TAMIL NADU POLLUTION CONTROL BOARD versus STERLITE INDUSTRIES (I) LTD. & ORS.

[2019] 3 S.C.R. 777

TAMIL NADU POLLUTION CONTROL BOARD

STERLITE INDUSTRIES (I) LTD. & ORS.(Civil Appeal Nos. 4763-4764 of 2013)

FEBRUARY 18, 2019

[R. F. NARIMAN AND NAVIN SINHA, JJ.]

Environment – Air (Prevention and Control of Pollutions) Act,1981 – ss. 21, 31, 31A and 31B – Water (Prevention and Control ofPollution) Act, 1974 – ss.18, 25, 26, 27, 28, 29, 33A and 33B –National Green Tribunal Act, 2010 – ss. 14, 15, 16, 29 and 33 –Leapfrog appeal before the National Green Tribunal (NGT) –Maintainability of – Respondent was operating copper smelterplant – Tamil Nadu Pollution Control Board (TNPCB) directedclosure of the unit under the various provisions of the Air Act andWater Act – Composite appeals against the six orders passed againstthe respondent were filed u/s.16 of the NGT Act – NGT set aside thesix orders in the composite appeals – State and TNPCB contendedthat once an appeal is available to an appellate authority, afterwhich an appeal lies to the NGT, party cannot leapfrog directly tothe NGT – On appeal, held: It is clear that an appeal is creatureof statute and an appellate tribunal has to act strictly within thedomain prescribed by statute – It is obvious that an appeal wouldlie from an order or decision of the appellate authority u/s.28 of theWater Act to the NGT only u/s.33B(a) of the Water Act r/w. s.16(a)of the NGT Act – Similarly, an appeal would lie from an order ordecision of the appellate authority u/s.31 of the Air Act to the NGTonly u/s.31B of the Air Act read with s.16(f) of the NGT Act – Sinceno order or decision had been made by the appellate authority undereither the Water Act or the Air Act, any direct appeal against anoriginal order to the NGT would be incompetent – NGT’s jurisdictionbeing strictly circumscribed by s.33B of the Water Act, r/w. s.31B ofthe Air Act, r/w. s.16(a) and (f) of the NGT Act, would make it clearthat it is only orders or decisions of the appellate authority that areappealable, and not original orders – This being the case, the NGT’sorder being clearly outside its statutory powers conferred by theWater Act, the Air Act, and the NGT Act, would be an order passedwithout jurisdiction.

ANational Green Tribunal Act, 2010 – Powers of judicial review– Held: Under the NGT Act, the Tribunal exercising appellatejurisdiction cannot strike down rules or regulations made underthis Act – It would be fallacious to state that the Tribunal has powersof judicial review akin to that of High Court exercisingconstitutional powers u/Art. 226 of the Constitution of India –BConstitution of India – Art.226.

Doctrines/Principles – Doctrine of Necessity – NGT statedthat the doctrine of necessity would take over if an appellateauthority under the Act is not properly constituted – Held: If anappellate authority is either not yet constituted, or not properlyCconstituted, leapfrog appeal to the NGT cannot be countenanced– NGT is only conferred appellate jurisdiction from an order passedin exercise of first appeal – Where there is no such order, the NGThas no jurisdiction – National Green Tribunal Act, 2010 – Water(Prevention and Control of Pollution) Act, 1974 – Air (PreventionDand Control of Pollution) Act,1981.

Disposing of the appeals, the Court

HELD: 1. Order dated 09.04.2018 is an order whichrejected renewal of consent to operate, and therefore, is traceableto Section 27 of the Water (Prevention and Control of Pollution)EAct, 1974 and Section 21 of the Air (Prevention and Control ofPollution) Act,1981. There is no doubt whatsoever that an appealagainst an order made under Section 27 of the Water Act isappealable to the appellate authority under Section 28 of the saidAct. Under Section 33B(a) of the said Act, if person is aggrievedby an order or decision of the appellate authority under SectionF28, it is then appealable to the National Green Tribunal (NGT).This is made clear also by Section 16(a) of the National GreenTribunal Act, 2010. Equally, an order refusing consent underSection 21 of the Air Act is appealable to the appellate authorityunder Section 31 of the Air Act, and thereafter, from the saidGappellate authority’s order, to the NGT, under Section 31B of theAir Act and Section 16(f) of the NGT Act. [Para 21][813-B-C]

2. As has been stated hereinabove, it is clear that an appealto the appellate authority under the Air Act and the Water Actwas preferred. While these appeals were pending before theappellate authority, the composite Appeals were filed before theH

NGT inter alia against the order of refusal of consent to operatedated 09.04.2018. While it is argued that the appeals could notbe heard since the State Government had passed an order dated28.05.2018 directing the TNPCB to close down the plantpermanently, the said order expressly states that the appealscould not be decided at this junctureand were hence adjournedto 10.07.2018. The said appeals on 10.07.2018 were furtheradjourned, and it is only on 18.12.2018 that they were finallywithdrawn as being infructuous in view of the fact that the NGThad passed its order on 15.12.2018 in which it had set aside theorder dated 09.04.2018. What becomes clear is the fact that whilean appeal was still pending before the appellate authority, theNGT took up matter directly against the original order dated09.04.2018 which was challenged before the appellate authorityeven before the appellate authority could decide the same. [Paras22 and 23][813-D-H]

3. It is clear that an appeal is creature of statute and anappellate tribunal has to act strictly within the domain prescribedby statute. It is obvious that an appeal would lie from an order ordecision of the appellate authority under Section 28 of the WaterAct to the NGT only under Section 33B(a) of the Water Act readwith Section 16(a) of the NGT Act. Similarly, an appeal would liefrom an order or decision of the appellate authority under Section31 of the Air Act to the NGT only under Section 31B of the AirAct read with Section 16(f) of the NGT Act. Obviously, since noorder or decision had been made by the appellate authority undereither the Water Act or the Air Act, any direct appeal against anoriginal order to the NGT would be incompetent. NGT’sjurisdiction being strictly circumscribed by Section 33B of theWater Act, read with Section 31B of the Air Act, read with Section16(a) and (f) of the NGT Act, would make it clear that it is onlyorders or decisions of the appellate authority that are appealable,and not original orders. On the facts of the present case, it isclear that an appeal was pending before the appellate authoritywhen the NGT set aside the original order dated 09.04.2018.This being the case, the NGT’s order being clearly outside itsstatutory powers conferred by the Water Act, the Air Act, andthe NGT Act, would be an order passed without jurisdiction. [Para31][820-B-F]

[2019] 3 S.C.R.

AKundur Rudrappa v. Mysore Revenue Appellate Tribunaland Ors. (1975) 2 SCC 411; Cellular OperatorsAssociation of India and Ors. v. Union of India andOrs. (2003) 3 SCC 186 : [2002] 5 Suppl. SCR 222; B.Himmatlal Agrawal v. Competition Commission of India[2018] 4 SCR 496; Raja Soap Factory v. S.P.BShantharaj [1965] 2 SCR 800; Northern Plastics Ltd.v. Hindustan Photo Films Mfg. Co. Ltd. and Ors. (1997)4 SCC 452 : [1997] 2 SCR 252; Manohar Lal v.Ugrasen (2010) 11 SCC 557 : [2010] 7 SCR 346; ArcotTextile Mills Ltd. v. Regional Provident FundCCommissioner (2013) 16 SCC 1 : [2013] 11 SCR 371– relied on.

S Franses Ltd. v. The Cavendish Hotel (London) Ltd.

[2018] UKSC 62 – referred to.

4. The orders dated 12.04.2018, 23.05.2018, andD28.05.2018 passed by the TNPCB under Sections 33A and 31Aof the Water Act and Air Act respectively. At this juncture, it isimportant to state that Section 33B of the Water Act and Section31B of the Air Act were both enacted on 18.10.2010, which is thevery date on which the NGT Act came into force. What isimportant to note is that whereas Section 33B(c) of the WaterEAct read with Section 16(c) of the NGT Act make it clear thatdirections issued under Section 33A of the Water Act areappealable to the NGT, directions issued under Section 31A ofthe Air Act are not so appealable. In fact, the statutory scheme isthat directions given under Section 31A of the Air Act are notFappealable. This being the case, all the aforesaid orders, beingcomposite orders issued under both the Water Act and the AirAct, it will not be possible to split the aforesaid orders and saythat so far as they affect water pollution, they are appealable tothe NGT, but so far as they affect air pollution, suit or writpetition would lie against such orders. Respondent’s argumentGthat these orders being substantially relatable to the Water Actwould, therefore, not hold, as such orders are composite ordersmade bothunder the Water Act and the Air Act. Equallydisingenuous is the reference to Section 14 of the NGT Act whichonly refers to the original jurisdiction of the NGT and not to itsHappellate jurisdiction. Also, to state generally that the subject

matter of environment lies with the NGT, is an argument of despairthat must be dismissed, an appeal being creature of statute, astatute either confers right of appeal or it does not. In the presentcase, so far as directions issued under Section 31A of the Air Actare concerned, there is no right of appeal conferred by the AirAct read with the NGT Act. The ingenious argument made byRespondent that, in any case, “direction” under Section 31A ofthe Air Act is nothing but an “order”, and would, therefore, beappealable as such under Section 31B of the Air Act read withSection 16(f) of the NGT Act would drive coach-and-four throughthe statutory scheme that has just been adverted to. All theappellate proceedings to the NGT, whether under the Air Act,the Water Act, or the NGT Act have been brought into force onthe same date. Whereas the identical power to give directions bythe Board under the Water Act is appealable to the NGT, thesame power to give directions by the Board under the Air Act isnot so appealable. The absence of any mention of Section 31A inSection 31B of the Air Act, given the statutory scheme asaforesaid, makes it clear that even this argument must berejected. Also, “directions” that are issued under Section 31A ofthe Air Act are of different quality from “orders” referred to inSection 31 of the same Act. Directions are issued in the exerciseof powers and performance of functions under the Act and arenot quasi-judicial in nature, whereas orders that are appealedagainst under Section 31 are quasi-judicial orders made, interalia, under Section 21 of the Air Act. [Para 35][822-C-H; 823-A-D]5. So far as the order dated 28.05.2018 is concerned, thisorder is expressly stated to be made under Section 18 of theWater Act. There is no doubt whatsoever that such an order isnot appealable to the NGT either under the Water Act or underthe NGT Act. However, respondents have argued that Section18 is referable to orders generally made, and falls under ChapterIV of the Water Act, which deals with powers and functions ofBoards, as opposed to the Sections that follow in Chapter V, whichdeals with prevention and control of water pollution, which ordersare made against individuals and individual industries. On theassumption that respondents are correct in this argument, it isclear that such order can only be set aside in suit by Civil

ABC

ACourt, or under Article 226 of the Constitution of India by HighCourt. Therefore, this order can only be set aside either in asuit, or by the High Court in the exercise of judicial review. [Para39][826-A-C]

State of Punjab v. Gurdev Singh (1991) 4 SCC 1B: [1991] 3 SCR 663; Tayabbhai M. Bagasarwalla v.Hind Rubber Industries (P) Ltd. (1997) 3 SCC 443: [1997] 2 SCR 152; Pune Municipal Corpn. v. Stateof Maharashtra (2007) 5 SCC 211 : [2007] 3 SCR 277;Krishnadevi Malchand Kamathia v. BombayEnvironmental Action Group (2011) 3 SCC 363 : [2011]C3 SCR 291; Kandla Port v. Hargovind Jasraj (2013) 3SCC 182 : [2013] 1 SCR 589 – referred to.

Smith v. East Elloe Rural District Council [1956] 1 AllE.R. 855 – referred to.

6. Respondents then argued that this Court in L. ChandraDKumar case made it clear that Tribunals that are set up, generallyhave the power of judicial review, save and except challenge tothe vires of the legislation under which such Tribunals arethemselves set up. For this, he relied strongly upon paragraphs90 and 93 of the judgment in L. Chandra Kumar. It is important

Eto notice that L. Chandra Kumar pertained to Tribunal thatwas set up under Article 323A of the Constitution of India. UnderArticle 323A(2)(d), the Administrative Tribunal so set up wouldbe able to exercise the jurisdiction of all courts except thejurisdiction of the Supreme Court under Article 136 of theConstitution. This would mean that the Administrative TribunalFso set up could exercise the jurisdiction of all High Courts whenit came to the matters specified in Article 323A. This is furthermade clear by conjoint reading of Section 14 and Section 28 ofthe Administrative Tribunals Act, 1985. Article 323B of theConstitution of India also provides for Tribunals for certain otherGmatters which are specified by sub-clause (2) thereof. Suffice itto say that the NGT is not Tribunal set up either under Article323A or Article 323B of the Constitution, but is statutoryTribunal set up under the NGT Act. That such Tribunal doesnot exercise the jurisdiction of all courts except the SupremeCourt is clear from reading of Section 29 of the NGT Act. Thus,Ha conjoint reading of Section 14 and Section 29 of the NGT Actmust be contrasted with conjoint reading of Section 14 andSection 28 of the Administrative Tribunals Act, 1985. In BharatSanchar Nigam Limited v. Telecom Regulatory Authority of Indiaand Ors., this Court had to construe the appellate power that iscontained in Section 14 of the Telecom Regulatory Authority ofIndia Act, 1997, by which, the TDSAT was conferred with thepower to hear and dispose of appeals against any direction,decision, or order of the TRAI. In the present case, it is clearthat Section 16 of the NGT Act is cast in terms that are similar toSection 14(b) of the Telecom Regulatory Authority of India Act,1997, in that appeals are against the orders, decisions, directions,or determinations made under the various Acts mentioned inSection 16. It is clear, therefore, that under the NGT Act, theTribunal exercising appellate jurisdiction cannot strike down rulesor regulations made under this Act. Therefore, it would befallacious to state that the Tribunal has powers of judicial reviewakin to that of High Court exercising constitutional powersunder Article 226 of the Constitution of India. For this reasonalso, the State Government order made under Section 18 of theWater Act, not being the subject matter of any appeal underSection 16 of the NGT Act, cannot be “judicially reviewed” bythe NGT. Following the judgment in BSNL, the NGT has nogeneral power of judicial review akin to that vested under Article226 of the Constitution of India possessed by the High Courts ofthis country. Respondent’s strong reliance on the NGT judgmentdated 17.07.2014 in Wilfred v. Ministry of Environment andForests must also be rejected as this NGT judgment does notstate the law on this aspect correctly. This contention is alsowithout merit, and therefore, rejected. [Paras 40, 42][826-F-H;827-A; 829-C-D; 830-C-D; 831-G-H; 832-A-B, E-G]

Bharat Sanchar Nigam Limited v. Telecom RegulatoryAuthority of India and Ors. (2014) 3 SCC 222 : [2013]12 SCR 999 – relied on.

7. In conclusion, this Court is cognizant of the fact that therespondent’s plant has been shut down since 09.04.2018. Sincethe impugned judgments of the NGT on the ground ofmaintainability have been set aside and the order dated 22.01.2019passed by the TNPCB, being consequential order, is also set

784SUPREME COURT REPORTS

Aaside. The respondents are relegated to the position that the sixorders impugned before the NGT, dealt with by the impugnedjudgment dated 15.12.2018, and the order dated 29.03.2013, dealtwith by the final judgment dated 08.08.2013, are alive andoperative. Given the fact that this Court is setting aside the NGTjudgments involved in these appeals on the ground ofBmaintainability, it will be open for the respondents to file writpetition in the High Court against all the aforesaid orders. If suchwrit petition is filed, it will be open for the respondent to applyfor interim reliefs considering that their plant has been shut downsince 09.04.2018. [Para 45][833-F-H]

CKanhiya Lal Omar v. R.K. Trivedi (1985) 4 SCC 678 :[1985] 3 Suppl. SCR 1; Maharashtra State Board ofSecondary and Higher Secondary Education v. ParitoshBhupeshkumar Sheth (1984) 4 SCC 27 : [1985] 1 SCR 29; Galada Power & Telecommunication Ltd. v. UnitedDIndia Insurance Co. Ltd. (2016) 14 SCC 161; AllokamPeddabbayya v. Allahabad Bank (2017) 8 SCC 272: [2017] 8 SCR 121; Garikapati Veeraya v. N. SubbiahChoudhury [1957] SCR 488 – distinguished.

L. Chandra Kumar v. Union of India and Ors. (1997) 3SCC 261 : [1997] 2 SCR 1186; Re: Special ReferenceE[1965] 1 SCR 413 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4763-4764 of 2013.

From the Judgment and Order dated 31.05.2013 of the PrincipalBench of National Green Tribunal, New Delhi in Appeal No. 57 of 2013(Appeal No. 22 of 2013 and Appeal No. 58 of 2013 (Appeal No. 23 of2013 (SZ).

WITH

Civil Appeal Nos. 8773-8774/2013, 9542-9543/2013, 5782/2014,1552-1554/2019, 23/2019 and 1582/2019.

Balaji Srinivasan, AAG, C. S. Vaidyanathan, K. V. Viswanathan,Guru Krishnakumar, C. A. Sundaram, R. Raizada, Sr. Advs., M. YogeshKanna, Siddhanth Kohli, Ms. Vrinda Bhandari, Ravi Raghunath,Venkatraman, Akshay Nagarajan, G. Sivabalamurugan, G. AnandaSelvam, Vasantha Kumar, Karuppaiah, Vivek Bharathi, Vinodh KannaB., R. Nedumaran, Beno Bencigar, Parijat Kishore, Santosh KumarTripathi, Ms. Rohini Musa, Abhishek Gupta, Zaffar Inayat, Arjun Singh,Deepak Goel, Ashutosh Kumar Sharma, Rajeev Dubey, KamlendraMishra, Mrs. Rachna Gupta, Nikhil Nayyar, Ms. K. V. BharathiUpadhyaya, Advs. for the appearing parties.

Mr. Vaiko, Appellant in-person

The Judgment of the Court was delivered by

R. F. NARIMAN, J. 1. The present appeals arise out of ordersthat have been passed by the National Green Tribunal [“NGT”] dated31.05.2013, 08.08.2013, and 15.12.2018. The brief facts necessary toappreciate the controversy raised in the present case are as follows.

A2. The respondent, Sterlite Industries (India) Ltd. / Vedanta Ltd.,was operating copper smelter plant at the State Industries PromotionCorporation of Tamil Nadu Ltd. (SIPCOT) Industrial Complex atThoothukudi, Tamil Nadu. On 01.08.1994, the respondent received aNo-Objection Certificate [“NOC”] from the Tamil Nadu PollutionControl Board [“TNPCB”] for the production of blister copper andBsulphuric acid. The environmental clearance to the project by the Ministryof Environment, Forest, and Climate Change [“MoEF”] followed on16.01.1995. On 17.05.1995, the State MoEF also granted environmentalclearance to the respondent. The TNPCB granted its consent under theAir (Prevention and Control of Pollution) Act, 1981 [“Air Act”] andCWater (Prevention and Control of Pollution) Act, 1974 [“Water Act”]on 22.05.1995. After obtaining the requisite permissions, the consent tooperate the plant was issued on 14.10.1996 by the TNPCB. Productioncommenced on 01.01.1997. However, the environmental clearancesthat were granted were challenged before the Madras High Court inWrit Petition Nos.15501-15503/1996, 5769/1997, and 16961/1998. OnD20.05.1999, the TNPCB granted its consent for production of two moreproducts, namely, phosphoric acid and hydrofluorosilicic acid. On21.09.2004, Supreme Court Monitoring Committee was constituted toverify the compliance status of hazardous waste management. Itrecommended to the MoEF that the environmental clearance for theEproposed expansion should not be granted, and if granted, should berevoked. On 19.04.2005, the TNPCB issued consent to operate, subjectto fulfillment of various conditions for the expanded capacity. Meanwhile,the Madras High Court, on 28.09.2010, allowed the various writ petitionsthat had been filed and quashed the environmental clearances grantedto the respondent and directed the TNPCB to close down the plant.F

3. Meanwhile, on 23.03.2013, the residents of nearby areas startedcomplaining of irritation, throat infection, severe cough, breathing problem,nausea etc. due to emissions from Sterlite Industries. Reports wereobtained after inspection of the premises by the TNPCB. Based onthese reports, the TNPCB issued show-cause notice dated 24.03.2013Gand directed closure of the unit under Section 31A of the Air Act on29.03.2013. This order was stayed by the NGT on 31.05.2013, allowingthe respondent to commence production subject to certain conditions.Against this, the TNPCB filed Civil Appeal Nos.4763-4764 of 2013,which will be disposed of by the judgment delivered in this case. Finally,on 08.08.2013, the NGT set aside the TNPCB order dated 29.03.2013,Hagainst which, Civil Appeal Nos. 8773-8774 of 2013 were filed, whichagain will be disposed of by this judgment. It is important to note that theappellants herein raised the issue of maintainability of the respondent’sappeal before the NGT, stating that an appeal should have been filedfirst before the appellate authority under the Air Act / the National GreenTribunal Act, 2010 [“NGT Act”]. This ground of maintainability wasdecided against the appellants by the impugned order dated 08.08.2013.

4. Owing to various interim orders passed by the NGT, therespondent continued to operate its plant. On 13.04.2016, the TNPCBgranted consent to operate the plant for one year subject to certainconditions. Post inspection of the unit of the respondent in March 2017,the TNPCB issued show-cause notice dated 14.03.2017 for violationsunder the Air Act and the Water Act which, apparently, was not pursued.On 06.09.2017, an inspection report by the TNPCB was made, and anorder passed on 07.09.2017, granting renewal of consent to operate onlytill 31.03.2018 subject to various conditions. Meanwhile, protest hadbeen organized in March 2018 by some persons against the proposedexpansion sought by the respondent. The respondent, therefore, had tofile Writ Petition No.7313 of 2018 before the Madurai Bench of theMadras High Court for police protection. This Writ Petition was disposedof by an order dated 04.04.2018 with direction to consider therespondent’s application. On 09.04.2018, the TNPCB refused renewalof consent to operate to the respondent’s unit based on non-compliancewith certain conditions that were laid down under the Air Act and theWater Act. On 12.04.2018, the respondent filed Appeal Nos.36-37 of2018 before the appellate authority under Section 28 of the Water Act.In these appeals, various orders were passed, until, on 06.06.2018, thefollowing order was passed:

“APPLICATIONS 28 & 29 / 2018, APPLICATIONS 30 & 31 / 2018

AND APPEALS 36 & 37 / 2018:

Heard.

In view of the Government Order passed by the Government ofTamilnadu in G.O. Ms. No: 72, Environment & Forests (EC-3)Department Dated: 28.5.2018, directing the Tamilnadu PollutionControl Board to close the plant permanently, we feel it is notappropriate to hear the Appeals and decide the issue at thisjuncture.

AHence the Appeals and applications are adjourned to 10.7.2018.”On 10.07.2018, the matter was further adjourned as follows:

“APPLICATIONS 28 & 29 / 2018, APPLICATIONS 30 & 31 / 2018AND APPEALS 36 & 37 / 2018:

In view of the remarks made in the adjudication proceedings onB6.6.2018 and as the position is same now, the Appeals andApplications are adjourned to 21.8.2018.”

Finally, on 18.12.2018, i.e., three days after the impugned orderwas passed by the NGT on 15.12.2018, an order passed by the appellateauthority was as follows:C“APPLICATIONS 28, 29, 30 & 31/2018 AND APPEALS 36 &37/2018:

Ms. Janani, counsel for the appellant and Mr. V. Vasanthakumar,counsel for the respondent-Board are present. None is presenton behalf of the 1[st], 2[nd] and 3[rd] interveners.

Counsel for the appellant seeks permission to withdraw theAppeals. She has also filed memo to that effect.

In view of the order passed by the Hon’ble National GreenTribunal, Principal Bench, New Delhi on 15.12.2018 in AppealNo. 87 of 2018 setting aside the impugned order dated 9.4.2018Ewhich is subject matter of these appeals pending before thisAppellate Authority, the Appeals have become infructuous andhence they are closed.”

5. On 12.04.2018, an order was passed by the TNPCB underSection 33A of the Water Act and Section 31A of the Air Act directingFthat the respondent’s unit shall not resume production without obtainingprior approval/renewal or consent from the TNPCB. This was followedby two orders, both dated 23.05.2018, again issued under the sameSections, this time to close down the respondent’s unit and disconnectpower supply to it. Finally, on 28.05.2018, an order was issued by theGovernment of Tamil Nadu under Section 18(1)(b) of the Water ActGstating:

“It is brought to the notice of the Government that Tamil NaduPollution Control Board did not renew the Consent to Operate toM/s.Vedanta Limited, Copper Smelter Plant, SIPCOT IndustrialComplex, Thoothukudi District in its order dated 9.4.2018.HSubsequently, on 23.5.2018, Tamil Nadu Pollution Control Board

has also issued directions for closure and disconnection of powersupply to the Unit. The power supply has been disconnected on24.5.2018.

2. Under Article 48-A of the Constitution,

“the State shall endeavour to protect and improve theenvironment and to safeguard the forests and wildlife of thecountry”.

3. Under sections, 18(1)(b) of the Water Act, 1974 in the largerpublic interest, the Government endorse the closure direction ofthe Tamil Nadu Pollution Control Board and also direct the TamilNadu Pollution Control Board to seal the unit and close the plantpermanently.”

6. On the same date, the TNPCB issued letter to the DistrictCollector, inter alia, directing him to seal the respondent’s unit. Thesesix orders became the subject matter of composite Appeal No. 87 of2018 under Section 16 of the NGT Act.

7. writ petition was filed by the respondent before the MaduraiBench of the Madras High Court on 18.06.2018 so that the respondentcould access its unit to maintain its plant. This was dismissed as withdrawnon 09.07.2018.

8. The appellants then took up plea of maintainability of thecomposite appeal. As this was not being disposed of by the NGT, thisCourt, by its order dated 17.08.2018, directed the NGT to render its finalfindings, both on maintainability as well as on merits. On 20.08.2018, theNGT constituted Committee to go into the material produced by theparties to the Civil Appeal and to visit the site. This Committee wasultimately headed by Justice Tarun Agarwala, former Chief Justice ofthe Meghalaya High Court, together with two experts, one being arepresentative of the Central Pollution Control Board [“CPCB”] andanother representative of the MoEF. Aggrieved by this order, theappellants knocked on the doors of this Court. This Court disposed ofthis appeal on 10.09.2018, by stating:

“By our order dated 17.08.2018, we had made it clear that theNGT may continue to hear the matter both on merits as well ason maintainability and finally decide the matter on both counts.

Since our order is not referred to in the order dated 20.08.2018passed by the NGT, we need only to state that once the

ACommittee’s report is given to the Tribunal, it will proceed to decidethe matter in accordance with our order dated 17.08.2018.xxx xxx xxx”

review petition that was filed against this order was dismissed.9. The Committee constituted by the NGT then inspected the siteBon various dates in September/October, 2018, and heard all concernedparties as well as intervenors. It then came out with detailed EnquiryReport dated 20.11.2018, in which it concluded as follows:

“On the basis of the site visit, public hearing and after hearing theappellant Company, State of Tamil Nadu, Tamil Nadu PollutionCControl Board, and the interveners and, upon consideration of theissues raised, the Committee is of the opinion:

1. The impugned orders cannot be sustained as it is against theprinciples of natural justice. No notice or opportunity ofhearing was given to the appellant.

D2. The grounds mentioned in the impugned orders are not thatgrievous to justify permanent closure of the factory.

3. Other issues raised also does not justify the closure of thefactory even if the appellant was found to be violating theconditions/norms/directions.

E4. In the event the Hon’ble Tribunal is of the opinion that thefactory should commence production, the committee is ofthe opinion that the following directions may be issued.

a) As per condition No.44 of the Consent Order dated 19-04-F2005, the appellant should be directed to monitor groundwater quality including heavy metals such as Arsenic,Cadmium, Silver, Copper, Fluoride, etc. in and around thefactory premises and nearby villages once month and suchreport should be furnished to the TNPCB.

b) The sampling of the above should be taken in the presenceof an official from TNPCB.

c) In addition to the above, the sampling of effluent/emissionand solid waste should also be done by monitoring groupto be constituted by TNPCB comprising representativeof the District Collector, an official of TNPCB, NGOs and

academicians as per condition no.43 of Consent Order dated19-04-2005.

d) Both the reports should be sent by TNPCB to CPCB foranalysis. Recommendations made by CPCB should befollowed.

e) Copper slag dumped at all the eleven sites including theBUppar River should be removed. If copper slag has beenused for landfill purposes, then the excess amount of theslag over and above the level of ground would be removedand thereafter the landfill should be compacted with onefeet of soil, so that the copper slag is not blown away byCthe strong winds.

f) The dead stock of copper slag lying in the dump yard insidethe factory premises which has solidified should be removedin time bound manner. Thereafter, the bottom of the dumpyard and the side walls should be covered with HDPE liner.Further, the Company should ensure that the generation anddisposal of copper slag is maintained in the ratio of 1:1 andthat the Company at best, can retain 10 days generation ofcopper slag in its dump yard.

g) The dead stock of gypsum lying in the dump yard inside thefactory premises which has solidified should be removed ina time bound manner. Thereafter, the bottom of the dumpyard and the side walls should be covered with HDPE liner.Further, the Company should ensure that the generation anddisposal of gypsum is maintained in the ratio of 1:1 and thatthe Company at best, can retain 10 days generation ofgypsum in its dump yard.

h) The Company before disposing copper slag, gypsum (or)any other waste product will seek previous permission fromthe TNPCB.

i) Application of the Company for obtaining valid authorizationfor disposal of hazardous waste under Hazardous & OtherWastes (Management, & Transboundary Movement) Rules,2016 should be disposed of by the TNPCB in time boundmanner.

j) Even though there is no requirement of analyzing the airsamples through an accredited laboratory nonetheless

direction should be issued to the appellant that they willconduct periodical survey for ambient air quality/ noiselevel/ stack emission through accredited laboratories ofMoEF&CC/NABL and furnish such report to the TNPCB.

k) The appellant company should be directed that they shalldevelop green belt of 25 metres width around the batterylimits of its factory by planting native and high foliage treeand also in and around the factory.

l) The State of Tamil Nadu/ TNPCB should collect data fromtheir primary health centres and Govt. Hospitals to monitorthe various ailments that are being complaint of by theinhabitants living in and around the factory premises.

m) The State Government should specify the module to theappellant for conducting the proper and designed healthmonitoring study.

n) The direction no. (iii) on “Source Apportionment Study”and direction no. (ix) on “conducting study on healthhazards” passed by the NGT in its judgment dated 8/8/2013in Appeal 58 of 2013 should be carried out by the TamilNadu State Government and TNPCB. Such reports shouldbe furnished to NGT in time-bound manner.

o) The appellant should be directed to start the construction ofgypsum pond immediately and complete the same in timebound manner as per the conditions laid down in theguidelines given by CPCB in October, 2014.

p) The appellant shall undertake fresh detailedhydrogeological study for determining aquifer vulnerabilityand migration of leachate from the existing phosphogypsumpond through reputed organization approved by theTNPCB as per condition No.15 of the Consent Order dated19/04/2005.

q) Direction should be given to the TNPCB as well as to theappellant to take independent ground water samples fromthe same points for the purpose of finding out groundwaterpollution if any. Such reports should then be compared bythe CPCB. Recommendations made by CPCB should befollowed.

r) Directions/ regulation may be framed for import of high gradecopper ore.

s) Irrespective of the norms, stack height in any case beincreased in order to remove the ambiguity and thegrievance of inhabitants of the people of the Tuticorin withregard to emission of SO2.

t) Till such time, the stack height is not increased, the productionof copper as well as sulphuric acid should be restricted/reduced to match the existing stack height.

u) The transportation of copper ore concentrate from the portto the factory premises should be done in closedconveyance or through pipe conveyor system.

v) Self-monitoring mechanism needs to be prepared by theappellant for the periodic monitoring of Ambient Air Quality/Stack emissions/ Fugitive emissions/ ground water quality/surface water quality/ soil quality/ slag analysis through thirdparty and report shall be furnished to the concernedregulatory agencies.

w) All the monitoring data, compliance reports of CTE/CTO/EC and environmental statement shall be uploaded on thewebsite of the Company.

x) TNPCB should be directed to commission “RegionalEnvironmental Impact Assessment Study” in and aroundTuticorin District by engaging reputed national agency.

y) CPCB recommendations as contained in the order of NGT,dated 20.08.2018 to be complied with.”

Both the respondent as well as the appellants made their detailedcomments on the Committee’s report. The NGT then heard finalarguments and dictated the impugned order on 15.12.2018, in which itsubstantially accepted the Committee’s recommendations. In doing so,it set aside the six impugned orders in the composite appeal. One majorbone of contention of both the State of Tamil Nadu as well as the TNPCBin this case is that the appeal before the NGT is not maintainable andhence, the order dated 15.12.2018 is without jurisdiction.

10. As postscript to this order, the TNPCB looked into the matteragain, and issued yet another rejection letter dated 22.01.2019, by whichthe respondent’s application seeking renewal of consent to operate was

Arejected, stating that the conditions of various previous consents overthe last 20 years had not been followed.

11. We have heard wide-ranging arguments from learned counselappearing on behalf of all the parties as well as the intervenors, onmaintainability as well as on merits. Since we will be deciding this caseBon maintainability alone, we have not ventured to state anything on themerits of the case.

12. Shri C.S. Vaidyanathan, learned Senior Advocate appearingon behalf of the TNPCB, showed us various provisions of the WaterAct, Air Act, and the NGT Act and argued that the six impugned ordersbefore the NGT were orders which could not have been corrected byCthe NGT. Insofar as the first order dated 09.04.2018 was concerned, an

appeal was pending before the appellate authority, as result of which,the NGT, when it set aside the said order, could not have done so. Similarly,the orders dated 12.04.2018, 23.05.2018, and 28.05.2018, made underSection 33A of the Water Act and Section 31A of the Air Act, wereDcomposite orders issued. As orders under Section 31A of the Air Act

were not appealable to the NGT either under the Air Act or under Section16 of the NGT Act, the Tribunal acted without jurisdiction in interferingwith these orders. Further, the order dated 28.05.2018, issued by theGovernment of Tamil Nadu under Section 18 of the Water Act, wascertainly not an appealable order under either the Water Act or the NGTEAct, and could only have been corrected in judicial review in writpetition filed under Article 226 of the Constitution of India or in suitbefore Civil Court. According to him, therefore, the setting aside ofsuch an order was also completely without jurisdiction. Shri K.V.Viswanathan, learned Senior Advocate appearing on behalf of the State

Fof Tamil Nadu, added to these submissions. He cited some of ourjudgments as well as statutes and judgments of the English Courts toshow that once an appeal is available to an appellate authority, afterwhich an appeal lies to the NGT, party cannot leapfrog directly to theNGT. Apart from this, the learned Senior Advocate also argued, based

on the scheme of the Water Act, Air Act, and NGT Act, that all theGappeals filed before the NGT were incompetent. Shri Guru Krishnakumar,learned Senior Advocate appearing on behalf of the TNPCB, also wenton to criticize the order passed by the NGT dated 08.08.2013 onmaintainability. According to him, no doctrine of necessity could beimported if an appellate tribunal was not constituted, as result of whichHan appeal could not be argued before the appellate authority.

Consequently, leapfrog appeal would not be maintainable before theNGT. According to the learned Senior Advocate, this order also had tobe set aside for the reason that even assuming that the appellate authoritywas not constituted on the date on which an appeal could have beenpreferred to it, the NGT, being second appellate tribunal, would nothave jurisdiction, and that either suit or writ petition under Article 226would have to be filed against the original order.

13. As against these arguments, Shri C.A. Sundaram, learnedSenior Advocate appearing on behalf of the respondents in all threeappeals, sought to sustain the order of the NGT in these three appeals.The learned Senior Advocate painstakingly took us through all the ordersthat were impugned before the NGT, together with the relevant provisionsof the Air Act, the Water Act, and the NGT Act. According to thelearned Senior Advocate, so far as the order dated 09.04.2018 isconcerned, thanks to government affidavit filed, the appeal before theappellate authority had become infructuous, as result of which, directappeal to the NGT would obviously become maintainable. Insofar as thecombined orders under Sections 33A and 31A of the Water Act and theAir Act, respectively, are concerned, according to him, an express appealis provided to the NGT against orders passed under Section 33A of theWater Act, and even if there is no appeal provided under Section 31A ofthe Air Act, yet, as four out of five items in these orders dealt with theWater Act, the order could be stated to be substantially an order underthe Water Act, and therefore, appealable as such. He added that, in anycase, such orders could be corrected under Section 14 of the NGT Actto avoid piecemeal litigation. Further, in any case, according to the learnedSenior Advocate, direction made under Section 31A of the Air Act isundoubtedly equivalent to an order made under Section 31 of the AirAct, and therefore, would be expressly appealable under Section 16 ofthe NGT Act. Another without prejudice argument was made, thatassuming all other arguments failed, these matters are only procedural,and therefore, appeals must necessarily land up before the expert tribunalwhich is so constituted as an expert tribunal to deal with all mattersrelating to the environment. For this, he referred to and relied stronglyupon Sections 14, 15, 29, and 33 of the NGT Act. Insofar as the attackmade upon the order dated 28.05.2018 of the Government of Tamil Naduunder Section 18 of the Water Act is concerned, Shri Sundaram arguedthat on proper construction of Section 18 read with the other provisionsof the Water Act, only general order, dealing with general matters,could be passed under the said Section, and not an order to shut down

Aone particular industry. Since the Section 18 order purports to deal withonly one particular industry, it is non est and liable to be ignored. Analternate argument made is that even though the order states that it ismade under Section 18, it can otherwise be traced to Section 29 of theWater Act as an order made in revision, and would, therefore, beappealable as such. The learned Senior Advocate then argued that, inBany case, this is an order by which direction has been made by theState Government to the TNPCB and, therefore, does not directly affecthis client. He also argued that when this order was challenged beforethe NGT, the defence of the Government and the TNPCB would be thatthis is an order which, though binding on the TNPCB, would also impactCthe respondent. This being the case, the NGT could always go intowhether such defence is valid defence, and could, therefore, decidethe matter. He also went on to state that the NGT is an expert bodyconstituted specifically under special Act, which is far better equippedthan the High Court under Article 226 exercising its powers in the writjurisdiction, and therefore, all matters dealing with the environment shouldDnecessarily be decided by the NGT alone. He also relied upon ourjudgment in L. Chandra Kumar v. Union of India and Ors., (1997) 3SCC 261 [“L. Chandra Kumar”], in which it has been made clear thatTribunals can exercise powers of judicial review and that, therefore,being the equivalent of High Court, the NGT could, in exercise of itsEpowers of judicial review, have interfered with the State Government’sorders passed under Section 18 of the Water Act.14. Having heard learned counsel for all parties, it is importantfirst to advert to the provisions of the three Acts in question.

15. The relevant Sections of the Water Act are as follows:F“18. Powers to give directions.—(1) In the performance of itsfunctions under this Act—

(a) the Central Board shall be bound by such directions in writingas the Central Government may give to it; and

(b) every State Board shall be bound by such directions inGwriting as the Central Board or the State Government maygive to it:

Provided that where direction given by the State Government isinconsistent with the direction given by the Central Board, thematter shall be referred to the Central Government for its decision.

Hxxx xxx xxx”

“25. Restrictions on new outlets and new discharges.—(1)Subject to the provisions of this section, no person shall, withoutthe previous consent of the State Board,—

(a) establish or take any steps to establish any industry,operation or process, or any treatment and disposal systemor any extension or addition thereto, which is likely todischarge sewage or trade effluent into stream or well orsewer or on land (such discharge being hereafter in thissection referred to as discharge of sewage); or

(b) bring into use any new or altered outlet for the dischargeof sewage; or

(c) begin to make any new discharge of sewage:

Provided that person in the process of taking any steps toestablish any industry, operation or process immediately beforethe commencement of the Water (Prevention and Control ofPollution) Amendment Act, 1988, for which no consent wasnecessary prior to such commencement, may continue to do sofor period of three months from such commencement or, if hehas made an application for such consent, within the said periodof three months, till the disposal of such application.

(2) An application for consent of the State Board under sub-section(1) shall be made in such form, contain such particulars and shallbe accompanied by such fees as may be prescribed.

(3) The State Board may make such inquiry as it may deem fit inrespect of the application for consent referred to in sub-section(1) and in making any such inquiry shall follow such procedure asmay be prescribed.

(4) The State Board may—

(a) grant its consent referred to in sub-section (1), subject to suchconditions as it may impose, being—

(i) in cases referred to in clauses (a) and (b) of sub-section(1) of Section 25, conditions as to the point of discharge ofsewage or as to the use of that outlet or any other outlet fordischarge of sewage;

(ii) in the case of new discharge, conditions as to the natureand composition, temperature, volume or rate of discharge

of the effluent from the land or premises from which thedischarge or new discharge is to be made; and

(iii)that the consent will be valid only for such period as maybe specified in the order,

and any such conditions imposed shall be binding on any personestablishing or taking any steps to establish any industry,operation or process, or treatment and disposal system orextension or addition thereto, or using the new or altered outlet,or discharging the effluent from the land or premises aforesaid;or

(b) refuse such consent for reasons to be recorded in writing.

(5) Where, without the consent of the State Board, any industry,operation or process, or any treatment and disposal system or anyextension or addition thereto, is established, or any steps for suchestablishment have been taken or new or altered outlet is broughtinto use for the discharge of sewage or new discharge of sewageis made, the State Board may serve on the person who hasestablished or taken steps to establish any industry, operation orprocess, or any treatment and disposal system or any extensionor addition thereto, or using the outlet, or making the discharge, asthe case may be, notice imposing any such conditions as it mighthave imposed on an application for its consent in respect of suchestablishment, such outlet or discharge.

(6) Every State Board shall maintain register containingparticulars of the conditions imposed under this section and somuch of the register as relates to any outlet, or to any effluent,from any land or premises shall be open to inspection at allreasonable hours by any person interested in, or affected by suchoutlet, land or premises, as the case may be, or by any personauthorised by him in this behalf and the conditions so contained insuch register shall be conclusive proof that the consent was grantedsubject to such conditions.

(7) The consent referred to in sub-section (1) shall, unless givenor refused earlier, be deemed to have been given unconditionallyon the expiry of period of four months of the making of anapplication in this behalf complete in all respects to the State Board.

(8) For the purposes of this section and Sections 27 and 30,—

(a) the expression “new or altered outlet” means any outletwhich is wholly or partly constructed on or after thecommencement of this Act or which (whether soconstructed or not) is substantially altered after suchcommencement;

(b) the expression “new discharge” means discharge whichis not, as respects the nature and composition, temperature,volume, and rate of discharge of the effluent substantially acontinuation of discharge made within the precedingtwelve months (whether by the same or different outlet),so however that discharge which is in other respects acontinuation of previous discharge made as aforesaid shallnot be deemed to be new discharge by reason of anyreduction of the temperature or volume or rate of dischargeof the effluent as compared with the previous discharge.”“26. Provision regarding existing discharge of sewage ortrade effluent.—Where immediately before the commencementof this Act any person was discharging any sewage or tradeeffluent into stream or well or sewer or on land, the provisionsof Section 25 shall, so far as may be, apply in relation to suchperson as they apply in relation to the person referred to in thatsection subject to the modification that the application for consentto be made under sub-section (2) of that section shall be made onor before such date as may be specified by the State Governmentby notification in this behalf in the Official Gazette.”

“27. Refusal or withdrawal of consent by State Board.—(1)A State Board shall not grant its consent under sub-section (4) ofSection 25 for the establishment of any industry, operation orprocess, or treatment and disposal system or extension or additionthereto, or to the bringing into use of new or altered outlet unlessthe industry, operation or process, or treatment and disposal systemor extension or addition thereto, or the outlet is so established asto comply with any conditions imposed by the Board to enable itto exercise its right to take samples of the effluent.

(2) State Board may from time to time review—

(a) any condition imposed under Section 25 or Section 26 andmay serve on the person to whom consent under Section

25 or Section 26 is granted notice making any reasonablevariation of or revoking any such condition;

(b) the refusal of any consent referred to in sub-section (1) ofSection 25 or Section 26 or the grant of such consent withoutany condition, and may make such orders as it deems fit.

(3) Any condition imposed under Section 25 or Section 26 shall besubject to any variation made under sub-section (2) and shallcontinue in force until revoked under that sub-section.”

“28. Appeals.—(1) Any person aggrieved by an order made bythe State Board under Section 25, Section 26 or Section 27 may,within thirty days from the date on which the order is communicatedto him, prefer an appeal to such authority (hereinafter referred toas the appellate authority) as the State Government may think fitto constitute:

Provided that the appellate authority may entertain the appealafter the expiry of the said period of thirty days if such authority issatisfied that the appellant was prevented by sufficient cause fromfiling the appeal in time.

(2) An appellate authority shall consist of single person or threepersons, as the State Government may think fit, to be appointedby that Government.

(3) The form and manner in which an appeal may be preferredunder sub-section (1), the fees payable for such appeal and theprocedure to be followed by the appellate authority shall be suchas may be prescribed.

(4) On receipt of an appeal preferred under sub-section (1), theappellate authority shall, after giving the appellant and the StateBoard an opportunity of being heard, dispose of the appeal asexpeditiously as possible.

(5) If the appellate authority determines that any condition imposed,or the variation of any condition, as the case may be, wasunreasonable, then,—

(a) where the appeal is in respect of the unreasonableness ofany condition imposed, such authority may direct either thatthe condition shall be treated as annulled or that there shallbe substituted for it such condition as appears to it to bereasonable;

(b) where the appeal is in respect of the unreasonableness ofany variation of condition, such authority may direct eitherthat the condition shall be treated as continuing in forceunvaried or that it shall be varied in such manner as appearsto it to be reasonable.”

“29. Revision.—(1) The State Government may at any timeeither of its own motion or on an application made to it in thisbehalf, call for the records of any case where an order has beenmade by the State Board under Section 25, Section 26 or Section27 for the purpose of satisfying itself as to the legality or proprietyof any such order and may pass such order in relation thereto asit may think fit:

Provided that the State Government shall not pass any order underthis sub-section without affording the State Board and the personwho may be affected by such order reasonable opportunity ofbeing heard in the matter.

(2) The State Government shall not revise any order made underSection 25, Section 26 or Section 27 where an appeal against thatorder lies to the appellate authority, but has not been preferred orwhere an appeal has been preferred such appeal is pending beforethe appellate authority.”

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“33A. Power to give directions.—Notwithstanding anythingcontained in any other law, but subject to the provisions of thisAct, and to any directions that the Central Government may givein this behalf, Board may, in the exercise of its powers andperformance of its functions under this Act, issue any directionsin writing to any person, officer or authority, and such person,officer or authority shall be bound to comply with such directions.

Explanation.—For the avoidance of doubts, it is hereby declaredthat the power to issue directions under this section includes thepower to direct—

(a)the closure, prohibition or regulation of any industry, operationor process; or

(b)the stoppage or regulation of supply of electricity, water orany other service.”

“33B. Appeal to National Green Tribunal.—Any personaggrieved by,—

(a) an order or decision of the appellate authority under Section28, made on or after the commencement of the NationalGreen Tribunal Act, 2010; or

(b) an order passed by the State Government under Section29, on or after the commencement of the National GreenTribunal Act, 2010; or

(c) directions issued under Section 33-A by Board, on orafter the commencement of the National Green TribunalAct, 2010,

may file an appeal to the National Green Tribunal established underSection 3 of the National Green Tribunal Act, 2010, in accordancewith the provisions of that Act.”

16. The relevant Sections of the Air Act are as follows:

“21. Restrictions on use of certain industrial plants.—(1)Subject to the provisions of this section, no person shall, withoutthe previous consent of the State Board, establish or operate anyindustrial plant in an air pollution control area:

Provided that person operating any industrial plant in any airpollution control area immediately before the commencement ofSection 9 of the Air (Prevention and Control of Pollution)Amendment Act, 1987, for which no consent was necessary priorto such commencement, may continue to do so for period ofthree months from such commencement or, if he has made anapplication for such consent within the said period of three months,till the disposal of such application.

(2) An application for consent of the State Board under sub-section(1) shall be accompanied by such fees as may be prescribed andshall be made in the prescribed form and shall contain the particularsof the industrial plant and such other particulars as may beprescribed:

Provided that where any person, immediately before the declarationof any area as an air pollution control area, operates in such areaany industrial plant such person shall make the application underthis sub-section within such period (being not less than three months

from the date of such declaration) as may be prescribed and wheresuch person makes such application, he shall be deemed to beoperating such industrial plant with the consent of the State Boarduntil the consent applied for has been refused.

(3) The State Board may make such inquiry as it may deem fit inrespect of the application for consent referred to in sub-section(1) and in making any such inquiry, shall follow such procedure asmay be prescribed.

(4) Within period of four months after the receipt of theapplication for consent referred to in sub-section (1), the StateBoard shall, by order in writing and for reasons to be recorded inthe order, grant the consent applied for subject to such conditionsand for such period as may be specified in the order, or refusesuch consent:

Provided that it shall be open to the State Board to cancel suchconsent before the expiry of the period for which it is granted orrefuse further consent after such expiry if the conditions subjectto which such consent has been granted are not fulfilled:

Provided further that before cancelling consent or refusing afurther consent under the first proviso, reasonable opportunityof being heard shall be given to the person concerned.

(5) Every person to whom consent has been granted by the StateBoard under sub-section (4), shall comply with the followingconditions, namely:—

(i) the control equipment of such specifications as the StateBoard may approve in this behalf shall be installed andoperated in the premises where the industry is carried onor proposed to be carried on;

(ii)the existing control equipment, if any, shall be altered orreplaced in accordance with the directions of the StateBoard;

(iii)the control equipment referred to in clause (i) or clause(ii) shall be kept at all times in good running condition;

(iv)chimney, wherever necessary, of such specifications as theState Board may approve in this behalf shall be erected orre-erected in such premises;

(v) such other conditions as the State Board may specify inthis behalf; and

(vi)the conditions referred to in clauses (i), (ii) and (iv) shallbe complied with within such period as the State Boardmay specify in this behalf:

Provided that in the case of person operating any industrial plantin an air pollution control area immediately before the date ofdeclaration of such area as an air pollution control area, the periodso specified shall not be less than six months:

Provided further that—

(a) after the installation of any control equipment in accordancewith the specifications under clause (i), or

(b) after the alteration or replacement of any control equipmentin accordance with the directions of the State Board underclause (ii), or

(c) after the erection or re-erection of any chimney under clause(iv),

no control equipment or chimney shall be altered or replaced or,as the case may be, erected or re-erected except with the priorapproval of the State Board.

(6) If due to any technological improvement or otherwise the StateBoard is of the opinion that all or any of the conditions referred toin sub-section (5) require or requires variation (including the changeof any control equipment, either in whole or in part), the StateBoard shall, after giving the person to whom consent has beengranted an opportunity of being heard, vary all or any of suchconditions and thereupon such person shall be bound to complywith the conditions as so varied.

(7) Where person to whom consent has been granted by theState Board under sub-section (4) transfers his interest in theindustry to any other person, such consent shall be deemed tohave been granted to such other person and he shall be bound tocomply with all the conditions subject to which it was granted asif the consent was granted to him originally.”

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“31. Appeals.—(1) Any person aggrieved by an order made bythe State Board under this Act may, within thirty days from the

date on which the order is communicated to him, prefer an appealto such authority (hereinafter referred to as the AppellateAuthority) as the State Government may think fit to constitute:

Provided that the Appellate Authority may entertain the appealafter the expiry of the said period of thirty days if such authority issatisfied that the appellant was prevented by sufficient cause fromfiling the appeal in time.

(2) The Appellate Authority shall consist of single person orthree persons as the State Government may think fit to beappointed by the State Government.

(3) The form and the manner in which an appeal may be preferredunder sub-section (1), the fees payable for such appeal and theprocedure to be followed by the Appellate Authority shall be suchas may be prescribed.

(4) On receipt of an appeal preferred under sub-section (1), theAppellate Authority shall, after giving the appellant and the StateBoard an opportunity of being heard, dispose of the appeal asexpeditiously as possible.”

“31A. Power to give directions.—Notwithstanding anythingcontained in any other law, but subject to the provisions of thisAct and to any directions that the Central Government may givein this behalf Board may, in the exercise of its powers andperformance of its functions under this Act, issue any directionsin writing to any person, officer or authority, and such person,officer or authority shall be bound to comply with such directions.

Explanation.—For the avoidance of doubts, it is hereby declaredthat the power to issue directions under this section includes thepower to direct—

(a) the closure, prohibition or regulation of any industry, operationor process; or

(b) the stoppage or regulation of supply of electricity, water orany other service.”

“31B. Appeal to National Green Tribunal.—Any personaggrieved by an order or decision of the Appellate Authority underSection 31, made on or after the commencement of the NationalGreen Tribunal Act, 2010, may file an appeal to the National Green

Tribunal established under Section 3 of the National Green TribunalAct, 2010, in accordance with the provisions of that Act.”

17. The relevant Sections of the NGT Act are as follows:

“2. Definitions.—(1) In this Act, unless the context otherwiserequires,—

xxx xxx xxx

(m) “substantial question relating to environment” shall include aninstance where,—

(i) there is direct violation of specific statutory environmentalobligation by person by which,—

(A) the community at large other than an individual or groupof individuals is affected or likely to be affected by theenvironmental consequences; or

(B) the gravity of damage to the environment or property issubstantial; or

(C) the damage to public health is broadly measurable;

(ii) the environmental consequences relate to specific activityor point source of pollution;

xxx xxx xxx”

“14. Tribunal to settle disputes.—(1) The Tribunal shall havethe jurisdiction over all civil cases where substantial questionrelating to environment (including enforcement of any legal rightrelating to environment), is involved and such question arises outof the implementation of the enactments specified in Schedule I.

(2) The Tribunal shall hear the disputes arising from the questionsreferred to in sub-section (1) and settle such disputes and passorder thereon.

(3) No application for adjudication of dispute under this sectionshall be entertained by the Tribunal unless it is made within aperiod of six months from the date on which the cause of actionfor such dispute first arose:

Provided that the Tribunal may, if it is satisfied that the applicantwas prevented by sufficient cause from filing the application withinthe said period, allow it to be filed within further period notexceeding sixty days.”

“15. Relief, compensation and restitution.—(1) The Tribunalmay, by an order, provide,—

(a) relief and compensation to the victims of pollution and otherenvironmental damage arising under the enactments specifiedin the Schedule I (including accident occurring while handlingany hazardous substance);

(b) for restitution of property damaged;

(c) for restitution of the environment for such area or areas, asthe Tribunal may think fit.

(2) The relief and compensation and restitution of property andenvironment referred to in clauses (a), (b) and (c) of sub-section(1) shall be in addition to the relief paid or payable under thePublic Liability Insurance Act, 1991 (6 of 1991).

(3) No application for grant of any compensation or relief orrestitution of property or environment under this section shall beentertained by the Tribunal unless it is made within period offive years from the date on which the cause for such compensationor relief first arose:

Provided that the Tribunal may, if it is satisfied that the applicantwas prevented by sufficient cause from filing the application withinthe said period, allow it to be filed within further period notexceeding sixty days.

(4) The Tribunal may, having regard to the damage to public health,property and environment, divide the compensation or reliefpayable under separate heads specified in Schedule II so as toprovide compensation or relief to the claimants and for restitutionof the damaged property or environment, as it may think fit.

(5) Every claimant of the compensation or relief under this Actshall intimate to the Tribunal about the application filed to, or, asthe case may be, compensation or relief received from, any othercourt or authority.”

“16. Tribunal to have appellate jurisdiction.—Any person

aggrieved by,—

(a) an order or decision, made, on or after the commencementof the National Green Tribunal Act, 2010, by the appellateauthority under Section 28 of the Water (Prevention andControl of Pollution) Act, 1974 (6 of 1974);

(b)an order passed, on or after the commencement of theNational Green Tribunal Act, 2010, by the State Governmentunder Section 29 of the Water (Prevention and Control ofPollution) Act, 1974 (6 of 1974);

(c)directions issued, on or after the commencement of theNational Green Tribunal Act, 2010, by Board, under Section33-A of the Water (Prevention and Control of Pollution)Act, 1974 (6 of 1974);

(d) an order or decision made, on or after the commencementof the National Green Tribunal Act, 2010, by the appellateauthority under Section 13 of the Water (Prevention andControl of Pollution) Cess Act, 1977 (36 of 1977);

(e) an order or decision made, on or after the commencementof the National Green Tribunal Act, 2010, by the StateGovernment or other authority under Section 2 of the Forest(Conservation) Act, 1980 (69 of 1980);

(f) an order or decision, made, on or after the commencementof the National Green Tribunal Act, 2010, by the AppellateAuthority under Section 31 of the Air (Prevention andControl of Pollution) Act, 1981 (14 of 1981);

(g) any direction issued, on or after the commencement of theNational Green Tribunal Act, 2010, under Section 5 of theEnvironment (Protection) Act, 1986 (29 of 1986);

(h) an order made, on or after the commencement of theNational Green Tribunal Act, 2010, granting environmentalclearance in the area in which any industries, operations orprocesses or class of industries, operations and processesshall not be carried out or shall be carried out subject tocertain safeguards under the Environment (Protection) Act,1986 (29 of 1986);

(i) an order made, on or after the commencement of theGNational Green Tribunal Act, 2010, refusing to grantenvironmental clearance for carrying out any activity oroperation or process under the Environment (Protection)Act, 1986 (29 of 1986);

(j) any determination of benefit sharing or order made, on orafter the commencement of the National Green Tribunal

Act, 2010, by the National Biodiversity Authority or StateBiodiversity Board under the provisions of the BiologicalDiversity Act, 2002 (18 of 2003),

may, within period of thirty days from the date on which theorder or decision or direction or determination is communicatedto him, prefer an appeal to the Tribunal:

Provided that the Tribunal may, if it is satisfied that the appellantwas prevented by sufficient cause from filing the appeal withinthe said period, allow it to be filed under this section within afurther period not exceeding sixty days.”

xxx xxx xxx

“29. Bar of jurisdiction.—(1) With effect from the date ofestablishment of the Tribunal under this Act, no civil court shallhave jurisdiction to entertain any appeal in respect of any matter,which the Tribunal is empowered to determine under its appellatejurisdiction.

(2) No civil court shall have jurisdiction to settle dispute or entertainany question relating to any claim for granting any relief orcompensation or restitution of property damaged or environmentdamaged which may be adjudicated upon by the Tribunal, and noinjunction in respect of any action taken or to be taken by orbefore the Tribunal in respect of the settlement of such dispute orany such claim for granting any relief or compensation or restitutionof property damaged or environment damaged shall be grantedby the civil court.”

xxx xxx xxx

“33. Act to have overriding effect.—The provisions of thisAct, shall have effect notwithstanding anything inconsistentcontained in any other law for the time being in force or in anyinstrument having effect by virtue of any law other than this Act.”

18. It is important now to advert to both the orders dated 08.08.2013and 15.12.2018, insofar as they deal with the maintainability of the appealsbefore them.

19. By the judgment of the NGT dated 08.08.2013, the NGTdisposed of the plea on maintainability as follows:

“62. Another aspect that would support the view that we are takingis the doctrine of necessity. Wherever in the facts and

circumstances of the case, it is absolutely inevitable for personto exercise another right available to it under the statute and whereit is unable to exercise the preliminary right of appeal because ofnon-existence or non-proper constitution of the appellate authorityand for its effective and efficacious exercise of right, it becomesnecessary for the appellant-company to invoke another remedy,then the same would be permitted unless it was so specificallybarred by law governing the subject and the rights of the parties.It was upon the appellant-company, particularly keeping in viewthe emergent situation created by issuance of the order dated29[th] March, 2013, to avail of its right to appeal without any unduedelay and as was rightly done by it within two days of the passingof the order. The unit of the appellant-company had been directedto be shut down and the appellant-company obviously could nothave taken recourse to the remedy under Section 31 of the AirAct as the authority itself was not properly constituted and wasnot functional. Besides the aid of the doctrine of necessity, theappellant-company has also placed its reliance on Section 31B ofthe Air Act. An appeal against the order passed by the appellateauthority in exercise of its powers under Section 31 of the Air Actlies to the NGT in terms of Section 31B of the Air Act. In otherwords, the appellate order passed by the proper authority underSection 31 of the Air Act is appealable to the NGT in terms ofSection 31B. Thus, the NGT is the appellate authority of theappellate authority constituted under Section 31 of the Air Act bythe State Government. The appellant-company has itself given upits right of first appeal before the appellate authority in view ofthe peculiar facts and circumstances of the case. The respondentshave placed reliance upon the judgment of the Supreme Courtin Manohar Lal v. Union of India, (2010) 11 SCC 557 wherethe Court had taken the view that no higher authority in the hierarchyor an appellate or revisional authority can exercise the power ofthe statutory authority nor the superior authority can mortgage itswisdom and direct the statutory authority to act in particularmanner. Firstly this judgment on facts and law has no applicationto the present case. Secondly, the non-constitution of the authorityitself would bring the present case outside the application of thejudgment of the Supreme Court in the case of ManoharLal (supra).

63. We are unable to contribute ourselves to the contention raisedthat direction passed under Section 31A of the Air Act is notcovered under the expression ‘order’ used in Section 31 of theAir Act. Any direction essentially would contain an element oforder as it requires and calls upon the parties to comply with thesame. ‘Direction’ itself means an order; an instruction how toproceed, like the judge’s direction to the jury, while ‘Order’ isdefined as command, direction or instruction. This is howthe Black’s Law Dictionary, 9[th] Edition, refers to these twoexpressions. In other words, they can be used as synonyms. Theyare not conflicting terms and one can be read into the other. Thus,we find no substance in this contention raised on behalf of therespondents.64. An appellate authority, which is constituted under the statute,is completely distinct and different from an administrative authorityconstituted otherwise even to deal with adjudicatory proceedings.In the case of an appellate authority, it must satisfy the existence defacto and must function de jure, in accordance with law. If theappellate authority itself was not in conformity with the notification,it cannot be said that it could function in accordance with lawwithout constitution of the three Member appellate authority. Thecumulative effect of this discussion is that the objection in regardto maintainability is without any substance and is liable to berejected. In view of this finding, it is not necessary for us toexamine whether this could be treated as petition under Section14 of the National Green Tribunal Act (for short ‘the NGT Act’)even if it was not maintainable in view of the objection taken bythe respondent in regard to maintainability of the present appeal.”

20. Insofar as the judgment dated 15.12.2018 is concerned, theNGT, on maintainability, held as follows:

“44. It is undisputed that this Tribunal is an Appellate Authority asfar as orders of closure under the Air Act and the Water Act areconcerned. The impugned orders dated 12.04.2018, 23.05.2018and 28.05.2018 are such orders. Mere fact that an appeal againstthe order declining renewal of Consent to Operate is provided forand was filed cannot be in the facts and circumstances of thepresent case, be bar to exercise of powers of the AppellateAuthority by this Tribunal. As already noted, the Appellate

Authority has declined to proceed with the matter. The grounds inthe impugned orders dated 09.04.2018, 12.04.2018, 23.05.2018and 28.05.2018 are identical. If the appeals are held to be notmaintainable, the appellant will be without any remedy against theorder of closure. Order of the Appellate Authority is also appealablebefore this Tribunal under Section 16(f) of the NGT Act, 2010.We, thus, do not find any merit in this case in the objections of therespondent.

45. Mere fact that the State of Tamil Nadu also endorsed theorder of the TNPCB and that order of the State is not appealableto this Tribunal, does not deviate from the legal position that orderof TNPCB is appealable to this Tribunal. Moreover, order of theState of Tamil Nadu is not policy matter but mere endorsementof order of the TNPCB.

46. The judgments relied upon by the respondents aredistinguishable. Unlike Educanti Kistamma v. Deokar’s Distillery[(2003) 5 SCC 669], this is not case where the first order hasnot been challenged. Challenge before us is to the first order aswell as subsequent orders. Basis for all the orders is common.

xxx xxx xxx

48. The order of the Government of Tamil Nadu issued underSection 18(1)(b) of the Water Act also cannot be said to be anindependent order but relied on and endorsing the views of theTNPCB which is under challenge and that are not sufficient forordering closure or refusal to grant even consent. If there are noother materials for the Government of Tamil Nadu to arrive atconclusion of closure on the ground of irreversible pollution beingcaused to the environment allowing the unit to function, then itcannot be said to be policy decision to close down the industrypermanently and if any order was passed based on the order bythe Pollution Control Board, without independent application ofmind and arbitrarily, then that can also be incidentally consideredby the Tribunal for the purpose of deciding the question of legalityof that order. So, under the present circumstances, it is not caseof this Tribunal entertaining the appeals where there is inherentlack of jurisdiction to entertain the same.

49. In the present proceedings, as already noted, the AppellateAuthority having declined to proceed with the matter and the order

of closure being appealable before this Tribunal, there is no groundto reject the appeal on the ground of maintainability so as to deprivethe appellant any judicial remedy in the matter.”

(I) RE: ORDER DATED 09.04.2018

21. This order is an order which rejected renewal of consent tooperate, and therefore, is traceable to Section 27 of the Water Act andSection 21 of the Air Act. There is no doubt whatsoever that an appealagainst an order made under Section 27 of the Water Act is appealableto the appellate authority under Section 28 of the said Act. Under Section33B(a) of the said Act, if person is aggrieved by an order or decisionof the appellate authority under Section 28, it is then appealable to theNGT. This is made clear also by Section 16(a) of the NGT Act. Equally,an order refusing consent under Section 21 of the Air Act is appealableto the appellate authority under Section 31 of the Air Act, and thereafter,from the said appellate authority’s order, to the NGT, under Section 31Bof the Air Act and Section 16(f) of the NGT Act.

22. As has been stated hereinabove, it is clear that an appeal tothe appellate authority under the Air Act and the Water Act was, in fact,preferred, being Appeal Nos. 36-37 of 2018. While these appeals werepending before the appellate authority, the composite Appeal No. 87 of2018 was filed on 22.06.2018 before the NGT inter alia against theorder of refusal of consent to operate dated 09.04.2018. Shri Sundaram,however, argued before us that the order dated 06.06.2018 made by theappellate authority, which we have set out hereinabove, makes it clearthat the appeals could not be heard since the State Government hadpassed an order dated 28.05.2018 directing the TNPCB to close downthe plant permanently. What is missed by Shri Sundaram is the fact thatthe said order expressly states that the appeals could not be decided atthis junctureand were hence adjourned to 10.07.2018. The said appealson 10.07.2018 were further adjourned, and it is only on 18.12.2018 thatthey were finally withdrawn as being infructuous in view of the fact thatthe NGT had passed its order on 15.12.2018 in which it had set aside theorder dated 09.04.2018.

23. What becomes clear from the above narration of facts is thefact that while an appeal was still pending before the appellate authority,the NGT took up matter directly against the original order dated09.04.2018 which was challenged before the appellate authority evenbefore the appellate authority could decide the same. However, Shri

ASundaram referred to Section 28(4) of the Air Act and Section 31(4) ofthe Water Act to argue that appeals to the appellate authority must bedecided expeditiously, and if they were not so decided, an appeal wouldlie to the NGT against decision by the appellate authority not to decidethe matter before it expeditiously. This argument must also be negativedas, in point of fact, no appeal was preferred from any orders of theBappellate authority adjourning the proceedings. As we have seen, anappeal was directly filed from the order of the TNPCB dated 09.04.2018.

24. At this point, it is important to advert to few judgments ofthis Court. In Kundur Rudrappa v. Mysore Revenue AppellateTribunal and Ors., (1975) 2 SCC 411, this Court, while dealing withCSection 64 of the Motor Vehicles Act, 1939, stated:

“4. The point that arises for consideration is whether any appeallay under Section 64 of the Act to the State Transport AppellateTribunal against the issue of permit in pursuance of an earlierresolution of the Regional Transport Authority granting the permit.DIt is only necessary to read Section 64(1)(a) which is material forthe purpose of this appeal:

“64. (1)(a) Any person aggrieved by the refusal of the State ora Regional Transport Authority to grant permit, or by anycondition attached to permit granted to him . . .

may within the prescribed time and in the prescribed manner,appeal to the State Transport Appellate Tribunal constitutedunder sub-section (2), who shall, after giving such person andthe original authority an opportunity of being heard, give adecision thereon which shall be final.”

We are not required to consider the other clauses of Section 64(1)which are admittedly not relevant. Section 64 has to be read withRule 178 of the Rules which prescribes the procedure for appealto the various authorities.

5.Appeal is creature of the statute.There is no dispute thatSection 64 of the Act is the only section creating rights of appealagainst the grant of permit and other matters with which we arenot concerned here. There is no appeal provided for under Section64 against an order issuing permit in pursuance of the ordergranting the permit.Issuance of the permit is only ministerial

act necessarily following the grant of the permit. The appealsbefore the State Transport Appellate Tribunal and the further appealto the Mysore Revenue Appellate Tribunal are, therefore, notcompetent under Section 64 of the Act and both the tribunals hadno jurisdiction to entertain the appeals and to interfere with theorder of the Regional Transport Authority granting the permit whichhad already been affirmed in appeal by the State TransportAppellate Tribunal and further in second appeal by the MysoreRevenue Appellate Tribunal. There was, therefore, clear errorof jurisdiction on the part of both the Tribunals in interfering withthe grant of the permit to the appellant. The High Court was,therefore, not right in dismissing the writ application of the appellantwhich ought to have been allowed.”

(emphasis supplied)

25. Similarly, in concurring judgment of Sinha, J., in CellularOperators Association of India and Ors. v. Union of India andOrs., (2003) 3 SCC 186, the learned Judge observed:

“27. TDSAT was required to exercise its jurisdiction in terms ofSection 14-A of the Act. TDSAT itself is an expert body and itsjurisdiction is wide having regard to sub-section (7) of Section 14-A thereof. Its jurisdiction extends to examining the legality,propriety or correctness of direction/order or decision of theauthority in terms of sub-section (2) of Section 14 as also thedispute made in an application under sub-section (1) thereof. Theapproach of the learned TDSAT, being on the premise that itsjurisdiction is limited or akin to the power of judicial review is,therefore, wholly unsustainable. The extent of jurisdiction of acourt or tribunal depends upon the relevant statute. TDSAT is acreature of statute. Its jurisdiction is also conferred by statute.The purpose of creation of TDSAT has expressly been stated byParliament in the amending Act of 2000. TDSAT, thus, failed totake into consideration the amplitude of its jurisdiction and thusmisdirected itself in law.”

(emphasis supplied)

26. In B. Himmatlal Agrawal v. Competition Commission ofIndia, Civil Appeal No. 5029/2018 [decided on 18.05.2018], this Court,while dealing with Section 53B of the Competition Act, 2002 held:

“7. The aforesaid provision, thus, confers right upon any of theaggrieved parties mentioned therein to prefer an appeal to theAppellate Tribunal. This statutory provision does not impose anycondition of pre-deposit for entertaining the appeal. Therefore,right to file the appeal and have the said appeal decided on merits,if it is filed within the period of limitation, is conferred by thestatute and that cannot be taken away by imposing the conditionof deposit of an amount leading to dismissal of the main appealitself if the said condition is not satisfied. Position would havebeen different if the provision of appeal itself contained conditionof pre-deposit of certain amount. That is not so. Subsection (3) ofSection 53B specifically cast duty upon the Appellate Tribunalto pass order on appeal, as it thinks fit i.e. either confirming,modifying or setting aside the direction, decision or order appealedagainst. It is to be done after giving an opportunity of hearing tothe parties to the appeal. It, thus, clearly implies that appeal has tobe decided on merits. The Appellate Tribunal, which is the creatureof statute, has to act within the domain prescribed by the law/statutory provision.This provision nowhere stipulates that theAppellate Tribunal can direct the appellant to deposit certainamount as condition precedent for hearing the appeal. In fact,that was not even done in the instant case. It is stated at the costof repetition that the condition of deposit of 10% of the penaltywas imposed insofar as stay of penalty order passed by the CCIis concerned. Therefore, at the most, stay could have been vacated.The Appellate Tribunal, thus, had no jurisdiction to dismiss theappeal itself.”

(emphasis supplied)

27. In Raja Soap Factory v. S.P. Shantharaj, (1965) 2 SCR800, the plaintiffs instituted an action in the nature of passing off againstthe defendants in the High Court of Mysore, stating that they are exclusiveowners of particular trade mark. This Court found that exercise ofGjurisdiction by the High Court of Mysore is governed by Mysore Act 5of 1962. Holding that the said High Court does not exercise any originaljurisdiction, this Court held:

“The High Court of Mysore is by its constitution primarily courtexercising appellate jurisdiction: it is competent to exercise originaljurisdiction only in those matters in respect of which by special

Acts it has been specifically invested with jurisdiction. The HighCourt is competent to exercise original jurisdiction under Section105 of the Trade and Merchandise Marks Act 43 of 1958 if it isinvested with the ordinary original civil jurisdiction of DistrictCourt, and not otherwise, and the High Court of Mysore not beinginvested by any statute of under its constitution with that jurisdictionwas incompetent to entertain passing off action.

But it was urged that in State the High Court is at the apex ofthe hierarchy of civil courts and has all the powers which thesubordinate courts may exercise, and it is competent to entertainall actions as Court of original jurisdiction which may lie in anycourt in the State. For this exalted claim, there is no warrant inour jurisprudence. Jurisdiction of court means the extent of theauthority of court to administer justice prescribed with referenceto the subject-matter, pecuniary value and local limits. Barringcases in which jurisdiction is expressly conferred upon it by specialstatutes, e.g. the Companies Act; the Banking Companies Act,the High Court of Mysore exercises appellate jurisdiction alone.As court of appeal it undoubtedly stands at the apex within theState, but on that account it does not stand invested with originaljurisdiction in matters not expressly declared within itscognizance.”

(at page 802)

28. In Northern Plastics Ltd. v. Hindustan Photo Films Mfg.Co. Ltd. and Ors., (1997) 4 SCC 452, Section 129-D of the CustomsAct, 1962 was referred to, under which, the Board of Excise and Customsmay direct Collector to apply to the Appellate Tribunal for determinationof points which arise out of an order or decision. In repelling an argumentthat even without such direction, the Union of India may file an appealdirectly, this Court held:

“10. …… The aforesaid provisions of the Act leave no room fordoubt that they represent complete scheme or code forchallenging the orders passed by the Collector (Customs) inexercise of his statutory powers. …… So far as departmentalauthorities themselves are concerned including the Collector ofCustoms no direct right of appeal is conferred on the Collector toprefer appeal against his own order before the CEGAT. Howeverthere is sufficient safeguard made available to the Revenue by

the Act for placing in challenge erroneous orders of adjudicationas passed by the Collector of Customs by moving the CentralBoard of Excise and Customs under Section 129-D(1) for adirection to the Collector to apply to the CEGAT for determinationof such point arising out of the decision or order as may be specifiedby the Board of Revenue in this connection……”

xxx xxx xxx

“12. …… But even if it is so, the statutory procedure laid downby Parliament in its wisdom for enabling the challenge to theadjudication order of the Collector of Customs by way of appealsor revisions as per the aforesaid relevant statutory provisions, towhich we have made mention, has got to be followed in such aneventuality. Bypassing the said statutory procedure direct frogleap to CEGAT is contra-indicated by the statutory scheme of theAct. If such direct appeals are permitted the very scheme ofSection 129-D(1) would get stultified. It must, therefore, be heldthat direct appeal filed by the Union of India through IndustriesMinistry to CEGAT under Section 129-A(1) was clearlyincompetent. It may be added that the Union of India could haveused the mode set out in Section 129-D, but it did not do so.”

29. In Manohar Lal v. Ugrasen, (2010) 11 SCC 557, one of theEquestions involved, under sub-paragraph 2(a) of the judgment, was asfollows:

“2. In these appeals, three substantial questions of law forconsideration of this Court are involved. They are, namely:

(a) As to whether the State Government, revisional authorityunder the statute, could take upon itself the task of lowerstatutory authority?

xxx xxx xxx”

After reviewing number of cases, this Court then concluded:

“23. Therefore, the law on the question can be summarised tothe effect that no higher authority in the hierarchy or an appellateor revisional authority can exercise the power of the statutoryauthority nor can the superior authority mortgage its wisdom anddirect the statutory authority to act in particular manner. If the

appellate or revisional authority takes upon itself the task of thestatutory authority and passes an order, it remains unenforceablefor the reason that it cannot be termed to be an order passedunder the Act.”

30. In Arcot Textile Mills Ltd. v. Regional Provident FundCommissioner, (2013) 16 SCC 1, appeals lay to the Tribunal constitutedunder the Employees’ Provident Funds and Miscellaneous ProvisionsAct, 1952, under Section 7-I of the Act. Whereas appeals lay againstorders passed under Section 7-A of the Act, which provided fordetermination of monies due from employers, no appeal lay against ordersmade under Section 7-Q of the said Act, which spoke of interest payableby the employer. This Court held:

“20. On scrutiny of Section 7-I, we notice that the language isclear and unambiguous and it does not provide for an appeal againstthe determination made under Section 7-Q. It is well settled inlaw that right of appeal is creature of statute, for the right ofappeal inheres in no one and, therefore, for maintainability of anappeal there must be authority of law. This being the position aprovision providing for appeal should neither be construed toostrictly nor too liberally, for if given either of these extremeinterpretations, it is bound to adversely affect the legislative objectas well as hamper the proceedings before the appropriate forum.Needless to say, right of appeal cannot be assumed to existunless expressly provided for by the statute and remedy of appealmust be legitimately traceable to the statutory provisions. If theexpress words employed in provision do not provide an appealfrom particular order, the court is bound to follow the expresswords. To put it otherwise, an appeal for its maintainability musthave the clear authority of law and that explains why the right ofappeal is described as creature of statute. (See Ganga Bai v.Vijay Kumar [(1974) 2 SCC 393], Gujarat Agro Industries Co.Ltd. v. Municipal Corpn. of the City of Ahmedabad [(1999) 4SCC 468], State of Haryana v. Maruti Udyog Ltd. [(2000) 7SCC 348], Super Cassettes Industries Ltd. v. State of U.P. [(2009)10 SCC 531 : (2009) 4 SCC (Civ) 280], Raj Kumar Shivhare v.Directorate of Enforcement [(2010) 4 SCC 772 : (2010) 3 SCC(Civ) 712], Competition Commission of India v. SAIL [(2010)10 SCC 744].)”

AIn paragraph 21, this Court further went on to hold that in case anorder under Section 7-A speaks of delay in payment as well as interest,a composite order passed would be amenable to appeal under Section 7-I, as interest is only parasitic on the principal sum due under Section 7-A. However, if an independent order is passed under Section 7-Q forinterest alone, the same was held to be not appealable.B

31. From the above authorities, it is clear that an appeal is creatureof statute and an appellate tribunal has to act strictly within the domainprescribed by statute. It is obvious that an appeal would lie from anorder or decision of the appellate authority under Section 28 of the WaterAct to the NGT only under Section 33B(a) of the Water Act read withCSection 16(a) of the NGT Act. Similarly, an appeal would lie from anorder or decision of the appellate authority under Section 31 of the AirAct to the NGT only under Section 31B of the Air Act read with Section16(f) of the NGT Act. Obviously, since no order or decision had beenmade by the appellate authority under either the Water Act or the AirDAct, any direct appeal against an original order to the NGT would beincompetent. NGT’s jurisdiction being strictly circumscribed by Section33B of the Water Act, read with Section 31B of the Air Act, read withSection 16(a) and (f) of the NGT Act, would make it clear that it is onlyorders or decisions of the appellate authority that are appealable, andnot original orders. On the facts of the present case, it is clear that anEappeal was pending before the appellate authority when the NGT setaside the original order dated 09.04.2018. This being the case, the NGT’sorder being clearly outside its statutory powers conferred by the WaterAct, the Air Act, and the NGT Act, would be an order passed withoutjurisdiction.

32. In fact, in the United Kingdom, there are several Acts underwhich leapfrog appeal is permitted if point of law of general publicimportance is involved. Thus, the Administration of Justice Act, 1969states that such leapfrog appeal directly to the Supreme Court may befiled on grant of certificate by the Trial Judge in the following terms:

G“12. Grant of certificate by trial judge.

(1) Where on the application of any of the parties to anyproceedings to which this section applies the judge is satisfied—

(a) that the relevant conditions are fulfilled in relation to hisdecision in those proceedings or that the conditions in

subsection (3A) (“the alternative conditions”) are satisfied inrelation to those proceedings, and

(b) that sufficient case for an appeal to the SupremeCourt under this Part of this Act has been made out to justifyan application for leave to bring such an appeal, ...

(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the judge, subject to the following provisions of this Part of thisAct, may grant certificate to that effect.

(2) This section applies to any civil proceedings in the High Courtwhich are either—

(a) proceedings before single judge of the High Court (including person acting as such judge under section 3 ofthe Judicature Act 1925), or

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) proceedings before Divisional Court.

(3) Subject to any Order in Council made under the followingprovisions of this section, for the purposes of this section therelevant conditions, in relation to decision of the judge in anyproceedings, are that point of law of general public importanceis involved in that decision and that that point of law either—

(a) relates wholly or mainly to the construction of an enactmentor of statutory instrument, and has been fully argued in theproceedings and fully considered in the judgment of the judgein the proceedings, or

(b) is one in respect of which the judge is bound by decisionof the Court of Appeal or of the Supreme Court in previousproceedings, and was fully considered in the judgments givenby the Court of Appeal or the Supreme Court (as the casemay be) in those previous proceedings.

xxx xxx xxx”

33. To similar effect are sections of the Tribunals, Courts andEnforcement Act, 2007, and the Employment Tribunals Act, 1996. Suchappeals in the U.K. are referred to as “leapfrog appeals” [see S Franses

ALtd. v. The Cavendish Hotel (London) Ltd., [2018] UKSC 62 (atparagraph 7)].

34. It is, therefore, clear that no such provisions, as are containedin the U.K. Acts, being present in any of the Acts that we are concernedwith, such leapfrog appeals to the NGT would necessarily be withoutBjurisdiction.

(II) RE: ORDERS PASSED UNDER SECTION 33A OF THE WATER ACTAND SECTION 31A OF THE AIR ACT

35. We have referred to the orders dated 12.04.2018, 23.05.2018,and 28.05.2018 passed by the TNPCB under Sections 33A and 31A ofCthe Water Act and Air Act respectively. At this juncture, it is importantto state that Section 33B of the Water Act and Section 31B of the AirAct were both enacted on 18.10.2010, which is the very date on whichthe NGT Act came into force. What is important to note is that whereasSection 33B(c) of the Water Act read with Section 16(c) of the NGTAct make it clear that directions issued under Section 33A of the WaterDAct are appealable to the NGT, directions issued under Section 31A ofthe Air Act are not so appealable. In fact, the statutory scheme is thatdirections given under Section 31A of the Air Act are not appealable.This being the case, all the aforesaid orders, being composite ordersissued under both the Water Act and the Air Act, it will not be possible toEsplit the aforesaid orders and say that so far as they affect water pollution,they are appealable to the NGT, but so far as they affect air pollution, asuit or writ petition would lie against such orders. Shri Sundaram’sargument that these orders being substantially relatable to the WaterAct would, therefore, not hold, as such orders are composite ordersFmade bothunder the Water Act and the Air Act. Equally disingenuous isthe reference to Section 14 of the NGT Act which only refers to theoriginal jurisdiction of the NGT and not to its appellate jurisdiction. Also,to state generally that the subject matter of environment lies with theNGT, is an argument of despair that must be dismissed for the reasonthat as held by us hereinabove, an appeal being creature of statute, aGstatute either confers right of appeal or it does not. In the present case,we have seen that so far as directions issued under Section 31A of theAir Act are concerned, there is no right of appeal conferred by the AirAct read with the NGT Act. The ingenious argument made by ShriSundaram that, in any case, “direction” under Section 31A of the AirHAct is nothing but an “order”, and would, therefore, be appealable assuch under Section 31B of the Air Act read with Section 16(f) of theNGT Act would drive coach-and-four through the statutory schemethat has just been adverted to. We have seen how all the appellateproceedings to the NGT, whether under the Air Act, the Water Act, orthe NGT Act have been brought into force on the same date. Whereasthe identical power to give directions by the Board under the Water Actis appealable to the NGT, the same power to give directions by theBoard under the Air Act is not so appealable. The absence of any mentionof Section 31A in Section 31B of the Air Act, given the statutory schemeas aforesaid, makes it clear that even this argument must be rejected.Also, “directions” that are issued under Section 31A of the Air Act areof different quality from “orders” referred to in Section 31 of the sameAct. Directions are issued in the exercise of powers and performanceof functions under the Act and are not quasi-judicial in nature, whereasorders that are appealed against under Section 31 are quasi-judicial ordersmade, inter alia, under Section 21 of the Air Act. For this reason also,we cannot accept the aforesaid argument of Shri Sundaram. However,Shri Sundaram argued, with particular reference to the explanation toSection 31A of the Air Act that “directions” partake of the nature of“orders” when closure of any particular industry or stoppage of supplyof electricity qua any single industry is made, and therefore, suchdirections are appealable as orders under Section 31 of the Air Act. Thisargument is also of no avail as Section 33A of the Water Act contains anidentical explanation to that contained in Section 31A of the Air Act.Despite this, the legislative scheme, as stated hereinabove, is that so faras directions under the Water Act are concerned, they are appealable,but so far as directions under the Air Act are concerned, they are notappealable. Hence, reference made to P. Ramanatha Aiyer’s LawLexicon and Black’s Law Dictionary, which state that in certaincircumstances, orders are also directions and vice versa, would not applyto the present case, given the express statutory scheme. In this connection,Shri Sundaram cited Kanhiya Lal Omar v. R.K. Trivedi, (1985) 4SCC 678, and relied upon paragraph 17, where this Court held, referringto Article 324(1) of the Constitution of India, that “direction” may beequated with specific or general order. The context of Article 324being wholly different, it is obvious that this authority also has noapplication, given the statutory scheme in the present case.

36. Shri Sundaram then cited Maharashtra State Board ofSecondary and Higher Secondary Education v. Paritosh

DEFG

ABhupeshkumar Sheth, (1984) 4 SCC 27. In this judgment, the HighCourt had struck down Regulation 104 of the Maharashtra Secondaryand Higher Secondary Boards Regulations, 1977, by which, no re-evaluation of an answer book given in an examination can be undertaken.In setting aside the High Court judgment, this Court stated that the processof re-evaluation of answer papers is extremely time consuming, wouldBinvolve several thousand man-hours, and is bound to throw the entiresystem out of gear. Further, it is in public interest that the results ofpublic examinations, when published, should have some finality attachedto them [see paragraph 27]. It is in this context that this Court held:

“29. …… It is equally important that the Court should also, as farCas possible, avoid any decision or interpretation of statutoryprovision, rule or bye-law which would bring about the result ofrendering the system unworkable in practice. ……”

To bodily lift the aforesaid sentence and apply it to the fact situationhere would be huge leap which we are not prepared to make. Further,Dgiven the statutory scheme as aforesaid, it is not possible for us to providean appeal where there is nonein the guise of making an appellate systemworkable in practice.

37. Shri Sundaram then relied upon this Court’s judgments inGalada Power & Telecommunication Ltd. v. United IndiaEInsurance Co. Ltd., (2016) 14 SCC 161 and Allokam Peddabbayyav. Allahabad Bank, (2017) 8 SCC 272 for the proposition that the rightof appeal is statutory right, and like all other statutory rights, it can bewaived, unless its waiver is detrimental to public interest. The questionin these appeals is not whether an appellant may waive statutory rightFof appeal. The question is whether the NGT, which is only invested withthe jurisdiction of entertaining an appeal from an order of an appellateauthority, is jurisdictionally capable of entertaining an appeal directly fromthe original authority. It is clear, as has been held by us, that the NGTpossesses no such jurisdiction.

G38. One further argument was made that these matters are onlyprocedural, and therefore, substantially, an appeal to the NGT would bemaintainable. It is well settled that the right to appeal is not proceduralmatter but substantive one. In Garikapati Veeraya v. N. SubbiahChoudhury, 1957 SCR 488, this Court held:

“From the decisions cited above the following principles clearlyemerge:

(i) That the legal pursuit of remedy, suit, appeal and secondappeal are really but steps in series of proceedings allconnected by an intrinsic unity and are to be regarded as onelegal proceeding.

(ii) The right of appeal is not mere matter of procedure but isa substantive right.

(iii) The institution of the suit carries with it the implicationthat all rights of appeal then in force are preserved to the partiesthereto till the rest of the career of the suit.

(iv) The right of appeal is vested right and such right toenter the superior court accrues to the litigant and exists as onand from the date the lis commences and although it may beactually exercised when the adverse judgment is pronouncedsuch right is to be governed by the law prevailing at the date ofthe institution of the suit or proceeding and not by the law thatprevails at the date of its decision or at the date of the filing ofthe appeal.

(v) This vested right of appeal can be taken away only by asubsequent enactment, if it so provides expressly or bynecessary intendment and not otherwise.”

(at pp. 514-515)

This argument must, therefore, be rejected.

(III) RE: ORDER PASSED UNDER SECTION 18 OF THE WATER ACT

39. So far as the order dated 28.05.2018 is concerned, this orderis expressly stated to be made under Section 18 of the Water Act. Thereis no doubt whatsoever that such an order is not appealable to the NGTeither under the Water Act or under the NGT Act. However, ShriSundaram has argued that Section 18 is referable to orders generallymade, and falls under Chapter IV of the Water Act, which deals withpowers and functions of Boards, as opposed to the Sections that followin Chapter V, which deals with prevention and control of water pollution,which orders are made against individuals and individual industries. Onthe assumption that Shri Sundaram is correct in this argument, it is clear

Athat such order can only be set aside in suit by Civil Court, or underArticle 226 of the Constitution of India by High Court. It is not possibleto agree with the argument of Shri Sundaram that such orders can beignored, being non est. It is settled that an administrative order, whenmade, does not bear the brand of invalidity on its forehead, as has beenheld in Smith v. East Elloe Rural District Council, [1956] 1 All E.R.B855 (at page 871), which has been followed by this Court in State ofPunjab v. Gurdev Singh, (1991) 4 SCC 1 (at page 6); Tayabbhai M.Bagasarwalla v. Hind Rubber Industries (P) Ltd., (1997) 3 SCC443 (at page 455); Pune Municipal Corpn. v. State of Maharashtra,(2007) 5 SCC 211 (at page 225); Krishnadevi Malchand KamathiaCv. Bombay Environmental Action Group, (2011) 3 SCC 363 (at page369); and Kandla Port v. Hargovind Jasraj, (2013) 3 SCC 182 (atpage 193). Therefore, this order can only be set aside either in suit, orby the High Court in the exercise of judicial review. Faced with this, ShriSundaram then argued that though the said order states that it is traceableto Section 18 of the Water Act, it can, in fact, be traced to Section 29 ofDthe same Act. Section 29 deals with the revisional power, in which theState Government is to pass quasi-judicial order after hearing both theState Board and the person who is affected. Quite obviously, this orderis not quasi-judicial order as the State Government has not found itnecessary to hear either the State Board, or any person affected byEsuch order. Further, such order does not purport to be an order whicheither affirms or sets aside any order made under Sections 25, 26, or 27of the Water Act. This argument of despair, therefore, must also berejected.40. Shri Sundaram then argued that this Court in L. ChandraFKumar (supra) made it clear that Tribunals that are set up, generallyhave the power of judicial review, save and except challenge to thevires of the legislation under which such Tribunals are themselves setup. For this, he relied strongly upon paragraphs 90 and 93 of the judgmentin L. Chandra Kumar (supra). It is important to notice that L. ChandraKumar (supra) pertained to Tribunal that was set up under ArticleG323A of the Constitution of India. Under Article 323A(2)(d), theAdministrative Tribunal so set up would be able to exercise the jurisdictionof all courts except the jurisdiction of the Supreme Court under Article136 of the Constitution. This would mean that the Administrative Tribunalso set up could exercise the jurisdiction of all High Courts when it cameHto the matters specified in Article 323A. This is further made clear by

conjoint reading of Section 14 and Section 28 of the AdministrativeTribunals Act, 1985, which read as follows:

“14. Jurisdiction, powers and authority of the CentralAdministrative Tribunal.—(1) Save as otherwise expresslyprovided in this Act, the Central Administrative Tribunal shallexercise, on and from the appointed day, all the jurisdiction, powersand authority exercisable immediately before that day by all courts(except the Supreme Court) in relation to—

(a) recruitment, and matters concerning recruitment, to anyAll-India Service or to any civil service of the Union or civilpost under the Union or to post connected with defence or inthe defence services, being, in either case, post filled by acivilian;

(b) all service matters concerning—

(i) member of any All-India Service; or

(ii) person not being member of an All-India Service or aperson referred to in clause (c) appointed to any civil serviceof the Union or any civil post under the Union; or

(iii) civilian not being member of an All-India Service ora person referred to in clause (c) appointed to any defenceservices or post connected with defence,

and pertaining to the service of such member, person or civilian,in connection with the affairs of the Union or of any State orof any local or other authority within the territory of India orunder the control of the Government of India or of anycorporation or society owned or controlled by the Government;

(c) all service matters pertaining to service in connection withthe affairs of the Union concerning person appointed to anyservice or post referred to in sub-clause (ii) or sub-clause (iii)of clause (b), being person whose services have been placedby State Government or any local or other authority or anycorporation or society or other body, at the disposal of theCentral Government for such appointment.

Explanation.—For the removal of doubts, it is hereby declaredthat references to “Union” in this sub-section shall be construedas including references also to Union Territory.

(2) The Central Government may, by notification, apply with effectfrom such date as may be specified in the notification the provisionsof sub-section (3) to local or other authorities within the territoryof India or under the control of the Government of India and tocorporations or societies owned or controlled by Government, notbeing local or other authority or corporation or society controlledor owned by State Government:

Provided that if the Central Government considers it expedient soto do for the purpose of facilitating transition to the scheme asenvisaged by this Act, different dates may be so specified underthis sub-section in respect of different classes of, or differentcategories under any class of, local or other authorities orcorporations or societies.

(3) Save as otherwise expressly provided in this Act, the CentralAdministrative Tribunal shall also exercise, on and from the datewith effect from which the provisions of this sub-section apply toany local or other authority or corporation or society, all thejurisdiction, powers and authority exercisable immediately beforethat date by all courts (except the Supreme Court) in relation to—

(a) recruitment, and matters concerning recruitment, to anyservice or post in connection with the affairs of such local orother authority or corporation or society; and

(b) all service matters concerning person other than personreferred to in clause (a) or clause (b) of sub-section (1)appointed to any service or post in connection with the affairsof such local or other authority or corporation or society andpertaining to the service of such person in connection withsuch affairs.”

xxx xxx xxx

“28. Exclusion of jurisdiction of courts except the SupremeCourt under Article 136 of the Constitution.—On and fromthe date from which any jurisdiction, powers and authority becomesexercisable under this Act by Tribunal in relation to recruitmentand matters concerning recruitment to any Service or post orservice matters concerning members of any Service or personsappointed to any Service or post, no court except—

(a) the Supreme Court; or

(b) any Industrial Tribunal, Labour Court or other authorityunder the Industrial Disputes Act, 1947 or any othercorresponding law for the time being in force,

shall have, or be entitled to exercise any jurisdiction, powers orauthority in relation to such recruitment or matters concerningsuch recruitment or matters concerning such recruitment or suchservice matters.”

Article 323B of the Constitution of India also provides for Tribunalsfor certain other matters which are specified by sub-clause (2) thereof.Suffice it to say that the NGT is not Tribunal set up either under Article323A or Article 323B of the Constitution, but is statutory Tribunal setup under the NGT Act. That such Tribunal does not exercise thejurisdiction of all courts except the Supreme Court is clear from readingof Section 29 of the NGT Act (supra). Thus, conjoint reading of Section14 and Section 29 of the NGT Act must be contrasted with conjointreading of Section 14 and Section 28 of the Administrative TribunalsAct, 1985.

41. It is in the context of Article 323A and the AdministrativeTribunals Act, 1985 that this Court in L. Chandra Kumar (supra) hasobserved in paragraph 93 as follows:

“93. Before moving on to other aspects, we may summarise ourconclusions on the jurisdictional powers of these Tribunals. TheTribunals are competent to hear matters where the vires of statutoryprovisions are questioned. However, in discharging this duty, theycannot act as substitutes for the High Courts and the SupremeCourt which have, under our constitutional set-up, been specificallyentrusted with such an obligation. Their function in this respect isonly supplementary and all such decisions of the Tribunals will besubject to scrutiny before Division Bench of the respective HighCourts. The Tribunals will consequently also have the power totest the vires of subordinate legislations and rules. However, thispower of the Tribunals will be subject to one important exception.The Tribunals shall not entertain any question regarding the viresof their parent statutes following the settled principle that Tribunalwhich is creature of an Act cannot declare that very Act to beunconstitutional. In such cases alone, the High Court concerned

Amay be approached directly. All other decisions of these Tribunals,rendered in cases that they are specifically empowered toadjudicate upon by virtue of their parent statutes, will also be subjectto scrutiny before Division Bench of their respective High Courts.We may add that the Tribunals will, however, continue to act asthe only courts of first instance in respect of the areas of law forBwhich they have been constituted. By this, we mean that it willnot be open for litigants to directly approach the High Courts evenin cases where they question the vires of statutory legislations(except, as mentioned, where the legislation which creates theparticular Tribunal is challenged) by overlooking the jurisdictionCof the Tribunal concerned.”

42. In Bharat Sanchar Nigam Limited v. Telecom RegulatoryAuthority of India and Ors., (2014) 3 SCC 222 [“BSNL”], this Courthad to construe the appellate power that is contained in Section 14 of theTelecom Regulatory Authority of India Act, 1997, by which, the TDSATDwas conferred with the power to hear and dispose of appeals againstany direction, decision, or order of the TRAI. In this context, afterdistinguishing the judgment in L. Chandra Kumar (supra), this Courtheld:

“108. Before the 2000 Amendment, the applications were requiredEto be filed under Section 15 which also contained detailed procedurefor deciding the same. While sub-section (2) of Section 15 usedthe word “orders”, sub-sections (3) and (4) thereof used the word“decision”. In terms of sub-section (5), the orders and directionsof TRAI were treated as binding on the service providers,Government and all other persons concerned. Section 18 providedFfor an appeal against any decision or order of TRAI. Such anappeal could be filed before the High Court. The Amendmentmade in 2000 is intended to vest the original jurisdiction of TRAIin TDSAT and the same is achieved by Section 14(a). The appellatejurisdiction exercisable by the High Court is also vestedGin TDSAT by virtue of Section 14(b) but this does not include decisionmade by TRAI. Section 14-N provides for transfer to all appealspending before the High Court to TDSAT and in terms of clause(b) of sub-section (2), TDSAT was required to proceed to deal withthe appeal from the stage which was reached before such transferor from any earlier stage or de novo as considered appropriate byHit. Since the High Court while hearing appeal did not have the

power of judicial review of subordinate legislation, the transfereeadjudicatory forum i.e. TDSAT cannot exercise that power underSection 14(b).”

xxx xxx xxx

“114. …… From the above-extracted portion of the order it isevident that the Bench, which decided the matter, felt that theview taken by TDSAT would encourage rampant violation of theorders without any penal consequence and the entire scheme ofthe TRAI Act would become unworkable. The word “directions”used in Section 29 of the TRAI Act was interpreted to includeorders and regulations in the context of the factual matrix of thatcase and the apprehension of the Court that Section 29 wouldotherwise become unworkable, but the same cannot be read aslaying down proposition of law that the words “direction”,“decision” or “order” used in Section 14(b) would includeregulations framed under Section 36, which are in the nature ofsubordinate legislation.”

xxx xxx xxx

“123. In Union of India v. Madras Bar Assn. [(2010) 11 SCC1] and State of Gujarat v. Gujarat Revenue Tribunal Bar Assn.[(2012) 10 SCC 353 : (2012) 4 SCC (Civ) 1229 : (2013) 1 SCC(Cri) 35 : (2013) 1 SCC (L&S) 56 : (2012) 10 Scale 285], thisCourt applied the principles laid down in L. Chandra Kumarcase [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261: 1997 SCC (L&S) 577] and reiterated the importance of tribunalscreated for resolution of disputes but these judgments too have nobearing on the decision of the question formulated before us.

124. In the result, the question framed by the Court is answeredin the following terms: in exercise of the power vested in it underSection 14(b) of the TRAI Act, TDSAT does not have the jurisdictionto entertain the challenge to the regulations framed by TRAI underSection 36 of the TRAI Act.”

In the present case, it is clear that Section 16 of the NGT Act iscast in terms that are similar to Section 14(b) of the Telecom RegulatoryAuthority of India Act, 1997, in that appeals are against the orders,decisions, directions, or determinations made under the various Actsmentioned in Section 16. It is clear, therefore, that under the NGT Act,

Athe Tribunal exercising appellate jurisdiction cannot strike down rules orregulations made under this Act. Therefore, it would be fallacious tostate that the Tribunal has powers of judicial review akin to that of aHigh Court exercising constitutional powers under Article 226 of theConstitution of India. We must never forget the distinction between asuperior court of record and courts of limited jurisdiction that was, in theBfelicitous language of Gajendragadkar, C.J., in Re: Special Reference,(1965) 1 SCR 413, made in the following words:

“We ought to make it clear that we are dealing with the questionof jurisdiction and are not concerned with the propriety orreasonableness of the exercise of such jurisdiction. Besides, inCthe case of superior Court of Record, it is for the court to considerwhether any matter falls within its jurisdiction or not. Unlike aCourt of limited jurisdiction, the superior Court is entitled todetermine for itself questions about its own jurisdiction. “Primafacie”, says Halsbury, “no matter is deemed to be beyond theDjurisdiction of superior court unless it is expressly shown to beso, while nothing is within the jurisdiction of an inferior court unlessit is expressly shown on the face of the proceedings that theparticular matter is within the cognizance of the particular court[Halsbury’s Laws of England, vol. 9, p. 349]”.

(at page 499)

For this reason also, we are of the view that the State Governmentorder made under Section 18 of the Water Act, not being the subjectmatter of any appeal under Section 16 of the NGT Act, cannot be“judicially reviewed” by the NGT. Following the judgment in BSNLF(supra), we are of the view that the NGT has no general power ofjudicial review akin to that vested under Article 226 of the Constitutionof India possessed by the High Courts of this country. Shri Sundaram’sstrong reliance on the NGT judgment dated 17.07.2014 in Wilfred v.Ministry of Environment and Forests must also be rejected as thisNGT judgment does not state the law on this aspect correctly. ThisGcontention is also without merit, and therefore, rejected.

43. Shri Sundaram then argued that, in any case, this order is anorder made by the State Government against the TNPCB, and istherefore, direction to the TNPCB and not direction to his client. Ifthis were so, and the order had no effect on his client, there would haveHbeen no necessity to file an appeal before the NGT against such order.

We have seen, however, that this order has been challenged on meritsby the respondent before the NGT. To then say that this order which ischallenged would be defended on certain grounds, as result of which,the NGT then gets vested with the jurisdiction to decide the same, isagain to put the cart before the horse. It is clear that no appeal is providedagainst orders made under Section 18 of the Water Act, and the attemptto bring the NGT in by the backdoor, as it were, would, therefore, haveto be rejected. Also, to argue that as against writ court acting underArticle 226 of the Constitution of India, the NGT is an expert body setup only to deal with environmental matters, again does not answer thespecific issue before this Court. As we have held earlier, an appeal beinga creature of statute, an order passed under Section 18 of the Water Actis either appealable or it is not. If it is not, no general argument as to theNGT being an expert body set up to hear environmental matters can beof any help.44. Equally, so far as the order dated 08.08.2013 is concerned,we have seen how the NGT stated that the doctrine of necessity wouldtake over if an appellate authority under the Act is not properly constitutedso that no appeal can then be effectively preferred. This, again, is anargument that cannot be countenanced. If an appellate authority is eithernot yet constituted, or not properly constituted, leapfrog appeal to theNGT cannot be countenanced. As has been held by us supra, the NGTis only conferred appellate jurisdiction from an order passed in exerciseof first appeal. Where there is no such order, the NGT has no jurisdiction.

45. In conclusion, we are cognizant of the fact that the respondent’splant has been shut down since 09.04.2018. Since we have set aside theimpugned judgments of the NGT on the ground of maintainability, theorder dated 22.01.2019 passed by the TNPCB, being consequentialorder, is also set aside. The respondents are relegated to the positionthat the six orders impugned before the NGT, dealt with by the impugnedjudgment dated 15.12.2018, and the order dated 29.03.2013, dealt withby the final judgment dated 08.08.2013, are alive and operative. Giventhe fact that we are setting aside the NGT judgments involved in theseappeals on the ground of maintainability, we state that it will be open forthe respondents to file writ petition in the High Court against all theaforesaid orders. If such writ petition is filed, it will be open for therespondent to apply for interim reliefs considering that their plant hasbeen shut down since 09.04.2018. Also, since their plant has been so

834SUPREME COURT REPORTS

Ashut down for long period, and they are exporting product which isan important import substitute, the respondent may apply to the ChiefJustice of the High Court for expeditious hearing of the writ petition,which will be disposed of on merits notwithstanding the availability of analternative remedy in the case of challenge to the 09.04.2018 order ofthe TNPCB. The appeals are disposed of accordingly.B

Ankit Gyan

Appeals disposed of.