The National Green Tribunal cannot exercise suo motu jurisdiction and initiate proceedings on its own motion as it did in the recent case of the Vizag Gas Leak.
The National Green Tribunal (“NGT”), a specialized tribunal to deal with environmental matters, was created by the National Green Tribunal Act, 2010 (“NGT Act”). Recently, the NGT by an order dated May 8th, 2020 took suo motu cognizance of the Vizag Gas Leak. The Respondent Company, LG Polymers appealed before the Supreme Court (“SC”) challenging the exercise of suo motu powers by the NGT. The SC directed LG Polymers to raise the issues of jurisdiction before the NGT itself.
Consequently, by an order dated June 3rd, 2020 the NGT determined that it has the power to exercise suo motu jurisdiction and decided the merits of the case. In this article I will argue that the NGT has exercised its jurisdiction under an erroneous belief that it has suo motu powers under the NGT Act. I will examine the June 4th order and counter the reasoning given by the NGT in two parts, firstly scope of NGT’s powers to regulate its own procedure and secondly the extent of inherent powers, if available, with the NGT.
Brief summary of the June 4th order:
The NGT has attempted to justify its use of suo motu powers on two grounds. Firstly, it relied on Section 19 of the NGT Act which confers upon the Tribunal power to make its own procedure. The NGT at para 14 of the order has observed that the power to regulate its own procedure, in appropriate circumstances, includes the power to institute suo motu proceedings.
Secondly, it relied on Rule 24 of the NGT Practice and Procedure Rules, 2011 (“NGT Rules”) which confers upon the Tribunal wide range of powers to pass any order or direction as may be necessary or expedient to give effect to its order, prevent the abuse of the process and secure the ends of justice. In its concluding remark, it has made an interesting observation that the issue of procedure is within its discretion, including the powers to issue suo motu proceedings unless expressly barred.
Scope of powers to regulate own procedure:
The jurisdiction of the NGT is governed by the provisions of Section 14 read with Section 18. Section 18(2) of the NGT Act provides for the persons and entities that can file an application for relief or compensation or the settlement of any dispute. The NGT, under Section 14, can exercise its jurisdiction over an application only if it pertains to a ‘civil dispute’ involving a substantial question of environment. Although Section 18 allows any aggrieved person to file an application before the NGT, widening the ambit of locus standi, it remains silent on the NGT’s suo motu powers. This was recognized by the Madras HC in Vellore Citizens Welfare Forums v. Union of India wherein it had to determine whether the functions and powers of the Loss of Ecology Authority (“LoEA”) should be transferred to the NGT. The Court, while distinguishing the powers of NGT and LoEA, observed at para 54 that the NGT, unlike the LoEA, is not conferred with suo motu powers. The Court noted that the question of locus under Section 18 is sufficiently diluted to compensate for lack of suo motu powers, hence implicitly recognizing that the NGT does not possess suo motu jurisdiction.
Further, NGT being a creature of a Statute cannot travel beyond the provisions of the Statute and must act within its four corners. The NGT must exercise its jurisdiction strictly in accordance with the NGT Act and not beyond. The SC in the case of Rajeev Hitendra Pathal v. Achyut Kashinath at para 36 has held that tribunals derive their powers from the express provisions of the statute and that which is not expressly conferred cannot be exercised. Consequently, the NGT’s opinion that it can exercise powers unless expressly barred is an incorrect proposition of law. The scope of exercising suo motu powers by the Debt Recovery Tribunal/Appellate Tribunal (“DRT/DRAT”) under the authority of regulating its own procedure was discussed by the Delhi HC in the case of Padam Singhee v. SVOGL Oil, Gas and Energy Ltd.
Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (“RDDBFI Act”) which is couched in the exact language as Section 19 of the NGT Act, confers powers upon the DRT/DRAT to regulate its own procedure subject to the provisions of the RDDBFI Act. However, the Delhi HC quashed the suo motu show cause notice issued by the DRAT and held that the Section 22 cannot be interpreted to say that the DRT/DRAT can exercise suo motu jurisdiction. In light of the above discussion, the NGT Act has not been conferred the powers of suo motu jurisdiction under the NGT Act. Further, any procedure made under Section 19 is subject to the provisions of the Act. Therefore, secondary powers cannot be used to assume powers not provided expressly under the statute; for it is settled that what cannot be done directly cannot be done indirectly.
Scope of powers under rule 24:
In this part I will establish that the NGT has no inherent powers and even in the event it does, the same cannot be used to justify the exercise of suo motu powers. Firstly, although Rule 24 confers a wide range of powers upon the NGT to pass any order or direction to do justice, the same cannot be equated with ‘inherent powers’. The SC in Standard Chartered v. Dharminder Bhohi while examining the scope of powers conferred by Section 19(25) of the RDDBFI Act drafted in the exact language as Rule 24 of the NGT Rules held that Tribunal does not have inherent powers. It observed at para 33 of its judgment that the powers conferred by Section 19(25) are limited and the DRAT/DRAT is required to function within the statutory parameters. The logic underneath such a proposition is that while Courts are created by States and possess the State’s inherent power to do justice, a tribunal is created by a statute and cannot assume inherent powers unless expressly conferred.
Secondly, even if Rule 24 places inherent powers unto NGT, the said powers cannot be used to assume suo motu jurisdiction. It is trite law that a statutory tribunal is a court of limited jurisdiction and under the guise of inherent powers it cannot exercise such jurisdiction not vested in them. The extent of jurisdiction exercisable by the NGT can be inferred from the SC decision in the case of Tamil Nadu Pollution Control Board v. Sterlite Industries (“TNPCB”). The SC in the present case was examining the extent of appellate powers of NGT to correct an order passed under Section 18 of the Water Act by the State of Tamil Nadu. The SC at para 42 has expressly held that since an appeal from an order passed under Section 18 is not provided under Section 16, it cannot be corrected or judicially reviewed by the NGT. The same logic should be extended to Section 14 and 18(2) of the NGT Act which exhaustively deals with the persons that can file an application for relief or compensation or settlement of a dispute that has arisen out of the enactments listed in Schedule I.
It is settled law that inherent powers cannot be used to bypass or nullify statutory provisions and if a provision expressly deals with a particular manner it will be treated as exhaustive. In view of the SC decision in TNPCB (supra) case there is no doubt that the NGT can exercise its original jurisdiction only in the manner provided under Section 14 read with Section 18 of the Act. Consequently, if a Tribunal is allowed to enlarge assume or enlarge its jurisdiction under the garb of ‘inherent powers’ it would amount to a situation where a Tribunal may exercise any power or jurisdiction to do justice; thereby nullifying the statutory procedure. Therefore, the NGT cannot assume suo motu powers and must derive its jurisdiction from the provisions of the statute and not beyond.
In the present case, this question had become moot since two original applications were preferred before the NGT. However, the question whether the NGT can exercise suo motu powers is still pending before the SC in the case of Municipal Corporation Greater Mumbai v. Ankita Sinha. The SC will settle important jurisprudence pertaining to the extent of discretionary rule making and inherent powers of the tribunal. In my opinion, the provisions of Section 18(2)(e) are sufficiently wide to even include applications from a ‘public spirited’ person; and thus there is no requirement to exercise suo motu powers. Although the initiatives and efforts of the NGT are commendable, tribunals cannot be allowed assume powers or jurisdiction as it severely undermines the rule of law. It must always be borne in mind that the powers and jurisdiction of a tribunal has to be found in the four corners of a statute.
The Author is a student at GNLU, Gandhinagar.