Techi Tagi Tara v Rajendra Singh Bhandari (2017)

This is the leading Supreme Court decision on the jurisdictional limits of the National Green Tribunal, and it is therefore the compulsory case for chapter 11. It answers a question the NGT Act raises but does not settle: how far does "substantial question relating to the environment" reach?

The answer given here is narrow, and the reasoning is careful: the NGT is a statutory tribunal, not a constitutional court. It may decide a dispute in which a substantial question relating to the environment arises and in which relief under s. 15 can be granted. It may not police appointments to the State Pollution Control Boards, however unqualified the appointees.

What makes the judgment unusual, and what makes it examinable, is that the Supreme Court agreed with the NGT on the merits and still set it aside on jurisdiction — and then pointed the way to the remedy that does lie: a writ of quo warranto in the High Court.

The NGT was "perturbed and anguished that some persons appointed to the State Pollution Control Boards" did not have "the necessary expertise or qualifications to be members or chairpersons of such high powered and specialized statutory bodies".

On the material before it, 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".

The Supreme Court set out the history of expert attention to the problem, and the list is worth having, because it shows the failure was not for want of advice: "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." The Court called it, in terms, "this chalta hai attitude".

The NGT accordingly directed the State Governments to reconsider whether the appointments "deserves continuation or cancellation", and laid down guidelines for future appointments.

1. That "the appointment or removal of members of the SPCBs does not lie within the statutory jurisdiction of the NGT".
2. That the NGT could not lay down guidelines for such appointments.

The Court read s. 14 with s. 15 and s. 2(m), and refused to read the jurisdiction clause alone: the 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".

The four requirements it derived — this is the passage to learn, because it is the test for every NGT jurisdiction question:

"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."

So: (i) a substantial question relating to the environment; (ii) arising in a real, non-academic dispute; (iii) raised by a claimant; (iv) capable of settlement by relief under s. 15.

Applying requirement (i)

"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."

Applying requirement (ii) — what is a dispute

The Court took the meaning from Prabhakar v Joint Director, Sericulture Department, which had collected the dictionary senses — "to argue about, to contend for, to oppose by argument, to call in question", and, from Black's Law Dictionary, "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."

Its own formulation for the purposes 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".

On that test the appointments "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 key distinction — primary and incidental effect

This is the sentence that decides the case, and it is the one to reproduce:

"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". And the Court was explicit about the boundary of its own sympathy: "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".

Applying requirement (iv)

"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." A tribunal whose remedial powers are relief, compensation and restitution cannot cancel an appointment.

The Court also observed that the NGT itself "realized its limitations in this regard and therefore issued a direction to the State Governments to reconsider the appointments" — but that the real question was whether it could entertain the claim at all, and "the answer must be in the negative". It would have been more appropriate "for the NGT to have required the claimant to approach a constitutional court for the relief prayed for".

The NGT's direction was set aside as being without jurisdiction.

Some States had already implemented the order and removed members; others had obtained interim stays. The Court held that the removed officials, "including the appellant Techi Tagi Tara", have "an independent cause of action" and left it open to them "to challenge their removal in appropriate and independent proceedings", adding that "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."

The Court accepted that it was "beyond the jurisdiction of the NGT and also beyond our jurisdiction to lay down specific rules and guidelines for recruitment". But it did not leave the field empty.

On the constitutional duty of the appointing government — the passage that ties the case to the whole subject:

the scheme of Art. 48-A, Art. 51-A(g) and Art. 21, "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." (The report prints bee for been.) "Unfortunately, many of the State Governments have not even taken the first step in that direction – hence the present problem."

And the standard for appointment: "there should be considerable deliberation before an appointment is made and only the best should be appointed to the SPCB"; it is for the Executive "to consider and frame appropriate rules for the appointment of such persons who would add lustre and value to the SPCB".

1. While setting aside the NGT's judgment, the Court directed "the Executive in all the States to frame appropriate guidelines or recruitment rules within six months", considering the institutional requirements of the SPCBs, the statute, the law laid down by the Court and the reports of the various committees, "and ensure that suitable professionals and experts are appointed to the SPCBs".
2. It recorded the reason for urgency: "Any damage to the environment could be permanent and irreversible or at least long-lasting."
3. The warning, and the real remedy. Unless corrective measures are taken, "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". And expressly: "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."

1. The NGT's jurisdiction requires all four elements: a substantial question relating to the environment, arising in a real dispute, raised by a claimant, and capable of settlement by relief under s. 15.
2. A dispute means "the assertion of a right or an interest or a claim met by contrary claims on the other side", of substance and not of form.
3. The appointment of a Chairperson or member of a State Pollution Control Board is not a substantial question relating to the environment, and its effect on enforcement is incidental, not primary; the NGT has no jurisdiction over it.
4. The remedy for an unqualified appointment lies in a writ of quo warranto in the High Court, at the instance of a public spirited individual.
5. The NGT cannot lay down recruitment guidelines; but the appointing governments are under a constitutional duty, flowing from Arts. 21, 48-A and 51-A(g) and the accepted principles of sustainable development, public trust and inter-generational equity, to appoint only qualified experts.