Madhya Pradesh High Court Advocates Bar Association vs Union of India Case

Madhya Pradesh High Court Advocates Bar Association vs Union of India Case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



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[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 433_OF 2012
Madhya Pradesh High Court Advocates
Bar Association and Anr. Petitioner(s)
Versus
Union of India and Anr. Respondent(s)
J U D G M E N T
Hrishikesh Roy, J.
1. Through this writ petition filed under Article 32 of
the Constitution of India, the petitioners who are the
Madhya Pradesh High Court Advocates Bar Association and
the District Bar Association, both with their registered
offices at Jabalpur, have raised a challenge to the vires
of the National Green Tribunal Act, 2010 (hereinafter
referred to as “the NGT Act”), and pray for the following
reliefs: -
“(a) Issue an appropriate writ of certiorari or any
other writ of similar nature directing that the Bench
of National Green Tribunal be set up at all the
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places where the principal seat of High Court is
situated.
(b) Hold and declare that the proposed sitting up of
Bench of NGT at Bhopal is not constitutionally and/or
sustainable,
(c) Declare the provision of Section 14 r/w 22 of
the National Green Tribunal Act, as unconstitutional
insofar as they purport to exclude the writ
jurisdiction of High Court under Article 226/227 of
the Constitution of India.”
2. The issues to be considered in this writ petition
are:-
A.Whether the National Green Tribunal (hereinafter
referred to as “the NGT”) ousts the High Court’s
jurisdiction under Sections 14 & 22 of the NGT Act?
B.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?
C.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?
D.Whether Section 3 of the NGT Act is ultra vires to
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the Constitution as suffering from the vice of
excessive delegation?
3. We have heard Mr. Siddhartha R. Gupta, the learned
counsel for the petitioners. The Union of India is
represented by Mr. K.K. Venugopal, the learned Attorney
General for India together with Ms. Aishwarya Bhati,
learned Additional Solicitor General. The State of Madhya
Pradesh (respondent No. 2) is represented by Mr. Sunny
Choudhary, learned counsel.
Arguments on behalf of Petitioners
4.1 The petitioners, who are espousing the cause of the
Jabalpur based lawyers practicing before the High Court
and the Civil Courts, contend that the Bhopal Bench of
the NGT is located arbitrarily and the decision is
inconsistent with the direction in S.P. Sampath Kumar vs.
Union of India1 where this Court observed that for
ensuring the efficacy and efficiency of any Tribunal, its
seat should be at a place where the principal seat of the
High Court is situated. As the Bench of the NGT is set
1 (1987) 1 SCC 124, Para. 8.
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up at Bhopal for catering to the environment related
cases covering three States i.e., Madhya Pradesh,
Chhattisgarh, and Rajasthan, the petitioners pray for
setting up the Benches of the NGT at the principal seats
of the High Courts in each of the three States and for
their State of MP, the petitioners want it at Jabalpur.
4.2 According to the petitioners, environmental
litigation is predominantly related to local factors and
therefore, an easily accessible and available forum is
necessary to be constituted, without requiring the
litigants to move to distant places to secure
environmental justice.
4.3 The petitioners argue that through incorporation of
Section 14 and Section 22 in the NGT Act, the jurisdiction
and the role of the High Courts under Article 226/227 is
extinguished. This, therefore, has impacted the basic
feature of the Constitution and as such the provisions
of Section 14 read with Section 22 of the NGT Act should
be struck down to the extent they divest the High Courts
of their power as a superior Court.
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4.4 Adverting to the power of the Central Government to
identify the ordinary place of sitting of the NGT and
specifying their respective territorial jurisdiction
under Section 4(3) of the NGT Act, the petitioners argue
that such power being unguided, suffers from the vice of
excessive delegation. Laying stress on location of the
NGT Bench at Jabalpur where adequate infrastructure is
available, the petitioners question the choice of the
seat at Bhopal instead of at Jabalpur, which is the
principal seat of the Madhya Pradesh High Court.
According to the petitioners, this impacts the right of
the litigant in the field of environmental law, to access
justice.
4.5 The remedy of appeal to the Supreme Court under
Section 22 of the NGT Act in the petitioner’s perception,
practically amounts to denial of access to justice for
the economically vulnerable litigants and this is
contended to defeat the inherent objective of access to
justice by bypassing the conveniently accessible remedy
before the High Courts under Article 226 and 227 of the
Constitution of India.
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4.6 The petitioners next argue that the NGT does not
enjoy the authority and autonomy available to judges in
the High Courts and bearing in mind the conditions of
service, tenure, and other aspects of the judicial and
non-judicial members of the NGT, according to the
petitioners, it is neither an effective nor an
appropriate substitute of the High Courts, which were
entertaining environmental disputes through respective
Green Benches, prior to the enactment of the NGT Act.
More specifically, the process of appointment, service
conditions and other related provisions for appointment
of presiding members of the NGT are not at par with the
judges of the High Court and therefore, the NGT can only
play a “supplemental or subservient role instead of being
an effective and appropriate substitute for the High
Courts.”
Arguments on behalf of Respondent
5.1 Per contra, Mr. K K Venugopal, the learned Attorney
General leading the arguments for the respondent’s
project that the NGT was set up because of the prodding
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and recommendations made by the Supreme Court while
dealing with environmental cases and the Parliament was
repeatedly entreated by the Court to create specialized
environmental court with qualified judges and technical
experts on the Bench. The learned Attorney General refers
to the exhortations made by the Supreme Court in M.C.
Mehta v. Union of India2, Indian Council for Enviro-Legal
Action v. Union of India3, Vellore Citizens' Welfare Forum
v. Union of India4, A.P. Pollution Control Board v. Prof.
M.V. Nayudu5 and A.P. Pollution Control Board II v. Prof.
M.V. Nayudu6 and their acceptance by the Parliament,
following the 186th Report of the Law Commission which
lead to the establishment of environmental courts. The
Law Commission suggested in its Report that appeals from
the environmental courts should lie before the Supreme
Court. It is in this backdrop the learned AG submits
that the NGT Act was enacted and the environmental cases
which were hitherto heard by green benches in the High
2 (1986) 2 SCC 176, Para. 22.
3 (1996) 3 SCC 212, Para. 6.
4 (1996) 5 SCC 647, Para. 25.
5 (1999) 2 SCC 718, Para. 23, 42, 47, 48, 52.
6 (2001) 2 SCC 62, Para. 73.
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Court, were ordered to be transferred to the NGT by the
Supreme Court itself as the same would help in rendering
expeditious and specialized justice in the field of
environment.
5.2 Insofar as the creation and setting up of the NGT and
the location of their Benches, the learned AG submits
that this was done under the active supervision of the
Supreme Court and only after the proposed places of
sitting recommended by the Central Government received
the concurrence of this Court, the concerned Benches and
their place of sitting was notified by the Central
Government. It is therefore argued that the related
notification had the imprimatur of the Supreme Court.
The respondents point out that the Supreme Court
monitored and oversaw the implementation of the NGT Act
and setting up of its Benches in Union of India Vs. Vimal
Bhai (SLP(C) No. 12065 of 2009) and the various orders
passed on 19.9.2011, 6.12.2012 and 15.3.2013 by this
Court would reflect that individual Bench of the NGT was
set up to cater to multiple States and the location so
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chosen for the NGT at Bhopal, also had the approval of
the Supreme Court.
5.3 The learned Attorney General next contends that the
remedy before the High Court for a litigant under Article
226 and 227 continues to be available notwithstanding the
enactment of the NGT Act and the provision for appeal to
the Supreme Court under Section 22 of the NGT Act. It is
specifically submitted by the learned AG that the High
Court’s power of judicial review remains unaffected by
the NGT Act as it is a part of the basic structure of our
constitution, as was declared in L Chandra Kumar v. UOI7.
BACKDROP OF THE NATIONAL GREEN TRIBUNAL
6. The precursor to the NGT Act was the 186th Report of
the Law Commission of India dated 29.3.2003 which came
after the Supreme Court repeatedly urged Parliament
through various judgments to establish specialized
environmental courts, with qualified judges and technical
experts on the bench. The Supreme Court also put forward
that there should be direct appeals to the Supreme Court
7 1997 (3) SCC 261.
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from such environmental courts. The Law Commission then
recommended creation of a specialized court to deal with
the environmental issues. The Law Commission expressed
the view that it is not convenient for the High Courts
and the Supreme Court to make local inquiries or to
receive evidence. Moreover, the superior Courts will not
have access to expert environmental scientists on
permanent basis to assist them. The NGT was conceived as
a complementary specialized forum to deal with all multidisciplinary environmental issues, both as original as
well as an appellate authority. The specialized forum was
also made free from the rules of evidence applicable to
normal courts and was permitted to lay down its own
procedure to entertain oral and documentary evidence,
consult experts etc., with specific mandate to observe
the principles of natural justice.
7. In order to understand the objective of the NGT Act,
we may usefully extract the following from the Municipal
Corporation of Greater Mumbai vs. Ankita Sinha & Ors.8
8 2021 SCC Online SC 897.
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where the following was stated by one of us (Justice
Hrishikesh Roy) for the 3 Judges Bench: -
“24 The Statement of Objects and Reasons of
the NGT Act will now require attention.
Paras 2,3,4,5 and 6 of the Statement of
Objects and Reasons being relevant are
extracted hereinbelow: -
“2. India is a party to the
decisions taken at the United
Nations Conference on the Human
Environment held at Stockholm in
June, 1972, in which India
participated, calling upon the
States to take appropriate steps
for the protection and improvement
of the human environment. The
United Nations Conference on
Environment and Development held at
Rio de Janeiro in June, 1992, in
which India participated, has also
called upon the States to provide
effective access to judicial and
administrative proceedings,
including redress and remedy, and
to develop National laws regarding
liability and compensation for the
victims of pollution and other
environmental damage.
3. The right to healthy environment
has been construed as a part of the
right to life under article 21 of
the Constitution in the judicial
pronouncement in India.
4.The National Environment Tribunal
Act, 1995 was enacted to provide
for strict liability for damages
arising out of any accident
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occurring while handling any
hazardous substance and for the
establishment of a National
Environmental Tribunal for
effective and expeditious disposal
of cases arising from such
accident, with a view to giving
relief and compensation for damages
to persons, property and the
environment. However, the
National Environment Tribunal,
which had a very limited mandate,
was not established. The National
Environment Appellate Authority
Act, 1997 was enacted to establish
the National Environment Appellate
Authority to hear appeals with
respect to restriction of areas in
which any industries, operations or
processes or class of industries,
operations or processes shall not
be carried out or shall be carried
out subject to certain safeguards
under the Environment (Protection)
Act, 1986. The National
Environment Appellate Authority has
a limited workload because of the
narrow scope of its jurisdiction.
5. Taking into account account the
large number of environmental cases
pending in higher courts and the
involvement of multidisciplinary
issues in such cases, the Supreme
Court requested the Law Commission
of India to consider the need for
constitution of specialized
environmental courts. Pursuant to
the same, the Law Commission has
recommended the setting up of
environmental courts having both
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original and appellate jurisdiction
relating to environmental laws.
6. In view of the foregoing
paragraphs, a need has been felt to
establish a specialized tribunal to
handle the multidisciplinary issues
involved in environmental cases.
Accordingly, it has been decided to
enact a law to provide for the
establishment of the National Green
Tribunal for effective and
expeditious disposal of civil cases
relating to environmental
protection and conservation of
forests and other natural resources
including enforcement of any legal
right relating to environment.”
25. A reading of the Statement of Objects
and Reasons 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 multidisciplinary 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.
26. 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.
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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”. An institution concerned
with a significant aspect of right to life
necessarily should be given the most liberal
construction.
27. 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.
28. 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
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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.
29. 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 multi-disciplinary issues
arising in environmental cases, were intended
to be addressed through the constitution of
the NGT.”
8. Explaining the purpose to constitute the specialized
court to deal with environmental issues, in Mantri
Techzone (P) Ltd. vs. Forward Foundation9, Justice S.
Abdul Nazeer writing for the three Judges Bench made the
following pertinent observation, on the status of the
NGT: -
“40. The Tribunal has been established
under a constitutional mandate provided
in Schedule VII List I Entry 13 of the
Constitution of India, to implement the
decision taken at the United Nations
Conference on Environment and
Development. The Tribunal is a
specialised judicial body for effective
and expeditious disposal of cases
relating to environmental protection and
conservation of forests and other
9. (2019) 18 SCC 494.
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natural resources including enforcement
of any legal right relating to the
environment. The right to healthy
environment has been construed as a part
of the right to life under Article 21 by
way of judicial pronouncements.
Therefore, the Tribunal has special
jurisdiction for enforcement of
environmental rights.”
9. The NGT is set up under the constitutional mandate
under Entry 13 List I of Schedule VII to enforce Article
21 in regard to the environment and the Tribunal was
conferred special jurisdiction for enforcement of
environmental rights. It thus appears that the role of
the NGT was not simply adjudicatory, but it also had the
equally vital role which is preventive, ameliorative, or
of the remedial category. The functional capacity of the
NGT was intended to leverage wide powers to do full
justice in the field of environment. The NGT came into
existence as a sui generis institution established for
the enforcement of environmental rights emanating from
Article 21 of the Constitution10.
10 2021 SCC OnLine 897, Para. 44, 98.
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10. After the NGT was set up, the Supreme Court
pertinently directed the transfer of environmental cases
pending before the High Courts to the NGT for expeditious
and specialized justice for all concerned. The Supreme
Court also actively oversaw the implementation of the Act
and creation of the NGT itself through various Orders11.
Those also pertained to, inter-alia, the location of the
NGT benches. In other words, the Supreme Court was not
only conscious of the location of the benches of the NGT
but also had given its imprimatur to the NGT’s creation
and other aspects.
11. With the above prefatory contexts in mind, we may
now look at the challenge.
ISSUE WISE DISCUSSION
A.Whether the NGT ousts the High Court’s jurisdiction
under Sections 14 & 22 of the NGT Act?
12. Insofar as the contention of the petitioners that
there is ouster of jurisdiction of the High Courts under
Article 226 and 227 of the Constitution because of
11 SLP (C) 12065 of 2009.
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Sections 14 & 22 of the NGT Act, it must be recalled that
in L. Chandra Kumar vs. Union of India [supra], it has
been categorically declared that the power of judicial
review under Articles 226, 227, and 32 are part of the
basic structure of our constitution and the same is
inviolable. The following pertinent opinion rendered by
the 7 Judges’ bench of this Court must be remembered on
this aspect: -
“78………We, therefore, hold that the power of
judicial review over legislative action
vested in the High Courts under Article 226
and in this Court under Article 32 of the
Constitution is an integral and essential
feature of the Constitution, constituting
part of its basic structure. Ordinarily,
therefore, the power of High Courts and the
Supreme Court to test the constitutional
validity of legislations can never be ousted
or excluded.
79. We also hold that the power vested in
the High Courts to exercise judicial
superintendence over the decisions of all
courts and tribunals within their respective
jurisdictions is also part of the basic
structure of the Constitution. This is
because a situation where the High Courts
are divested of all other judicial functions
apart from that of constitutional
interpretation, is equally to be avoided.”
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13. Apart from the clear enunciation on legal position
to the effect that the NGT is within the purview of
Article 226 and 227 jurisdiction of the High Courts, the
learned Attorney General on behalf of the Union of India
has also made submissions consistent with L. Chandra
Kumar [supra] and conceded the legal position.
14. It can further be noted that in terms of the above
ratio in L. Chandra Kumar [supra], 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, as per the test broadly laid down
in Whirlpool Corpn. Vs. Registrar of Trade Marks, Mumbai
and Others12;
“14. The power to issue prerogative writs
under Article 226 of the Constitution is
plenary in nature and is not limited by
any other provision of the Constitution.
This power can be exercised by the High
Court not only for issuing writs in the
nature of habeas corpus, mandamus,
12 (1998) 8 SCC 1.
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prohibition, quo warranto and certiorari
for the enforcement of any of the
Fundamental Rights contained in Part III
of the Constitution but also for “any
other purpose”.
15. Under Article 226 of the
Constitution, the High Court, having
regard to the facts of the case, has a
discretion to entertain or not to
entertain a writ petition. But the High
Court has imposed upon itself certain
restrictions one of which is that if an
effective and efficacious remedy is
available, the High Court would not
normally exercise its jurisdiction. But
the alternative remedy has been
consistently held by this Court not to
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the
enforcement of any of the Fundamental
Rights or where there has been a violation
of the principle of natural justice or
where the order or proceedings are wholly
without jurisdiction or the vires of an
Act is challenged. There is a plethora of
case-law on this point but to cut down
this circle of forensic whirlpool, we
would rely on some old decisions of the
evolutionary era of the constitutional
law as they still hold the field.”
15. It is also noteworthy that nothing contained in the
NGT Act either impliedly or explicitly, ousts the
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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.
B. 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?
16. The petitioners in pleading for a NGT Bench in
each state, place heavy reliance on S.P. Sampath [supra].
To appreciate this, the Court’s following observation
needs consideration in the context of administrative
tribunals: -
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“8. I may also add that if the Administrative
Tribunal is to be an equally effective and
efficacious substitution for the High Court on
the basis of which alone the impugned Act can be
sustained, there must be a permanent or if there
is not sufficient work, then a Circuit Bench of
the Administrative Tribunal at every place where
there is a seat of the High Court. I would,
therefore, direct the government to set up a
permanent Bench and if that is not feasible
having regard to the Vol. of work, then at least
a circuit Bench of the Administrative Tribunal
wherever there is a seat of the High Court, on
or before March 31, 1987. That would be necessary
if the provisions of the impugned Act are to be
sustained. So far as rest of the points dealt
with in the judgment of Ranganath Misra, J. are
concerned, I express my entire agreement with
the view taken by him.”
17. As is seen, Justice Bhagwati made the above
observation in the case where the Supreme Court was
concerned with the Central Administrative Tribunal [in
short, “CAT”] where the volume of litigation is
substantially higher. This is why the direction to
establish permanent benches or circuit benches in every
State is predicated on assessing feasibility by reference
to the volume of litigation. Here we must follow the
principle of proportionality. To underscore the issue,
the CAT have 17 Benches and 21 Circuit Benches as opposed
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to only five Benches of the NGT. The NGT caters to a
limited number of cases unlike the CAT, where the volume
of cases is substantially higher. As per the report13
tabled in Rajya Sabha by the Parliamentary Standing
Committee on Personnel, Public Grievances, Law and
Justice, the CAT have over 48,000 cases pending as on 6th
March, 2020.
18. While on this, we may also notice the data available
on the website of the National Green Tribunal14 which
reflects the pendency of cases before the NGT as on
28.02.2022: -
ZONE WISE Pendency as on
28/02/2022
Bench Pendency
Principal Bench
(Delhi)
621
SZB(Chennai) 517
CZB(Bhopal) 107
WZB(Pune) 694
EZB(Kolkata) 298
Total: 2237
13 100_2020_9_11.pdf (rajyasabha.nic.in)
14 National Green Tribunal
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19. As is apparent from the above chart 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. Therefore, the ratio in S.P.
Sampath [supra] does not aid the petitioners who want the
NGT Bench to be relocated from Bhopal to Jabalpur, where
the Madhya Pradesh High Court is located.
20. It is also worthy of attention that the total disposal
by all Benches of the NGT is 2799 cases during 12 months
i.e., March, 2021 to February, 2022. The pendency figure
for this period is 2237 only. The rate of disposal being
higher than the pendency, no major backlog issue is seen
before the NGT. The strikingly small 107 cases in the
NGT’s Bhopal Bench must also receive our due attention.
These data do not provide for a reasonable basis to
entertain a prayer for a NGT Bench at Jabalpur or for
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that matter, an individual NGT Bench in each of those
three States.
21. With the low case load, if the NGT Benches are set
up in all 28 States and 8 union territories as is
suggested by the petitioners, 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.
22. With the above answer to the first part of the issue
B, the second part becomes superfluous. However, since
earnest submission is made by the petitioner’s counsel,
the issue needs to be decided. 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 as per the dicta in S.P. Sampath [supra]. On this
aspect, the cited case is entirely inapplicable as 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
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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 to us that Bhopal is a sound locational
choice for the NGT which caters to the litigants from
three States.
23. 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. We see no justification to grant
such relief to the petitioners and the second segment of
issue B is accordingly answered against them.
C. 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?
Page 27 of 37
24. The petitioners have also pleaded that instead of
appeal to the Supreme Court under Section 22 from the
orders passed by the NGT, an appeal mechanism as a
matter of right should also be provided before the
concerned High Courts. According to them, appeal to
the Supreme Court is inadequate and unaffordable and
therefore inaccessible. On this aspect it needs to be
observed that even when a direct appeal to the Supreme
Court is provided by a statute15 against the decision
of a tribunal16, 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 Corporation17, are available
15 Inter alia, Electricity Act, 2003; Telecom Regulatory Authority of India
Act, 1997.
16 Inter alia, Armed Forces Tribunal under the Armed Forces Tribunal Act,
2007.
17 [1948] 1 KB 223.
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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.
25. 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 powers18.
26. 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
18 (2017) 7 SCC 221, Para. 36.
Page 29 of 37
rational justification is found for striking down
Section 22 of the Act which provides for a direct appeal
to the Supreme Court.
27. 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.
28. The issue of direct appeals to the Supreme Court,
or entertaining petitions under Article 136 to
challenge tribunal’s decision, was considered in the
case of R.K. Jain v. Union of India19. In paragraph 76
of the said judgment, this Court addressed similar
submission to the effect that appeal mechanism should
be provided from a tribunal’s decision, to a division
19 (1993) 4 SCC 119.
Page 30 of 37
bench of the High Court. The three Judges bench of this
Court, however, expressly refrained from issuing
direction for creation of appeal provisions to the
High Courts, which was perceived to be an impermissible
judicial function. So far, the legislature has not acted
on the recommendation of this Court but then that issue
is within the policy domain of the legislative wing of
the State.
29. The implication of the Supreme Court being
conceived as the first appellate forum was considered
in Rojer Mathew v. South Indian Bank Ltd.20, and in that
case the Union Government was directed to do a study on
the effect of direct appeals to the Supreme Court and
place the resultant report before Parliament. But even
in Rojer Mathew [supra], the Supreme Court had no
occasion to say that direct appeals to the Supreme
Court is constitutionally impermissible.
30. It must also be underscored that the ground raised
by the Petitioners about Supreme Court being
20 (2020) 6 SCC 1, Para. 218.
Page 31 of 37
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.
31. 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.
Consequently, the answer to both aspects of the
question C is answered in favour of the respondents.
D. Whether Section 3 of the NGT Act is ultra vires to
the Constitution as suffering from the vice of excessive
delegation?
Page 32 of 37
32. Adverting next to the argument of the petitioners
that Section 3 is a case of excessive delegation to the
Union Government. 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.
We are therefore of the opinion that Section 3 of the
NGT Act is not a case of excessive delegation.
33. The petitioners are seen to have founded their
contentions with considerable reliance on the decision
Page 33 of 37
in Madras Bar Association vs. Union of India and Anr.21
to argue that the NGT is neither accessible nor it is
independent in dealing with environmental cases. In the
relied case, this Court struck down certain provisions
of the National Tax Tribunal Act, 2005 (for short, ‘NTT
Act’) but this must be appreciated in the context of that
case. Moreover, one must not overlook the distinction
between the operation of the NTT Act vis-à-vis the NGT
Act. To be specific, the NTT Act provided that the NTT
would ordinarily sit at New Delhi. The NGT Act however
provides for the creation of benches across the country.
Additionally, the NTT was vested with the power of
adjudicating appeals arising from orders passed by the
Income Tax Appellate Tribunal on substantial questions
of law. This was a jurisdiction that the High Courts were
exercising under Article 227 in certain cases, and in that
context, it was found that the NTT was indirectly
impinging on the jurisdiction of the High Courts under
Article 227. The jurisdiction exercised by the NGT is
however distinct, and different, and not comparable. Also
21 (2014) 10 SCC 1.
Page 34 of 37
glaring was the fact that Union Government had the power
to transfer members of the NTT from one bench to another.
No such provision exists in the NGT Act. Besides, the NTT
was constituted only to determine substantial questions
of law and it was unclear how accountants and other
technical members with no legal training would deal with
the issues raised in such matters. Those troubling issues
do not arise in the NGT Act. One must also be cognizant
of the fact that the Selection Committee under Section 7
of the NTT Act was dominated by two secretaries of the
Government, as opposed to the Selection Committee for the
NGT under the Tribunal Reforms Act which clearly has
judicial dominance.
34. Taking into account all the striking distinctions
between the operation of the NGT Act and the NTT Act,
the petitioners’ reliance on the NTT judgment, which
was rendered in the context of the provisions of the
NTT Act, is found to be wholly misplaced.
35. Addressing next, the argument of the petitioners
that the NGT does not enjoy the same status and
Page 35 of 37
independence as the High Courts on account of the
conditions of service and tenure etc., it would be
appropriate to say that although in paragraph 33 of the
written submissions, the petitioners deal with specific
provisions of the Tribunal Reforms Act, 2021 and the
Rules framed, those were neither raised in the petition
nor any relief is claimed in reference to the Tribunal
Reforms Act. Conspicuously, those were also not argued
during the oral hearing. Therefore, we need not delve
into those aspects as the same is beyond the scope of
the instant proceeding.
36. It must also be borne in mind that the question of
validity of the Tribunal Reforms Act, is pending in
this Court in a batch of cases tagged with WP(C)
1018/2021 Madras Bar Association v. Union of India. Few
similar issues like the present have also been raised
in the pending cases where the Union of India has filed
counter affidavit indicating their stand. As those
issues are under consideration in the pending case, the
same is left to be decided in those matters.
Page 36 of 37
37. For all the aforesaid reasons, section 3 of the NGT
Act is found to be intra vires to the Constitution of
India. However, it is clarified that our conclusion is
based on the specific facts of this case, and we make
no comments on the issues which are sub-judice in the
WP(C) 1018/2021 Madras Bar Association v. Union of
India.
Conclusions
38. In consequence of the above analysis, our
conclusions are,
A. The National Green Tribunal under Section 14 & 22
of the NGT Act does not oust the High Court’s
jurisdiction under Article 226 & 227 as the same is
a part of the basic structure of the Constitution.
B.The remedy of direct appeal to the Supreme Court
under Section 22 of the NGT Act is intra vires the
Constitution of India.
C. Section 3 of the NGT Act is not a case of excessive
delegation of power to the Central Government.
D.The seat of the NGT benches can be located as per
Page 37 of 37
exigencies and it is not necessary to locate them in
every State. The prayer for relocating the Bhopal
NGT to Jabalpur is unmerited and is rejected.
39. With the foregoing conclusions, the Writ Petition is
found devoid of merit and is dismissed. The parties to
bear their own cost.
…………………………………………J.
 [K.M. JOSEPH]
…………………………………………J.
 [HRISHIKESH ROY]
NEW DELHI
MAY 18, 2022

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