November 7, 2024
DU LLBEnvironmental LawSemester 6

Techi Tagi Tara v. Rajendra Singh Bhandari & Ors, Supreme Court,Civil Appeal No. 1359/017, Judgement of 22 September 2017.Madan B. Lokur J

Case Summary

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Ratio Decidendi & Case Authority

Full Case Details

  1. This batch of appeals is directed against the judgment and
    order dated 24th August, 2016 passed by the National Green Tribunal, Principal
    Bench, New Delhi (for short ‘the NGT’) in Original Application No. 318 of 2013.1
    On a reading of the judgment and order passed by the NGT, it is quite clear that the
    Tribunal was perturbed and anguished that some persons appointed to the State
    Pollution Control Boards (for short ‘SPCBs’) did not have, according to the NGT, the
    necessary expertise or qualifications to be members or chairpersons of such high
    powered and specialized statutory bodies and therefore did not deserve their
    appointment or nomination. While we fully commiserate with the NGT and share the
    pain and anguish, we are of the view that the Tribunal has, at law, exceeded its
    jurisdiction in directing the State Governments to reconsider the appointments and in
    laying down guidelines for appointment to the SPCBs, however well-meaning they
    might be. Therefore, we set aside the decision of the NGT, but note that a large
    number of disconcerting facts have been brought out in the judgment which need
    serious consideration by those in authority, particularly the State Governments that
    make appointments or nominations to the SPCBs. Such appointments should not be
    made casually or without due application of mind considering the duties, functions
    and responsibilities of the SPCBs.
  2. Keeping all these facts and the recalcitrance of the State Governments in mind, the
    NGT examined the expertise and qualifications of members of the SPCB of almost all
    States and prima facie found that about ten States and one Union Territory had
    members in the SPCB who lacked the qualifications suggested by the Central
    Government.
  3. At this stage, it must be mentioned that apart from the Central Government, there
    are several authorities that have applied their mind to the issue of appointment of
    members of the SPCBs. These include Expert Committees such as the Bhattacharya
    Committee of 1984, the Belliappa Committee of 1990, the Administrative Staff
    College of India Study of 1994 and a Committee chaired by Prof. M.G.K. Menon.
    Notwithstanding this, the response of the State Governments in appointing
    professionals and experts to the SPCBs has been remarkably casual. It is this chalta
    hai attitude that led the NGT to direct the State Governments to consider examining
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    the appointment of the Chairperson and members in the SPCBs and determining
    whether their appointment deserves continuation or cancellation. Thereafter the NGT
    gave several guidelines that ought to be followed in making appointments to the
    SPCBs.
  4. The objection of the appellants is to: (i) the exercise of jurisdiction by the NGT in
    directing the State Governments to reconsider the appointment of the Chairperson and
    members of the SPCBs; and (ii) laying down guidelines for appointment of the
    Chairperson and members of the SPCBs.
  5. As regard the first grievance, it is contended that the appointment or removal of
    members of the SPCBs does not lie within the statutory jurisdiction of the NGT. Our
    attention has been drawn to some provisions of the National Green Tribunal Act, 2010
    (for short ‘the Act’)…This provision cannot be read in isolation but must be read in
    conjunction with Section 15 of the Act which relates to relief, compensation and
    restitution as being broadly the directions that can be issued by the NGT… Finally, it
    is important to refer to Section 2(m) of the Act…
  6. On a combined reading of all these provisions, it is clear to us that there must be a
    substantial question relating to the environment and that question must arise in a
    dispute – it should not be an academic question. There must also be a claimant raising
    that dispute which dispute is capable of settlement by the NGT by the grant of some
    relief which could be in the nature of compensation or restitution of property damaged
    or restitution of the environment and any other incidental or ancillary relief connected
    therewith.
  7. The appointment of the Chairperson and members of the SPCBs cannot be
    classified in any circumstance as a substantial question relating to the environment. At
    best it could be a substantial question relating to their appointment. Moreover, their
    appointment is not a dispute as one would normally understand it. In Prabhakar v.
    Joint Director, Sericulture Department8 the following ‘definition’ of dispute was
    noted in paragraphs 34 and 35 of the Report:
    “34. To understand the meaning of the word “dispute”, it would be appropriate to start
    with the grammatical or dictionary meaning of the term:
    “‘Dispute’.—to argue about, to contend for, to oppose by argument, to call in question
    — to argue or debate (with, about or over) — a contest with words; an argument; a
    debate; a quarrel;”
  8. Black’s Law Dictionary, 5th Edn., p. 424 defines “dispute” as under:
    “Dispute.—A conflict or controversy; a conflict of claims or rights; an assertion of a
    right, claim, or demand on one side, met by contrary claims or allegations on the other.
    The subject of litigation; the matter for which a suit is brought and upon which issue is
    joined, and in relation to which jurors are called and witnesses examined.”
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  9. As far as we are concerned, in the context of the Act, a dispute would be the
    assertion of a right or an interest or a claim met by contrary claims on the other side.
    In other words, the dispute must be one of substance and not of form and it appears to
    us that the appointments that we are concerned with are not ‘disputes’ as such or even
    disputes for the purposes of the Act – they could be disputes for a constitutional court
    to resolve through a writ of quo warranto, but certainly not for the NGT to venture
    into. The failure of the State Government to appoint professional and experienced
    persons to key positions in the SPCBs or the failure to appoint any person at all might
    incidentally result in an ineffective implementation of the Water Act and the Air Act,
    but this cannot be classified as a primary dispute over which the NGT would have
    jurisdiction. Such a failure might be of a statutory obligation over which, in the
    present context and not universally, only a constitutional court would have
    jurisdiction and not a statutory body like the NGT. While we appreciate the anxiety of
    the NGT to preserve and protect the environment as a part of its statutory functions,
    we cannot extend these concepts to the extent of enabling the NGT to consider who
    should be appointed as a Chairperson or a member of any SPCB or who should not be
    so appointed.
  10. Additionally, no relief as postulated by Section 15 of the Act could be granted to a
    claimant, assuming that a substantial question relating to the environment does arise
    and that a dispute does exist.
  11. It appears to us that the NGT realized its limitations in this regard and therefore
    issued a direction to the State Governments to reconsider the appointments already
    been made, but the seminal issue is really whether the NGT could at all have
    entertained a claim of the nature that was raised. For reasons given above, the answer
    must be in the negative and it would have been more appropriate for the NGT to have
    required the claimant to approach a constitutional court for the relief prayed for in the
    original application. To this extent therefore, the direction given by the NGT must be
    set aside as being without jurisdiction. However, we have been told that some States
    have implemented the order of the NGT and removed some members while others
    have approached this Court and obtained an interim stay order. Those officials who
    were removed pursuant to the order of the NGT (including the appellant Techi Tagi
    Tara) have an independent cause of action and we leave it open to them to challenge
    their removal in appropriate and independent proceedings. This is an issue between
    the removed official and the State Government – the removal is not a public interest
    issue and we cannot reverse the situation.
  12. On the second grievance relating to the issue of guidelines by the NGT, the meat
    of the matter concerns the appointment of officials who are experts in their field and
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    are otherwise professional. This is for each State Government to consider and decide
    what is the right thing to do under the circumstances – should an unqualified or
    inexperienced person be appointed or should the SPCB be a representative but expert
    body? The Water Act and the Air Act as well as the Constitution give ample guidance
    in this regard. We have already adverted to the provisions of the Constitution
    including Article 48A, Article 51A(g) and Article 21 of the Constitution. So, the
    entire scheme of the various provisions of the
    Constitution adverted to above, including the principles that have bee accepted and
    adopted internationally as well as by this Court such as the principles of sustainable
    development, public trust and intergenerational equity are a clear indication that in
    matters relating to the protection and preservation of the environment (through the
    appointment of officials to the SPCBs) the Central Government as well as the State
    Governments have to walk the extra mile. Unfortunately, many of the State
    Governments have not even taken the first step in that direction – hence the present
    problem.
  13. While it is beyond the jurisdiction of the NGT and also beyond our jurisdiction to
    lay down specific rules and guidelines for recruitment of the Chairperson and
    members of the SPCBs, we are of opinion that there should be considerable
    deliberation before an appointment is made and only the best should be appointed to
    the SPCB. It is necessary in this regard for the Executive to consider and frame
    appropriate rules for the appointment of such persons who would add lustre and value
    to the SPCB…
  14. Keeping the above in mind, we are of the view that it would be appropriate, while
    setting aside the judgment and order of the NGT, to direct the Executive in all the
    States to frame appropriate guidelines or recruitment rules within six months,
    considering the institutional requirements of the SPCBs and the law laid down by
    statute, by this Court and as per the reports of various committees and authorities and
    ensure that suitable professionals and experts are appointed to the SPCBs. Any
    damage to the environment could be permanent and irreversible or at least longlasting. Unless corrective measures are taken at the earliest, the State Governments
    should not be surprised if petitions are filed against the State for the issuance of a writ
    of quo warranto in respect of the appointment of the Chairperson and members of the
    SPCBs. We make it clear that it is left open to public spirited individuals to move the
    appropriate High Court for the issuance of a writ of quo warranto if any person who
    does not meet the statutory or constitutional requirements is appointed as a
    Chairperson or a member of any SPCB or is presently continuing as such.

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