Supreme Court clarifies NGT jurisdiction

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Dear Editor,

On 18 February 2019, a two-judge bench of the Supreme Court of India in the case of Tamil Nadu Pollution Control Board v Sterlite Industries (I) Ltd & Ors set aside the orders of the National Green Tribunal (NGT), which had permitted re-opening of the Vedanta-Sterlite copper smelter plant at Thoothukudi, Tamil Nadu only on the grounds of maintainability. This judgment of the Supreme Court brings some clarity on the jurisdictional aspects of the NGT arising out of various provisions of the Air Act and Water Act.

The dispute over the operation of the Vedanta-Sterlite plant in Tamil Nadu highlights the fact that the environmental compliance regime in India is witnessing a shift from being a “technical” issue to one, where a community’s perception and expectations are gaining a significant position in the discourse. It may be appropriate to say that if such a shift continues, environmental and social concerns will increasingly pose substantial risks to doing business in India.

The facts of the dispute in brief are that residents near the plant had complained of health problems such as irritation, throat infection, severe cough, breathing problem, nausea etc. due to emissions from the plant. The Tamil Nadu Pollution Control Board (TNPCB), on 23 May 2018, directed the closure of the plant under section 33A of the Water Act and section 31A of the Air Act. Subsequently, on 28 May 2018, the Government of Tamil Nadu under section 18(1)(b) of the Water Act endorsed the TNPCB direction and ordered the closure of the plant in view of larger public interest. However, the NGT, vide order dated 15 December, permitted the re-opening of the plant.

The Supreme Court, setting aside the order on maintainability alone, observed that the NGT in the case had entertained a leapfrog appeal against the original order while an appeal was still pending before the appellate authority. It was held by the court that since the appeal is a creature of statute and an appellate tribunal has to act strictly within the domain prescribed by the statute, such leapfrog appeals to NGT are without jurisdiction even if doctrine of necessity is pleaded. The Supreme Court further observed that the legislative scheme is that directions issued under section 33A of the Water Act are appealable to the NGT, but, directions issued under section 31A of the Air Act are not appealable. The court further held that the NGT did not have the jurisdiction to hear an appeal against the order made by Government of Tamil Nadu under section 18 of the Water Act. It was held that an order under section 18 of the Water Act could only be set aside either in a suit, or a judicial review by a high court . The court further held that NGT does not have powers of judicial review like the high court under article 226 of the Constitution of India.

In concluding, the Supreme Court observed that the product exported by Sterlite is an important import substitute and clarified that since they have set aside the orders of the NGT only on the ground of maintainability, it is open for Sterlite to file a writ petition before the high court seeking appropriate relief.

Ashutosh Senger
A lawyer specializing in environmental law and intellectual property rights
New Delhi

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