section 14(1) i.e., Civil cases; involvement of substantial question of environment; and implementation of the enactments in Schedule I are satisfied, the jurisdiction and power of the NGT gets activated. On these material aspects, the NGT is not required to be triggered into action by an aggrieved or interested party alone. It would therefore be logical to conclude that the exercise of power by the NGT is not circumscribed by receipt of application. When substantial questions relating to the environment arise and the issue is civil in nature and those relate to the enactments in Schedule I of the Act, the NGT even in the absence of an application, can self-ignite action either towards amelioration or towards prevention of harm. [Paras 25.1, 25.3][45-D-E; 46-B-D]

9.2 Section 14(1) exists as a standalone feature, not constricted by the operational mechanism of the subsequent subsections. The sub Section (2) of Section 14 functions as a corollary and comes into play when a dispute arises from the questions referred to in Section 14(1). Likewise sub Section (3) thereafter, refers to the period of limitation concerning applications, when they are addressed to the NGT. Where adjudication is involved, the adjudicatory function under Section 14(2) comes into play. When it is a case warranting NGT’s intervention, or may be a situation calling for decisions to meet certain exigencies, the functions under Section 14(1) can be undertaken and those may not involve any formal application or an adjudicatory process. However, the later provisions may not work in similar fashion. Therefore, care must be taken to ensure unrestricted discharge of the responsibilities under Section 14(1) and that wide arena of NGT’s functioning. [Para 25.4][46-D-G]

9.3 The other pertinent provisions relating to, inter-alia, jurisdiction, interim orders, payment of compensation and review, do not require any application or appeal, for the NGT to pass necessary orders. These crucial powers are expected to be exercised by the NGT, would logically suggest that the action/orders of the NGT need not always involve any application or appeal. To hold otherwise would not only reduce its effectiveness but would also defeat the legal mandate given to the forum. It may also be relevant to bear in mind that while dealing with contested cases, the NGT is required to pass “award” and “order” and the statute repeatedly uses the word “decision”. Therefore, it is appropriate to correlate the word “decision” to the NGT, in its non-adversarial or inquisitorial role, as was suggested by the Law Commission and recognized in DG, NHAI. [Paras 25.5, 25.6][46-G-H; 47-B]

9.4 The duty to safeguard Article 21 rights cannot stand on a narrow compass of interpretation. Procedural provisions must be allowed to fall in step with the substantive rights that are invoked in the environmental domain, in larger public interest. The specialized forum is bestowed with the responsibility to ensure protection of the environment. To be effective in its domain, we need to ascribe to the NGT a public responsibility to initiate action when required, to protect the substantive right of a clean environment and the procedural law should not be obstructive in its application. [Para 25.7][47-C-D]

State of Punjab & Anr. v. Shamlal Murari & Anr. (1976)

1 SCC 719 : [1976] 2 SCR 82 – relied on.

9.5 While discussing the NGT’s power and responsibility, it is essential to keep in mind the Principle 10 of the Rio Declaration which speaks of three fundamental rights i.e., access to information, access to public participation and access to justice, as key pillars of environmental governance. Access to justice, may however be curtailed by illiteracy, lack of mobility, poverty or even the lack of technical knowledge on the part of citizens. Another deterrence is the likelihood of polluters/violators being powerful entities with adequate wherewithal to skirt regulations. Thus, it may not always be feasible for individuals to knock on the doors of the Tribunal, and NGT in such exigencies must not be made dysfunctional. [Para 25.8][47-F-H]

10. THE PRECAUTIONARY PRINCIPLE

10.1 The origin of the Precautionary Principle itself is rooted as an institutional obligation, by holding them primarily responsible for the environmental concerns and remedies. Section

20 of the NGT Act which includes the term “decision”, in addition to “order” and “award”, also require the Tribunal to apply the ‘Precautionary Principle’ . [Paras 26.2 and 26.3][48-D-E]

10.2 The principle must apply in the widest amplitude to ensure that it is not only resorted to for adjudicatory purposes but also for other ‘decisions’ or ‘orders’ to governmental authorities or polluters, when they fail to “to anticipate, prevent and attack the causes of environmental degradation.” . Two aspects must therefore be emphasized i.e. that the Tribunal is itself required to carry out preventive and protective measures, as well as hold governmental and private authorities accountable for failing to uphold environmental interests. Thus, a narrow interpretation for NGT’s powers should be eschewed to adopt one which allows for full flow of the forum’s power within the environmental domain. [Para 26.4][48-F-G; 49-A-B]

10.3 It is an important legal onus on the Tribunal to act with promptitude to deal with environmental exigencies. The responsibility is not just to resolve legal ambiguities but to arrive at a reasoned and fair result for environmental problems which are adversarial as well as non-adversarial. [Para 26.5][49-B-C]

11. ENVIRONMENTAL JUSTICE AND ENVIROMENTAL

EQUITY

11.1 The conceptual frameworks of environmental justice and equity should merit consideration vis-à-vis the NGT’s domain and how its functioning and decisions can have wide implications in socio-economic dimensions of people at large. The concept of environmental justice is a trifecta of distributive justice, procedural justice and justice as recognition. Environmental equity as a developing concept has focused on the disproportionate implications of environmental harms on the economically or socially marginalized groups. The concerns of human rights and environmental degradation overlap under this umbrella term, to highlight the human element, apart from economic and environmental ramifications. Environmental equity thus stands to ensure a balanced distribution of environmental risks as well as protections, including application of sustainable development principles. [Para 27.1][49-E-G]

11.2 When substantive justice is elusive for a large segment, disengaging with substantive rights at the very altar, for a perceived procedural lacuna, would surely bring in a process, which furthers inequality, both economic and social. An “equal footing” conception may not therefore be feasible to adequately address the asymmetrical relationship between the polluters and those affected by their actions. Instead, a recognition of the historical experience of marginalized classes of persons while accessing and effectively using the legal system, will allow for necessary appreciation of social realities and balancing the arm of justice. [Para 27.3][50-F-G]

12. ENVIRONMENTAL JURISPRUDENCE IN INDIA

12.1 By expanding the scope of Articles 21, 32, 48A, 51A(g), this Court has guaranteed the right to a pollution free environment for a holistic existence. Most crucially, the expansion of Right to Life under Article 21 by this Court has become a touchstone to determine many environmental concerns. Adopting international principles and moulding them to Indian realities also became a focal concern, given the lacunae in regimes which may be exploited by those who may not have much concern for environmental degradation. Creation of the ‘Absolute Liability Principle’ by this Court is a well recognized testament for this. It would thus be appropriate to state that much of the principles, institutions and mechanisms in this sphere have been created, on account of this Court’s initiative. [Paras 28.2, 28.3][52-A-B, C-D]

12.2 The Supreme Court adopted the role of an “amicus environment” by threading together human rights and environmental concerns, resultingly developing a sui generis environmental discourse. There were both procedural and substantive innovations made, by entertaining PIL petitions, seeking remedies, including guidelines and directions in the absence of legislation. Many of the landmark cases which hold the fort to this day, were in recognition of the ‘at risk’ nature of some populations. The creation of the NGT itself was due in large part to the need expressed by this Court for such a forum.[Para 28.4][52-F; 53-A-B]

12.3 Environmental jurisprudence in India has been intrinsic to advancing a democratic, welfare oriented legal regime. Issues affecting the ecology and the environment must have a broad perspective and should have a society centric approach. Furthermore, the very nature of ecological and environmental issues has the propensity for rapid deterioration. Many such sensitive matters, stood transferred to the NGT, with the aim that those would be dealt with expediently with the required technical expertise and legal sophistication. The proactiveness of the superior Court was surely expected to be seen in the Tribunal’s approach. [Para 28.6][53-E-F]

H.P. Bus Stand Management & Development Authority v. Central Empowered Committee (2021) 4 SCC 309 – relied on.

12.4 The NGT is the institutionalization of the developments made by this Court in the field of environment law. The progressive steps have allowed it to inherit a very broad conception of environmental concerns. Its functions therefore, must not be viewed in a cribbed manner, which detracts from the progress already made in the Indian environmental jurisprudence. [Para 28.8][55-A-B]

13.1 The NGT Act, when read as a whole, gives much leeway to the NGT to go beyond a mere adjudicatory role. The Parliament’s intention is clearly discernible to create a multifunctional body, with the capacity to provide redressal for environmental exigencies. Accordingly, the principles of environmental justice and environmental equity must be explicitly acknowledged as pivotal threads of the NGT’s fabric. The NGT must be seen as a sui generis institution and not unus multorum, and its special and exclusive role to foster public interest in the area of environmental domain delineated in the enactment of 2010 must necessarily receive legal recognition of this Court. [Para 30][55-C-E]

13.2 The environmental impacts on climate change are gaining increasing visibility in the shape of uncertain rains, species extinction, loss of natural habitat and so on. These also have the propensity to diminish fresh water resources, reduce agricultural yields and impact public health, particularly in the cities. The flooding and erosion in riverine and coastal areas are matters of serious concern. Governmental assessment of India’s increased vulnerability to such changes in the near future also exists with many countries declaring climate emergencies and many others being urged to follow suit. Therefore, the nature of ecological imbalance which is visible even in our own times may cascade, and the unforeseen injustice of the future may not be capable of being handled within the frontiers set forth today. The long term and very often irreparable environmental damage which are expected to be arrested by the NGT, urge this Court to advert to what is termed as the ‘Seventh Generation’ sustainability principle,or the ‘Great Law of the Iroquois’ (as it originates from the Iroquois Tribe) which requires all decision making to withstand for the benefit of seven generations down the line. [Paras 31, 32][55-E-G; 56-A-B]

13.3 It is vital for the well being of the nation and its people, to have a flexible mechanism to address all issues pertaining to environmental damage and resultant climate change so that a better environmental legacy is left behind, for our children, and the generations thereafter. In circumstances, where adverse environmental impact may be egregious, but the community affected is unable to effectively get the machinery into action, a forum created specifically to address such concerns should surely be expected to move with expediency, and of its own accord. The potentiality of disproportionate harm imposes a higher obligation on authorities to preserve rights which may be waylaid due to such restrictive access. The “global impacts of climate change will fall disproportionately on minority and low-income communities”. Thus, an affirmative role, beyond mere adjudication at the instance of applicant, is certainly required for serving the ends of environmental justice, as the statute itself requires of the NGT. [Paras 33, 34][56-B-E]

13.4 The NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks on its door. The forum itself has correctly identified the need for collective stratagem for addressing environmental concerns. Such a society centric approach must be allowed to work within the established safety valves of the principles of natural justice and appeal to the Supreme Court. The hands-off mode for the NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice. It would be procedural hairsplitting to argue (as it has been) that the NGT could act upon a letter being written to it, but learning about an environmental exigency through any other means cannot trigger the NGT into action. To endorse such an approach would surely be rendering the forum procedurally shackled or incapacitated. [Paras 35, 36][56-F-H; 57-A-B]

13.5 When the Registry of the NGT does indeed receive a communication or letter, including matters published in media, it may cause to initiate suo motu action by inviting attention of NGT to such matters in the form of office report. Such circumstances would however require a notice to be given to the sender of the communication or author of the news item, as the case may be, to assist the NGT in the course of hearing and to substantiate the factual matters. It must also be said that the exercise of suo motu jurisdiction does not mean eschewing with the principles of natural justice and fair play. In other words, the party likely to be affected should be afforded due opportunity to present their side, before suffering adverse orders. Institutions which are often addressing urgent concerns gain little from procedural nitpicking, which are unwarranted in the face of both the statutory spirit and the evolving nature of environmental degradation. Not merely should a procedure exist but it must be meaningfully effective to address such concerns. The role of such an institution cannot be mechanical or ornamental. An interpretation must be adopted which sustains the spirit of public good and not render the environmental watchdog of our country toothless and ineffective. [Paras 37, 39][57-B-D, E-G]

Standard Chartered v. Dharminder Bhohi (2013) 15 SCC 341 : [2013] 9 SCR 410; Transcore v. Union of India (2008) 1 SCC 125 : [2006] 9 Suppl. SCR 785; Techi Tagi Tara v. Rajendra Singh Bhandari & Ors. (2018) 11 SCC 734 : [2017] 12 SCR 956; Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd. (2019) 19 SCC 479; Sarah Mathew v. Institute of Cardio Vascular Diseases (2014) 2 SCC 62 : [2013] 12 SCR 674; New India Assurance Co. Ltd. v. Nusli Neville Wadia (2008) 3 SCC 279 : [2007] 13 SCR 598; M.C. Mehta v. UOI (1997) 2 SCC 353 : [1996] 10 Suppl. SCR 973; S. Jagannathan v. Union of India (1997) 2 SCC 87 : [1996] 9 Suppl. SCR 848; Karnataka Industrial Areas Development Board v. C Kenchappa and Ors. (2006) 6 SCC 371 : [2006] 2 Suppl. SCR 362; Rural Litigation And Entitlement Kendra & Ors v. State Of U. P. & Ors AIR 1985 SC 652 : [1985] 3 SCR 169; Charan Lal Sahu v. Union of India (1990) 1 SCC 613 : [1989] 2 Suppl. SCR 597; Virender Gaur v. State of Haryana (1995) 2 SCC 577 : [1994] 6 Suppl. SCR 78; Subhash Kumar v. State of Bihar (1991) 1 SCC 74; M.C. Mehta v. Union of India (1987) 1 SCC 395 : [1987] 1 SCR 819; M.C. Mehta v. Union of India (1986) 2 SCC 176 : [1986] 1 SCR 312; Indian Council for EnvironmentalLegal Action v. Union of India (1996) 3 SCC 212 : [1996] 2 SCR 503; A.P. Pollution Control Board v. M.V. Nayudu (1999) 2 SCC 718 : [1999] 1 SCR 235; A.P. Pollution Control Board II v. M.V. Nayudu (2001) 2 SCC

62 : [2000] 5 Suppl. SCR 249 – referred to.