Gujarat High Court
Consumer Protection And Analytic ... vs Union Of India on 9 August, 2021
Bench: J.B.Pardiwala
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 88 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CONSUMER PROTECTION AND ANALYTIC COMMITTEE
Versus
UNION OF INDIA & 2 other(s)
================================================================
Appearance:
MR MASOOM K SHAH(6516) for the Applicant(s) No. 1
MS MOHINI K SHAH(775) for the Applicant(s) No. 1
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER for the
Opponent(s) No. 2
MR DEVANG VYAS,ADDL. SOLICITOR GENERAL OF INDIA, for the
Opponent(s) No. 1
MR NACHIKET A DAVE, ADVOCATE for the Opponent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 09/08/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
1. By this writ-application under Article 226 of the
Constitution of India filed in public interest, the writ-applicant
has prayed for the following reliefs :
"(A) Be pleased to declare Section 4 of the National Green
Tribunal Act, 2010 as ultra vires to the Constitution of Inida,
1950.
(B) Be pleased to declare the Notification No.S.O. 1908 (E)
dated 17th August 2011 as ultra vires to the Constitution of
India, 1950.
(C) Be pleased to quash and set aside the Notification
dated 17th August 2011 empowering the Tribunal at Pune, to
the extent of the jurisdiction to hear the cases of State of
Gujarat being conferred on the Tribunal at Pune.
(D) Be pleased to direct Respondent No.1 Union of India to
establish National Green Tribunal under National Green
Tribunal Act, 2010 at seat of High Court in State of Gujarat
for Gujarat State.
(E) Costs of this Petition be awarded."
2. At the outset, we may state that Mr.Masoom K.Shah, the
learned counsel appearing for the writ-applicant, made himself
clear that he would not be pressing for the reliefs in terms of
paragraphs 12(A) and 12(B) respectively and would like to
confine his case to seeking appropriate order from this Court as
regards suggesting to the National Green Tribunal to setup a
circuit bench in the State of Gujarat.
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
3. The facts giving rise to this writ-application may be
summarised as under :
4. The writ-applicant is a society registered under the
Societies Act, 1962, and the Trusts Act, 2001, respectively. The
writ-applicant claims to be an organization functioning for the
welfare of the consumers. The writ-applicant has 47 branches
across the State of Gujarat. It is further pointed out that in the
past the writ-applicant had filed many important writ-
applications in this High Court in public interest.
5. It is the case of the writ-applicant in public interest that
the National Green Tribunal has its circuit benches at Jodhpur,
Shimla and Shillong respectively. However, the National Green
Tribunal should also consider having one circuit bench in
Ahmedabad, State of Gujarat. The writ-applicant has taken up
this issue considering that any litigation relating to the
environment and falling within the ambit of the National Green
Tribunal Act, 2010, arising within the State of Gujarat has to be
taken to Pune, State of Maharashtra, which is almost at a
distance of more than 700 kms.
6. It is the case of the writ-applicant that the people of
Gujarat find it very difficult and cumbersome to travel all the
way to Pune and engage lawyers of a different State.
7. In the aforesaid context, our attention was drawn to
Section 4 of the Act 2010, which falls in Chapter-II. Chapter-II of
the Act 2010 provides for the establishment of the Tribunal.
Section 4 reads thus :
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
"4. Composition of Tribunal. -
(1) The Tribunal shall consist of,-
(a) a full-time Chairperson;
(b) not less than ten but subject not maximum of
twenty full-time Judicial Members as the Central
Government may, from time to time, notify;
(c) not less than ten but subject to maximum of
twenty full-time Expert Members, as the Central
Government may, from time to time notify.
(2) The Chairperson of the Tribunal may, if considered
necessary, invite any one or more person having specialised
knowledge and experience in a particular case before the
Tribunal to assist the Tribunal in that case.
(3) The Central Government may, by notification, specify
the ordinary place or places of sitting of the Tribunal, and
the territorial jurisdiction falling under each such place of
sitting.
(4) The Central Government may, in consultation with the
Chairperson of the Tribunal, make rules regulating generally
the practices and procedure of the Tribunal including:-
(a) the rules as to the persons who shall be entitled
to appear before the Tribunal;
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
(b) the rules as to the procedure for hearing
applications and appeals and other matters [including
the circuit procedure for hearing at a place other than
the ordinary place of its sitting falling within the
jurisdiction referred to in sub-section (3)], pertaining to
the applications and appeals;
(c) the minimum number of Members who shall hear
the applications and appeals in respect of any class or
classes of applications and appeals: Provided that the
number of Expert Members shall, in hearing an
application or appeal, be equal to the number of
judicial Members hearing such application or appeal;
(d) rules relating to transfer of cases by the
Chairperson from one place of sitting (including the
ordinary place of sitting) to other place of sitting."
8. Thus, the plain reading of the aforesaid provision would
indicate that the Central Government, by notification, may
specify the ordinary place or places of sitting of the Tribunal and
also the territorial jurisdiction falling under each such place of
sitting. The Central Government, in consultation with the
Hon'ble Chairperson of the Tribunal, may make rules as to the
procedure for hearing applications and appeals including the
circuit procedure for hearing at a place other than the ordinary
place of its sitting falling within the jurisdiction referred to in
sub-section (3) pertaining to the applications and appeals.
9. Our attention was thereafter drawn to the notification
issued by the Ministry of Environment and Forests dated 17 th
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
August 2011. This notification was issued in exercise of powers
conferred by sub-section (3) of Section 4 of the Act, 2010,
specifying the following ordinary places of sitting of the Tribunal.
We quote thus :
"MINISTRY OF ENVIRONMENT AND FORESTS
NOTIFICATION
New Delhi, the 17th August 2011
S.O. 1908(E).--In exercise of powers conferred by sub-section
(3) of Section 4 of the National Green Tribunal Act, 2010 (19 th
of 2010), the Central Government hereby specifies the
following ordinary places of sitting of the National Green
Tribunal which shall exercise jurisdiction in the area
indicated against each :-
Sr. Zone Place of Territorial Jurisdiction
No. Sitting
1. Northern Delhi Uttar Pradesh, Uttarakhand, Punjab,
(Principal Haryana, Himachal Pradesh, Jammu
place) and Kashmir, National Capital
Territory of Delhi and Union Territory
of Chandigarh.
2. Western Pune Maharashtra, Gujarat, Goa with
Union Territories of Daman and Diu
and Dadra and Nagar Haveli.
3. Central Bhopal Madhya Pradesh, Rajasthan and
Chattisgarh.
4. Southern Chennai Kerala, Tamil Nadu, Andhra Pradesh,
Karnataka, Union Territories of
Pondicherry and Lakshadweep.
5. Eastern Kolkata West Bengal, Orissa, Bihar,
Jharkhand, Seven Sister States of
North-Eastern Region, Sikkim,
Andaman and Nicobar Islands.
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
10. Thereafter, our attention was drawn to the National Green
Tribunal (Practices and Procedures) Rules, 2011, framed in
exercise of the powers conferred by sub-section 4 of Section 4
read with Section 35 of the Act, 2010. Rules 3, 4 and 6
respectively of the said Rules read thus:
"3. Distribution of business amongst the different
ordinary place or places of Sittings of Tribunal.-
(1) The Chairperson may constitute a bench of two or more
members consisting of at least one Judicial Member and one
Expert Member.
[Provided that in exceptional circumstances the Chairperson
may constitute a single Member Bench].
(2) The Chairperson shall have the power to decide the
distribution of the business of the Tribunal amongst the
members of the Tribunal sitting at different places by order
and specify the matters which may be dealt with by each
such sitting in accordance with the provisions of clause (d) of
sub-section (4) of section 4 of the Act.
(3) If any question arises as to whether any matter falls
within the purview of the business allocated to a place of
sitting, the decision of the Chairperson shall be final."
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
"4. Circuit procedure.- The Chairperson may, by general
or special order, decide the cases or class of cases for which
circuit procedure may be adopted by the Tribunal under
clause (b) of sub-section (4) of section 4 of the Act and may
delegate such powers to a Judicial Member as he may deem
fit."
"6. Sitting at place other than the place where it
shall ordinarily sit.- If at any time the Judicial Member of
Tribunal is satisfied that circumstances exist which render it
necessary to have its sitting at any place, other than the
place at which it ordinarily sits, falling within its territorial
jurisdiction, he may with the previous approval of the
Chairperson direct that the sitting shall be held at any such
appropriate place."
11. Thus, rule 4 referred to above would indicate that the
Hon'ble Chairperson of the Tribunal may, by general or special
order, decide the cases or class of cases for which circuit
procedure may be adopted by the Tribunal under clause (b) of
sub-section (4) of Section 4 of the Act, 2010.
12. As stated above, the Hon'ble Chairperson of the National
Green Tribunal has established circuit benches at Jodhpur,
Shimla and Shillong respectively. The case put up by the writ-
applicant is that the Hon'ble Chairperson of the National Green
Tribunal may consider establishing a circuit bench of the
Tribunal at Ahmedabad, State of Gujarat.
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
13. We have heard Mr.Masoom Shah, the learned counsel
appearing for the writ-applicant, Mr.Devang Vyas, the learned
Additional Solicitor General of India appearing for the Union of
India, Mr.Nachiket Dave, the learned counsel appearing for the
National Green Tribunal and Mr.Chintan Dave, the learned AGP
appearing for the State of Gujarat.
14. Mr.Shah, the learned counsel appearing for the writ-
applicant would submit that the Supreme Court, in the case of
Subhash Kumar vs. State of Bihar and others, reported in AIR
1991 SC 420, has held that the right to life under Article 21 of
the Constitution of India is a fundamental right and includes the
right to free water and pollution free air for the full enjoyment of
life. In other words, Article 21 of the Constitution of India
includes the right to a healthy environment. The Supreme Court
has held that Article 21 includes "the enjoyment of pollutant free
water and air for full enjoyment of life".
15. It is argued that any aggrieved party residing in a remote
place within the State of Gujarat may not be asked to travel 700
kms. to Pune, State of Maharashtra, for redressal of any
grievance relating to environment. It is argued that the poor and
tribal who may be wanting to raise environmental issues would
find it very difficult to travel such a long distance and engage an
advocate.
16. In the aforesaid context, Mr Shah invited the attention of
this Court to a decision of the Supreme Court in the case of
Swiss Ribbons vs. Union of India, reported in (2019) 4 SCC 17,
more particularly, the observations made in paragraphs 32 and
33 respectively. We quote paragraphs 32 and 33 thus :
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
"32. It has been argued by Shri Rohatgi that as per our
judgment in Madras Bar Association (2) [Madras Bar Assn.
vs. Union of India, (2014) 10 SCC 1], paragraph 123 states
as follows :
"123. We shall first examine the validity of Section 5 of
the NTT Act. The basis of challenge to the above
provision has already been narrated by us while
dealing with the submissions advanced on behalf of
the petitioners with reference to the fourth contention.
According to the learned counsel for the petitioners,
Section 5(2) of the NTT Act mandates that NTT would
ordinarily have its sittings in the National Capital
Territory of Delhi. According to the petitioners, the
aforesaid mandate would deprive the litigating
assessee the convenience of approaching the
jurisdictional High Court in the State to which he
belongs. An assessee may belong to a distant/remote
State, in which eventuality, he would not merely have
to suffer the hardship of travelling a long distance, but
such travel would also entail uncalled for financial
expense. Likewise, a litigant assessee from a far-flung
State may find it extremely difficult and inconvenient
to identify an Advocate who would represent him
before NTT, since the same is mandated to be
ordinarily located in the National Capital Territory of
Delhi. Even though we have expressed the view, that
it is open to Parliament to substitute the appellate
jurisdiction vested in the jurisdictional High Courts
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
and constitute courts/tribunals to exercise the said
jurisdiction, we are of the view, that while vesting
jurisdiction in an alternative court/tribunal, it is
imperative for the legislature to ensure that redress
should be available with the same convenience and
expediency as it was prior to the introduction of the
newly created court/tribunal. Thus viewed, the
mandate incorporated in Section 5(2) of the NTT Act to
the effect that the sittings of NTT would ordinarily be
conducted in the National Capital Territory of Delhi,
would render the remedy in-efficacious, and thus
unacceptable in law. The instant aspect of the matter
was considered by this Court with reference to the
Administrative Tribunals Act, 1985 in S.P. Sampath
Kumar case [S.P. Sampath Kumar v. Union of India,
(1987) 1 SCC 124 : (1987) 2 ATC 82] and L. Chandra
Kumar case [L. Chandra Kumar v. Union of India,
(1997) 3 SCC 261 : 1997 SCC (L&S) 577], wherein it
was held that permanent Benches needed to be
established at the seat of every jurisdictional High
Court. And if that was not possible, at least a Circuit
Bench required to be established at every place where
an aggrieved party could avail of his remedy. The
position on the above issue is no different in the
present controversy. For the above reason, Section 5(2)
of the NTT Act is in clear breach of the law declared by
this Court."
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
33. The learned Attorney General has assured us that this
judgment will be followed and Circuit Benches will be
established as soon as it is practicable. In this view of the
matter, we record this submission and direct the Union of
India to set up Circuit Benches of the NCLAT within a period
of 6 months from today."
17. Mr.Shah, by placing reliance on the above referred decision
of the Supreme Court, would submit that there should not be
any different criteria for the National Green Tribunal compared
to the NCLAT and NTT. Mr.Shah laid much emphasis on the
fact that permanent benches are required to be established at
the sitting of every jurisdictional High Court and, if that is not
possible, at least a circuit bench should be established within
the State of Gujarat preferably at Ahmedabad so that an
aggrieved party can avail of his remedy without undergoing any
hardships or difficulties.
18. In the aforesaid context, we may first look into the stance
of the Union of India as reflected from the affidavit-in-reply, more
particularly, the following averments :
"10. That sub-section 3 of Section 4 of the NGT Act, 2010,
provides that the Central Government shall specify the
ordinary place or places of sitting of the NGT and territorial
jurisdiction thereof. In terms of the said provisions of the
NGT Act, the Central Government has issued Notification
S.O. (E) dated 17th August 2011 and five Zonal Benches
comprising territorial jurisdiction at Delhi, Pune, Bhopal,
Chennai and Kolkata were notified.
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
That there is no infirmity in the Notification dated 17th
August 2011 relating the jurisdiction of Pune Bench of the
NGT. The place of sitting of the Tribunal was a conscious
decision by the Central Government keeping in view the
proximity to the States and access to public to the places of
sitting. Further, it is worth to mention that the Hon'ble
Supreme Court of India vide its order dated 9 th August 2012
in WP(C) No. 50 of 1998 titled Bhopal Gas Peedith Mahila
Udyog Sangathan & Ors. vs. Union of India has inter alia,
stated that "keeping in view the provisions and scheme of
the National Green Tribunal Act, 2010 particularly Sections
14, 29, 30 and 38(5), the environmental issues and matters
covered under the NGT Act, Schedule 1 should be instituted
and litigated before the National Green Tribunal".
19. No reply has been filed on behalf of the Tribunal.
20. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only
question that falls for our consideration is, whether the relief as
prayed for and pressed in the present writ-application is in the
lager public interest ?
21. We are of the view, having regard to the decision of the
Supreme Court in the case of Swiss Ribbon (supra), that the
Central Government as well as the National Green Tribunal
should deliberate on the issue of setting up a circuit bench of the
Tribunal at Ahmedabad, State of Gujarat. We request the
Central Government as well as the Hon'ble Chairperson of the
Tribunal to consider this issue in the larger public interest and
take an appropriate decision.
C/WPPIL/88/2015 JUDGMENT DATED: 09/08/2021
22. We may only observe that it will be in the fitness of things
if a circuit bench is established in Ahmedabad, State of Gujarat.
23. With the aforesaid, this writ-application stands disposed
of.
(J. B. PARDIWALA, J.)
(VAIBHAVI D. NANAVATI, J.)
/MOINUDDIN
