Tamil Nadu Pollution Control Board vs Sterlite Industries (I) Ltd. & Ors.

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 – 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 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 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) 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 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 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 NGT inter alia against the order of refusal of consent to operate 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 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 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 appellate tribunal has to act strictly within the domain prescribed by statute. It is obvious that an appeal would lie from an order or decision of the appellate authority under Section 28 of the Water Act to the NGT only under Section 33B(a) of the Water Act read with Section 16(a) of the NGT Act. Similarly, an appeal would lie from an order or decision of the appellate authority under Section

31 of the Air Act to the NGT only under Section 31B of the Air Act read with Section 16(f) of the NGT Act. Obviously, since no order or decision had been made by the appellate authority under either the Water Act or the Air Act, any direct appeal against an original order to the NGT would be incompetent. NGT’s jurisdiction being strictly circumscribed by Section 33B of the Water Act, read with Section 31B of the Air Act, read with Section 16(a) and (f) of the NGT Act, would make it clear that it is only orders or decisions of the appellate authority that are appealable, and not original orders. On the facts of the present case, it is clear that an appeal was pending before the appellate authority when the NGT set aside the original order dated 09.04.2018. This being the case, the NGT’s order being clearly outside its statutory powers conferred by the Water Act, the Air Act, and the NGT Act, would be an order passed without jurisdiction. [Para 31][820-B-F]

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.

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 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 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 Act read with Section 16(c) of the NGT Act make it clear that directions issued under Section 33A of the Water Act are appealable to the NGT, directions issued under Section 31A of the Air Act are not so appealable. In fact, the statutory scheme is that directions given under Section 31A of the Air Act are not appealable. This being the case, all the aforesaid orders, being composite orders issued under both the Water Act and the Air Act, it will not be possible to split the aforesaid orders and say that so far as they affect water pollution, they are appealable to the NGT, but so far as they affect air pollution, a suit or a writ petition would lie against such orders. Respondent’s argument that these orders being substantially relatable to the Water Act would, therefore, not hold, as such orders are composite orders made both under the Water Act and the Air Act. Equally disingenuous is the reference to Section 14 of the NGT Act which only refers to the original jurisdiction of the NGT and not to its appellate jurisdiction. Also, to state generally that the subject matter of environment lies with the NGT, is an argument of despair that must be dismissed, 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 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, the Water Act, or the NGT Act have been brought into force on the same date. Whereas the identical power to give directions by the Board under the Water Act is appealable to the NGT, the same power to give directions by the Board under the Air Act is not so appealable. The absence of any mention of Section 31A in Section 31B of the Air Act, given the statutory scheme as aforesaid, makes it clear that even this argument must be rejected. Also, “directions” that are issued under Section 31A of the Air Act are of a different quality from “orders” referred to in Section 31 of the same Act. Directions are issued in the exercise of powers and performance of functions under 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. [Para 35][822-C-H; 823-AD]

5. 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, 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 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 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 : [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]

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 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 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 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 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, a conjoint reading of Section 14 and Section 29 of the NGT Act must be contrasted with a conjoint reading of Section 14 and Section 28 of the Administrative Tribunals Act, 1985. 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 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 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 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

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 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.

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 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 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]

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 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 [1965] 1 SCR 413 – referred to.