Courts Update NGT doesn’t have suo motu powers but it can...

NGT doesn’t have suo motu powers but it can act on letters or newspaper reports, says the Centre

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New Delhi Sept 2(ILNS): The Centre today said that though National Green Tribunal (NGT) does not have suo-motu powers it doesn’t agree that it cannot take action based on letters or newspaper reports while the Supreme Court was examining the issue of whether the National Green Tribunal has the power to take cognizance of a matter on its own.

A three-judge bench comprising of Justice A.M. Khanwilkar, Justice Hrishikesh Roy and Justice C.T. Ravikumar continued the hearing from yesterday on the question of law as to whether the NGT has suo motu powers or not. The matter was directed to be listed on Tuesday, 7th September.

Today, Mr. V.V. Giri, Sr. Adv continued by referring to section 14 of the NGT and submitted that even if the Court considers civil cases to be civil “causes”, the function of the tribunal is to determine disputes. He submitted that a representation to a Prime Minister or a Chief Minister is not contemplated in the Act.

Justice Khanwilkar interjected that Section 14(1) has “two pockets, one that of environmental issues and other arising out of enactments.” He went on to say that Section 14(1) says what is to be decided, and Section 14 (2) and (3) state how they are to be decided, and the reliefs are given in Section 15.

Mr. Giri thereafter submitted that section 14(1) cannot be read into isolation and that (2) is directly correlated with (3) being a threshold bar. He referred to the Central Vista case to which the Bench pointed out that the question in that case was whether NGT can do merit review.

Mr. Giri submitted that the Court has to do reverse engineering and should consider the legislation as a whole even if the Bench considered the information to be as “processed information.”

The Court thereafter also opined that the Registrar has no duty to process information as per Rules, to which Mr. Giri said that he should have pointed that out.

The Court said “when we think we think both ways.”

Following Mr. Giri, Mr. Jaideep Gupta, Sr. Adv. appeared for the State of Kerala and submitted that he was supporting the petitioners despite being a State entity. The State of Kerala had supported the petitioners before the High Court also. His submissions were twofold:

1.     There was no suo motu powers of NGT

2.     Even if there was, when the Constitutional Courts are seized of a matter, the NGT cant intervene.

He submitted that the NGT cannot exercise the power of Judicial review of a legislation. In his case the State Government had in exercise of powers under the Kerala Minor Mineral Concession Rules had laid down the distance requirement in case of quarries to be 50m which the NGT had increased to 100m.

He argued that the tribunal has limited jurisdiction and that there was no challenge to the legislation itself. He submitted that section 18 dealing with application or appeal to the tribunal lists out six classes of persons who may approach the tribunal and the list is exhaustive.

Mr. Gupta thereafter drew upon similarities with the Code of civil procedure an stated that a civil court also has the inherent power as per section 151 but no suo motu powers. He stated that a civil judge cannot exercise jurisdiction without a civil suit.

Further, even if there were inherent powers, they can’t be used against the statute itself. That is why a civil judge cant entertain a letter because the rest of the stature is in the way.

Justice Ravikumar remarked that existence and exercise of power are different things. Mr. Gupta said that that was his argument.

Thereafter, Mr. Dhruv Mehta placed before the Court that the scheme of the Act suggests a lis. He submitted that settlement and adjudication are the same thing. He submitted that the Suo motu powers is a substantive power and that section 19 (4) gives a specific power pf review and interim relief only because the tribunal is of a limited jurisdiction. He submitted that the court cannot read into where plain and unambiguous language is used.

Following him, Mr. Sajan Poovayya placed before the Bench the 186th Law Commisison Report on Proposal to Constitute Environment Courts to submit that the contemplation was of diluting the locus standi to a great extent, but the Act falls short of providing suo motu powers. He submitted that the NGT was made to substitute civil courts and the initiation was by way of an original petition.

Thereafter, Mr Siddharth Dave argued that the rules do not contemplate anything other than an appeal or an application.

Justice Khanwilkar said that the issued started with a “communication” and asked why it could not be treated as an initiation. He further stated that the NGT has used the term suo motu, but the Bench was not using the term.

Though NGT does not have Suo Motu powers, but it doesn’t mean that it cannot take action, says Centre

Ms. Aishwariya Bhati, Ld. ASG appearing for MoEF submitted that though she had filed an affidavit stating that NGT does not have suo motu powers, she does not agree that it cannot take action based on letters or newspaper reports.

She submitted that procedure cannot override power and that no one has argued that the NGT does not have power.

The Court asked Ms. Bhati if the process by communication received or otherwise be ignored by the tribunal or will it be dutybound. The Ld. ASG submitted that the NGT would be dutybound to act. Justice Roy remarked that Ms. Bhati’s arguments would be most important as she is representing MoEF.

On the point of initiation of processes, Justice Khanwilkar remarked that the tribunal is also an organisation that may be included in the parties who can initiate processes. He compared the situation to a defective petition where the initial order can be passed pending curing of defects.

Expression Suo Motu is a misnomer in this case: SC

Justice Khanwilkar said that the expression Suo Motu is a misnomer in this case. Is there was a news item why can’t the Tribunal issue notice to call upon who has published to see if they want to pursue the matter. Or whether anyone else would like to be substituted.

Ms. Bhati also referred to the doctrine of prospective overruling and said that it may be applied so that the work of NGT is not overturned.

The Court remarked that it was trying to bridge the gap. Justice Roy candidly remarked to Ms. Bhati that “speaking of environment, your plants (referring to the background) look dry.”

Following the ASG, Mr. Anand Grover, Ld. Amicus presented his arguments

The Ld. Amicus began with the submission that the tribunal or its members could not initiate the action that too by reading the newspaper. He submitted that at the outset no one can be a judge in his own cause.

Justice Khanwilkar said that the issue is not of taking action on the basis of a newspaper, but issuing notice to call upon the person writing. If that is the case then it is not suo motu.

The Ld. Amicus submitted that is a person writes a letter, he is initiating the action. If a member reads a newspaper it is he who has initiated. Hence under the generic ambit of suo motu. Therefore it was not permissible.

The Ld. Amicus also referred to the repealed National Environment Tribunal Act which has suo motu powers but were consciously left out in the new National Green Tribunal Act.

On the point that the Court raised that when if it is done then what is the harm, the Ld. Amicus replied that the suo motu action should be reserved for the Constitutional Courts. He submitted that Rule 24 is similar to section 151of the CPC or Section 482 of Cr.PC and inherent powers cannot include suo motu powers./ILNS/SC/KR/SNG

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