SC: Leapfrog appeals to the NGT would necessarily be without jurisdiction

The Hon’ble Supreme Court, on 18th February 2019, in the matter of Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd. & Ors. pronounced that if an appellate authority is either not yet constituted, or not properly constituted, a leapfrog appeal to the National Green Tribunal cannot be countenanced. The 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.

The Hon’ble Supreme Court observed that:

An appeal is a creature of statute and an appellate tribunal has to act strictly within the domain prescribed by statute. (Para 31)

It is obvious that an appeal would lie from an order or decision of the appellate authority under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 to the National Green Tribunal only under Section 33B(a) of the Water (Prevention and Control of Pollution) Act, 1974 read with Section 16(a) of the National Green Tribunal Act. Similarly, an appeal would lie from an order or decision of the appellate authority under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 to the National Green Tribunal only under Section 31B of the Air (Prevention and Control of Pollution) Act, 1974 read with Section 16(f) of the National Green Triunal Act. (Para 31)

If no order or decision has 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. (Para 31)

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. (Para 31)

This being the case, if there are 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. (This inference has een drawn on the basis of Para 35)

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)

Whenever a question arises as to whether the NGT, which is only invested with the jurisdiction of entertaining an appeal from an order of an appellate authority, is jurisdictionally capable of entertaining an appeal directly from the original authority. It is clear that the NGT possesses no such jurisdiction. (This inference has been drawn on the basis of Para 37)

The right to appeal is not a procedural matter but a substantive one. (Para 38)

It is settled that an administrative order, when made, does not bear the brand of invalidity on its forehead. 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)

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 (Para 40)

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.(Para 40)

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. We must never forget the distinction between a superior court of record and courts of limited jurisdiction (Para 42)

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. (Para 42)

No appeal is provided against orders made under Section 18 of the Water Act, and the attempt to bring the NGT in by the backdoor, as it were, would, therefore, have to be rejected. (Para 43)

If an appellate authority is either not yet constituted, or not properly constituted, a leapfrog appeal to the NGT cannot be countenanced. The 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. (Para 44)

Copy of judgement: Judgement_18-Feb-2019

-Tushar Kaushik

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