Courts Update NGT’s suo motu powers: Supreme Court begins hearing controversial...

NGT’s suo motu powers: Supreme Court begins hearing controversial topic

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New Delhi Sept 1(ILNS): In environmental matters, no one is bothered to take initiative, so why can’t the NGT be allowed to do so? asked the Top Court today while examining the issue whether the National Green Tribunal has the power to take cognizance of a matter on its own.

The Supreme Court remarked that public interest is in question. It reiterated the core issue that if a letter is received by the Registrar and the places it before the Tribunal, why can’t the tribunal take action, and the formalities can be completed later, but the process can be initiated. To say that it is not permissible at all is denying justice.

The Supreme Court three-judge bench of Justice AM Khanwilkar, Justice Hrishikesh Roy and Justice CT Ravikumar will continue hearing the matter tomorrow.

Today, there were extensive arguments made on the question of whether the National Green Tribunal has suo motu powers.

Submissions made by the Petitioners

Senior Advocate Mukul Rohatgi, appearing for the petitioner in Michael Granites vs. The State of Kerala began the arguments by first referring to the question of law for consideration that the “short issue is whether NGT under the NGT Act, 2010 has suo motu powers or not”

He tried to bring attention of the Court that the issue came up before consideration of the Supreme Court as some people had made representations to the Prime Minister with a copy to the NGT complaining about quarrying activities. The NGT treated it as a petition and gave directions to the Pollution Control Board. Against this the High Court of Kerala was approached whereby the Single Judge without hearing the parties held that NGT has suo motu powers but remitted the matter back to NGT. The LPA also came to be dismissed.

The Court reiterated that it will not hear each case on facts, but rather decide the question of law first.

National Green Tribunal does not have anything that is not specifically given to it

Mr. Rohatgi thereafter submitted that the NGT does not have suo motu powers as it is only a creation of statute. He referred to Section 3, 14, 15 and the First Schedule to emphasise that the Tribunal is meant to “settle” the “disputes” and this necessarily implied an application. Further, there was a limitation period provided. It was his submission that these are the indications as to jurisdiction.

Therefore, it was contended that there has to be a civil dispute for which an application for claim needs to be presented. It was further submitted that under Section 3 there was no obligation to entertain the application. Section 16 was thereafter read out to show that there is an appellate jurisdiction where again there was limitation period.

Thus, it was his submission that the Act is replete with application, dispute, applicant, appeal and time limitation.

Further, it was also submitted that the appeal has to be under a particular Form that has been prescribed. This again was a contra-indication that the tribunal has been created by the Parliament and has nothing except what has been given.

Mr. Rohatgi also referred to Rule 24 of the NGT Practice and Procedure Rules 2011 to state that the procedure provided in the rules cannot override the statute. He referred to a Counter Affidavit filed by the Central Government in a different matter that states that Justice Panta, Former Chairman NGT had recommended certain amendments including suo-motu powers that were not accepted by the Parliament. Hence it was clear that the Ministry did not agree with the proposal as it was a conscious decision of the Parliament.

It was further argued that the inherent power of the Court does not include the procedure. The inherent power of the court is substantive power.

Mr. Rohatgi thereafter impressed upon the court that the Tribunals have trappings of the Court, and that every court is a tribunal, but every tribunal is not a court.  He further added that the doctrine of implied power has no role to play in this case as it is for constitutional interpretation.

He referred to the recent decision of Rajiv Suri (Central Vista Case) to bring home the point that the tribunal is a creation of a statute and cannot go beyond the statute creating it.

National Green Tribunal cannot usurp the power of the state government

Thereafter, Mr. Dushyant Dave, appearing for the petitioner in a connected matter, added to his arguments that the law made by the State government cannot be overridden by the tribunal. In his case, the Kerala Mines and Minerals Concession Rules had provided for a distance limit that was increased by the NGT. He submitted that government alone has the power.

Senior Advocate Dushyant Dave submitted that the power exercised by the NGT, in this case, was a way to “terrorize the people”. The Court remarked “how can you say that? If the tribunal is doing something it is doing it in mistaken belief.” The Bench opined that the tribunal was acting within the space of environmental issues. It also drew a similarity with a letter petition to the Supreme Court.

Mr. Dave thereafter also submitted arguments similar to Mr. Rohatgi that the nature of tribunal is that it is a creation of a statute. He submitted that the statutory power conferred on the government cannot be usurped by the tribunal.

“petitions have been written on banana leaves also”

Following him, Mr. Atmaram N.S. Nadkarni appearing in the lead matter of Ankita Singh informed that in his case, the Bombay High Court was also seized of the matter and the NGT was made aware of this fact. He also submitted that there were two issues in the matter.

First, whether the tribunal has suo motu jurisdiction, and second when the matter was before the Constitutional Courts can the NGT have taken suo motu cognizance.

Mr. Nadkarni thereafter referred to the NHRC which has suo motu powers and stated that “the government in its wisdom has given the power whenever it wanted to.”

Justice CT Ravikumar thereafter pointed out the object of the act and said that the NGT has been made to achieve that objective. Justice Khanwilkar also remarked that “suppose there is a letter marked to the PM and NGT. Why can’t it be taken to be an application?”

Mr. Nadkarni thereafter remarked that “petitions have been written on banana leaves also.” However, it was emphasized that a petition has to assert a legal right by coming to the tribunal. He submitted that in his case cognizance was taken on the basis of an article written in the Quint website which was not even a regular newspaper. If that is allowed then issues on facebook and twitter can also be taken into cognizance.

It was his ending submission that the “tribunals should stay hands-off when constitutional courts are seized of the matter.”

Epistolary jurisdiction is rooted in Article 32

Subsequently, AG Mr. Krishnan Venugopal began his submissions by saying that Mr Nadkarni had conceded something with which he does not agree. He was referring to the fact that petitions can be in the form of letters also.

The Court said, “ we can’t decide questions of law based on concession.” And reiterated that the question was whether a letter can be treated as an application in this case.

Attorney General Mr. KK. Venugopal began with the definition of “suo motu” and stated that it involves a considerable discretion without party approaching and it was usually done in human rights cases and in public interest and that it was exercised by superior courts only.

Alluding to the epistolary jurisdiction, Mr. Venugopal submitted that this was a novel feature started only in 1970s and 1980s in the context of public interest litigations. he further stated that there was no parallel in other jurisdictions before the 1980s.

Mr. Venugopal brought attention of the court to the judgments of S.P. Gupta to state that it was the first to discuss the concept and that the judgment in Banduha Mukti Morcha amplified on it. He referred to the Judgment of Justice Pathak in the latter case where his Lordship had highlighted the concerns with letters as petitions. It was submitted that the epistolary jurisdiction was on the basis of the wording of Article 32 and the public interest involved. In the present case, the NGT is a statutory body bound by statutory provisions.

The Court then asked “why can’t the tribunal take action on the letter?” it opined that the procedure is inquisitorial in nature and after the application is filed the tribunal can take any procedure.

Thereafter, Mr. Venugopal submitted that the issue becomes divided into two cases, the first being how to initiate and the second what to do after the letter is received. He submitted that there was no permissible way of initiating proceedings that involves taking suo motu cognizance on a letter.

Mr.Venugopal also tried to rely on the difference between the Competition Act mechanism, but the Court said that it would not refer to the act as it was a subject matter of adjudication in another matter.

Therefore, Mr. Venugopal relied upon the Prevention of Atrocities (Scheduled Caste and Scheduled Tribes) Act 1989 to state that the Parliament has used the phrase “on its own motion”.

He submitted that the Parliament has a standard legislative term to confer power where it wishes. He referred to phrases “on its own motion” or “of its own motion”  to state that the Parliament generally uses these words.

The Court remarked that public interest is in question. It reiterated the core issue that if a letter is received by the Registrar and he places it before the Tribunal, why can’t the tribunal take action, and the formalities can be completed later, but the process can be initiated. To say that it is not permissible at all is denying justice.

The Court said that the letter is registered with a diary number and placed before the tribunal and asked what was the reason for constraining the NGT from exercising jurisdiction.

Mr. Venugopal submitted that his submissions are threefold:

1.     There is a remedy in the form of Constitutional Courts.

2.     The parliament has created a statute for adjudication of disputes, hence it must be there

3.     The NGT is an impartial tribunal. The dispute should not be between NGT and a party.

The Court thereafter said that the violation of other forest laws Is not a dispute as it affects the common public. The issue of the environment is not a dispute limited to two people. The nature of the issue is such that a constructive interpretation should also be looked at.

Processed information

Thereafter, Senior Advocate, Mr. V. V. Giri continued arguments on the same point by stating that the question before the Court has become one of “processed information” in reference to the remarks of the Court that why cant the formalities be done later after the letter has been admitted in the interest of justice.

The Court remarked that this was the process of ‘evolution’ when arguments are being led.

Mr. Giri submitted that the question of locus before Constitutional Courts does not have any limits except those imposed by the Courts themselves. But in this case, the tribunal was a creature of a statute. He emphasised on the point of limitation to argue that this implied that there was a cause of action on which the tribunal had to apply its mind.

The Court interrupted by saying that the limitation will apply even in case of a letter, and the respondent after notice has to respond to the mischief that is complained of.

Mr. Giri tried to make an argument that the “processed information” that the Bench was contemplating was not prescribed in the Act. He submitted that the power given to the tribunal is that of adjudication and adjudication implies a lis. He referred to the enactments in the First schedule to state that all these legislations provided a machinery for dispute resolution.

The Court opined that now there were two parts to the issue. On the one hand there is the issue of environment where the NGT could exercise powers on its own, and on the other the disputes relating to legislations where an application is required where a legal right is asserted. The expression used was “including legal rights”.

The Court also remarked that in environment matters no one is bothered to take initiative, so why can’t the NGT be allowed to do so?

Mr. Giri and the Amicus, Mr. Anand Grover requested the bench to continue the hearing tomorrow./ILNS/KR/SNG

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