WWW.LIVELAW.
IN
CA 4543/2021
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 4543 of 2021
Sanghar Zuber Ismail Appellant(s)
Versus
Ministry of Environment, Forests and Respondent(s)
Climate Change and Another
ORDER
Dr Dhananjaya Y Chandrachud, J
1 Admit.
2 This appeal arises from a judgment of the National Green Tribunal dated 8
June 2021 at the Principal Bench, New Delhi.
3 The appeal before the NGT arose from the grant of an environmental
clearance on 5 January 2021 in favour of the second respondent for the
expansion of the capacity of its refinery situated in the petro-chemical
complex at Vadinar, District Devbhumi Dwarka, Gujarat from 20 MMTPA to 46
MMTPA. The main challenge before the NGT, as recorded in paragraph 3 of
the decision is that the expansion was likely to cause an adverse impact on
the marine environment, both in terms of the mangroves and marine biology.
Signature Not Verified
Digitally signed by The NGT noted that its attention been drawn to the EIA/EMP study prepared
Chetan Kumar
Date: 2021.09.02
16:34:05 IST
Reason:
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by CSIR–NEERI. Having extracted from the study, the NGT noted the
submission of senior counsel for the second respondent that all the EC
conditions would be duly complied with and due mitigation measures would
be taken to ensure the safety of mangroves and marine environment.
4 Having recorded the statement of the second respondent, the NGT
proceeded to observe that it did not find any ground to interfere with the
grant of the EC. It, however, directed the project proponent to ensure that all
necessary safeguards are adopted and EC conditions are duly complied with.
A three member Committee was constituted in that regard.
5 The NGT was seized with a substantive appeal under the provisions of
Section 16 of the National Green Tribunal Act 2010. Section 16(h) reads thus:
“16. Any person aggrieved by –
(a) to (g) xxx xxx xxx
(h) an order made, on or after the commencement of the
National Green Tribunal Act 2010, granting environmental
clearance in the area in which any industries, operations or
processes or class of industries, operations and processes shall
not be carried out or shall be carried out subject to certain
safeguards under the Environment (Protection) Act 1986.”
6 The specific ground before the NGT was that the expansion of the refinery
will cause serious hazards to both the marine biology and to mangroves. The
NGT observed that the project was already in existence and there was no
continuing grievance against its functioning insofar as environmental norms
are concerned. This observation would not conclude the issue as to whether
the expansion of the project would have a deleterious impact on the
environment.
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7 Having regard to the nature of its appellate power, the NGT has to apply its
mind to the substantive grounds of challenge. The NGT has merely based its
conclusion on the statement which has been made by the project proponent
and has not conducted an independent appraisal of the grounds of challenge.
8 As a matter of fact, Mr Dhruv Mehta, learned senior counsel, who appears on
behalf of the second respondent, states that the appellant had not produced
a copy of the correct EIA before the NGT and an application has been filed on
behalf of the second respondent for clarifying the position. Be that it may,
the NGT has not dealt with the substantive grounds of challenge in the
exercise of its appellate jurisdiction. Constitution of an expert committee
does not absolve the NGT of its duty to adjudicate. The adjudicatory function
of the NGT cannot be assigned to committees, even expert committees. The
decision has to be that of the NGT. The NGT has been constituted as an
expert adjudicatory authority under an Act of Parliament. The discharge of its
functions cannot be obviated by tasking committees to carry out a function
which vests in the tribunal.
9 We accordingly allow the appeal and set aside the impugned order dated 8
June 2021. Appeal No 5/2021(WZ) is accordingly restored to the file of the
NGT for disposal afresh. All the rights and contentions of the parties on the
merits are kept open.
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10 Pending application(s), if any, stand disposed of.
….....…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
..…....…........……………….…........J.
[M R Shah]
..…....…........……………….…........J.
[Hima Kohli]
New Delhi;
August 31, 2021
CKB
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ITEM NO.14 Court 4 (Video Conferencing) SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.4543/2021
SANGHAR ZUBER ISMAIL Appellant(s)
VERSUS
MINISTRY OF ENVIRONMENT, FORESTS AND Respondent(s)
CLIMATE CHANGE & ANR.
(With appln.(s) for IA No.91013/2021-EXEMPTION FROM FILING C/C OF
THE IMPUGNED JUDGMENT)
Date : 31-08-2021 This appeal was called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE M.R. SHAH
HON’BLE MS. JUSTICE HIMA KOHLI
For Appellant(s) Mr. Purvish Jitendra Malkan, Adv.
Ms. Dharita P Malkan, Adv.
Ms. Deepa Gorasia, Adv.
Mr. Alok Kumar, Adv.
Ms. Nandini Chhabra, Adv.
Ms. Bhavna Sarkar, Adv.
Ms. Khushboo Vinodray Malkan, AOR
For Respondent(s) Mr. Dhruv Mehta, Sr. Adv.
Mr. Somiran Sharma, AOR
UPON hearing the counsel the Court made the following
O R D E R
1 Admit.
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2 The appeal is allowed in terms of the signed reportable order.
3 Pending applications, if any, stand disposed of.
(CHETAN KUMAR) (SAROJ KUMARI GAUR)
A.R.-cum-P.S. Court Master
(Signed reportable order is placed on the file)
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