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Can NGT Take Suo Motu Cognizance Based On A Letter Or News Report? Supreme Court Starts Hearing

Shruti Kakkar
1 Sep 2021 2:32 PM GMT
Can NGT Take Suo Motu Cognizance Based On A Letter Or News Report? Supreme Court Starts Hearing
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The Supreme Court on Wednesday commenced the hearing of a batch of cases on the issue whether the National Green Tribunal (NGT) has jurisdiction under the provisions of the National Green Tribunal Act, 2010 to take suo motu proceedings based on a letter or newspaper report. The matter was heard by the bench of Justices AM Khanwilkar, Hrishikesh Roy and CT Ravikumar. Senior Advocate...

The Supreme Court on Wednesday commenced the hearing of a batch of cases on the issue whether the National Green Tribunal (NGT) has jurisdiction under the provisions of the National Green Tribunal Act, 2010 to take suo motu proceedings based on a letter or newspaper report.

The matter was heard by the bench of Justices AM Khanwilkar, Hrishikesh Roy and CT Ravikumar. Senior Advocate Anand Grover has been made an amicus curiae in the case.

The cases were:

1. An appeal filed by the Municipal Corporation of Greater Mumbai against an order of the NGT on waste disposal passed on the basis of an article published in 'The Quint'.

2.  Batch of appeals arising from an order passed by the NGT on the basis of a letter representation increasing the minimum distance rule for quarries in Kerala as 200 meters from 50 meters from residential units. The Kerala High Court had held that NGT has suo motu jurisdiction; however it limited the operation of the NGT order to new quarries and allowed existing quarries to operate as per earlier distance limit till the term of their license

At the outset, the bench said that it will confine to the legal point if NGT had suo motu jurisdiction, and will not go into the merits of the individual cases.

No express suo motu power given by the Statute : Rohatgi

Senior Advocate Mukul Rohatgi, appearing one of the cases from Kerala(Michael Granites), argued that the scheme of the NGT Act made it clear that it had no suo motu jurisdiction. The Act contemplates an application being filed by a person aggrieved with respect to a dispute of civil nature. Also, the application has to be filed within the prescribed limitation period.

"The Act is replete with terms like applicant, person aggrieved, civil dispute, limitation. These are contra-indications against suo motu power", Rohatgi submitted.

He referred to an observation in the Supreme Court's Central Vista Judgment to the effect that "NGT is not a plenary body with inherent power and only a statutory body with limited mandate". This, according to Rohatgi, settled the issue. He argued that the High Court had erroneously referred to Rule 24 of the NGT Rules on Practice and Procedure to hold that it had suo motu power. In this regard, he argued that the Rules cannot override the statutory provisions.

NGT cannot override rules framed by the Govt : Dave

Appearing for Poabs Granites (Pvt.) Limited, Senior Advocate Dushyant Dave  pointed out that the distance rule was laid down by the State Government in exercise of its statutory powers under the Minor Mineral Rules and the Tribunal cannot simply override them under the garb of suo motu power.

"Statutory power laid down in the hands of Central & State Govt cannot be usurped by NGT. When to control environmental protection, the State Govt & Central Govt has to follow a procedure & all this was done. NGT cannot budge in and say that this rule is wrong," Dave submitted.

He stressed that the Tribunal cannot assume any plenary power when the statute does not confer it the same.

Tribunal can't act on news paper report : Nadkarni

Representing Municipal Corporation Greater Mumbai, Senior Advocate Nadkarni, citing an example of NHRC upon which the Parliament had bestowed suo moto powers, submitted that Parliament has made it expressly clear whenever it wanted to confer suo motu powers on tribunals. Such an express power is absent in the NGT Act.

Arguing that Tribunal was not a court but the creation of statute and should function within the realm of the statute, he submitted that the NGT could not take any suo moto cognisance of any matter until and unless an application was made to it.

At this juncture, Justice Khanwilkar asked if a person is making a representation to the Prime Minister's Office and the same is forwarded to the Tribunal, can't the Tribunal act upon it treating it as an application. Nadkarni conceded that the Tribunal can act on it. However, in his case, he pointed out that the Tribunal acted on the basis of an article in an online portal, which is impermissible.

NGT does not have epistolatory jurisdiction like SC/HC : Krishnan Venugopal

Appearing for George Antony and Adani Vizhinjam Port Pvt. Ltd, Senior Advocate Krishnan Venugopal submitted a statutory Tribunal cannot assume epistolatory jurisdiction like a constitutional court acting under Articles 226 or 32.

 "Parliament uses the term suo moto or of its own motion where it wishes to confer the power upon the tribunal to initiate on its own motion & this power is only conferred in 11 separate statues," Senior Counsel also contended.

Venugopal also differed from the concession made by Nadkarni regarding power of Tribunal to act on the basis of a representation.

At this juncture, Justice Khanwilkar asked Senior Counsel as to whether the letter could be treated as an application to meet ends of justice.

"Public interest is going to subserve with all these letters. If this is misused, then Rule 24 is there which can be invoked by the tribunal itself... Saying that it is not permissible, you are denying the access to justice. This is much cost effective litigation & matters are disposed of. What is wrong with that remedy," Justice Khanwilkar further asked.

Answering the question put forth by Justice Khanwilkar, Senior Counsel Krishnan Venugopal argued that Rule 24 would apply after the proceedings were properly initiated but could not trigger jurisdiction and other proceedings.

"It is always open for the Supreme Court or High Court to take jurisdiction. There is no case that there is no remedy. Secondly, there should be a lis. It is not permissible under our scheme to confer jurisdiction on the tribunal which is not conferred by the Parliament. Why should we assume that the legislature intended to confer the power of suo moto jurisdiction when all the provisions suggest otherwise? Why should we turn something on the NGT which was never conferred on NGT," Senior Counsel Krishnan Venugopal further submitted.

It was also his contention that NGT was not a tribunal under Article 323A and was a tribunal of limited jurisdiction and could not have the power to go beyond the provision of Act and Rules.

"There is no procedure contemplated under the act which the NGT chooses to register suo moto & this is an additional reason as to why the same should not be conferred to NGT," Senior Counsel contended to substantiate his contention.

Senior Advocate V Giri representing Thomsun Aggregates and M/S. Crystal Aggregates Pvt. Ltd argued that the power that was given to the Tribunal was the power of adjudication and this adjudication contemplated a lis.

"There is a limited sphere in which it can work. Tribunal cannot pass an order beyond section 15. It has to be within that sphere," Senior Counsel also submitted.

The arguments will continue tomorrow.

Cases: Municipal Corporation of Gr. Mumbai v. Ankita Sinha & Ors. and Connected Cases

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