KANTHA VIBHAG YUVA KOLI SAMAJ PARIVARTAN TRUST AND OTHERS versus STATE OF GUJARAT AND OTHERS

[2022] 1 S.C.R.

AKANTHA VIBHAG YUVA KOLI SAMAJ PARIVARTAN TRUSTAND OTHERS

STATE OF GUJARAT AND OTHERS

B(Civil Appeal No. 1046 of 2019)

JANUARY 21, 2022

[DR. DHANANJAYA Y CHANDRACHUD ANDBELA M TRIVEDI, JJ.]

Administrative Law – Entrustment of judicial functions to anCadministrative expert committee – Appellants filed an OriginalApplication (OA) before the Western Zone Bench of the NGT againstthe dumping of municipal solid waste (MSW) at open landfill site –The OA was being continuously heard by the Western Zone Benchof the NGT and it had already issued significant interim directionsD– However, Principal Bench (NGT) disposed of the said OA filed bythe appellants on the ground that in another OA the NGT hadconstituted Apex, Regional and State Level Committees to monitorthe implementation of the SWM Rules – The OA filed by the appellantswas thus closed with liberty to represent the case and ventilate allgrievances before the appropriate committee – Whether the PrincipalEBench of the NGT correctly directed the appellants to now approachone of the Committees set up by it, rather than continue with theproceedings in the OA – Held: The committees are setup becausethe fact-finding exercise in many matters can be complex, technicaland time-consuming, and may often require the committees to conductFfield visits – These committees are set up with specific terms ofreference outlining their mandate, and their reports have to conformto the mandate – Once these committees submit their final reports tothe court/tribunal, it is open to the parties to object to them, whichis then adjudicated upon – The role of these expert committees doesnot substitute the adjudicatory role of the court or tribunal – TheGNGT cannot abdicate its jurisdiction by entrusting these coreadjudicatory functions to administrative expert committees –National Green Tribunal Act, 2010 – ss. 14, 15 and 22 – MunicipalSolid Waste (Handling and Management)Rules 2000 – Bio MedicalWaste (Management and Handling) Rules 1998.H

Allowing the appeal, the Court

HELD: 1. It is first important to differentiate expertcommittees which are set by the courts/tribunals from those setup by the Government in exercise of executive powers or undera particular statute. The latter are set up due to their technicalexpertise in given area, and their reports are, subject tojudicially observed restraints, open to judicial review beforecourts when decisions are taken solely based upon them. Theprecedents of this court unanimously note that courts should becircumspect in rejecting the opinion of these committees, unlessthey find their decision to be manifestly arbitrary or mala fide.On the other hand, courts/tribunals themselves set up expertcommittees on occasion. These committees are setup becausethe fact-finding exercise in many matters can be complex, technicaland time-consuming, and may often require the committees toconduct field visits. These committees are set up with specificterms of reference outlining their mandate, and their reports haveto conform to the mandate. Once these committees submit theirfinal reports to the court/tribunal, it is open to the parties to objectto them, which is then adjudicated upon. The role of these expertcommittees does not substitute the adjudicatory role of the courtor tribunal. The role of an expert committee appointed by anadjudicatory forum is only to assist it in the exercise ofadjudicatory functions by providing them better data and factualclarity, which is also open to challenge by all concerned parties.Allowing for objections to be raised and considered makes theprocess fair and participatory for all stakeholders. Sections 14and Section 15 entrust adjudicatory functions to the NGT. TheNGT is specialized body comprising of judicial and expertmembers. Judicial members bring to bear their experience inadjudicating cases. On the other hand, expert members bringinto the decision-making process scientific knowledge on issuesconcerning the environment. [Paras 14 & 15][1016-E-G;1017-C]

2. The NGT cannot abdicate its jurisdiction by entrustingthese core adjudicatory functions to administrative expertcommittees. Expert committees may be appointed to assist theNGT in the performance of its task and as an adjunct to its fact-

Afinding role. But adjudication under the statute is entrusted tothe NGT and cannot be delegated to administrative authorities.Adjudicatory functions assigned to courts and tribunals cannotbe hived off to administrative committees. The NGT has in thepresent case abdicated its jurisdiction and entrusted judicialfunctions to an administrative expert committee. An expertBcommittee may be able to assist the NGT, for instance, by carryingout fact-finding exercise, but the adjudication has to be by theNGT. This is not delegable function. Thus, the order impugnedin the appeal cannot be sustained. The consequence of theimpugned order is to efface the meticulous exercise which wasCcarried out by the earlier Benches. Valuable time has been lostin the meantime and crucial issues pertaining to the environmentin the present case have been placed on the back-burner.[Paras 16 & 17][1017-G-H; 1018-A, D-F]

Mantri Techzone (P) Ltd. v. Forward Foundation (2019)D18 SCC 494; Sanghar Zuber Ismail v. Ministry ofEnvironment, Forests and Climate Change and Another2021 SCC OnLine SC 669 –relied on.

Basavaiah (Dr.) v. Dr. H.L. Ramesh, (2010) 8 SCC 372:[2010] 9 SCR 227; State of Kerala v. RDS Project Ltd.,E(2020) 9 SCC 108: [2020] 6 SCR 837; HanumanLaxman Aroskar v. Union of India (2019) 15 SCC 401:[2019] 5 SCR 916 –referred to.

Ms. Shilpa Chohan, Shawahiq Siddique, Dr. Pratyush Nandan,Rajesh Singh, Advs. for the Appellants.

Ms. Aastha Mehta, Ms. Deepanwita Priyanka, Ms. Ruchi Kohli,Avijit Roy, Tejas Patel, Kaushal Pandya, Advs. for the Respondents.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

1. Admit.

2. This appeal under Section 22 of the National Green TribunalAct 2010[1] arises from judgment and order of the Principal Bench ofthe National Green Tribunal[2] dated 28 September 2018, by which itdismissed OA No 81 of 2014 (WZ).

3. OA No 81 of 2014 (WZ), instituted under Sections 14 and 15 ofthe NGT Act, was pending before the NGT for nearly four years sinceJuly 2014. It had been filed by the appellants, who are environmentalorganisations and individuals directly affected by the degradation of theenvironment in the area in question. The OA pertained to the issue ofthe dumping of unsegregated and untreated Municipal Solid Waste[3] atan open landfill site admeasuring 188 hectares at Survey No 111 /A,Block No 177, Khajod Village, Taluka Choryasi in the district of Surat,which is surrounded by thirty-five villages. The landfill site had been setup by the fourth respondent, Surat Municipal Corporation[4], which hadstarted dumping 850 Metric Tonnes of waste per day on 24 January2003. The extent of dumping increased to 1600 Metric Tonnes of wasteper day by 16 January 2014. It was alleged, inter alia, that the dumpingof waste in the open area without prior treatment was in violation of theMunicipal Solid Waste (Handling and Management) Rules 2000 and BioMedical Waste (Management and Handling) Rules 1998. Further, whileSMC had been issued multiple warnings during site visits and inspections,the situation did not improve. It was alleged that the waste disposal ledto an irreversible contamination of local water bodies and ground water,caused severe air pollution due to the burning of waste, damaged theecology of the nearby villages and was affecting the health of the citizens

1 “NGT Act”

2 “NGT”

3 “MSW”

4 “SMC”

Aand livestock in the vicinity. The appellants sought directions, inter alia,for: (i) restraining the dumping of MSW at the landfill site; (ii) restorationof the environment in the surrounding areas; (iii) restitution of the landfillsite to its original condition; (iv) compensation to all those affected in thenearby villages upon determination of damages by committee set up toassess the landfill site; and (v) implementation of the Solid WasteBManagement Rules 2016[5].

4. The Western Zone Bench of the NGT issued notice on 8 August2014. series of orders emanated from the Western Zone Bench of theNGT in connection with the issues raised. It would suffice to note fewof those orders:C

(i)On 20 March 2015, the NGT noted that “prima facie thereis ring of truth in the averments made by the Applicants, toindicate that MSW plant, is being mismanaged” and thatthe burning of the untreated MSW was causing severe airDpollution affecting the health of the residents of the nearbyvillages. Interim directions were issued to prevent this fromtaking place during the pendency of the OA;

(ii)On 22 December 2015, the NGT again reproached SMCfor not preparing proper action plan and audit for theEmanagement of MSW in the district of Surat. However, onthe appellant’s issue of their participation in the managementof the landfill site, the NGT noted that it would be decidedduring the final hearing;

(iii)On 7 March 2016, the NGT directed the Commissioner ofFSMC to be present and to provide statement on thefollowing issues: (a) extent of waste collected, treated anddisposed of in accordance with the mandate of the MunicipalSolid Waste (Handling and Management) Rules 2000; (b)the officers who have failed to enforce the Rules and havefailed to comply with the directions of the NGT; (c) theGtime schedule within which proper waste management willbe done in the area in terms of the Rules; and (d) filing anundertaking that waste management shall be done in letterand spirit;H5 “SWM Rules”

(iv)On 16 May 2017, the NGT noted that in pursuance of itsprevious directions, SMC had filed an affidavit indicating,inter alia, the action plan which it proposed to execute forhandling the problem of MSW within its jurisdiction. TheNGT was informed that the issue pertaining to the closureof the Khajod dumping site was pending before the StandingCommittee of SMC. Hence, the NGT directed the StandingCommittee to take decision and issue work order forcommencing the work of the closure of the open dumpingsite within month. Moreover, SMC was directed to placeon the record the details of the lands where the projectsare to be commissioned;

(v)On 19 September 2017, statement was made on behalf ofSMC that it is under an obligation to comply with the SWMRules and that the site at Khajod is designated for landfill,an MSW processing plant and waste-to-energy plant of100 TPD on public-private partnership basis;D

(vi)Pursuant to the order of the NGT dated 19 September 2017,the appellants formulated certain action points forimplementation of the SWM Rules. On 26 September 2017,an undertaking was filed on behalf of SMC by the MunicipalCommissioner setting out the steps which would be takenfor dealing with MSW, transportation, storage, andprocessing as well as on other related matters. Theundertaking stipulated that there shall be no landfilling ordumping of unprocessed and unsegregated MSW after twoyears subject to “100% working of the Solid WasteProcessing Plant” and certain other conditions;

(vii)On 6 November 2017, an order was passed by the NGTsetting out that it would be hearing SMC, inter alia, on thequalified nature of the undertaking which was furnished byit, having regard to the SWM Rules and on the proposeduse of the Khajod landfill site despite its potential as landfillsite being concluded. The NGT also indicated that it wouldbe hearing submissions on the commissioning of the waste-to-energy plant and the waste-to-compost plant within agiven time frame;

1012SUPREME COURT REPORTS

A(viii) An order was passed by the NGT on 5 December 2017,dealing particularly with the issue of quantification ofcompensation to the farmers due to the damage caused bythe burning of solid waste and ground water pollution;

(ix)On 2 July 2018, the NGT issued directions stating that theBsubmissions which were urged before it by SMC wereunacceptable. The NGT declined to accept the contentionthat the waste-to-energy plant could only be completed byDecember 2019, and directed that it ought to be completedby March 2018; and

(x)On 17 July 2018, the NGT noted that SMC’s current actionplan prima facie did not fulfill the requirements of ClauseJ of Schedule-I of the SWM Rules in relation to closureand rehabilitation of old dumping sites and legacy waste.Hence, it directed SMC to file an affidavit recording itsDcompliance.

5. considerable amount of judicial time and attention was entailedduring the course of the hearings associated with the above orders. EarlierBenches of the NGT at the Western Zone Bench had been monitoringthe status of compliance with the SWM Rules. The NGT was seizedEwith diverse aspects pertaining to the disposal of MSW by SMC, includingthe modalities which have to be followed while commissioning projectsin the future for the conversion of waste to energy.

6. Rather surprisingly, when the proceedings came up on 28September 2018 before the Principal Bench of the NGT, the OA wasFdisposed of on the ground that in another OA – OA No 606 of 2018 –the NGT had constituted Apex, Regional and State Level Committeesto monitor the implementation of the SWM Rules. The OA filed by theappellants was thus closed with liberty to represent the case andventilate all grievances before the appropriate committee. Forconvenience of reference, the order passed by the NGT is extractedGbelow:“As this OA relates to implementation of Solid Waste ManagementRules, 2016, we are of the considered opinion that it is covered bythe order passed by the larger Bench of the Tribunal dated 20thAugust, 2018 in OA No 606 of 2018.H

The Applicant would be at liberty to represent its case and ventilateall grievance before the Committee which shall look into it andfinally decide the same.

Consequently, OA No 81 of 2014 stands disposed of. There shallbe no order as to cost.

M.A. No. 1392 of 2018 and 1393 of 2018

These Applications do not survive for consideration as the mainApplication has been decided and are accordingly dismissed.”

7. At this juncture, it is also important to elaborate on NGT’sjudgment and order dated 31 August 2018 in OA No 606 of 2018. Thoseproceedings arose from writ petitions filed before this Court in relationto the proper implementation of SWM Rules across the country, whichwere later transferred to the NGT. The NGT noted in its decision thatthough it had earlier issued directions for the implementation of the SWMRules, they had not been complied with. Later, in meeting organised bythe Central Pollution Control Board with all the States and UnionTerritories, it was recommended that the NGT should form Apex,Regional and State Level Committees for the implementation of the SWMRules and the directions issued by the NGT, and that these Committeesshould submit quarterly reports to the NGT. Thus, the NGT directed thefollowing:

(i)The Apex Monitoring Committee was set up for one year,till further orders. Its role was to interact with the relevantMinistries and the Regional Monitoring Committees, and itcould formulate guidelines/directions which may be usefulto the Regional Monitoring Committees and the States/Union Territories. It was to meet preferably every month,and also preferably meet the Regional MonitoringCommittees once month. It shall then submit its report tothe NGT every quarter. Further, it was also directed thatthe Committee set up website for dissemination ofinformation, so as to enable public participation;

(ii)The Regional Monitoring Committees were set up for oneyear, till further orders, for each zone – North, East, West,South and Central. They were to ensure effectiveimplementation of the SWM Rules, and that mixing of bio-

medical waste with MSW does not take place and bio-medical waste is processed in accordance with the Bio-Medical Waste Management Rules 2016. The Committeeswere to preferably meet every week, and meet the ApexMonitoring Committee, have inter se interactions and meetthe States when necessary. They were to submit theirreports to the Apex Monitoring Committee twice quarter,and also submit report to the NGT after the first quarter.Much like the Apex Monitoring Committee, the RegionalMonitoring Committees were also directed to set upwebsites; and

(iii)The State Level Committees were set up for one year, tillfurther orders, for each State and Union Territory. Theywere to preferably meet with local bodies once every twoweeks, and the local bodies were to furnish them reportstwice month. They were to decide on technical and policyDissues in accordance with the SWM Rules and consistentwith the directions of Apex and Regional MonitoringCommittees. Further, they were to send their reports to theRegional Monitoring Committee on monthly basis. It wasalso directed that public involvement may be encouragedand status of MSW be placed in the public domain.

The NGT directed that the Committees would be at liberty toissue directions for execution of the orders of the NGT to any authority.

8. Ms Shilpa Chohan, learned Counsel appearing on behalf of theappellants, has submitted that relegating the appellants to committeeFwas wholly inappropriate having regard to the progress which had beenachieved by the Western Zone Bench of the NGT in unravelling variousaspects of the case. Moreover, it is urged that the jurisdiction to providerestitution and award compensation is entrusted to the NGT and hence,it was not appropriate or proper to dispose of the OA by relegating thedecision to committee.G

9. On the other hand, Mr Tejas Patel, learned Counsel appearingon behalf of SMC, submits that the appellants have produced absolutelyno material on the basis of which claim for compensation can be made.Moreover, it was urged that they have remedy of ventilating theirgrievances before the appropriate committee.H

10. The OA was filed by the appellants under Sections 14 and 15of the NGT Act. Section 14[6] of the NGT Act vests the NGT withjurisdiction over all civil cases where substantial question relating tothe environment is involved, and such question arises out of theimplementation of the enactments specified in Schedule I to the statute.Sub-Section (1) of Section 15 is in the following terms:

“15. Relief, compensation and restitution.—(1) The Tribunal

may, by an order, provide,—

(a) relief and compensation to the victims of pollution and otherenvironmental damage arising under the enactments specified inthe Schedule I (including accident occurring while handling anyhazardous substance);

(b) for restitution of property damaged;

(c) for restitution of the environment for such area or areas,

as the Tribunal may think fit.”

11. In Mantri Techzone (P) Ltd. v. Forward Foundation[7], athree-Judge Bench of this Court outlined that Section 15(1)(c) of theNGT Act entrusts broad powers to the NGT. Speaking for the Court,Justice S Abdul Nazeer held:

“43. Section 15(1)(c) of the Act is an entire island of power andjurisdiction read with Section 20 of the Act. The principles ofsustainable development, precautionary principle and polluter pays,propounded by this Court by way of multiple judicialpronouncements, have now been embedded as bedrock of

6 “14. Tribunal to settle disputes.—(1) The Tribunal shall have the jurisdiction overall civil cases where substantial question relating to environment (including enforcementof any legal right relating to environment), is involved and such question arises out ofthe implementation of the enactments specified in Schedule I.

(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.

(3) No application for adjudication of dispute under this section shall be entertained bythe Tribunal unless it is made within period of six months from the date on which thecause of action for such dispute first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented bysufficient cause from filing the application within the said period, allow it to be filedwithin further period not exceeding sixty days.”7 (2019) 18 SCC 494

Aenvironmental jurisprudence under the NGT Act. Therefore,wherever the environment and ecology are being compromisedand jeopardized, the Tribunal can apply Section 20 for takingrestorative measures in the interest of the environment.”

12. The OA filed by the appellants raised issues falling within theBjurisdiction of the NGT under Section 14, since it relates to theimplementation of the SWM Rules. The SWM Rules have been notifiedpursuant to the powers conferred by Sections 3, 6 and 25 of theEnvironment (Protection) Act 1986, which is Entry 5 in Schedule I ofthe NGT Act. None of the prayers sought by the appellants are of anature that cannot be granted by the NGT in accordance with its powersCunder Section 15(1) of the NGT Act. The OA was being continuouslyheard by the Western Zone Bench of the NGT since August 2014, andit had already issued significant interim directions.

13. Hence, the issue before us is only whether the Principal Benchof the NGT correctly directed the appellants to now approach one of theDCommittees set up by it, rather than continue with the proceedings in theOA. To understand this, we must first consider the role of such committeeswhich are set up by courts and tribunals alike.

14. It is first important to differentiate expert committees whichare set by the courts/tribunals from those set up by the Government inEexercise of executive powers or under particular statute. The latterare set up due to their technical expertise in given area, and theirreports are, subject to judicially observed restraints, open to judicial reviewbefore courts when decisions are taken solely based upon them. Theprecedents of this court unanimously note that courts should beFcircumspect in rejecting the opinion of these committees, unless theyfind their decision to be manifestly arbitrary or mala fide[8]. On the otherhand, courts/tribunals themselves set up expert committees on occasion.These committees are set up because the fact-finding exercise in manymatters can be complex, technical and time-consuming, and may oftenrequire the committees to conduct field visits. These committees are setGup with specific terms of reference outlining their mandate, and theirreports have to conform to the mandate. Once these committees submit

8 Basavaiah (Dr.) v. Dr. H.L. Ramesh, (2010) 8 SCC 372 (in relation to appointmentin an academic institution); State of Kerala v. RDS Project Ltd., (2020) 9 SCC 108 (inHrelation to safety of flyover project)

their final reports to the court/tribunal, it is open to the parties to objectto them, which is then adjudicated upon. The role of these expertcommittees does not substitute the adjudicatory role of the court ortribunal. The role of an expert committee appointed by an adjudicatoryforum is only to assist it in the exercise of adjudicatory functions byproviding them better data and factual clarity, which is also open tochallenge by all concerned parties. Allowing for objections to be raisedand considered makes the process fair and participatory for allstakeholders.

15. Sections 14 and Section 15 entrust adjudicatory functions tothe NGT. The NGT is specialized body comprising of judicial andexpert members. Judicial members bring to bear their experience inadjudicating cases. On the other hand, expert members bring into thedecision-making process scientific knowledge on issues concerning theenvironment. In Hanuman Laxman Aroskar v. Union of India[9], atwo-Judge Bench of this Court noted that the NGT is an expertadjudicatory body on the environment. The Court held:

“133. The NGT Act provides for the constitution of tribunalconsisting both of judicial and expert members. The mix of judicialand technical members envisaged by the statute is for the reasonthat the Tribunal is called upon to consider questions which involvethe application and assessment of science and its interface withthe environment…

134. NGT is an expert adjudicatory body on the environment.”

The NGT does not have dearth of ‘expertise’ when it comes tothe issues of environment.

16. Section 15 empowers the NGT to award compensation to thevictims of pollution and for environmental damage, to provide forrestitution of property which has been damaged and for the restitution ofthe environment. The NGT cannot abdicate its jurisdiction by entrustingthese core adjudicatory functions to administrative expert committees.Expert committees may be appointed to assist the NGT in theperformance of its task and as an adjunct to its fact-finding role. Butadjudication under the statute is entrusted to the NGT and cannot bedelegated to administrative authorities. Adjudicatory functions assigned

Ato courts and tribunals cannot be hived off to administrative committees.In Sanghar Zuber Ismail v. Ministry of Environment, Forestsand Climate Change and Another[10], three-Judge Bench of thisCourt noted that the NGT cannot refuse to hear challenge to anEnvironmental Clearance under Section 16(h) of the NGT Act anddelegate the process of adjudicating on compliance to an expertBcommittee. The Court held:

“8…the NGT has not dealt with the substantive grounds ofchallenge in the exercise of its appellate jurisdiction. Constitutionof an expert committee does not absolve the NGT of its duty toadjudicate. The adjudicatory function of the NGT cannot beCassigned to committees, even expert committees. The decisionhas to be that of the NGT. The NGT has been constituted as anexpert adjudicatory authority under an Act of Parliament. Thedischarge of its functions cannot be obviated by tasking committeesto carry out function which vests in the tribunal.”D17. The NGT has in the present case abdicated its jurisdiction andentrusted judicial functions to an administrative expert committee. Anexpert committee may be able to assist the NGT, for instance, by carryingout fact-finding exercise, but the adjudication has to be by the NGT.This is not delegable function. Thus, the order impugned in the appealEcannot be sustained. The consequence of the impugned order is to effacethe meticulous exercise which was carried out by the earlier Benches.Valuable time has been lost in the meantime and crucial issues pertainingto the environment in the present case have been placed on the back-burner.

F18. Hence, we are of the view that it would be appropriate to setaside the impugned order and to restore OA No 81 of 2014 (WZ) to thefile of the NGT. We accordingly allow the appeal and set aside theimpugned order dated 28 September 2018. OA No 81 of 2014 (WZ) isrestored to the file of the NGT. The NGT shall commence with thehearing of the proceedings from the stage which was arrived at beforeGthe impugned order dated 28 September 2018 was passed. Unfortunately,more than three years have passed in the meantime, delay which couldhave been avoided had the NGT proceeded to adjudicate upon the issueswhich were raised before it.

19. This Court has not expressed any opinion on the merits of theissues which are raised before the NGT. The NGT will take anappropriate view and issue appropriate directions in continuation of thedirections which hold the field, after hearing the parties.

20. The Court was apprised that the impugned order was passedby the Principal Bench since the Western Zone Bench of the NGT wasBnot functioning at the relevant time. Hence, OA No 81 of 2014 (WZ)may now be heard by the Bench which is assigned with the requisitejurisdiction to hear the subject matter of the OA.

21. The appeal is accordingly allowed in the above terms.

22. Pending applications, if any, stand disposed of.

Ankit Gyan

(Assisted by : Rahul Rathi, LCRA)

Appeal allowed.