1. Appeal against NGT order upholding environmental clearance for refinery expansion — challenge based on adverse impact on marine environment and mangroves — Section 16, National Green Tribunal Act 2010. (Para 2 , 3 , 5 )
Back
Next 
2022 Supreme(SC) 1606
SUPREME COURT OF INDIA
Dr Dhananjaya Y Chandrachud, M R Shah, Hima Kohli, JJ.
Sanghar Zuber Ismail – Appellant
Versus
Ministry of Environment, Forests And Climate Change & Anr. – Respondents
Civil Appeal No 4543 of 2021
Decided On : 31-08-2022
Advocates appeared:
Mr. Purvish Jitendra Malkan, Advocate, Ms. Dharita P Malkan, Advocate, Ms. Deepa Gorasia, Advocate, Mr. Alok Kumar, Advocate, Ms. Nandini Chhabra, Advocate, Ms. Bhavna Sarkar, Advocate, Ms. Khushboo Vinodray Malkan, Advocate, For the Appellant / Mr. Dhruv Mehta, Sr. Advocate, Mr. Somiran Sharma, Advocate, For the Respondent.
Mr. Purvish Jitendra Malkan, Advocate, Ms. Dharita P Malkan, Advocate, Ms. Deepa Gorasia, Advocate, Mr. Alok Kumar, Advocate, Ms. Nandini Chhabra, Advocate, Ms. Bhavna Sarkar, Advocate, Ms. Khushboo Vinodray Malkan, Advocate, For the Appellant / Mr. Dhruv Mehta, Sr. Advocate, Mr. Somiran Sharma, Advocate, For the Respondent.
The National Green Tribunal (NGT) cannot delegate its adjudicatory functions to expert committees. It must independently evaluate the substantive grounds of a challenge and apply its mind to the merits of the case, as the discharge of its statutory functions cannot be obviated by tasking committees.
Headnote:
Environmental Clearance - Expansion of Refinery - National Green Tribunal Act 2010, Section 16(h)
Fact of the Case:
The appeal arose from a judgment of the National Green Tribunal regarding the grant of environmental clearance for the expansion of a refinery, which was likely to cause an adverse impact on the marine environment.
Finding of the Court:
The appellate court set aside the NGT's decision, emphasizing that the NGT failed to conduct an independent appraisal of the grounds of challenge and that the adjudicatory function cannot be assigned to committees.
Issues: The main challenge before the NGT was the potential adverse impact of the refinery expansion on the marine environment.
Ratio Decidendi: The NGT failed to conduct an independent appraisal of the grounds of challenge and assigned the adjudicatory function to committees, which was not permissible.
Final Decision: The appeal was allowed, and the case was restored to the file of the NGT for disposal afresh.
Legal Category Hierarchy
Table of Contents
2. Appellant challenged environmental clearance due to potential marine and mangrove damage — Respondent contended that all environmental clearance conditions would be complied with and mitigation measures adopted. (Para 3 , 6 )
3. NGT failed to conduct an independent appraisal of substantive grounds, relying solely on the project proponent's statements and delegating adjudicatory functions to an expert committee. (Para 7 , 8 )
4. The adjudicatory function of a statutory tribunal cannot be delegated to expert committees; the tribunal must independently apply its mind to substantive grounds of challenge. (Para 8 )
5. Appeal allowed — impugned order set aside — matter restored to the National Green Tribunal for fresh disposal. (Para 9 )
6. Can a statutory tribunal delegate its adjudicatory functions to an expert committee?
No. The adjudicatory function of a tribunal cannot be assigned to committees, even expert ones. The discharge of functions vesting in the tribunal cannot be obviated by tasking committees to carry out those functions. (Para 8 )
7. What is the duty of the National Green Tribunal when exercising appellate jurisdiction under Section 16 of the NGT Act?
The Tribunal must apply its mind to the substantive grounds of challenge and conduct an independent appraisal rather than merely relying on statements made by the project proponent. (Para 7 , 8 )
8. Does the existence of a project and lack of continuing grievances justify upholding an environmental clearance for its expansion?
No. An observation that a project is already in existence without continuing grievances does not conclude whether the proposed expansion of that project would have a deleterious impact on the environment. (Para 6 )
ORDER
Dr. Dhananjaya Y. Chandrachud, J. - Admit.
2. This appeal arises from a judgment of the National Green Tribunal dated 8 June 2021 at the Principal Bench, New Delhi.
3. 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 by CSIR-NEERI. 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.
4. 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.
5. 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) to (g) xxx xxx xxx
(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 Environment (Protection) Act 1986.
6. 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.
7. 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.
8. 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.
10. Pending application(s), if any, stand disposed of.
ORDER
1. Admit.
2. The appeal is allowed in terms of the signed reportable order.
3. Pending applications, if any, stand disposed o
