The National Green Tribunal’s adjudicatory function cannot be delegated to expert committees: Supreme Court

IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No 45421 Sanghar Zuber Ismail Appellant(s Ministry of Environment Forests and Climate Change and Another O R D E R Dr Dhananjaya Y Chandrachud J This appeal arises from a judgment of the National Green Tribunal dated 8 June 2021 at the Principal Bench New Delhi The appeal before the NGT arose from the grant of an environmental clearance on 5 January 2021 in favour of the second respondent for the expansion of the capacity of its refinery situated in the petro chemical complex at Vadinar District Devbhumi Dwarka Gujarat from 20 MMTPA to 46 MMTPA. The main challenge before the NGT as recorded in paragraph 3 of the decision is that the expansion was likely to cause an adverse impact on the marine environment both in terms of the mangroves and marine biology The NGT noted that its attention been drawn to the EIA EMP study prepared LL 2021 SC 420 CA 4543 2021 by CSIRNEERI. Having extracted from the study the NGT noted the submission of senior counsel for the second respondent that all the EC conditions would be duly complied with and due mitigation measures would be taken to ensure the safety of mangroves and marine environment. Having recorded the statement of the second respondent the NGT proceeded to observe that it did not find any ground to interfere with the grant of the EC. It however directed the project proponent to ensure that all necessary safeguards are adopted and EC conditions are duly complied with A three member Committee was constituted in that regard. The NGT was seized with a substantive appeal under the provisions of Section 16 of the National Green Tribunal Act 2010. Section 16(h) reads thus “16. Any person aggrieved by a) toxxx h) 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 EnvironmentAct 1986.” The specific ground before the NGT was that the expansion of the refinery will cause serious hazards to both the marine biology and to mangroves. The NGT observed that the project was already in existence and there was no continuing grievance against its functioning insofar as environmental norms are concerned. This observation would not conclude the issue as to whether the expansion of the project would have a deleterious impact on the environment. LL 2021 SC 420 CA 4543 2021 Having regard to the nature of its appellate power the NGT has to apply its mind to the substantive grounds of challenge. The NGT has merely based its conclusion on the statement which has been made by the project proponent and has not conducted an independent appraisal of the grounds of challenge As a matter of fact Mr Dhruv Mehta learned senior counsel who appears on behalf of the second respondent states that the appellant had not produced a copy of the correct EIA before the NGT and an application has been filed on behalf of the second respondent for clarifying the position. Be that it may the NGT has not dealt with the substantive grounds of challenge in the exercise of its appellate jurisdiction. Constitution of an expert committee does not absolve the NGT of its duty to adjudicate. The adjudicatory function of the NGT cannot be assigned to committees even expert committees. The decision has to be that of the NGT. The NGT has been constituted as an expert adjudicatory authority under an Act of Parliament. The discharge of its functions cannot be obviated by tasking committees to carry out a function which vests in the tribunal 9 We accordingly allow the appeal and set aside the impugned order dated 8 June 2021. Appeal No 5 2021(WZ) is accordingly restored to the file of the NGT for disposal afresh. All the rights and contentions of the parties on the merits are kept open LL 2021 SC 420 CA 4543 2021 Pending application(s) if any stand disposed of SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No.4543 2021 SANGHAR ZUBER ISMAIL VERSUS MINISTRY OF ENVIRONMENT FORESTS AND CLIMATE CHANGE & ANR With appln.(s) for IA No.91013 2021 EXEMPTION FROM FILING C C OF THE IMPUGNED JUDGMENT Date : 31 08 2021 This appeal was called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE M.R. SHAH HON’BLE MS. JUSTICE HIMA KOHLI Mr. Purvish Jitendra Malkan Adv Ms. Dharita P Malkan Adv Ms. Deepa Gorasia Adv Mr. Alok Kumar Adv Ms. Nandini Chhabra Adv Ms. Bhavna Sarkar Adv Ms. Khushboo Vinodray Malkan AOR Mr. Dhruv Mehta Sr. Adv Mr. Somiran Sharma AOR O R D E R UPON hearing the counsel the Court made the following LL 2021 SC 420 CA 4543 2021 The appeal is allowed in terms of the signed reportable order Pending applications if any stand disposed of A.R. cum P.S Court Master Signed reportable order is placed on the file (SAROJ KUMARI GAUR LL 2021 SC 420

Summary: The Supreme Court stated that the National Green Tribunal’s adjudicatory duty cannot be delegated to committees. The bench of Justices DY Chandrachud, MR Shah, and Hima Kohli observed that tasking committees to carry out a job that vests in the tribunal cannot eliminate the tribunal’s ability to fulfil its powers. An appeal to the NGT was filed in this matter, challenging the issuance of environmental clearance to a project proponent to develop its refinery capacity in the petrochemical complex at Vadinar, Gujarat’s District Devbhumi Dwarka. The main point of contention was that the extension would negatively influence the marine environment, particularly mangroves and marine biodiversity. The NGT noted in its decision that the project proponent had stated that all EC criteria would be met and that appropriate mitigation measures would be applied to safeguard the safety of mangroves and the marine environment. The Court stated, “The specific ground before the NGT was that the expansion of the refinery would cause serious hazards to both the marine biology and to mangroves. The NGT observed that the project was already in existence, and there was no continuing grievance against its functioning insofar as environmental norms are concerned. This observation would not conclude the issue as to whether the expansion of the project would have a deleterious impact on the environment.” In exercising its appellate jurisdiction, the NGT has not addressed the substantive grounds of challenge, according to the bench. It held,