NGT

Chhaya Bhardwaj
 Michael Asimow Five Models of Administrative
Adjudication
• Three phases of administrative adjudication
(i) Initial decision
(ii) Administrative reconsideration
(iii) Judicial review

Most countries around the world tend to invest most of their

adjudicatory resources in only one of the three phases.
Methodology for classifying admin
systems
• Combined-function agencies
• Separate tribunals
• Adversarial or inquisitorial procedure
• Judicial review
• Judicial review by generalised or specialized courts.
• The Article identifies five models in common use around the world
that involve different combinations of these variables. The United
States, for example, uses combined-function agencies, adversarial
procedure, and closed judicial review in generalist courts. On the
other hand, the United Kingdom employs an independent tribunal to
reconsider initial agency decisions. And France employs open judicial
review in a specialized court. Each of these models can deliver
accurate and efficient decisions while preserving fairness
There are four key variables.
• Is the adjudicating body a combined-function agency or a separate
tribunal? A combined-function agency combines investigation,
prosecution, initial decision-making, and reconsideration. A separate
tribunal conducts reconsideration but does not engage in
investigation or prosecution.
• Is the proceeding adversarial or inquisitorial?
• Is judicial review open or closed?
• Does a reviewing court have generalized jurisdiction or is it a
specialized administrative court?
Assessing the National Green
Tribunal - Armin and Sahu
• Criticizes the current government to cause ineffectiveness of the NGT.
• Before the NGT was enacted, some environmental disputes were
referred for settlement to the woefully ineffective National
Environment Appellate Authority (hereinafter referred to as ‘NEAA’).
This body was created by the Parliament in 1997.4 The NEAA Act
created a body that mainly dealt with environmental clearances5 ,
and was always under MoEF’s thumb. The Parliament of India,
recognizing the need for the speedy and expeditious disposal of
environmental cases, especially in light of the burden of pending
litigation6 , established the NGT in 2010, which has superseded NEAA.
 Characteristics of the NGT
• The NGT was first established with the Principal Bench in Delhi, later
followed by four zonal benches in Chennai, Pune, Bhopal and Kolkata.
The preamble of the Act declared that the NGT had been set up to carry
out, inter alia, the constitutional obligations under Article 21.

• Unlike the NEAA, the NGT was granted wide ranging powers allowing it to
adjudicate cases of protection of the environment, natural resources and
the legal rights of people being affected under a number of existing laws
such as the Water (Prevention and Control of Pollution) Act, 1974, the Air
(Prevention and Control of Pollution) Act, 1981, the wide-ranging
Environment Protection Act, 1986 and the Biological Diversity Act, 2002
• The NGT was envisaged by its enactors as a specialized environmental body,
consisting of judicial members as well as expert members, who have the necessary
proficiency to deal with issues of environmental importance. A retired Supreme
Court judge was appointed to lead the NGT as the Chairperson. The current
chairperson, Justice Swatanter Kumar, took over office from Justice Lokeshwar
Singh Panta on December 20, 2012.
• The NGT has been given enormous powers to deal with environmental litigation.
The provisions of the Act stipulate that efforts to seek judicial intervention for the
protection and improvement of environment will not be rejected on the grounds
that the problems concerned involve complex, scientific and technical questions
beyond the purview of the court. This gives cause for hope to environmental
advocates who are interested in filing Public Interest Litigations (hereinafter
referred to as ‘PILs’).
• the NGT, with only two judicial members, is an independent statutory
panel and consists of eight experts from the fields of physics,
chemistry, botany, zoology, engineering, environmental economics,
social sciences and forestry who help and advise judges on a regular
basis. The inclusion of different experts to deal with different aspects
of environmental problems will undoubtedly help the NGT to look
beyond the simple cost-benefit considerations of a particular project
and to serve the larger interests of environment and development
• The setting up of the NGT will help petitioners bring local
environmental problems to the notice of the judiciary at little cost,
while examining the environmental impacts of government decisions
Jurisdiction of the NGT
• Any person seeking relief and compensation for environmental damage involving
subjects in the legislations mentioned in Schedule I of the National Green Tribunal
Act, 2010 may approach the Tribunal.
• The statutes in Schedule I are:
[Link] Water (Prevention and Control of Pollution) Act, 1974;
[Link] Water (Prevention and Control of Pollution) Cess Act, 1977;
[Link] Forest (Conservation) Act, 1980;
[Link] Air (Prevention and Control of Pollution) Act, 1981;
[Link] Environment (Protection) Act, 1986;
[Link] Public Liability Insurance Act, 1991;
[Link] Biological Diversity Act, 2002.
• The Tribunal has jurisdiction over all civil cases involving a substantial question
relating to environment and the question. Additionally, any person aggrieved by
an order/direction of any of the Appellate Authorities under the legislations
mentioned above can also challenge them before the National Green Tribunal.
Bhopal Gas Peedith Mahila ... vs U.O.I. &
Ors on 9 August, 2012
• it can safely be concluded that the environmental issues and matters
covered under the NGT Act, Schedule 1 should be instituted and
litigated before the National Green Tribunal (for short ‘NGT’). Such
approach may be necessary to avoid likelihood of conflict of orders
between the High Courts and the NGT.
• But in this case the court did not transfer the case to NGT.
Dileeep Nevatia v. Union of India AIR
2015.
• Questions of policy and other legislation i.e. the Motor vehicle Act
• The course said, It had jurisdiction.
Chapter III: Jurisdiction, Powers and
Proceedings of the Tribunal
Article 14: Tribunal to settle disputes. -(1) The Tribunal shall have the jurisdiction
over all civil cases where a substantial question relating to environment (including
enforcement of any legal right relating to environment), is involved and such
question arises out of the implementation of the enactments specified in
(2) The Tribunal shall hear the disputes arising from the questions referred to in
sub-section (1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be
entertained by the Tribunal unless it is made within a period of six months from
the date on which the cause of action for such dispute first arose: Provided that the
Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause
from filing the application within the said period, allow it to be filed within a
further period not exceeding sixty days.
Power of the court: Section 15
• 15 Relief, compensation and restitution. -(1) The Tribunal may, by an order,
provide,-(a) relief and compensation to the victims of pollution and other
environmental damage arising under the enactments specified in the Schedule
I (including accident occurring while handling any hazardous substance);
• (b) for restitution of property damaged;
• (c) for restitution of the environment for such area or areas, as the Tribunal
may think fit
(2) The relief and compensation and restitution of property and environment
referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the
relief paid or payable under the Public Liability Insurance Act, 1991 (6 of
1991).
(3) No application for grant of any compensation or relief or restitution of
property or environment under this section shall be entertained by the
Tribunal unless it is made within a period of five years from the date on
which the cause for such compensation or relief first arose: Provided that the
Tribunal may, if it is satisfied that the applicant was prevented by sufficient
cause from filing the application within the said period, allow it to be filed
within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property
and environment, divide the compensation or relief payable under separate
heads specified in Schedule II so as to provide compensation or relief to the
claimants and for restitution of the damaged property or environment, as it
may think fit.
 Schedule II
• HEADS UNDER WHICH COMPENSATION OR RELIEF FOR DAMAGE MAY BE
CLAIMED (a) Death; (b) Permanent, temporary, total or partial disability or other injury or
sickness; (c) Loss of wages due to total or partial disability or permanent or temporary
disability; (d) Medical expenses incurred for treatment of injuries or sickness; (e) Damages to
private property; (f) Expenses incurred by the Government or any local authority in providing
relief, aid and rehabilitation to the affected persons; (g) Expenses incurred by the Government
for any administrative or legal action or to cope with any harm or damage, including
compensation for environmental degradation and restoration of the quality of environment;
(h) Loss to the Government or local authority arising out of, or connected with, the activity
causing any damage; (i) Claims on account of any harm, damage or destruction to the fauna
including milch and draught animals and aquatic fauna; (j) Claims on account of any harm,
damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards;
(k) Claims including cost of restoration on account of any harm or damage to environment
including pollution of soil, air, water, land and eco-systems; (l) Loss and destruction of any
property other than private property; (m) Loss of business or employment or both; (n) Any
other claim arising out of, or connected with, any activity of handling of hazardous substance.
Section 16: Tribunal to have appellate
jurisdiction
• Any person aggrieved by,-(a) an order or decision, made, on or after the
commencement of the National Green Tribunal Act, 2010, by the
appellate authority under section 28 of the Water (Prevention and Control
of Pollution) Act, 1974 (6 of 1974);
• an order passed, on or after the commencement of the National Green
Tribunal Act, 2010, by the State Government under section 29 of the
Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
• 33A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of
1974);
• section 13 of the Water (Prevention and Control of Pollution) Cess Act,
1977 (36 of 1977);
• an order or decision made, on or after the commencement of the
National Green Tribunal Act, 2010, by the State Government or other
authority under section 2 of the Forest (Conservation) Act, 1980 (69 of
1980);
• an order or decision, made, on or after the commencement of the
National Green Tribunal Act, 2010, by the Appellate Authority under
section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14
of 1981);
• any direction issued, on or after the commencement of the National
Green Tribunal Act, 2010, under section 5 of the Environment
(Protection) Act, 1986 (29 of 1986);
• an order made, on or after the commencement of the National Green
Tribunal Act, 2010, granting environmental clearance in the area in
which any industries, operations or processes or class of industries,
operations and processes shall not be carried out or shall be carried out
subject to certain safeguards under the Environment (Protection) Act,
1986 (29 of 1986);
• an order made, on or after the commencement of the National Green
Tribunal Act, 2010, refusing to grant environmental clearance for
carrying out any activity or operation or process under the
Environment (Protection) Act, 1986 (29 of 1986);
• Any determination of benefit sharing or order made, on or after the
commencement of the National Green Tribunal Act, 2010, by the
National Biodiversity Authority or a State Biodiversity Board under
the provisions of the Biological Diversity Act, 2002 (18 of 2003), may,
within a period of thirty days from the date on which the order or
decision or direction or determination is communicated to him, prefer
an appeal to the Tribunal:
• Provided that the Tribunal may, if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal within the said
period, allow it to be filed under this section within a further period
not exceeding sixty days.
Liability to pay relief or compensation in
certain cases
• (1) Where death of, or injury to, any person (other than a workman) or damage to any
property or environment has resulted from an accident or the adverse impact of an
activity or operation or process, under any enactment specified in Schedule I, the
person responsible shall be liable to pay such relief or compensation for such death,
injury or damage, under all or any of the heads specified in Schedule II, as may be
determined by the Tribunal.
• (2) If the death, injury or damage caused by an accident or the adverse impact of an
activity or operation or process under any enactment specified in Schedule I cannot be
attributed to any single activity or operation or process but is the combined or resultant
effect of several such activities, operations and processes, the Tribunal may, apportion
the liability for relief compensation amongst those responsible for such activities,
operations and processes on an equitable basis.
• (3) The Tribunal shall, in case of an accident, apply the principle of no fault.
Section 18: Application or Appeal to
Tribunal
• (1) Each application under sections 14 and 15 or an appeal under
section 16 shall, be made to the Tribunal in such form, contain such
particulars, and, be accompanied by such documents and such fees as
may be prescribed.
 Who can file application u/s 16
• Without prejudice to the provisions contained in section 16, an application for grant of relief or compensation or
settlement of dispute may be made to the Tribunal by-(a) the person, who has sustained the injury; or
• (b) the owner of the property to which the damage has been caused; or
• (c) where death has resulted from the environmental damage, by all or any of the legal representatives of the
deceased; or
• (d) any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the
deceased, as the case may be; or
• (e) any person aggreived, including any representative body or organisation; or
• (f) the Central Government or a State Government or a Union territory Administration or the Central Pollution
Control Board or a State Pollution Control Board or a Pollution Control Committee or a local authority, or any
environmental authority constituted or established under the Environment (Protection) Act, 1986 (29 of 1986) or any
other law for the time being in force:
• Provided that where all the legal representatives of the deceased have not joined in any such application for
compensation or relief or settlement of dispute, the application shall be made on behalf of, or, for the benefit of all the
legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as
respondents to the application: Provided further that the person, the owner, the legal representative, agent,
representative body or organisation shall not be entitled to make an application for grant of relief or compensation or
settlement of dispute if such person, the owner, the legal representative, agent, representative body or organisation
Section 20: Tribunal to apply certain
principles
• he Tribunal shall, while passing any order or decision or award, apply
the principles of sustainable development, the prescautionary principle
and the polluter pays principle.
Se. 22 Appeal to Supreme Court
• Any person aggrieved by any award, decision or order of the tribunal,
may, file an appeal to the Supreme Court, within ninety days from the
date of communication of the award, decision or order of Tribunal, to
him, on any one or more of the grounds specified in section 100 of the
Code of Civil Procedure, 1908 (5 of 1908): Provided that the Supreme
Court may, entertain any appeal after the expiry of ninety days, if it is
satisfied that the appellant was prevented by sufficience cause from
preferring the appeal.
Prafulla Samantra and Anr. v. UOI & Ors. (POSCO Case)

• Appeal was filed against order of the Moefcc imposing additional conditions
to the Environmental clearances in respect of steel cum captive power plant
project and captive minor port project
• Prafulla Samantra is a social and environmental activist from Orissa State
and has been instrumental in drawing attention of the State as well as the
country to the environmental and social problems in Orissa. The Appellant
has been in the fore front of many environmental struggles and brought it to
the notice of the concerned agencies both at the State and Central
Government level. With regard to the present project i.e. POSCO, the
appellant had sent detailed objections in writing to the Orissa State Pollution
Control Board (for short OSPCB) even prior to the Public Hearing (for short
PH) held on 15.4.2007.
• Biranchi Samantray, the Appellant No. 2 is a resident of Dhinkia in
Kujang District and a marginal farmer and also a priest in a village
temple. He is directly affected by the proposed project as the same will
require a takeover of his land on which he and his family carry out
paddy cultivation and also 'paan-kheti' (betel vine cultivation). He has
been protesting against the proposed POSCO project and apprehends
loss of livelihood and adverse impact on environment and agriculture
and water resources as a result of setting up of the project.
POSCO is a Japanese Company
• As per the MOU, the Government of Orissa agreed to facilitate and
use its best efforts to enable the Project Proponent (POSCO) to obtain
a 'No Objection' through the State Pollution Control Board in the
minimum time possible. It is also mentioned that the Project
Proponent will conduct a rapid Environment Impact Assessment (for
short EIA) and prepare a detailed EIA report and an environment
management plan for the project. Further, it is stated that the
Government of Orissa agreed to use its best efforts to procure the grant
of all environmental approvals and forest clearance from the Central
Government within the minimum possible time.
• the provisions of EIA Notification 2006 were not followed in letter
and spirit. The MOEF and particularly the respective EACs failed to
consider the environmental and social implications of such a large
project and relied mainly on the assurances given by the project
proponent. Clarifications were though sought by EACs, but there was
limited follow up action and consideration to the points raised during
PH. The manner in which the rapid EIA Report and subsequent
detailed EIA report were prepared for a project of such dimensions and
grant of approvals in the background of the objections raised right
from the very initial stages, casts severe doubts in the manner in which
the EACs and the MOEF acted upon.
provisions of the EIA Notification 2006, the
procedure for grant of EC is as under:
a) Preparation of an EIA Report After stipulation of Terms of Conditions
for the project by the EAC (Scoping)
b) Notice by the State Pollution Control Board for a mandatory PH to be
published in at least two local newspapers (public consultation)
c) Acces to Exec. Summary and EIA (Public Consult)
d) Conducting Public hearing in a manner which ensures the widest
possible participation (pub. Consult)
e) Detailed Scrutiny of the EIA Report and proceedings of the public
consultation (Appraisal)
f) Grant of approval or rejection of application.
• None of these procedures were followed as required under the law. The
Committee appointed for the review of the original ECs granted, had
submitted a fractured report. The majority members gave report holding that
the PH was not properly conducted and other aspects of TOR was not
properly evaluated in the EIA and EACs at the time of grant of original ECs.
The EACs had considered only the minority report of Ms. Meena Gupta.
Further, Ms. Meena Gupta was the Secretary to the Government of India,
MOEF at the relevant point of time when the original ECs were granted. In
fact, she ought not to have been a Member of the Committee constituted for
reviewing the original ECs granted. Thus, the whole process of issuing of
the ECs for the proposed project components is vitiated under the law and
as such the ECs granted requires to be set aside as arbitrary and illegal.
• The project proponent submitted schedule-II application, questionnaire
and rapid EIA/EMP Report for consideration of proposals as per the
provisions of the EIA Notifications 1994 and 2006. PH for the project
was also held on 15.4.2007 as per the prescribed procedure at the
relevant point of time. The District Magistrate appears to have drawn
the summary at the end of the PH proceedings and made it known to the
public. Thus, it is clear that procedural wise, there is no substantial error
committed by the authority in conducting the PH. Therefore, the
allegation of the Appellant that the PH was not conducted in accordance
with the law cannot be countenanced, though; it does not fall within the
ambit of challenge of this appeal, as discussed at Issue No. (i) above.
M/S. Sterlite Industries (India) vs The
Chairman Tamil Nadu Pollution AIR 2013
• Vide order dated 29th March, 2013, the Tamil Nadu Pollution Control Board (for
short 'the Respondent Board'), in exercise of its powers under Section 31-A of
the Air (Prevention and Control of Pollution) Act, 1981, (for short the 'Air Act'),
directed closure of M/s. Sterlite Industries (India) Ltd. (for short the 'appellant-
company') with immediate effect. On that very day, it also, by a separate
communication, again in exercise of its powers under Section 31-A of the Air
Act, directed the Superintending Engineer, Tamil Nadu Electricity Board,
Thoothukudi, to disconnect the electricity supply to the appellant company. The
correctness and legality of this order have been challenged by the appellant-
company, primarily on the ground that it is arbitrary, discriminatory and has
been passed in an undue haste without proper application of mind, non-grant of
appropriate opportunity and by taking into consideration irrelevant materials,
while ignoring the substantive and relevant considerations. It is also stated that
the order is based upon no scientific study or data.
• The respondents, besides refuting the above contentions, have raised a
preliminary objection with regard to the maintainability of the present
appeal on the ground that the Government of Tamil Nadu constituted
an appellate authority, vide notification dated 8th May, 2013, which is
functional, and hence the present appeal, in terms of the provisions of
the Air Act, would lie before that appellate authority. Therefore, the
present appeal is not maintainable.
• The appellant-company is engaged in the manufacture of copper cathodes and copper rods.
These are manufactured by a process - smelting copper concentrate - which is the main raw
material (copper ore), containing approximately 30% copper, 30% sulphur, 30% iron and
balance 10% as other impurities. The copper concentrate along with other raw materials is
fed into the smelter to produce copper anode, which is copper of 98.6% purity, which then
is refined to produce copper cathode i.e. copper of 99.9% purity. From this copper cathode,
copper rods are manufactured. During the smelting process, the sulphur contained in the
copper concentrate is converted into sulphur dioxide (SO2), which is collected and sent to
sulphuric acid plants through a closed duct system. Thereafter, the SO2 gas is cleaned in the
gas cleaning plant comprising gas cooling tower, scrubber system and wet electrostatic
precipitators. The cleaned SO2 gas is then oxidized using vanadium pentoxide catalyst to
form sulphur tri-oxide (SO3) gas which is absorbed in water and converted to sulphuric
acid. The residual gas from the sulphuric acid plant is further treated in the tail gas scrubber
to meet the prescribed environmental standards and then routed through the stack.
Emissions of SO2 from the stacks are being monitored by online SO2 analysers.
The analyser installed at the end of the appellant-company can be run in two
different modes i.e. 'Actual Mode' and 'Maintenance Mode'. It is the case of the
appellant-company that in order to ensure accuracy of SO2 emission, it undertakes
calibration checks of the analyser. Such calibration checks are carried out
periodically as also before restarting the smelting plant where such plant has been
shut down either for scheduled maintenance or due to unscheduled breakdowns.
For calibration, typically a gas having a known concentration is fed into the
analyser directly to remove the drift errors spotting the higher (unrealistic)
emissions and to test whether the analyser is capable of reading accurate values.
After being tested/analysed, such gas having excess SO2 concentration is not
directed to the stack and is not released in to the atmosphere; rather it is released
within the caustic absorber analyser-room by trained personnel, wearing necessary
safety equipment.
The National Environmental Engineering Research Institute (for short the 'NEERI') had
submitted a report in the year 2005 showing that the emission levels of the plant of the
appellant- company were within the stipulated limits while some emissions did not conform to
the standards prescribed. It had also made some recommendations. Regarding the solid waste
released out of slag in the plant site, the Central Pollution Control Board had taken a view in
its communication dated 17th November, 2003 to the Respondent-Board that the slag was
non-hazardous. The NEERI, in its report had indicated as many as 30 deficiencies and had
pointed out what the appellant-company was required to do to rectify the deficiencies. On
these recommendations, the Respondent Board had given 30 directions out of which,
according to the appellant-company, it had completed all the 30 improvements/measures.
However, in the judgment of the Supreme Court in the case of
Sterlite Industries (India) Limited v. Union of India & Ors.[ (2013) 5 SCALE 202], it has been
noticed that the appellant-company had complied with 29 of the 30 directions. Thus,
according to the appellant-company, its plant was running without any violations and with the
approval and sanction of the competent authorities.
• After having taken all these steps, suddenly and to the surprise of the
appellant-company, it received a notice dated 24th March, 2013 wherein
it was alleged that the appellant-company had contravened the provisions
of Section 21 of the Air Act while referring to eye irritation and throat
suffocation complaints received from various residents. It was also stated
that SO2 trend graph of ambient air quality indicated that the value shot
up suddenly from 20 µg/m3 to 62 µg/m3 and that the SO2 emission
monitor was not connected with the CARE Air Centre of Respondent
Board. On these allegations, the appellant-company was required to
submit a reply to the show cause notice within 3 days as to why action,
including closure of the unit, stoppage of power supply, water supply, etc.
might not be taken against it.
• Hence, you are directed to show-cause within 3 days from the date of
receipt of this notice as to why penal action for offences punishable
under Section 37 read with Section 31A of the 'Act' should not be
initiated against you as occupier of the unit and also to show-cause as
to why directions under Section 31A of the 'Act' shall not be issued for
closure of the unit, stoppage of power supply, water supply etc. to the
unit.
• It is informed that non-receipt of any reply within the prescribed
period will be construed that you have no satisfactory explanation to
offer for the above said contravention and action will be taken on the
merits in accordance with law...."
• There was no evidence of the fact that the alleged throat irritations
were caused by gas emitted from the appellant company's plant. In
fact, the notice dated 24th March, 2013 issued by the Collector had
categorically stated that the report in regard to gas emitted from the
appellant company's plant was being examined. If that be so, then the
question of holding the appellant-company responsible for alleged
complaints of throat irritation etc. did not arise. Moreover, not a single
case was reported in any of the hospitals and that is the best proof of
the fact that the allegations lacked verisimilitude.