1

BEFORE THE NATIONAL GREEN TRIBUNAL

PRINCIPAL BENCH NEW DELHI

…………..

M.A. NO.49 OF 2013 In

APPLICATION NO. 26 of 2012

In the matter of :

1. Goa Foundation Through Dinesh George Dias, G-8, St. Britto’s Apts.,Feira Alta,Mapusa,

Bardez-403507, Goa.

2. Peaceful Society Through Kumar Kalanand Mani, R/o Peaceful Society Campus, Honsowado-Madkai, Post: Kundai-403115, Goa. ……..Applicants

Versus

1. Union of India Through the Secretary, Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi-110003.

2. State of Maharashtra Through the Chief Secretary, Mantralaya, Mumbai-400023.

3. State of Karnataka Through the Chief Secretary,

Vidhan Soudha, Bangalore-560001.

4. State of Goa Through the Chief Secretary, Secretariat, Porvorium-403001,

5. State of Kerala Through the Chief Secretary, Government Secretariat, Thiruvananthapuram-695013

6. State of Gujarat Through the Chief Secretary, Gandhi Nagar-382020.

7. State of Tamil Nadu,

2

Through the Chief Secretary, Secretariat, Chennai-600009.

8. Maharashtra Pollution Control Board

Through the Member Secretary, Kalpataru Point, 3rd & 4th Floor, Sion Matunga Scheme Road No.8, Opp. Cine Planet Cinema, Near Sion Circle, Sion (East), Mumbai-400022.

9. Karnataka State Pollution Control Board

Through the Member Secretary, Parisara Bhavan, No.49, 4th & 5th Floor, Church Street, Bangalore-560001.

10.Goa State Pollution Control Board

Through the Member Secretary, 1st Floor, Dempo Tower, EDC Patto Plaza, Panaji-403001, Goa. 11.Kerala State Pollution Control Board

Through the Member Secretary, Plamoodu Junction Pattom Palace, Thiruvananthapuram-695004.

12. Gujarat State Pollution Control Board

Through the Member Secretary, Paryavaran Bhawan, Sector 10-A, Gandhi Nagar-382043.

13. Tamil Nadu Pollution Control Board

Through the Member Secretary, Corporate Office No.76, Mount Salai, Guindy, Chennai-600032.

14. Maharashtra State Level Environment

Impact Assessment Authority, Through the Member Secretary,

Kalpataru, 3rd Floor, Opp. Cine-Max, Sion (West), Mumbai. 15. Karnataka State Level Environment

Impact Assessment Authority, Through the Member Secretary, 7th Floor, M.S. Building, 4th Phase, Bangalore.

16. Goa State Level Environment

Impact Assessment Authority,

3

Through the Member Secretary, 1st Floor, Dempo Tower, EDC Patto Plaza, Panaji-403001.

17. Kerala State Level Environment

Impact Assessment Authority, Through the Member Secretary, Directorate of Environment & Climate Change, Social Forestry Complex, Vattiyoorkkavu P.O., Thiruvananthapuram-695013.

18. Gujarat State Level Environment

Impact Assessment Authority, Through the Member Secretary, Paryavaran Bhawan, Sector 10A, Gandhi Nagar-382010.

19. Tamil Nadu State Level Environment

Impact Assessment Authority, Through the Member Secretary, 4D, Panagal Maligai, No.1, Jeenis Road, Saidapet, Chennai-6000015. …….Respondents

Counsel for Applicants : (In Main Applicantion) Mr. Raj Panjwani, Sr.Advocate

along with Ms. Parul Gupta,Advocate (In M.A.No.49/2013) Mr. Mohammed Sadique and Ms. Usha Nandini, Advocates Counsel for Respondents : Ms.Neelam Rathore along with Mr.Vikramjeet, Advocates for Respondents No.1 & 17. Mr. Sidharth Bhatnagar and Mr. Pawan Kr. Bansal, Advocates for Respondent No.4. Mr. Krishnan Venugopal, Sr. Advocate along with Mr. Jogi Scaria, Mr. Arvind Kumar, Advocates along with Mr. Devraj Ashok for Respondent No.5. Mr. Devraj Ashok for Respondent No.9. Mr. B.V. Gadnis, Advocate for Respondent No.10. Mr. H. Wahi, Mr. S. Panda and Mr. L. Sarangi, Advocates for Respondents No.12 & 18. Mr. Roshan Lal Goel, Advocate for Respondent No.19. Mr. Mathai M. Paikadey and Mr. Boby Augustine, Advocates for Respondent No.20.

ORDER/JUDGMENT

PRESENT : Hon’ble Mr. Justice Swatanter Kumar (Chairperson) Hon’ble Mr. Justice U.D. Salvi (Judicial Member) Hon’ble Dr.D.K. Agrawal (Expert Member) Hon’ble Prof. A.R. Yousuf (Expert Member)

4

Hon’ble Dr. R.C.Trivedi (Expert Member)

Dated : July 18, 2013

JUSTICE SWATANTER KUMAR, (CHAIRPERSON)

1. Applicant No.1 is a registered society and claims to be at

the forefront in environment campaigns in Goa working not just

towards conserving and protecting the ecology of Western Ghats but

also towards demanding additional protection, including declaration

of wild life sanctuary as a tiger reserve. The said applicant claims to

be a member of MoEF National Committee on Identifying

Parameters for Designating Ecologically Sensitive Areas in India.

Applicant No.2 also claims to be the principal convener of the “Save

the Western Ghats March”, which was a landmark event in

environmental activism in India. Both these applicants have

approached the Tribunal for interim relief for directing the

respondents not to issue any consent/environmental clearance or

NOC or permission under the Environment Protection Act, 1986,

the Water (Prevention and Control of Pollution) Act, 1974, the Air

(Prevention and Control of Pollution) Act, 1981, the Forest

Conservation Act, 1980 or the Biological Diversity Act, 2002, (for

short the “Environment Act”, “the Water Act”, “the Air Act”, “the

Forest Act” and “the Bio-Diversity Act” respectively) within the

Western Ghat areas, particularly in relation to those which have

been demarcated as Ecological Sensitive Zone I (ESZ 1) and

Ecologically Sensitive Zone II (ESZ 2), with a final prayer that the

respondents should discharge their obligation by exercise of the

powers conferred on them under the enactments stated in Schedule

5

I to the National Green Tribunal Act, 2010 (for short “the NGT Act”)

for preservation and protection of Western Ghats within the

framework, as enunciated by the Western Ghats Ecology Expert

Panel in its report dated 31st August, 2012 and further praying for

issuance of such orders or directions as the Tribunal may consider

just and fair in the circumstances of the case.

2. We have referred to the relief claimed because of the

nature of controversy that arises for consideration of this Tribunal

in the facts and circumstances of the present case. A reference to

the basic facts would be necessary. The applicants along with other

organisations have the objective of advocating and campaigning

towards protection of ecological systems like forests, rivers, wet

lands and to provide guidance to assist in participatory

conservation, restoration and management of river basins in the

Western Ghats and other parts of India. Since 2009, it has been a

member of the movement for saving the Western Ghats with the

entire coastal area of the country. Persistence on the part of various

organisations persuaded the Government to constitute the Western

Ghats Ecology Expert Panel (for short “WGEEP”) on 4th March,

2010, headed by Dr. Madhav Gadgil. This panel submitted its

report to the Government on 31st August, 2011. The same remains

to be pending for consideration with the MoEF ever since. A writ

petition in the High Court of Bombay, being the Writ Petition No.

4095 of 2011 titled Awaaz Foundation Vs. Union of India and Ors.

was filed. The Bombay High Court, vide its order dated 3rd March,

6

2012, after noticing the contentions of the various counsel

appearing for the respective parties, observed as under:

“6. Looking to the sensitivity of the issue relating to environment and ecology, we want the State Government to send its comments/suggestions to the Ministry of Environment and Forests as early as possible in order to enable the Ministry of Environment to take appropriate decision in respect of acceptance of the report of Dr. Madhav Gadgil Committee. We would like to express that the Ministry of Environment and Forests, on receipt of suggestions/recommendations from the State Government, should not delay the decision in respect of the report of Dr. Madhav Gadgil Committee. The learned Additional Solicitor General is ready and willing to furnish a copy of the report of Dr. Madhav Gadgil Committee to the petitioner, however, it is noted that the said report is under consideration of Ministry of Environment and Forests at this stage. 7. So far as period of moratorium which is extended upto 31st March, 2012, the learned Additional Solicitor General seeks some time to obtain instructions in this regard whether the same would be extended further and make statement in this regard on the next date of hearing i.e. on 29th March, 2012. 8. We grant further time of four weeks by way of last chance to the State Government to file affidavit pursuant to the order date 29th February, 2012.”

Again, when the matter came up before the Court on 17th July,

2012, it observed as under:

“It is also true that the Ministry of Environment will have to consider the suggestions and recommendations forwarded by the various States as well as the Gadgil Committee Report as well as other important factors before taking a decision.”

3. The said Writ Petition is still pending before the Bombay

High Court. In the meanwhile, the present application came to be

instituted before the Tribunal on 29th May, 2012. Vide its order

dated 30th May, 2012, the Tribunal issued notice to the respondents

in the application. The Bench of the Tribunal passed the following

order and listed the matter for 25th July, 2012:

7

“Considering the sensitivity of the issues relating to environment and ecology relating to Western Ghat, we admit this Application.”

4. When the matter came up for hearing on 22nd January,

2013, the counsel appearing for Respondent No.1 (MoEF) informed

the Tribunal that they had already undertaken the process for

finalisation of the report of Dr. Madhav Gadgil and had invited the

general public, the State Govt. Departments and Ministries

concerned to submit their suggestions/objections. Upon

consideration thereof, the final report was likely to be ready by 16th

February, 2013 for submission to the Tribunal. The Tribunal, thus,

granted them further time.

5. Further the counsel appearing for Respondents No.20

and 21 on that date submitted that they had a preliminary

objection to the very maintainability of the present application and

that the Tribunal, vide its order dated 17th October, 2012 observed

that the issue with regard to the maintainability of the petition

would be heard first.

6. This Tribunal Vide order dated 22nd January, 2013

directed the Chief Secretaries of the Respondent-States to fully

co-operate with the Committee constituted by Respondent No.1 so

that the report could be finalised at the earliest. Similar direction

was also passed by the Tribunal on 1st March, 2013. On 2nd April,

2013, the matter came up for hearing before the Bench of the

Tribunal. The learned counsel appearing for MoEF placed on record

a copy of the letter dated 28th March, 2013 stating that the tenure

of the Working Group had been extended till 15th April, 2013 and

8

on that date, a complete report would be made available to MoEF

and MoEF would take a final view. The Tribunal adjourned the case

while observing that expeditious steps were required to be taken by

MoEF to finalise the report. When the matter came up for hearing

on 25th April, 2013, the learned counsel for MoEF informed that she

had received a report of the High Level Working Group, set up

under the chairmanship of Dr. Kasturi Rangan. This was received

on 14th April, 2013 and the Ministry needed three months’ time to

finalise the report. On that very date, a submission was made that

because of the order of the Tribunal dated 25th July, 2012, they

were suffering serious prejudices. Further argument was advanced

on their behalf that their cases should be considered in accordance

with the parameters and areas specified in the report filed by the

High Level Group. The Bench of the Tribunal declined to vary the

interim order and directed the matter to be heard on the question of

maintainability in the first instance. In the meanwhile, the Tribunal

directed the MoEF to expedite the finalisation of the report in

question and submit their final views by 30th May, 2013.

7. Now we may notice certain undisputed facts in regard to

the Western Ghats. It is averred in the petition that the geological

attributes of Western Ghats are :

Northern limit 80 19’ 8” -210 16’ 24” (N)

Eastern limit 720 56’ 24” -780 19’ 40” (E)

Total area 129037 sq km.

End-to-end length 1490 km

Min. width 48 km

9

Max. width 210 km

8. It has been urged on behalf of the applicant that Western

Ghats are second only to the Eastern Himalayas as a treasure trove

of biological diversity in India, originally recognised as among the

several global “hotspots of biodiversity”. The Western Ghats along

its geographical extension in the wet zone of Sri Lanka are now also

considered one of the 8 “hottest hotspots” of biodiversity. A study

in the southern region of Karnataka, Kerala and Tamil Nadu

showed that between 1920-1990, about 40% of the original

vegetation cover was lost or converted into another form of land

use. It is estimated that not more than about 7% of the Western

Ghats is presently under primary vegetation cover, though a much

larger area is under secondary forest or some other form of tree

cover. Nearly 15% of the Ghats is also under the protected area

system.

9. That the importance of the Western Ghats in terms of its

biodiversity can be seen from the known inventory of its plant and

animal groups, and the levels of endemism in these taxa

(Gunawardene et all. 2007). Nearly 4000 species of flowering plants

or about 27% of the country’s total species are known from the

Ghats. Of the 645 species of evergreen trees (›10 cm dbh), about

56% is endemic to the Ghats. Among the lower plant groups, the

diversity of bryophytes is impressive, with 850 – 1000 species are

mosses with 28% endemics and 280 species are liverworts with

43% endemics. Among the invertebrate groups, about 350 (20%

endemic) species of ants, 330 (11% endemic) species of butterflies,

10

174 (40% endemic) species of odonates (dragonflies and

damselflies), and 269 (76% endemic) species of mollusks (land

snails) have been described from this region. The known fish-fauna

of the Ghats is 288 species with 41% of these being endemic to the

region. The Western Ghats are particularly notable for its

amphibian fauna with about 220 species of which 88% are

endemic; the recent discovery of a new genus of frog,

Nasikabactrachus sahyadrensis, with Indo-Madagscan affinity in

the southern Western Ghats affirms the importance of the region in

harbouring these ancient Gondwanan lineages. Similarly, the Ghats

are unique in its caecilian diversity harbouring 16 of the country’s

20 known species, with all 16 species being endemic. Of the 225

described species of reptiles, 62% are endemic; special mention

must be made of the primitively burrowing snakes of the family

Uropeltidae that are mostly restricted to the southern hills of the

Western Ghats. Over 500 species of birds and 120 species of

mammals are also known from this region. The Western Ghats

region harbours the largest global populations of the Asian

elephant, and possibly of other mammals such as tiger, dhole, and

gaur. The Western Ghats also harbour a number of wild relatives of

cultivated plants, including pepper, cardamom, mango, jackfruit

and plantain. This biological wealth has paid rich dividends over

the years. In fact, the tract was famous for its wild produce of

pepper, cardamom, sandal and ivory.

10. The Western Ghats consist of high mountains, gorges

and deep cut valleys. The mighty Western Ghats, a sequence of

11

rocky mountains, edges the eastern boundary of Kerala and

ascends roughly up to 1,500 m above sea level with the lofty peaks

rising up to 2,500 m. Standing tall at a height of Anai Mudi with an

altitude of 2,695 meters (8,842 ft) is the highest peak in South

India. The unbroken chain of the Western Ghats only breaks at

Palakkad where a natural pass called Palakkad Gap is located.

From the Western Ghats, the land inclines to west on to the plains,

into an uninterrupted coastline. The narrow piece of land on the

eastern border, close to the Western Ghats, encompasses

precipitous mountains, deep valleys and gorges which are covered

with thick forests. Almost all the rivers of the State originate here.

Forty one of Kerala’s west-flowing rivers and three of its east-flowing

ones originate in this region. The western lower elevations of the

Ghats are areas of major plantations like tea, coffee, rubber and

various spices. Kerala has a total forest area of 11,125.59 sq.km.

including 7 wild life Sanctuaries, covering 28.88 per cent of the

total land area of Kerala. This is greater than the national average

of 19.50 %. The entire forest area is spread over the Western Ghats.

The Western Ghats is considered to be a repository of endemic, rare

and endangered flora and fauna. Although Kerala lies close to the

equator, its proximity with the sea and the presence of the fort like

Western Ghats, provides it with a unique climate making it green

even during summer. One of the reasons why Kerala receives an

average rainfall of 118 inches, is the existence of the mighty

Western Ghats.

12

11. This gives the statistical and geographical essence of a

part of the Western Ghats. The Govt. of India itself had set up the

Pronab Sen Committee to decide upon the ecologically sensitive

areas in India in 2000. The Sen Committee’s foremost criterion for

identification of ecologically sensitive areas was endemism and the

Committee proposed that the area of occurrence of every endemic

species needs to be protected in its entirety. The Western Ghats

harbours well over 2000 endemic species of flowering plants, fish,

frogs, birds and mammals amongst the better known groups of

organism, and no doubt, thousands more amongst less studied

groups including insects. Then came the report of the WGEEP,

which designated the entire Western Ghats as an Ecologically

Sensitive Area (ESA) and assigned three levels of ecological

sensitivity to different regions of it, viz. Ecologically Sensitive Zone 1

(ESZ 1), Ecologically Sensitive Zone 2 (ESZ 2) and Ecologically

Sensitive Zone 3 (ESZ 3). This Panel divided Talukas with regard to

the ecologically sensitive zones in the States of Gujarat,

Maharashtra, Goa, Karnataka, Kerala and Tamil Nadu. Out of the

total 44 districts in the above States, 83 Talukas were assigned to

ESZ 1, 14 to ESZ 2 and 37 to ESZ 3. While stating certain activities

which may not be carried out in this area, this Committee

recommended that genetically modified crops should not be

allowed, no plastic bags should be allowed in shops, settlements

and built up areas/to be developed areas, certain types of areas

would be no-go areas including water bodies, special habitats,

geological formations, biodiversity rich areas and sacred groves,

13

Special Economic Zones should not be permitted and that new hill

stations should not be allowed. After this report, the report of the

High Level Working Group had been submitted and both these

reports are under consideration of the Ministry of Environment and

Forests.

12. Another significant averment made by the applicant in its

petition in regard to the Western Ghats is that Government of India

also initiated the process to get several clusters of sites within the

Western Ghats to be inscribed in the UNESCO list of World Heritage

Sites in 2012. However, in the petition, averments have specifically

been made to state that the Western Ghats have been subjected to

a rapid erosion of natural capital with the building up of man-made

capital, imposing excessive, and unnecessary environmental

damage in the process, accompanied by a degradation of social

capital. There is a serious threat of damage to the ecology of the

Western Ghats and indiscriminate developmental activity is bound

to infringe upon the ecological environment of the Western Ghats to

the disadvantage of the public interest. The applicant also relies

upon the judgment of the Supreme Court to substantiate his

argument that the Tribunal should not be driven away from the

principle of ecocentric to anthropocentric sustainable development.

Anthropocentrism is always human interest focussed and non-

humans have only instrumental value to humans. Ecocentrism is

nature centred where humans are part of nature and non-humans

have intrinsic value. Human interest does not take automatic

precedence and humans have obligations to non-humans

14

independent of human interest. Ecocentrism is, therefore, life-

centred, nature-centred where nature includes both human and

non-humans. The Public Trust Doctrine requires the authorities to

maintain and ensure environmental equilibrium. The executive

authorities concerned with protection and conservation of

environment and forests are under an obligation to exercise their

power to protect these natural assets in a prudent manner. While

stating that there are substantial questions relating to environment

including enforcement of their legal right to environment it is

contended, there is a direct violation of the aforesaid principles and

their rights by which the community at large is affected or is likely

to be affected by the environmental consequences. According to the

applicant, the following substantial questions of environment arise

in the present application:

(i) Whether the respondents are under an obligation to preserve

and protect the Western Ghats?

(ii) Whether the respondents are under an obligation to enforce

the provisions of the enactments specified in Schedule I to the NGT

Act by initiating appropriate steps under the said enactments for

the preservation and protection of the Western Ghats, particularly

in view of the recommendations made by the WGEEP?

(iii) Whether the inaction of the respondents to effectively protect

the Western Ghats is arbitrary and violative of Articles 14 and 21

read with Articles 48A and 51A(g) of the Constitution?

(iv) Whether the concerned authorities under any of the

enactments specified in Schedule I to the NGT Act are under an

15

obligation to ensure that all activities within the boundaries of

Western Ghats are in conformity with the report of the WGEEP?

13. In light of the above facts, the applicant claims to have

raised the above substantial questions of environment for

consideration of the Tribunal and has prayed for a relief that the

respondents be directed to discharge their obligation as provided in

the enactments in Schedule I to the NGT Act as well as not to issue

consent etc. under different laws for the areas demarcated as ESZ 1

to ESZ 3.

14. On the previous occasion as well before this Bench, the

learned counsel appearing for Respondents No.1, 5, 20 and 21 had

raised the issue with regard to maintainability of the present

application. It is their contention that on the true interpretation of

Sections 14 to 16 and 18 of the NGT Act, the present application is

not maintainable and in fact is an abuse of the process of the

Tribunal. Of course with equal vehemence, the applicants refute the

very basis of the argument and contend that within the framework

of above provisions and the scheme of the Act, the present

application cannot be termed as non-maintainable and in no case,

this is an abuse of the process of the Tribunal.

15. Thus, we are now to determine with reference to the rival

contentions raised before us as to whether the present application,

as framed, is maintainable or not. It would be useful to notice the

contents of the submissions on the basis of which the question of

maintainability has been raised by the respective parties. We could

divide these contentions into the following parts:

16

(a) The dispute raised and the prayer made by the applicant is

not a ‘civil case’ within the meaning of Section 14 of the NGT

Act.

(b) The Tribunal cannot pass any direction requiring the

respondents concerned to accept any of the recommendations

of the WGEEP report or that of the High Level Working Group.

The relief prayed is beyond the provisions of the Act. The

Tribunal is not vested with the jurisdiction of enforcing the

fundamental rights per se. Their recommendations cannot be

said to be binding on the Ministry, which is free to accept or

reject either of the reports.

(c) The Tribunal can also not direct a delegated authority to frame

law in exercise of its subordinate legislative power.

(d) There exists no ‘dispute’ which requires settlement by the

Tribunal and mere inaction cannot be termed as a ‘dispute’

per se.

(e) No legal injury is stated to be inflicted upon any person or

environment and the petition discloses no ‘cause of action’ in

terms of Rule 14 of the National Green Tribunal (Practices and

Procedure) Rules, 2011.

(f) The application does not raise any ‘substantial question of law

relating to a dispute within the meaning of Section 14, read

with Section environment’ and even if there is some violation,

there is no statutory violation of any obligation and thus does

not constitute 2(m) of the NGT Act. No dispute also arises in

17

regard to any of the statutes under Schedule I to the NGT

implementation Act.

16. According to the applicant, a petition seeking protection

of ecology in the Western Ghats is a substantial dispute in relation

to environment. A genuine apprehension to the contrary would give

cause of action in favour of the applicant. The respondents have

failed to discharge their statutory obligation of adequately

protecting the Western Ghats in relation to implementation of the

Acts specified in Schedule I to the NGT Act. The Tribunal has a wide

jurisdiction under the Act and as such the present application is

maintainable.

17. To analyse the above rival contentions, we must examine

the interpretation and impact of the relevant provisions and the

scheme of the NGT Act. The NGT Act was enacted to provide for

establishment of the Tribunal for effective and expeditious disposal

of cases relating to environmental protection and conservation of

forests and other natural resources including enforcement of any

legal right relating to environment and giving relief and

compensation for damages to persons and property and for matters

connected therewith or incidental thereto. The very Preamble of this

Act is a sufficient indicator of the jurisdiction that was to be vested

in the Tribunal. The issue relating to environmental protection and

conservation was one of the paramount pillars, amongst others, of

the adjudicatory process by the Tribunal. It was expected to dispose

of cases relating to above matters expeditiously. This is the first

indicator of the legislative intent which provides that a case could

18

relate to environmental protection, conservation of forests and other

natural resources or even enforcement of legal rights relating to

environment and other matters mentioned thereto. This jurisdiction

of the Tribunal and access to the people stands further expanded by

the use of the words ‘for matters connected therewith or incidental

thereto’. The legislature in its wisdom has used these two

expressions which can only be construed liberally and to provide

greater dimension to the mode of access to a person claiming

redress of his grievances as well as adjudication by the Tribunal.

18. Preamble is a relevant part of the Act, which can help in

the process of interpretation. It, in fact, is a kind of guide to the

spirit of the statute. Justice G.P. Singh in “Principles of Statutory

Interpretation”, 13th ed. 2012, referring to the significance of

interpretation of preamble, has stated as under:

“The preamble of a statute like the long title is a part of the act and is an admissible aid to construction. Although not an enacting part, the preamble is expected to express the scope, object and purpose of the Act more comprehensively than the long title. It may recite the ground and cause of making the statute, the evils sought to be remedied or the doubts which may be intended to be settled. In the words of SIR JOHN NICHOLL: ‘ It is to the preamble more specially that we are to look for the reason or spirit of every statute, rehearsing this, as it ordinarily does, the evils sought to be remedied or the doubts purported to be removed by the statute, and so evidencing, in the best and most satisfactory manner, the object or intention of the Legislature in making or passing the statute itself’. As enunciated by TINDAL C. J., in delivering the opinion of the judges who advised the House of Lords in

Sussex Peerage case: ‘If any doubt arise from the terms employed by the Legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which according to CHIEF JUSTICE DYER is a key to open the minds of the makers of the Act and the mischiefs which they intended to redress’. The subject has been explained lucidly in a more recent decision of the House of Lords. The decision establishes the following propositions: the

19

preamble being a part of the statute and be read along with other portions of the Act to find out the meaning of words in the enacting provisions as also to decide whether they are clear or ambiguous; the preamble in itself is not an enacting provision and is not of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act; the utility of preamble diminishes on a conclusion as to clarity of enacting provisions. The Supreme Court recently approvingly quoted these propositions.”

19. The Preamble may not strictly be an instrument for

controlling or restricting the provisions of a statute but it certainly

acts as a precept to gather the legislative intention and how the

object of the Act can be achieved. It is an instrument that helps in

giving a prudent legislative interpretation to a provision.

In light of this language of the Preamble of the NGT Act,

now let us refer to some of the relevant provisions. Section 14 of the

NGT Act outlines the jurisdiction that is vested in the Tribunal. In

terms of this Section, the Tribunal will have jurisdiction over all

civil cases where a substantial question relating to environment

arises. The Tribunal will also have jurisdiction where a person

approaches the Tribunal for enforcement of any legal right relating

to environment. Of course, in either of these events, a substantial

question arises out of the implementation of the enactments

specified in Schedule I to the NGT Act. Section 15 of the NGT Act

provides for awarding of relief and compensation to the victims of

pollution and other environmental damage, restitution of property

damaged and restitution of the environment for such area(s) as the

Tribunal may think fit, in addition to the provisions of Section 14(2)

supra. Section 16 provides for the orders, decisions or directions

that are appealable before the Tribunal. Any person aggrieved has

20

the right to appeal against such order, decision or direction, as the

case may be. This Tribunal, thus, has original as well as appellate

jurisdiction. This wide jurisdiction is expected to be exercised by the

Tribunal in relation to substantial question relating to environment

or where enforcement of a legal right relating to environment is the

foundation of an application. In terms of Section 14(2) of the NGT

Act, the Tribunal shall hear disputes relating to the above matters

and settle such disputes and pass orders thereupon.

20. The expression ‘civil cases’ used under Section 14(1) of

the NGT Act has to be understood in contradistinction to ‘criminal

cases’. This expression has to be construed liberally as a variety of

cases of civil nature could arise which would be raising a

substantial question of environment and thus would be triable by

the Tribunal. P. Ramanatha Aiyar’s The Law Lexicon, 3rd ed. 2012,

explains ‘civil cases’ as below:

“In the short sense, the term ‘civil case’ means cases governed by the Civil Procedure Code (5 of 1908). It is used in a large sense so as to include proceedings in income-tax matters...”.

21. The word ‘case’ in ordinary usage means, ‘event’,

‘happening’, ‘situation’, and ‘circumstance’. The expression ‘case’ in

legal sense means a ‘case’, ‘ suit’, or ‘proceedings’ in the Court or

Tribunal. Civil case, therefore, would be an expression that would

take in its ambit all legal proceedings except criminal cases which

are governed by the provisions of the Criminal Procedure Code. The

legislature has specifically used the expression ‘all civil cases’.

Reference to Section 15 of the NGT Act at this juncture would be

appropriate. The legislature has specifically vested the Tribunal

21

with the powers of granting reliefs like compensation to the victims

of pollution and other environmental damage, for restitution of

property damaged and for restitution of the environment for such

area or areas. Once Section 14 is read with the provisions of Section

15, it can, without doubt, be concluded that the expression ‘all civil

cases’ is an expression of wide magnitude and would take within its

ambit cases where a substantial question or prayer relating to

environment is raised before the Tribunal.

22. The contents of the application and the prayer thus

should firstly satisfy the ingredients of it being in the nature of a

civil case and secondly, it must relate to a substantial question of

environment. It could even be an anticipated action substantially

relating to environment. Such cases would squarely fall within the

ambit of Section 14(1). Next, in the light of the language of Section

14(1), now we have to examine what is a substantial question

relating to ‘environment’. Section 2(1)(c) of the NGT Act explains the

word ‘environment’ as follows:

“‘environment’ includes water, air and land and the inter-relationship, which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property.”

Section 2(m) defines the term ‘substantial question

relating to environment’ as follows:

“It shall include an instance where, --

(i) there is a direct violation of a specific statutory

environmental obligation by a person by which, -

22

(A) the community at large other than an individual

or group of individuals is affected or likely to be

affected by the environmental consequences; or

(B) the gravity of damage to the environment or

property is substantial; or

(C) the damage to public health is broadly

measurable;

(ii) the environmental consequences relate to a specific

activity or a point source of pollution”.

23. The legislature, in its wisdom, has defined the word

‘environment’ in very wide terms. It is inclusive of water, air,

land, plants, micro-organisms and the inter-relationship between

them, living and non-living creatures and property. Similarly,

‘substantial question relating to environment’ also is an inclusive

definition and besides what it means, it also includes what has

been specified under Section 2(m) of the NGT Act. Inclusive

definitions are not exhaustive. One has to, therefore, give them a

very wide meaning to make them as comprehensive as the

statute permits on the principle of liberal interpretation. This is

the very basis of an inclusive definition. Substantial, in terms of

the Oxford Dictionary of English, is of considerable importance,

strongly built or made, large, real and tangible, rather than

imaginary. Substantial is actual or real as opposed to trivial, not

serious, unimportant, imaginary or something. Substantial is not

the same as unsubstantial i.e. just enough to avoid the de

minimis principle. In In re Net Books Agreement [1962] 1 WLR

23

1347, it was explained that, the term ‘substantial’ is not a term

that demands a strictly quantitative or proportional assessment.

Substantial can also mean more than reasonable. To put it aptly,

a substantial question relating to environment must, therefore,

be a question which is debatable, not previously settled and

must have a material bearing on the case and its issues relating

to environment.

24. Section 2(m) of the NGT Act classifies ‘substantial

question relating to environment’ under different heads and states

it to include the cases where there is a direct violation of a specific

statutory environmental obligation as a result of which the

community at large, other than an individual or group of

individuals, is affected or is likely to be affected by the

environmental consequences; or the gravity of damage to the

environment or property is substantial; or the damage to public

health is broadly measurable. The other kind of cases are where the

environmental consequences relate to a specific activity or a point

source of pollution. In other words, where there is a direct violation

of a statutory duty or obligation which is likely to affect the

community, it will be a substantial question relating to environment

covered under Section 14(1) providing jurisdiction to the Tribunal.

When we talk about the jurisdiction being inclusive, that would

mean that a question which is substantial, debatable and relates to

environment, would itself be a class of cases that would squarely

fall under Section 14(1) of the NGT Act. Thus, disputes must relate

to implementation of the enactments specified in Schedule I to the

24

NGT Act. At this stage, reference to one of the scheduled Acts i.e.

Environment Protection Act, 1986 may be appropriate. The object

and reason for enacting that law was primarily to address the

concern over the state of environment that had grown the world

over. The decline in environmental quality has been evidenced by

increasing pollution, loss of vegetal cover and biological diversity,

excessive concentrations of harmful chemicals in the ambient

atmosphere and in food chains, growing risks of environmental

accidents and threats to life support systems. These were the

considerations that weighed with the legislature to ensure

implementation of the UN Conference on the Human Environment

held at Stockholm in June, 1972 to take appropriate steps for

protection and improvement of human environment. The essence of

the legislation, like the NGT Act, is to attain the object of prevention

and protection of environmental pollution and to provide

administration of environmental justice and make it easily

accessible within the framework of the statute. The objects and

reasons of the scheduled Acts would have to be read as an integral

part of the object, reason and purposes of enacting the NGT Act. It

is imperative for the Tribunal to provide an interpretation to

Sections 14 to 16 read with Section 2(m) of the NGT Act which

would further the cause of the Act and not give an interpretation

which would disentitle an aggrieved person from raising a

substantial question of environment from the jurisdiction of the

Tribunal.

25

25. The very significant expression that has been used by the

legislature in Section 18 is ‘any person aggrieved’. Such a person

has a right to appeal to the Tribunal against any order, decision or

direction issued by the authority concerned. ‘Aggrieved person’ in

common parlance would be a person who has a legal right or a legal

cause of action and is affected by such order, decision or direction.

The word ‘aggrieved person’ thus cannot be confined within the

bounds of a rigid formula. Its scope and meaning depends upon

diverse facts and circumstances of each case, nature and extent of

the applicant’s interest and the nature and extent of prejudice or

injury suffered by him. P. Ramanatha Aiyar’s The Law Lexicon

supra describes this expression as ‘when a person is given a right to

raise a contest in a certain manner and his contention is negative,

he is a person aggrieved’ [Ebrahim Aboodbakar v. Custodian General

of Evacue Property, AIR 1952 SC 319]. It also explains this

expression as ‘a person who has got a legal grievance i.e. a person

wrongfully deprived of anything to which he is legally entitled to and

not merely a person who has suffered some sort of disappointment’.

26. Aggrieved is a person who has suffered a legal grievance,

against whom a decision has been pronounced or who has been

refused something. This expression is very generic in its meaning

and has to be construed with reference to the provisions of a statute

and facts of a given case. It is not possible to give a meaning or

define this expression with exactitude and precision. The Supreme

Court, in the case of Bar Council of Maharashtra v. M.V. Dabholkar

and Others AIR 1976 SC 242 held as under:-

26

“27. Where a right of appeal to Courts against an administrative or judicial decision is created by statute the right is invariably con fined to a person aggrieved or a person who claims to be aggrieved. The meaning of the words "a person aggrieved" may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved." Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words "a person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the back ground of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics. The words "persons aggrieved" in Sections 37 and38 of the Act are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. The test is whether the words "person aggrieved" include "a person who has a genuine grievance because an order has been made which pre judicially affects his interests." It has, therefore, to be found out whether the Bar Council has a grievance in respect of an order or decision affecting the professional conduct and etiquette.

28. The pre-eminent question is: what are the interests of the Bar Council? The interests of the Bar Council are the maintenance of standards of professional conduct and etiquette. The Bar Council has no personal or pecuniary interest. The Bar Council has the statutory duty and interest to see that the rules laid down by the Bar Council of India in relation to professional conduct and etiquette are upheld and not violated. The Bar Council acts as the sentinel of professional code of conduct and is vitally interested in the rights and privileges of the advocates as well as the purity and dignity of the profession.

40. The point of view stated above rests upon the distinction between the two different capacities of the State Bar Council: an executive capacity, in which it acts as the prosecutor through its Executive Committee, and a quasi-judicial function, which it performs through its Disciplinary Committee. If we can make this distinction, as I think we can, there is no merger between the prosecutor and the Judge here. If one may illustrate from another sphere, when the State itself acts through its executive agencies to prosecute and then through its judicial wing to decide a

javascript:fnOpenGlobalPopUp('/ba/disp.asp','160','1');javascript:fnOpenGlobalPopUp('/ba/disp.asp','162','1');

27

case, there is no breach of a rule of natural justice. The prosecutor and the Judge could not be said to have the same personality or approach just because both of them represent different aspects or functions of the same State.

44. The short question is as to whether the State Bar Council is a 'person aggrieved' within the meaning of Section 38 so that it has locus standi to appeal to this Court against a decision of the Disciplinary Tribunal of the Bar Council of India which, it claims, is embarrassingly erroneous and. if left unchallenged, may frustrate the high obligation of maintaining standards of probity and purity and canons of correct professional conduct among the members of the Bar on its rolls.

47. Even in England, so well-known a Parliamentary draftsman as Francis Bennion has recently pleaded in the Manchester Guardian against incomprehensible law forgetting 'that it is fundamentally important in a free society that the law should be readily ascertainable and reasonably clear, and that otherwise it is oppressive and deprives the citizen of one of his basic rights'. It is also needlessly expensive and wasteful. Reed Dickerson, the famous American Draftsman, said: It cost the Government and the public many millions of dollars annually'. The Renton Committee in England, has reported on drafting reform but it is unfortunate that India is unaware of this problem and in a post-Independence statute like the Advocates Act legislators should still get entangled in these drafting mystiques and judges forced to play a linguistic game when the country has an illiterate laity as consumers of law and the rule of law is basic to our Constitutional order.”

27. In the case of Maharaj Singh v. State of Uttar Pradesh

(1977)1 SCC 155, the Supreme Court observed that a legal injury

creates a remedial right in the injured person. But the right to a

remedy apart, a larger circle of persons can move the court for the

protection or defence or enforcement of a civil right or to ward off or

claim compensation for a civil wrong, even if they are not

proprietarily or personally linked with the cause of action. The

nexus between the lis and the plaintiff need not necessarily be

personal, although it has to be more than a wayfarer’s allergy to an

unpalatable episode. Further in the case of Dr. Duryodhan Sahu

javascript:fnOpenGlobalPopUp('/ba/disp.asp','162','1');

28

and Others v. Jitendra Kumar Mishra and Others (1998) 7 SCC 270,

the Supreme Court, held that although the meaning of the

expression ‘person aggrieved’ may vary according to the context of

the statute and the facts of the case, nevertheless normally, a

person aggrieved must be a man who has suffered a legal grievance,

a man against whom a decision has been pronounced which has

wrongfully deprived him of something or wrongfully refused him

something or wrongfully affected his title to something. In Jasbhai

Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578 the Court held

that the expression ‘aggrieved person’ denotes an elastic, and to an

extent, an elusive concept. It stated as follows:

“It cannot be confined within the bounds of a rigid, exact, and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner’s interest, and the nature and extent of the prejudice or injury suffered by him.”

28. Section 16 of the NGT Act gives a right to any person to

prefer an appeal. These expressions have to be considered widely

and liberally. The person aggrieved, thus, can be a person who has

no direct or personal interest in invoking the provisions of the Act

or who can show before Tribunal that it affects the environment,

and therefore, prays for issuance of directions within the

contemplation of the provisions of Section 16 of the NGT Act.

29. Now, we may examine Rule 14 of the National Green

Tribunal (Practices and Procedure) Rules, 2011 with a particular

emphasis on the expression ‘cause of action’. In terms of Rule 14,

an application or appeal, as the case may be, shall be based upon a

29

single cause of action and may seek one or more reliefs provided

they are consequential to one another. This rule primarily means

that there should be one cause of action, however, more inter-

connected reliefs to that cause of action could be claimed by the

applicant in a petition. The framers of law appeared to have

emphasised upon the expression ‘single cause of action’. This may

mean that a joinder of cause of action is not necessarily covered

under this Rule but various prayers arising from a single cause of

action which are consequential to each other are permissible.

‘Cause of action’ is a term which is not defined under the Act and

for that matter, even in the Civil Procedure Code 1908. However,

this is a term which is used very often in the civil jurisprudence.

This expression finds mention in different provisions of the Code of

Civil Procedure including Order VII Rule 11 of the Code.

30. The Supreme Court, in the case of Rajasthan High Court

Advocates Association v. Union of India & Ors. (2001) 2 SCC 294

stated that :

“17. The expression ‘cause of action’ has acquired a judicially settled meaning. In the restricted sense, cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously, the expression means every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in ‘cause of action’. It has to be left to be determined in each individual case as to where the cause of action arises. The Chief Justice of the High Court has not been conferred with the legislative competence to define cause of action or to declare where it would be deemed to have arisen so as to lay down artificial or deeming

30

test for determining territorial jurisdiction over an individual case or class of cases.”

31. Also, the Supreme Court, in the case of Kandimalla

Raghavaiah and Co. v. National Insurance Co. and Anr. (2009)7

SCC 768 stated that :

“13. The term ‘cause of action’ is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as “bundle of facts”, which if proved or admitted, entitle the plaintiff to the relief prayed for. Pithily stated, ‘cause of action’ means the cause of action for which the suit is brought. ‘Cause of action’ is cause of action which gives occasion for and forms the foundation of the suit.”

32. To examine what is cause of action, the Tribunal must

read the entire petition as a whole. Cause of action is, in fact, a

bundle of facts which a party pleads before the Court or Tribunal to

claim a relief. It is a bundle of facts pleaded and proved for the

purpose of obtaining the relief claimed in the petition. These are

the material facts and if the application discloses even a small

cause of action, it is a settled law that the plaint cannot be rejected.

The Supreme Court stated in Liverpool and London S.P. and I Asson.

Ltd. v. M.V. Sea Success I and Anr. (2004) 9 SCC 512 as under:

“140. A cause of action is a bundle of acts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence.

149. In D. Ramachandran v. R.V. Janakiraman : [1999]1SCR983 it has been held that the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. 152. So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the

31

pleadings to disclose a cause of action is distinct from the absence of full particulars. (See Mohan Rawale: (1994)2SCC392 ) 155. The reason for the aforementioned conclusion is that if a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order 7 Rule 11 of the Code of Civil Procedure which may amount to prejudging the matter.

4. Further while discussing the scope and nature of the order passed under Order VII Rule 11 and what could constitute a cause of action in contra-distinction to no cause of action, the Supreme Court held as under::-

132. It is trite that a party should not be unnecessarily harassed in a suit. An order refusing to reject a plaint will finally determine his right in terms of Order 7 Rule 11 of the Code of Civil Procedure.

133. The idea underlying Order 7 Rule 11(a) is that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the courts would interpret the provisions in such a manner so as to save expenses, achieve expedition and avoid the court's resources being used up on cases which will serve no useful purpose. A litigation which is in the opinion of the court is doomed to fail would not further be allowed to be used as a device to harass a litigant. (See Azhar Hussain v. Rajiv Gandhi : [1986]2SCR782 )”

33. The Supreme Court stated the principle that so long as

the claim discloses some cause of action or raises some question to

be decided by a judge, the mere fact that the case is weak and not

likely to succeed is no ground for striking it out.

34. We may also notice another settled principle of the rule of

law that the plea of rejection of a plaint is founded on the ‘Plea of

Demurrer’. A person raising such plea in law has to take the facts

as stated by the opponent in the petition as correct. Despite such

tentative admission of correctness, a plaint that does not disclose a

complete or even partial cause of action or the relief claimed is

32

barred by law and thus, the plaint is liable to be rejected within the

provisions of Order VII Rule 11 of the Code of Civil Procedure. Plain

language of this rule shows that for determination of an application

under this provision, the Court has to look into the plaint. This

concept has been extended by way of judicial pronouncements of

various Courts so as to take within its ambit even the documents

filed by the plaintiff along with plaint or subsequent thereto but

prior to the hearing of such application.

35. The expression ‘disputes’ arising from the questions

referred to in sub-section (1) of Section 14 of the NGT Act, is

required to be examined by us to finally deal with and answer the

contentions raised by the parties before us. The expression used in

sub-section (1) supra is the expression of wide magnitude. The

expression ‘question’ used in sub-section (1) in comparison to the

expression ‘dispute’ used in sub-section (2) of section 14 is of much

wider ambit and connotation. The disputes must arise from a

question that is substantial and relates to environment. This

question will obviously include the disputes referred to in Section

14(2). It is those disputes which would then be settled and decided

by the Tribunal. These expressions are inter-connected and

dependent upon each other. They cannot be given meaning in

isolation or de hors to each other. The meaning of the word

‘dispute’, as stated by the Supreme Court in Canara Bank v.

National Thermal Power Corporation (2001)1 SCC 43 is “a

controversy having both positive and negative aspects. It postulates

the assertion of a claim by one party and its denial by the other”.

33

The term dispute, again, is a generic term. It necessarily need not

always be a result of a legal injury but could cover the entire range

between genuine differences of opinion to fierce controversy.

Conflicts between parties arising out of any transaction entered

between them is covered by the term ‘dispute’.

36. The counsel appearing for the respondents, while

referring to this expression, relied upon the judgment of the

Supreme Court in the case of Inder Singh Rekhi v. DDA , (1988) 2

SCC 338 to support the contention that the dispute, as referred

under the Arbitration Act, 1940 arises where there is a claim and

there is a denial and repudiation of such claim.

37. The judgment relied upon by the respondents is not of

much help to them inasmuch as the Arbitration Act, 1940 operates

in a different field and the meaning to the expression dispute

appearing in that Act has to be understood with reference to the

provisions of that Act specifically. The said Act is only intended to

resolve the disputes between two individuals arising out of a

transaction under the Arbitration law. However, the present case,

the NGT which relates to environment as such. It is not individual

or a person centric but is socio-centric, as any person can raise a

question relating to environment, which will have to be decided by

the Tribunal with reference to the dispute arising from such a

question. It is not necessary that such a question must essentially

be controverted by other person or even the authority. The essence

of environmental law is not essentially adversarial litigation. To give

an example, could any authority or person deny the question

34

relating to cleanliness of river Yamuna? Any person could approach

the Tribunal to claim that the pollution of Yamuna should be

controlled, checked and even prevented. None of the parties or

authorities may be able to dispute such a fact may even contend

that steps are required to be taken to control, prevent and ensure

restoration of clean water of Yamuna. Thus, dispute as understood

to be raising a claim and being controverted by the other party is

not apparently the sine qua non to invocation of Tribunal’s

jurisdiction under the scheme of Sections 14 to 16 of the NGT Act.

This approach is further substantiated from the use of the

expressions ‘cases relating to environmental protection and

conservation of forests and other natural resources including

enforcement of any legal right relating to environment and giving

relief and compensation for damages to persons and property and

for matters connected therewith or incidental thereto’ used in the

preamble of the Act. This is also supported by another settled

principle of interpretation that to determine the meaning of any of

the clause of an Act, the instrument has to be taken as a whole in

order to give effect, if it be possible to do so, to the intention of the

framers of law. Every clause of a statute should be construed as far

as possible with reference to the context and other clauses of the

Act, so as to make a consistent enactment of the whole statute or

series of statutes relating to the subject-matter. In other words, the

instrument must be looked at as one unit or as a whole since there

may be inaccuracies and inconsistencies in the statute. To

ascertain the meaning of the statute, the instrument should be

35

examined as a whole to give effect to the intention of the framers. It

is spoken of construction ‘ex visceribus actus’. One part of the

statute may be construed with the aid of another part of the statute

for better understanding of the meaning of the makers.

38. It is true that the Tribunal, and in fact, even the courts,

normally would not direct the State Government or the competent

authority to accept or reject a recommendation made to it by an

appointed panel or authority. Furthermore, it is also true that the

courts would not direct an authority to enact a law in exercise of

primary or subordinate legislative power. The learned counsel

appearing for the respondents have relied upon various judgments

of the Supreme Court and even those of the High Courts in support

of these two contentions. Reference can be made to: Dahanu Taluka

Environment Protection Group & Anr. v. Bombay Suburban Electricity

Supply Co. Ltd. & Ors. (1991) 2 SCC 539, Commissioner v. Griha

Yajamanula Samkhya & Ors. (2001) 5 SCC 65, V.K. Naswa Vs

Union of India (2012) 2 SCC 542, In Re Networking of Rivers. (2012)

4 SCC 51.

39. To this legal proposition, there cannot be any dispute.

However, the Supreme Court and the High Courts, in exercise of

their powers under Articles 32 and 226 of the Constitution of India,

respectively, have passed certain directions in different matters,

indicating guidelines or issuing interim directions which have been

operative until appropriate legislation has been enacted by the

competent legislature. Reference in this regard can be made to

36

Vihsaka & Ors. Vs. State of Rajasthan & Ors. 1997 (6) SCC 241 and

Court On Its Own Motion Vs. Union of India. 2012 (12) SCALE 307.

40. The Supreme Court has exercised its extraordinary

jurisdiction while passing such directions as well as requiring the

State Governments to enact the relevant laws. This Tribunal does

not possess any such power, as contemplated under Articles 32 and

226 of the Constitution of India. The Tribunal doesn’t have

extraordinary jurisdiction. It has a limited jurisdiction, restricted by

the implementation of the Acts stated in Schedule I to the NGT Act

in relation to civil cases and/or the appellate jurisdiction (cases)

provided under law. The Tribunal is a creation of a statute and is

bound by the provisions of the statute i.e. the NGT Act, 2010. Thus,

we have to examine as to whether, within the framework of the NGT

Act and while keeping in mind the scheme of the same, its objects

and purposes, generally such a petition would lie before the

Tribunal or not. We have already discussed above that ‘all civil

cases’, ‘substantial question relating to environment’ and ‘disputes’

are expressions of wide connotation and have to be liberally

construed to achieve the object of the Act. Once the legislature has

used such expressions of wide connotation intentionally and

intended to enlarge the scope of the Act to consider all civil cases

raising a question of environment, then by the process of

interpretation, it will not be permissible to restrict that jurisdiction

that springs from such legislative intent.

41. The implication of jurisdiction is, of course, not at the

discretion of the judge but is relatable to the legislative intent and

37

may be expanded within the framework of the statute. Once the

legislature has intended to include ‘all civil cases’ in

contradistinction to criminal cases, then it is not desirable for the

Tribunal to carve out another class of cases which are to be

excluded from the jurisdiction of the Tribunal. This will amount to

adding words to a statute which are not provided otherwise. In a

civil case which raises a question relating to environment, the

Tribunal shall have jurisdiction to decide disputes arising out of

such a question. Therefore, there is no need to carve out any

exception for exclusion which is not spelt out by the legislature

itself.

42. Under the scheme of the Act, an anticipated action will

also fall within the ambit of the jurisdiction of the Tribunal. Section

20 of the NGT Act provides that, while deciding cases before it, the

Tribunal shall take into consideration the three principles —

principle of sustainable development, precautionary principle and

the polluter pays principle. The precautionary principle would

operate where actual injury has not occurred as on the date of

institution of an application. In other words, an anticipated or likely

injury to environment can be a sufficient cause of action, partially

or wholly, for invoking the jurisdiction of the Tribunal in terms of

Sub-sections (1) and (2) of Section 14 of the NGT Act. The language

of Section 20 is referable to the jurisdiction of the Tribunal in terms

of Sections 14 and 15 of the Act. The precautionary principle is

permissible and is opposed to actual injury or damage. On the

cogent reading of Section 14 with Section 2(m) and Section 20 of the

38

NGT Act, likely damage to environment would be covered under the

precautionary principle, and therefore, provide jurisdiction to the

Tribunal to entertain such a question. The applicability of

precautionary principle is a statutory command to the Tribunal

while deciding or settling disputes arising out of substantial

questions relating to environment. Thus, any violation or even an

apprehended violation of this principle would be actionable by any

person before the Tribunal. Inaction in the facts and circumstances

of a given case could itself be a violation of the precautionary

principle, and therefore, bring it within the ambit of jurisdiction of

the Tribunal, as defined under the NGT Act. By inaction, naturally,

there will be violation of the precautionary principle and therefore,

the Tribunal will have jurisdiction to entertain all civil cases raising

such questions of environment. Such approach is further

substantiated by the fact that Section 2(c), while defining

environment, covers everything. Section 2(m) brings into play a

direct violation of a specific statutory environmental obligation as

contemplated under Section 5 of the Environment Act as being

substantial question relating to environment These provisions, read

with Section 3(1) and Section 5 of the Environment Act, which place

statutory obligation and require the Government to issue

appropriate directions to prevent and control pollution, clearly show

that the legislature intended to provide wide jurisdiction to the

Tribunal to deal with and cover all civil cases relating to

environment, as stated by the Supreme Court in the case of S.A.L.

Narayan Row & Anr. v. Ishwarlal Bhagwandas & Anr. (AIR 1965

39

SCC 1818). The character of the proceedings is normally not with

reference to the relief that the Tribunal can grant but upon the

nature of the right violated and the appropriate relief which can be

claimed.

43. Now let us examine what is the case of the applicant, the

right violated and the relief claimed. It is indisputable and, in fact,

an unquestionable fact that the Western Ghats are ecologically

sensitive zones. They require to be protected. The Government itself

had appointed three different Committees from time to time to find

out ways and means by which these Western Ghats can be

protected and environmental exploitation and intrusion, leading to

degradation of the environment, can be prevented. These

Committees have made different recommendations but all of them

are ad idem that these Ghats need to be protected. There is a

statutory obligation upon the State to protect the environment and

ecology of these Western Ghats and to ensure that they are not

degraded so as to harm the public and environment at large.

Environmental protection is not only the obligation of the State but

in fact of all concerned. For years, Government has not acted,

according to the applicant, in furtherance of preventing degradation

of environment. Preventive steps need to be taken, which could

either be in the light of the recommendations made by the

Committees or independent of them. After hearing all the parties

concerned, this question will have to be examined on merits.

Certainly, the Tribunal may not issue any direction to the

Government to accept or reject either of the reports submitted to it

40

or to adopt any particular course of action. However, if the

Tribunal, on merits, is satisfied, nothing prevents the Tribunal from

issuing appropriate directions in terms of Section 5 of the

Environment Act for the State to discharge its statutory obligations.

How that dispute is to be settled and decided is a matter to be

considered on merits of the case and at the appropriate stage.

Presently, we are only concerned whether to hear this petition on

merits or not. A petition that seeks protection of ecology of the

Western Ghats by itself would be maintainable. To examine the

contents of the petition and the right of the applicant and the relief

that can be granted within the framework of the NGT Act, one has

to read the application as a whole. Upon its collective reading, the

applicant has been able to make a case of non-performance of the

statutory obligation by the State and other authorities concerned on

the one hand and that of the need for preventing degradation of the

environment and ecology of these Western Ghats under the

precautionary principle, on the other. The applicant has a legal

right to approach the Tribunal and pray for relief within the scheme

of the NGT Act. He is neither expected to show any personal injury

nor any actual damage to the environment. The applicant raises

substantial question relating to environment with reference to the

Western Ghats. Right to life includes right to environment within

the meaning of Article 21 of the Constitution of India. To ensure

that the environment is not degraded, it is the legal right of any

person to raise issues arising from the Constitutional mandate and

or even the provisions of the Environment Act. We are not in a

41

position to accept the contention that the present application

neither raises any dispute nor a substantial question of

environment. What relief finally the applicant would be entitled to

get, if any, cannot be decided at this stage. But certainly, it cannot

be held that the present petition is not maintainable in terms of the

provisions of the NGT Act.

44. For the reasons aforestated, we hold that the present

application is maintainable before this Tribunal.

45. Having answered the questions as above, we direct that

the main application be listed for hearing on merits.

Justice Swatanter Kumar Chairperson

Justice U.D. Salvi Judicial Member

Dr. D.K. Agrawal Expert Member

Prof. A.R. Yousuf Expert Member

Dr. R.C. Trivedi Expert Member

New Delhi July 18, 2013