Please note that the contents are typed from prescribed books as cited, this
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UNIT 6 : NATIONAL GREEN TRIBUNAL
Establishment and Constitution
To improve decision-making on environmental matters, the
environmental courts were advocated in some popular judgments of the
Supreme Court, such as [Link] v Union of India (1986), Indian
Council for Enviro-Legal Action v UOI, [Link] Control Board v.
[Link].
The Law Commission in its 186th Report recommended repeal of the
National Environment Tribunal Act, 1995 and the National Environment
Appellate Authority Act, 1997.
To achieve the objective of Articles 21,47 and 51-A(g) of the constitution
of India by means of fair, fast and satisfactory procedure, the LCI in its
186th Report recommended for establishment of ‘Environment Court” in
each state, consisting of judicial and scientific experts in the field of
environment for dealing with environmental disputes beside having
appellate jurisdiction in respect of appeals under the various pollution
control laws, emphasising on Stockholm Declaration and the Rio
Conference of 1992.
REMEDIES UNDER THE NATIONAL GREEN TRIBUNAL ACT,
20101
The National Green Tribunal Act (NGT) has been established to deal
mostly with appeals from the decisions of agencies appointed under
various environmental laws, such as Water Act, Forest Conservation Act,
1980, Air Act, EPA, PLIA and Biological Diversity Act 2002, appended
to the NGT Act 2010.
Effective and expeditious disposal of cases relating to environment
protection and conservation of forests and other natural resources,
enforcement of any legal right relating to environment, and provision for
relief and compensation for damage to persons and property are the aims
of the NGT Act 2010.
1
[Link], ENVIRONMENTAL LAW BOOK, PAGE.28.
NGT consists of equal number of judicial member and expert members.
Persons of specialised knowledge and experience may be invited to help
in a particular case. Thus, coupled with the equality of both judicial and
expert members and assisted with the presence of the assessors whenever
such emergency arises, the tribunal gets the benefits of making informed
decisions on complex multidisciplinary issues generated by mega
projects.
The tribunal has jurisdiction over all civil cases which involves a
substantial question relating to environment, including the enforcement of
any legal right relating to environment (Sec.2 (1) (m). , that arises out of
the implementation of the scheduled enactments mentioned above.(six of
them)
What is substantial question relating to environment?
According to sec.2(1)(m), susbstantial question relating to environment
shall include an instance where,- (i) there is a direct violation of a specific
statutory environmental obligation by a person by which (A) the
community at large other than an individual or group of individual is
affected or likely to be affected by the environmental consequences; or
(B) the gravity of damage to the environment or property is substantial; or
(C) the damage to public health is broadly measurable;
(ii) the environmental consequences relate to a specific activity or a point
source of pollution.
{POINT SOURCE OF POLLUTION MEANS “any single identifiable
source of pollution from which pollutants are discharged, such as a pipe,
ditch, ship or factory smokestack}
The tribunal hears disputes and passes orders in more ways than one. It
renders relief and compensation to the victims of pollution and
environmental damage, orders restitution of property and decides on
restoration of the environment for such area or areas as it thinks fit. The
relief, compensation and restitution shall be in addition to the relief given
under Public Liability Insurance Act, 1991. A five year limitation is
specified for making application for the afore-said reliefs.
The statutory scheme envisages that the tribunal work also as an appellate
authority (section 16). The decision appealable under the Water Act
relates to an order of an appellate authority on the consent administration,
an order of the government under revision jurisdiction or a direction of
the board including closure of an industry or stoppage of electricity, water
or any other facility(water act section 28,29, 33A).
The NGT has jurisdiction to hear appeals against imposition of penalty
for arrears of cess under Water Cess Act 1977, (cess is tax or levy on
water consumed by persons carrying on certain industries and by local
authorities), decision on prior approval under Forest Conservation Act,
appellate orders made under the Air Act, directions issued under EPA and
against grant of refusal of clearance under Environmental Impact
Assessment Notification. Any determination of benefit sharing or any
order made by the National Biodiversity Authority or the State
Biodiversity Board can be adjudicated under appellate jurisdiction of the
NGT.
The NGT has the wide powers to determine relief and compensation as
specified under schedule II of the Act. It can determine relief and
compensation for the death, or injury, or disability to a person, or damage
to property, or the environment resulting from an accident, or adverse
impact of an activity, or operation, or process specified under any
scheduled enactment. {It can inter alia decide expenses incurred by the
Government or any local authority in providing relief, aid and
rehabilitation to the affected persons, compensation for environmental
degradation and restoration of the quality of environment, claims on
account of any harm, damage to environment including pollution of soil,
air, water, land and eco-systems, loss and destruction of any public
property, loss of business or employment or both, other claims arising out
of, or connected with, any activity of handling of hazardous substance}
Statutory duty
It is NGT’s duty to apply the principle of no fault(sec.17(3) in cases of
accidents, to apply the principles of sustainable development, the
precautionary principle and the polluter pays principle in passing any
order, decision, or award(sec.20) i.e.(Application of International
environmental law principle).
No civil court can entertain appeal, which the tribunal is empowered to
determine.
The period of limitation for approaching is 30 days.
Locus standi
Different from the opportunities for appeal against action or inaction
under the scheduled laws, the standing to sue for relief, for compensation
and for settlement of other disputes (sec. 18(2) has a wider ambit. It
extends to the person injured, owner or his legal agent or representative
of damaged property, legal representatives of the deceased, ‘any person
aggrieved’ including any representative body or organisation, and a state
instrumentality established under the EPA or any other law.
It is mentioned that representative application is allowed. The definition
of ‘person’ among other things includes ‘an association of persons,
whether incorporated or not’ or ‘every artificial juridical person’. (sec.2
(1)(j)(v) and (viii).
Moreover, the, the words ‘any person, including representative body or
organisation’ as mentioned in the act ,(sec.18(2) (e) render only an
inclusive meaning. The concept of ‘person’ can be interpreted to be of
wider dimensions. Needless to say that locus standi also may become
wider.
Appeal from NGT
Appeals from the Green Tribunal lies only to the Supreme Court.
(sec.23).
One cannot deny the fact that the institution of the NGT opens a new era
of environmental justice with specialised tribunal, with both original and
appellate jurisdiction related to environmental laws, with the potentiality
of expeditious disposal and enforcement.
Will it be easy for an aggrieved person residing in a faraway place to
make use of the provisions of the NGT mechanism though, now, there are
circuit benches in almost all the states?
It is often alleged that environmental laws are respected more in violation
than in observance while the government officials side with the industry
and thus frustrate measures envisaged by the laws. There can be real
doubts whether ‘substantial questions relating to the environment
’({sec.2 clause 2(1)(m).}limits or extends, the jurisdiction of the Green
Tribunal.
Recently, the Supreme court said that it does not extend to the statutory
mandate for appointment of experts to the State Pollution Control Board
(SPCB)[Techi Tagi Tara v Rajendra singh BHANDARI, 2017 SC).
The Tribunal exercises jurisdiction over all civil cases and enforces ‘any
legal right to environment.(sec.14(1). Legal right to environment are both
community oriented and individual specific. They do not override the
right to a healthy environment under the Constitution.
Any restrictive interpretation of ‘substantial question relating to
environment’ loses its significance in this respect.
To allow flexibility, section 19 provides that the technicalities of the CPC
shall not restrain the working of the Tribunal which would rather be
guided by the principles of natural justice whereas section 22 provides
that an appeal against the decision of the Tribunal would lie straight to
the Supreme Court of India.
Case Law2
Techi Tagi Tara v Rajendra Sing Bhandari, 2017,
Jurisdiction of NGT in cases where a ‘substantial question relating to
environment’ under sec.2 (1) (m) is involved came to be examined
recently in the present case.
Invoking the provision, tribunal became enthusiastic and directed all state
governments to reconsider the appointment as the tribunal found that the
chairperson, secretaries or members of SPCBs did not have the necessary
expertise or qualifications as laid down in the Water and Air Acts.
The Supreme court made a combined reading of the provisions of NGT
Act 2010 on the settlement of disputes, award of relief, compensation and
restitution and on the definition of ‘substantial question relating to
environment’ and then concluded that the NGT had no such jurisdiction
to issue the impugned direction. A substantial question relating to
environment must arise in a dispute capable of being settled by the NGT.
A dispute on appointments and nominations to the boards is not one to be
solved by the tribunal. The court observed that the appointment of the
chairperson and members of the State Pollution Control Board (SPCBs)
cannot be classified in any circumstance as a substantial question relating
to the environment though it could be a substantial question relating to
their appointment. Moreover their appointment is not a dispute as one
would normally understand it. Such disputes can be solved by the
constitutional courts in exercise of writ jurisdiction.
2
[Link],ENVIRONMENTAL LAW BOOK, PAGE 273.
The court warned that unless corrective measures are taken at the earliest,
the state governments should not be surprised if petitions are filed for the
issuance of a writ of quo warranto in respect of the appointment of the
chairperson and members of the SPCBs.
The court explained:
“The failure of the state government to appoint professional and
experienced persons to key positions in the SPCBs or the failure to
appoint any person at all might incidentally result in an ineffective
implementation of the Water Act and the Air Act, but this cannot be
classified as a primary dispute over which the NGT would have
jurisdiction. Such a failure might be of a statutory obligation over which,
in the present context and not universally, only a constitutional court
would have jurisdiction and not a statutory body like the NGT. While we
appreciate the anxiety of the NGT to preserve and protect the
environment as a part of its statutory functions, we cannot extend these
concepts to the extent of enabling the NGT to consider who should be
appointed as a Chairperson or a member of any SPCB or who should not
be appointed.”
According to [Link] KRISHNAN, Limiting the concept of
substantial question relating to environment is tantamount to restricting
the domain of expeditious disposal of cases arising from the laws
scheduled to the NGT Act 2010. NGT is designed to be a potent and
efficacious alternative forum to decide all questions of protection and
improvement of environment. This fact is proved by the actions of the
states in executing quickly the directives of the tribunal. It is an inclusive
definition that defines the substantial question relating to the
environment. Instead of a narrow interpretation, the supreme court could
have given a purposive interpretation endorsing a jurisdiction of the NGT
with powers essential to disciplining the environmental agencies
including government in exercise of their powers to protect and improve
the environment.3
Best regards
[Link] Chostak, dated 13, April 2020, New Delhi.
3
[Link]. ENVIRONMENTAL LAW, BOOK. PAGE NO.273.
