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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NOS.4763-4764 OF 2013  

   TAMIL NADU POLLUTION   CONTROL BOARD     … APPELLANT(S)    

VERSUS    

STERLITE INDUSTRIES (I) LTD. & ORS.   … RESPONDENT(S)  

WITH  

CIVIL APPEAL NOS. 8773-8774 OF 2013  

CIVIL APPEAL NOS. 9542-9543 OF 2013  

CIVIL APPEAL NO. 5782 OF 2014  

CIVIL APPEAL NOS. 1552-1554 OF 2019  

CIVIL APPEAL NO. 23 OF 2019  

CIVIL APPEAL NO. 1582 OF 2019  

J U D G M E N T  

R.F. NARIMAN, J.  

1. The present appeals arise out of orders that have been passed  

by the National Green Tribunal [“NGT”] dated 31.05.2013, 08.08.2013,

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and 15.12.2018. The brief facts necessary to appreciate the  

controversy raised in the present case are as follows.   

2. The respondent, Sterlite Industries (India) Ltd. / Vedanta Ltd.,  

was operating a copper smelter plant at the State Industries Promotion  

Corporation of Tamil Nadu Ltd. (SIPCOT) Industrial Complex at  

Thoothukudi, Tamil Nadu.  On 01.08.1994, the respondent received a  

No-Objection Certificate [“NOC”] from the Tamil Nadu Pollution Control  

Board [“TNPCB”] for the production of blister copper and sulphuric  

acid. The environmental clearance to the project by the Ministry of  

Environment, Forest, and Climate Change [“MoEF”] followed on  

16.01.1995. On 17.05.1995, the State MoEF also granted  

environmental clearance to the respondent. The TNPCB granted its  

consent under the Air (Prevention and Control of Pollution) Act, 1981  

[“Air Act”] and Water (Prevention and Control of Pollution) Act, 1974  

[“Water Act”] on 22.05.1995. After obtaining the requisite permissions,  

the consent to operate the plant was issued on 14.10.1996 by the  

TNPCB. Production commenced on 01.01.1997.  However, the  

environmental clearances that were granted were challenged before  

the Madras High Court in Writ Petition Nos.15501-15503/1996,

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5769/1997, and 16961/1998. On 20.05.1999, the TNPCB granted its  

consent for production of two more products, namely, phosphoric acid  

and hydrofluorosilicic acid. On 21.09.2004, a Supreme Court  

Monitoring Committee was constituted to verify the compliance status  

of hazardous waste management. It recommended to the MoEF that  

the environmental clearance for the proposed expansion should not be  

granted, and if granted, should be revoked. On 19.04.2005, the  

TNPCB issued consent to operate, subject to fulfillment of various  

conditions for the expanded capacity. Meanwhile, the Madras High  

Court, on 28.09.2010, allowed the various writ petitions that had been  

filed and quashed the environmental clearances granted to the  

respondent and directed the TNPCB to close down the plant.   

3. Meanwhile, on 23.03.2013, the residents of nearby areas  

started complaining of irritation, throat infection, severe cough,  

breathing problem, nausea etc. due to emissions from Sterlite  

Industries. Reports were obtained after inspection of the premises by  

the TNPCB. Based on these reports, the TNPCB issued a show-cause  

notice dated 24.03.2013 and directed closure of the unit under Section  

31A of the Air Act on 29.03.2013. This order was stayed by the NGT

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on 31.05.2013, allowing the respondent to commence production  

subject to certain conditions. Against this, the TNPCB filed Civil Appeal  

Nos.4763-4764 of 2013, which will be disposed of by the judgment  

delivered in this case. Finally, on 08.08.2013, the NGT set aside the  

TNPCB order dated 29.03.2013, against which, Civil Appeal Nos.  

8773-8774 of 2013 were filed, which again will be disposed of by this  

judgment. It is important to note that the appellants herein raised the  

issue of maintainability of the respondent’s appeal before the NGT,  

stating that an appeal should have been filed first before the appellate  

authority under the Air Act / the National Green Tribunal Act, 2010  

[“NGT Act”]. This ground of maintainability was decided against the  

appellants by the impugned order dated 08.08.2013.  

4. Owing to various interim orders passed by the NGT, the  

respondent continued to operate its plant. On 13.04.2016, the TNPCB  

granted consent to operate the plant for one year subject to certain  

conditions. Post inspection of the unit of the respondent in March  

2017, the TNPCB issued a show-cause notice dated 14.03.2017 for  

violations under the Air Act and the Water Act which, apparently, was  

not pursued. On 06.09.2017, an inspection report by the TNPCB was

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made, and an order passed on 07.09.2017, granting renewal of  

consent to operate only till 31.03.2018 subject to various conditions.  

Meanwhile, a protest had been organized in March 2018 by some  

persons against the proposed expansion sought by the respondent.  

The respondent, therefore, had to file Writ Petition No.7313 of 2018  

before the Madurai Bench of the Madras High Court for police  

protection. This Writ Petition was disposed of by an order dated  

04.04.2018 with a direction to consider the respondent’s application.  

On 09.04.2018, the TNPCB refused renewal of consent to operate to  

the respondent’s unit based on non-compliance with certain conditions  

that were laid down under the Air Act and the Water Act. On  

12.04.2018, the respondent filed Appeal Nos.36-37 of 2018 before the  

appellate authority under Section 28 of the Water Act. In these  

appeals, various orders were passed, until, on 06.06.2018, the  

following order was passed:  

“APPLICATIONS 28 & 29 / 2018, APPLICATIONS 30  & 31 / 2018 AND APPEALS 36 & 37 / 2018:  

Heard.   

In view of the Government Order passed by the  Government of Tamilnadu in G.O. Ms. No: 72,  Environment & Forests (EC-3) Department Dated:  28.5.2018, directing the Tamilnadu Pollution Control  Board to close the plant permanently, we feel it is not

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appropriate to hear the Appeals and decide the issue  at this juncture.  

Hence the Appeals and applications are  adjourned to 10.7.2018.”  

On 10.07.2018, the matter was further adjourned as follows:  

“APPLICATIONS 28 & 29 / 2018, APPLICATIONS 30  & 31 / 2018 AND APPEALS 36 & 37 / 2018:  

In view of the remarks made in the adjudication  proceedings on 6.6.2018 and as the position is same  now, the Appeals and Applications are adjourned to  21.8.2018.”  

Finally, on 18.12.2018, i.e., three days after the impugned order was  

passed by the NGT on 15.12.2018, an order passed by the appellate  

authority was as follows:  

“APPLICATIONS 28, 29, 30 & 31 / 2018 AND  APPEALS 36 & 37 / 2018:  

Ms. Janani, counsel for the appellant and Mr. V.  Vasanthakumar, counsel for the respondent-Board are  present. None is present on behalf of the 1st, 2nd and  3rd interveners.  

Counsel for the appellant seeks permission to  withdraw the Appeals. She has also filed a memo to  that effect.  

In view of the order passed by the Hon’ble  National Green Tribunal, Principal Bench, New Delhi  on 15.12.2018 in Appeal No. 87 of 2018 setting aside  the impugned order dated 9.4.2018 which is subject  matter of these appeals pending before this Appellate

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Authority, the Appeals have become infructuous and  hence they are closed.”  

 5. On 12.04.2018, an order was passed by the TNPCB under  

Section 33A of the Water Act and Section 31A of the Air Act directing  

that the respondent’s unit shall not resume production without  

obtaining prior approval/renewal or consent from the TNPCB. This was  

followed by two orders, both dated 23.05.2018, again issued under the  

same Sections, this time to close down the respondent’s unit and  

disconnect power supply to it. Finally, on 28.05.2018, an order was  

issued by the Government of Tamil Nadu under Section 18(1)(b) of the  

Water Act stating:  

“It is brought to the notice of the Government that  Tamil Nadu Pollution Control Board did not renew the  Consent to Operate to M/s.Vedanta Limited, Copper  Smelter Plant, SIPCOT Industrial Complex,  Thoothukudi District in its order dated 9.4.2018.  Subsequently, on 23.5.2018, Tamil Nadu Pollution  Control Board has also issued directions for closure  and disconnection of power supply to the Unit. The  power supply has been disconnected on 24.5.2018.  

2. Under Article 48-A of the Constitution,   

“the State shall endeavour to protect and  improve the environment and to safeguard  the forests and wildlife of the country”.  

3. Under sections, 18(1)(b) of the Water Act, 1974  in the larger public interest, the Government endorse  the closure direction of the Tamil Nadu Pollution

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Control Board and also direct the Tamil Nadu Pollution  Control Board to seal the unit and close the plant  permanently.”  

6. On the same date, the TNPCB issued a letter to the District  

Collector, inter alia, directing him to seal the respondent’s unit. These  

six orders became the subject matter of a composite Appeal No. 87 of  

2018 under Section 16 of the NGT Act.   

7. A writ petition was filed by the respondent before the Madurai  

Bench of the Madras High Court on 18.06.2018 so that the respondent  

could access its unit to maintain its plant. This was dismissed as  

withdrawn on 09.07.2018.   

8. The appellants then took up a plea of maintainability of the  

composite appeal.  As this was not being disposed of by the NGT, this  

Court, by its order dated 17.08.2018, directed the NGT to render its  

final findings, both on maintainability as well as on merits. On  

20.08.2018, the NGT constituted a Committee to go into the material  

produced by the parties to the Civil Appeal and to visit the site.  This  

Committee was ultimately headed by Justice Tarun Agarwala, former  

Chief Justice of the Meghalaya High Court, together with two experts,  

one being a representative of the Central Pollution Control Board

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[“CPCB”] and another a representative of the MoEF.  Aggrieved by this  

order, the appellants knocked on the doors of this Court.  This Court  

disposed of this appeal on 10.09.2018, by stating:  

“By our order dated 17.08.2018, we had made it clear  that the NGT may continue to hear the matter both on  merits as well as on maintainability and finally decide  the matter on both counts.  

Since our order is not referred to in the order dated  20.08.2018 passed by the NGT, we need only to state  that once the Committee’s report is given to the  Tribunal, it will proceed to decide the matter in  accordance with our order dated 17.08.2018.  

xxx xxx xxx”      

A review petition that was filed against this order was dismissed.   

9. The Committee constituted by the NGT then inspected the site  

on various dates in September/October, 2018, and heard all  

concerned parties as well as intervenors. It then came out with a  

detailed Enquiry Report dated 20.11.2018, in which it concluded as  

follows:  

“On the basis of the site visit, public hearing and after  hearing the appellant Company, State of Tamil Nadu,  Tamil Nadu Pollution Control Board, and the interveners  and, upon consideration of the issues raised, the  Committee is of the opinion:  

1.  The impugned orders cannot be sustained as  it is against the principles of natural justice.  

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No notice or opportunity of hearing was given  to the appellant.   

2.  The grounds mentioned in the impugned  orders are not that grievous to justify  permanent closure of the factory.   

3.  Other issues raised also does not justify the  closure of the factory even if the appellant  was found to be violating the  conditions/norms/directions.   

4.  In the event the Hon’ble Tribunal is of the  opinion that the factory should commence  production, the committee is of the opinion  that the following directions may be issued.   

 a) As per condition No.44 of the Consent  

Order dated 19-04-2005, the appellant  should be directed to monitor ground  water quality including heavy metals  such as Arsenic, Cadmium, Silver,  Copper, Fluoride, etc. in and around the  factory premises and nearby villages  once a month and such report should be  furnished to the TNPCB.   

b) The sampling of the above should be  taken in the presence of an official from  TNPCB.   

c) In addition to the above, the sampling of  effluent/emission and solid waste should  also be done by a monitoring group to be  constituted by TNPCB comprising a  representative of the District Collector,  an official of TNPCB, NGOs and  academicians as per condition no.43 of  Consent Order dated 19-04-2005.   

d) Both the reports should be sent by  TNPCB to CPCB for analysis.   Recommendations made by CPCB  should be followed.  

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e) Copper slag dumped at all the eleven  sites including the Uppar River should be  removed. If copper slag has been used  for landfill purposes, then the excess  amount of the slag over and above the  level of ground would be removed and  thereafter the landfill should be  compacted with one feet of soil, so that  the copper slag is not blown away by the  strong winds.   

f) The dead stock of copper slag lying in  the dump yard inside the factory  premises which has solidified should be  removed in a time bound manner.   Thereafter, the bottom of the dump yard  and the side walls should be covered  with HDPE liner.  Further, the Company  should ensure that the generation and  disposal of copper slag is maintained in  the ratio of 1:1 and that the Company at  best, can retain 10 days generation of  copper slag in its dump yard.   

g) The dead stock of gypsum lying in the  dump yard inside the factory premises  which has solidified should be removed  in a time bound manner.  Thereafter, the  bottom of the dump yard and the side  walls should be covered with HDPE  liner. Further, the Company should  ensure that the generation and disposal  of gypsum is maintained in the ratio of  1:1 and that the Company at best, can  retain 10 days generation of gypsum in  its dump yard.   

h) The Company before disposing copper  slag, gypsum (or) any other waste  product will seek previous permission  from the TNPCB.  

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i) Application of the Company for obtaining  valid authorization for disposal of  hazardous waste under Hazardous &  Other Wastes (Management, &  Transboundary Movement) Rules, 2016  should be disposed of by the TNPCB in  a time bound manner.   

j) Even though there is no requirement of  analyzing the air samples through an  accredited laboratory nonetheless a  direction should be issued to the  appellant that they will conduct a  periodical survey for ambient air quality/  noise level/ stack emission through  accredited laboratories of  MoEF&CC/NABL and furnish such report  to the TNPCB.   

k) The appellant company should be  directed that they shall develop a green  belt of 25 metres width around the  battery limits of its factory by planting  native and high foliage tree and also in  and around the factory.   

l) The State of Tamil Nadu/ TNPCB should  collect data from their primary health  centres and Govt. Hospitals to monitor  the various ailments that are being  complaint of by the inhabitants living in  and around the factory premises.   

m) The State Government should specify  the module to the appellant for  conducting the proper and designed  health monitoring study.   

n) The direction no. (iii) on “Source  Apportionment Study” and direction no.  (ix) on “conducting a study on health  hazards” passed by the NGT in its  judgment dated 8/8/2013 in Appeal 58 of  2013 should be carried out by the Tamil

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Nadu State Government and TNPCB.  Such reports should be furnished to NGT  in a time-bound manner.   

o) The appellant should be directed to start  the construction of gypsum pond  immediately and complete the same in a  time bound manner as per the conditions  laid down in the guidelines given by  CPCB in October, 2014.   

p) The appellant shall undertake a fresh  detailed hydrogeological study for  determining aquifer vulnerability and  migration of leachate from the existing  phosphogypsum pond through a reputed  organization approved by the TNPCB as  per condition No.15 of the Consent  Order dated 19/04/2005.   

q) Direction should be given to the TNPCB  as well as to the appellant to take  independent ground water samples from  the same points for the purpose of  finding out groundwater pollution if any.   Such reports should then be compared  by the CPCB.  Recommendations made  by CPCB should be followed.   

r) Directions/ regulation may be framed for  import of high grade copper ore.   

s) Irrespective of the norms, stack height in  any case be increased in order to  remove the ambiguity and the grievance  of inhabitants of the people of the  Tuticorin with regard to emission of SO2.   

t) Till such time, the stack height is not  increased, the production of copper as  well as sulphuric acid should be  restricted/reduced to match the existing  stack height.   

u) The transportation of copper ore  concentrate from the port to the factory

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premises should be done in a closed  conveyance or through a pipe conveyor  system.   

v) Self-monitoring mechanism needs to be  prepared by the appellant for the  periodic monitoring of Ambient Air  Quality/ Stack emissions/ Fugitive  emissions/ ground water quality/ surface  water quality/ soil quality/ slag analysis  through third party and report shall be  furnished to the concerned regulatory  agencies.   

w) All the monitoring data, compliance  reports of CTE/CTO/EC and  environmental statement shall be  uploaded on the website of the  Company.   

x) TNPCB should be directed to  commission “Regional Environmental  Impact Assessment Study” in and  around Tuticorin District by engaging a  reputed national agency.  

y) CPCB recommendations as contained in  the order of NGT, dated 20.08.2018 to  be complied with.”  

Both the respondent as well as the appellants made their detailed  

comments on the Committee’s report. The NGT then heard final  

arguments and dictated the impugned order on 15.12.2018, in which it  

substantially accepted the Committee’s recommendations. In doing so,  

it set aside the six impugned orders in the composite appeal. One  

major bone of contention of both the State of Tamil Nadu as well as

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the TNPCB in this case is that the appeal before the NGT is not  

maintainable and hence, the order dated 15.12.2018 is without  

jurisdiction.   

10.  As a postscript to this order, the TNPCB looked into the matter  

again, and issued yet another rejection letter dated 22.01.2019, by  

which the respondent’s application seeking renewal of consent to  

operate was rejected, stating that the conditions of various previous  

consents over the last 20 years had not been followed.   

11. We have heard wide-ranging arguments from learned counsel  

appearing on behalf of all the parties as well as the intervenors, on  

maintainability as well as on merits. Since we will be deciding this case  

on maintainability alone, we have not ventured to state anything on the  

merits of the case.   

12. Shri C.S. Vaidyanathan, learned Senior Advocate appearing on  

behalf of the TNPCB, showed us various provisions of the Water Act,  

Air Act, and the NGT Act and argued that the six impugned orders  

before the NGT were orders which could not have been corrected by  

the NGT. Insofar as the first order dated 09.04.2018 was concerned,  

an appeal was pending before the appellate authority, as a result of

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which, the NGT, when it set aside the said order, could not have done  

so. Similarly, the orders dated 12.04.2018, 23.05.2018, and  

28.05.2018, made under Section 33A of the Water Act and Section  

31A of the Air Act, were composite orders issued. As orders under  

Section 31A of the Air Act were not appealable to the NGT either  

under the Air Act or under Section 16 of the NGT Act, the Tribunal  

acted without jurisdiction in interfering with these orders. Further, the  

order dated 28.05.2018, issued by the Government of Tamil Nadu  

under Section 18 of the Water Act, was certainly not an appealable  

order under either the Water Act or the NGT Act, and could only have  

been corrected in judicial review in a writ petition filed under Article  

226 of the Constitution of India or in a suit before a Civil Court.   

According to him, therefore, the setting aside of such an order was  

also completely without jurisdiction. Shri K.V. Viswanathan, learned  

Senior Advocate appearing on behalf of the State of Tamil Nadu,  

added to these submissions. He cited some of our judgments as well  

as statutes and judgments of the English Courts to show that once an  

appeal is available to an appellate authority, after which an appeal lies  

to the NGT, a party cannot leapfrog directly to the NGT. Apart from  

this, the learned Senior Advocate also argued, based on the scheme

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of the Water Act, Air Act, and NGT Act, that all the appeals filed before  

the NGT were incompetent. Shri Guru Krishnakumar, learned Senior  

Advocate appearing on behalf of the TNPCB, also went on to criticize  

the order passed by the NGT dated 08.08.2013 on maintainability.  

According to him, no doctrine of necessity could be imported if an  

appellate tribunal was not constituted, as a result of which an appeal  

could not be argued before the appellate authority. Consequently, a  

leapfrog appeal would not be maintainable before the NGT. According  

to the learned Senior Advocate, this order also had to be set aside for  

the reason that even assuming that the appellate authority was not  

constituted on the date on which an appeal could have been preferred  

to it, the NGT, being a second appellate tribunal, would not have  

jurisdiction, and that either a suit or a writ petition under Article 226  

would have to be filed against the original order.  

13. As against these arguments, Shri C.A. Sundaram, learned  

Senior Advocate appearing on behalf of the respondents in all three  

appeals, sought to sustain the order of the NGT in these three  

appeals. The learned Senior Advocate painstakingly took us through  

all the orders that were impugned before the NGT, together with the

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relevant provisions of the Air Act, the Water Act, and the NGT Act.   

According to the learned Senior Advocate, so far as the order dated  

09.04.2018 is concerned, thanks to a government affidavit filed, the  

appeal before the appellate authority had become infructuous, as a  

result of which, a direct appeal to the NGT would obviously become  

maintainable. Insofar as the combined orders under Sections 33A and  

31A of the Water Act and the Air Act, respectively, are concerned,  

according to him, an express appeal is provided to the NGT against  

orders passed under Section 33A of the Water Act, and even if there is  

no appeal provided under Section 31A of the Air Act, yet, as four out of  

five items in these orders dealt with the Water Act, the order could be  

stated to be substantially an order under the Water Act, and therefore,  

appealable as such. He added that, in any case, such orders could be  

corrected under Section 14 of the NGT Act to avoid piecemeal  

litigation. Further, in any case, according to the learned Senior  

Advocate, a direction made under Section 31A of the Air Act is  

undoubtedly equivalent to an order made under Section 31 of the Air  

Act, and therefore, would be expressly appealable under Section 16 of  

the NGT Act. Another without prejudice argument was made, that  

assuming all other arguments failed, these matters are only

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procedural, and therefore, appeals must necessarily land up before the  

expert tribunal which is so constituted as an expert tribunal to deal with  

all matters relating to the environment. For this, he referred to and  

relied strongly upon Sections 14, 15, 29, and 33 of the NGT Act.  

Insofar as the attack made upon the order dated 28.05.2018 of the  

Government of Tamil Nadu under Section 18 of the Water Act is  

concerned, Shri Sundaram argued that on a proper construction of  

Section 18 read with the other provisions of the Water Act, only a  

general order, dealing with general matters, could be passed under the  

said Section, and not an order to shut down one particular industry.  

Since the Section 18 order purports to deal with only one particular  

industry, it is non est and liable to be ignored.  An alternate argument  

made is that even though the order states that it is made under  

Section 18, it can otherwise be traced to Section 29 of the Water Act  

as an order made in revision, and would, therefore, be appealable as  

such. The learned Senior Advocate then argued that, in any case, this  

is an order by which a direction has been made by the State  

Government to the TNPCB and, therefore, does not directly affect his  

client. He also argued that when this order was challenged before the  

NGT, the defence of the Government and the TNPCB would be that

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this is an order which, though binding on the TNPCB, would also  

impact the respondent. This being the case, the NGT could always go  

into whether such a defence is a valid defence, and could, therefore,  

decide the matter. He also went on to state that the NGT is an expert  

body constituted specifically under a special Act, which is far better  

equipped than the High Court under Article 226 exercising its powers  

in the writ jurisdiction, and therefore, all matters dealing with the  

environment should necessarily be decided by the NGT alone. He also  

relied upon our judgment in L. Chandra Kumar v. Union of India and  

Ors., (1997) 3 SCC 261 [“L. Chandra Kumar”], in which it has been  

made clear that Tribunals can exercise powers of judicial review and  

that, therefore, being the equivalent of a High Court, the NGT could, in  

exercise of its powers of judicial review, have interfered with the State  

Government’s orders passed under Section 18 of the Water Act.  

14. Having heard learned counsel for all parties, it is important first  

to advert to the provisions of the three Acts in question.    

15. The relevant Sections of the Water Act are as follows:  

“18. Powers to give directions.—(1) In the  performance of its functions under this Act—

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(a)  the Central Board shall be bound by such  directions in writing as the Central Government  may give to it; and  

(b)  every State Board shall be bound by such  directions in writing as the Central Board or the  State Government may give to it:  

Provided that where a direction given by the State  Government is inconsistent with the direction given by  the Central Board, the matter shall be referred to the  Central Government for its decision.  

xxx xxx xxx”    

“25. Restrictions on new outlets and new  discharges.—(1) Subject to the provisions of this  section, no person shall, without the previous consent  of the State Board,—  

(a)  establish or take any steps to establish any  industry, operation or process, or any  treatment and disposal system or any  extension or addition thereto, which is likely  to discharge sewage or trade effluent into a  stream or well or sewer or on land (such  discharge being hereafter in this section  referred to as discharge of sewage); or  

(b)  bring into use any new or altered outlet for  the discharge of sewage; or  

(c)  begin to make any new discharge of  sewage:  

Provided that a person in the process of taking any  steps to establish any industry, operation or process  immediately before the commencement of the Water  (Prevention and Control of Pollution) Amendment Act,  1988, for which no consent was necessary prior to  such commencement, may continue to do so for a  period of three months from such commencement or, if  he has made an application for such consent, within

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the said period of three months, till the disposal of  such application.  

(2) An application for consent of the State Board under  sub-section (1) shall be made in such form, contain  such particulars and shall be accompanied by such  fees as may be prescribed.  

(3) The State Board may make such inquiry as it may  deem fit in respect of the application for consent  referred to in sub-section (1) and in making any such  inquiry shall follow such procedure as may be  prescribed.  

(4) The State Board may—  

(a)  grant its consent referred to in sub-section  (1), subject to such conditions as it may  impose, being—  

(i)  in cases referred to in clauses (a)  and (b) of sub-section (1) of  Section 25, conditions as to the  point of discharge of sewage or  as to the use of that outlet or any  other outlet for discharge of  sewage;  

(ii)  in the case of a new discharge,  conditions as to the nature and  composition, temperature, volume  or rate of discharge of the effluent  from the land or premises from  which the discharge or new  discharge is to be made; and  

(iii)  that the consent will be valid only  for such period as may be  specified in the order,  

and any such conditions imposed shall be  binding on any person establishing or  taking any steps to establish any industry,

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operation or process, or treatment and  disposal system or extension or addition  thereto, or using the new or altered outlet,  or discharging the effluent from the land or  premises aforesaid; or  

(b)  refuse such consent for reasons to be  recorded in writing.  

(5) Where, without the consent of the State Board, any  industry, operation or process, or any treatment and  disposal system or any extension or addition thereto,  is established, or any steps for such establishment  have been taken or a new or altered outlet is brought  into use for the discharge of sewage or a new  discharge of sewage is made, the State Board may  serve on the person who has established or taken  steps to establish any industry, operation or process,  or any treatment and disposal system or any extension  or addition thereto, or using the outlet, or making the  discharge, as the case may be, a notice imposing any  such conditions as it might have imposed on an  application for its consent in respect of such  establishment, such outlet or discharge.  

(6) Every State Board shall maintain a register  containing particulars of the conditions imposed under  this section and so much of the register as relates to  any outlet, or to any effluent, from any land or  premises shall be open to inspection at all reasonable  hours by any person interested in, or affected by such  outlet, land or premises, as the case may be, or by any  person authorised by him in this behalf and the  conditions so contained in such register shall be  conclusive proof that the consent was granted subject  to such conditions.  

(7) The consent referred to in sub-section (1) shall,  unless given or refused earlier, be deemed to have  been given unconditionally on the expiry of a period of

24  

four months of the making of an application in this  behalf complete in all respects to the State Board.  

(8) For the purposes of this section and Sections 27  and 30,—  

(a)  the expression “new or altered outlet”  means any outlet which is wholly or partly  constructed on or after the commencement  of this Act or which (whether so  constructed or not) is substantially altered  after such commencement;  

(b)  the expression “new discharge” means a  discharge which is not, as respects the  nature and composition, temperature,  volume, and rate of discharge of the  effluent substantially a continuation of a  discharge made within the preceding  twelve months (whether by the same or a  different outlet), so however that a  discharge which is in other respects a  continuation of previous discharge made  as aforesaid shall not be deemed to be a  new discharge by reason of any reduction  of the temperature or volume or rate of  discharge of the effluent as compared with  the previous discharge.”  

 “26. Provision regarding existing discharge of  sewage or trade effluent.—Where immediately  before the commencement of this Act any person was  discharging any sewage or trade effluent into a stream  or well or sewer or on land, the provisions of Section  25 shall, so far as may be, apply in relation to such  person as they apply in relation to the person referred  to in that section subject to the modification that the  application for consent to be made under sub-section  (2) of that section shall be made on or before such

25  

date as may be specified by the State Government by  notification in this behalf in the Official Gazette.”    “27. Refusal or withdrawal of consent by State  Board.—(1) A State Board shall not grant its consent  under sub-section (4) of Section 25 for the  establishment of any industry, operation or process, or  treatment and disposal system or extension or addition  thereto, or to the bringing into use of a new or altered  outlet unless the industry, operation or process, or  treatment and disposal system or extension or addition  thereto, or the outlet is so established as to comply  with any conditions imposed by the Board to enable it  to exercise its right to take samples of the effluent.  

(2) A State Board may from time to time review—  

(a)  any condition imposed under Section 25 or  Section 26 and may serve on the person to  whom a consent under Section 25 or  Section 26 is granted a notice making any  reasonable variation of or revoking any  such condition;  

(b)  the refusal of any consent referred to in  sub-section (1) of Section 25 or Section 26  or the grant of such consent without any  condition, and may make such orders as it  deems fit.  

(3) Any condition imposed under Section 25 or Section  26 shall be subject to any variation made under sub- section (2) and shall continue in force until revoked  under that sub-section.”    “28. Appeals.—(1) Any person aggrieved by an order  made by the State Board under Section 25, Section 26  or Section 27 may, within thirty days from the date on  which the order is communicated to him, prefer an  appeal to such authority (hereinafter referred to as the

26  

appellate authority) as the State Government may  think fit to constitute:  

Provided that the appellate authority may entertain  the appeal after the expiry of the said period of thirty  days if such authority is satisfied that the appellant  was prevented by sufficient cause from filing the  appeal in time.  

(2) An appellate authority shall consist of a single  person or three persons, as the State Government  may think fit, to be appointed by that Government.  

(3) The form and manner in which an appeal may be  preferred under sub-section (1), the fees payable for  such appeal and the procedure to be followed by the  appellate authority shall be such as may be  prescribed.  

(4) On receipt of an appeal preferred under sub- section (1), the appellate authority shall, after giving  the appellant and the State Board an opportunity of  being heard, dispose of the appeal as expeditiously as  possible.  

(5) If the appellate authority determines that any  condition imposed, or the variation of any condition, as  the case may be, was unreasonable, then,—  

(a) where the appeal is in respect of the  unreasonableness of any condition  imposed, such authority may direct either  that the condition shall be treated as  annulled or that there shall be substituted  for it such condition as appears to it to be  reasonable;  

(b) where the appeal is in respect of the  unreasonableness of any variation of a  condition, such authority may direct either  that the condition shall be treated as  continuing in force unvaried or that it shall  be varied in such manner as appears to it  to be reasonable.”

27  

 “29. Revision.—(1) The State Government may at any  time either of its own motion or on an application made  to it in this behalf, call for the records of any case  where an order has been made by the State Board  under Section 25, Section 26 or Section 27 for the  purpose of satisfying itself as to the legality or  propriety of any such order and may pass such order  in relation thereto as it may think fit:  

Provided that the State Government shall not pass any  order under this sub-section without affording the State  Board and the person who may be affected by such  order a reasonable opportunity of being heard in the  matter.  

(2) The State Government shall not revise any order  made under Section 25, Section 26 or Section 27  where an appeal against that order lies to the  appellate authority, but has not been preferred or  where an appeal has been preferred such appeal is  pending before the appellate authority.”    xxx xxx xxx    “33A. Power to give directions.—Notwithstanding  anything contained in any other law, but subject to the  provisions of this Act, and to any directions that the  Central Government may give in this behalf, a Board  may, in the exercise of its powers and performance of  its functions under this Act, issue any directions in  writing to any person, officer or authority, and such  person, officer or authority shall be bound to comply  with such directions.  

Explanation.—For the avoidance of doubts, it is  hereby declared that the power to issue directions  under this section includes the power to direct—  

(a)  the closure, prohibition or regulation of any  industry, operation or process; or

28  

(b)  the stoppage or regulation of supply of  electricity, water or any other service.”  

 “33B. Appeal to National Green Tribunal.—Any  person aggrieved by,—  

(a)  an order or decision of the appellate  authority under Section 28, made on or  after the commencement of the National  Green Tribunal Act, 2010; or  

(b)  an order passed by the State Government  under Section 29, on or after the  commencement of the National Green  Tribunal Act, 2010; or  

(c)  directions issued under Section 33-A by a  Board, on or after the commencement of  the National Green Tribunal Act, 2010,  

may file an appeal to the National Green Tribunal  established under Section 3 of the National Green  Tribunal Act, 2010, in accordance with the provisions  of that Act.”  

16. The relevant Sections of the Air Act are as follows:  

“21. Restrictions on use of certain industrial  plants.—(1) Subject to the provisions of this section,  no person shall, without the previous consent of the  State Board, establish or operate any industrial plant in  an air pollution control area:  

Provided that a person operating any industrial  plant in any air pollution control area immediately  before the commencement of Section 9 of the Air  (Prevention and Control of Pollution) Amendment Act,  1987, for which no consent was necessary prior to  such commencement, may continue to do so for a  period of three months from such commencement or, if  he has made an application for such consent within

29  

the said period of three months, till the disposal of  such application.  

(2) An application for consent of the State Board under  sub-section (1) shall be accompanied by such fees as  may be prescribed and shall be made in the  prescribed form and shall contain the particulars of the  industrial plant and such other particulars as may be  prescribed:  

Provided that where any person, immediately  before the declaration of any area as an air pollution  control area, operates in such area any industrial plant  such person shall make the application under this sub- section within such period (being not less than three  months from the date of such declaration) as may be  prescribed and where such person makes such  application, he shall be deemed to be operating such  industrial plant with the consent of the State Board  until the consent applied for has been refused.  

(3) The State Board may make such inquiry as it may  deem fit in respect of the application for consent  referred to in sub-section (1) and in making any such  inquiry, shall follow such procedure as may be  prescribed.  

(4) Within a period of four months after the receipt of  the application for consent referred to in sub-section  (1), the State Board shall, by order in writing and for  reasons to be recorded in the order, grant the consent  applied for subject to such conditions and for such  period as may be specified in the order, or refuse such  consent:  

Provided that it shall be open to the State Board to  cancel such consent before the expiry of the period for  which it is granted or refuse further consent after such  expiry if the conditions subject to which such consent  has been granted are not fulfilled:  

Provided further that before cancelling a consent or  refusing a further consent under the first proviso, a

30  

reasonable opportunity of being heard shall be given  to the person concerned.  

(5) Every person to whom consent has been granted  by the State Board under sub-section (4), shall comply  with the following conditions, namely:—  

(i)  the control equipment of such  specifications as the State Board may  approve in this behalf shall be installed and  operated in the premises where the  industry is carried on or proposed to be  carried on;  

(ii)  the existing control equipment, if any, shall  be altered or replaced in accordance with  the directions of the State Board;  

(iii)  the control equipment referred to in clause  (i) or clause (ii) shall be kept at all times in  good running condition;  

(iv)  chimney, wherever necessary, of such  specifications as the State Board may  approve in this behalf shall be erected or  re-erected in such premises;  

(v)  such other conditions as the State Board  may specify in this behalf; and  

(vi)  the conditions referred to in clauses (i), (ii)  and (iv) shall be complied with within such  period as the State Board may specify in  this behalf:  

Provided that in the case of a person operating any  industrial plant in an air pollution control area  immediately before the date of declaration of such  area as an air pollution control area, the period so  specified shall not be less than six months:  

Provided further that—  

(a) after the installation of any control  equipment in accordance with the  specifications under clause (i), or

31  

(b)  after the alteration or replacement of any  control equipment in accordance with the  directions of the State Board under clause  (ii), or  

(c)  after the erection or re-erection of any  chimney under clause (iv),  

no control equipment or chimney shall be altered or  replaced or, as the case may be, erected or re-erected  except with the prior approval of the State Board.  

(6) If due to any technological improvement or  otherwise the State Board is of the opinion that all or  any of the conditions referred to in sub-section (5)  require or requires variation (including the change of  any control equipment, either in whole or in part), the  State Board shall, after giving the person to whom  consent has been granted an opportunity of being  heard, vary all or any of such conditions and  thereupon such person shall be bound to comply with  the conditions as so varied.  

(7) Where a person to whom consent has been  granted by the State Board under sub-section (4)  transfers his interest in the industry to any other  person, such consent shall be deemed to have been  granted to such other person and he shall be bound to  comply with all the conditions subject to which it was  granted as if the consent was granted to him  originally.”    xxx xxx xxx    “31. Appeals.—(1) Any person aggrieved by an order  made by the State Board under this Act may, within  thirty days from the date on which the order is  communicated to him, prefer an appeal to such  authority (hereinafter referred to as the Appellate  Authority) as the State Government may think fit to  constitute:

32  

Provided that the Appellate Authority may entertain  the appeal after the expiry of the said period of thirty  days if such authority is satisfied that the appellant  was prevented by sufficient cause from filing the  appeal in time.  

(2) The Appellate Authority shall consist of a single  person or three persons as the State Government may  think fit to be appointed by the State Government.  

(3) The form and the manner in which an appeal may  be preferred under sub-section (1), the fees payable  for such appeal and the procedure to be followed by  the Appellate Authority shall be such as may be  prescribed.  

(4) On receipt of an appeal preferred under sub- section (1), the Appellate Authority shall, after giving  the appellant and the State Board an opportunity of  being heard, dispose of the appeal as expeditiously as  possible.”    “31A. Power to give directions.—Notwithstanding  anything contained in any other law, but subject to the  provisions of this Act and to any directions that the  Central Government may give in this behalf a Board  may, in the exercise of its powers and performance of  its functions under this Act, issue any directions in  writing to any person, officer or authority, and such  person, officer or authority shall be bound to comply  with such directions.  

Explanation.—For the avoidance of doubts, it is  hereby declared that the power to issue directions  under this section includes the power to direct—  

(a)  the closure, prohibition or regulation of any  industry, operation or process; or  

(b)  the stoppage or regulation of supply of  electricity, water or any other service.”  

33  

“31B. Appeal to National Green Tribunal.—Any  person aggrieved by an order or decision of the  Appellate Authority under Section 31, made on or after  the commencement of the National Green Tribunal  Act, 2010, may file an appeal to the National Green  Tribunal established under Section 3 of the National  Green Tribunal Act, 2010, in accordance with the  provisions of that Act.”  

17. The relevant Sections of the NGT Act are as follows:  

“2. Definitions.—(1) In this Act, unless the context  otherwise requires,—  

xxx xxx xxx  

(m) “substantial question relating to environment”  shall include an instance where,—  

(i)  there is a direct violation of a specific  statutory environmental obligation by a  person by which,—  

(A)  the community at large other than  an individual or group of  individuals is affected or likely to  be affected by the environmental  consequences; or  

(B) the gravity of damage to the  environment or property is  substantial; or  

(C) the damage to public health is  broadly measurable;  

(ii)  the environmental consequences  relate to a specific activity or a point  source of pollution;  

xxx xxx xxx”    

“14. Tribunal to settle disputes.—(1) The Tribunal  shall have the jurisdiction over all civil cases where a

34  

substantial question relating to environment (including  enforcement of any legal right relating to environment),  is involved and such question arises out of the  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 by the Tribunal unless it is  made within a period of six months from the date on  which the cause of action for such dispute first arose:  

Provided that the Tribunal may, if it is satisfied that  the applicant was prevented by sufficient cause from  filing the application within the said period, allow it to  be filed within a further period not exceeding sixty  days.”    

“15. Relief, compensation and restitution.—(1) The  Tribunal may, by an order, provide,—  

(a)  relief and compensation to the victims of  pollution and other environmental damage  arising under the enactments specified in  the Schedule I (including accident  occurring while handling any hazardous  substance);  

(b)  for restitution of property damaged;  

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

as the Tribunal may think fit.  

(2) The relief and compensation and restitution of  property and environment referred to in clauses (a), (b)  and (c) of sub-section (1) shall be in addition to the  relief paid or payable under the Public Liability  Insurance Act, 1991 (6 of 1991).

35  

(3) No application for grant of any compensation or  relief or restitution of property or environment under  this section shall be entertained by the Tribunal unless  it is made within a period of five years from the date on  which the cause for such compensation or relief first  arose:  

Provided that the Tribunal may, if it is satisfied that  the applicant was prevented by sufficient cause from  filing the application within the said period, allow it to  be filed within a further period not exceeding sixty  days.  

(4) The Tribunal may, having regard to the damage to  public health, property and environment, divide the  compensation or relief payable under separate heads  specified in Schedule II so as to provide compensation  or relief to the claimants and for restitution of the  damaged property or environment, as it may think fit.  

(5) Every claimant of the compensation or relief under  this Act shall intimate to the Tribunal about the  application filed to, or, as the case may be,  compensation or relief received from, any other court  or authority.”    “16. Tribunal to have appellate jurisdiction.—Any  person aggrieved by,—  

(a)  an order or decision, made, on or after the  commencement of the National Green  Tribunal Act, 2010, by the appellate  authority under Section 28 of the Water  (Prevention and Control of Pollution) Act,  1974 (6 of 1974);  

(b)  an order passed, on or after the  commencement of the National Green  Tribunal Act, 2010, by the State  Government under Section 29 of the Water  (Prevention and Control of Pollution) Act,  1974 (6 of 1974);

36  

(c)  directions issued, on or after the  commencement of the National Green  Tribunal Act, 2010, by a Board, under  Section 33-A of the Water (Prevention and  Control of Pollution) Act, 1974 (6 of 1974);  

(d)  an order or decision made, on or after the  commencement of the National Green  Tribunal Act, 2010, by the appellate  authority under Section 13 of the Water  (Prevention and Control of Pollution) Cess  Act, 1977 (36 of 1977);  

(e)  an order or decision made, on or after the  commencement of the National Green  Tribunal Act, 2010, by the State  Government or other authority under  Section 2 of the Forest (Conservation) Act,  1980 (69 of 1980);  

(f)  an order or decision, made, on or after the  commencement of the National Green  Tribunal Act, 2010, by the Appellate  Authority under Section 31 of the Air  (Prevention and Control of Pollution) Act,  1981 (14 of 1981);  

(g)  any direction issued, on or after the  commencement of the National Green  Tribunal Act, 2010, under Section 5 of the  Environment (Protection) Act, 1986 (29 of  1986);  

(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 (29 of  1986);

37  

(i)  an order made, on or after the  commencement of the National Green  Tribunal Act, 2010, refusing to grant  environmental clearance for carrying out  any activity or operation or process under  the Environment (Protection) Act, 1986 (29  of 1986);  

(j)  any determination of benefit sharing or  order made, on or after the  commencement of the National Green  Tribunal Act, 2010, by the National  Biodiversity Authority or a State  Biodiversity Board under the provisions of  the Biological Diversity Act, 2002 (18 of  2003),  

may, within a period of thirty days from the date on  which the order or decision or direction or  determination is communicated to him, prefer an  appeal to the Tribunal:  

Provided that the Tribunal may, if it is satisfied that  the appellant was prevented by sufficient cause from  filing the appeal within the said period, allow it to be  filed under this section within a further period not  exceeding sixty days.”  

xxx xxx xxx  

“29. Bar of jurisdiction.—(1) With effect from the date  of establishment of the Tribunal under this Act, no civil  court shall have jurisdiction to entertain any appeal in  respect of any matter, which the Tribunal is  empowered to determine under its appellate  jurisdiction.  (2) No civil court shall have jurisdiction to settle dispute  or entertain any question relating to any claim for  granting any relief or compensation or restitution of  property damaged or environment damaged which  may be adjudicated upon by the Tribunal, and no  injunction in respect of any action taken or to be taken

38  

by or before the Tribunal in respect of the settlement of  such dispute or any such claim for granting any relief  or compensation or restitution of property damaged or  environment damaged shall be granted by the civil  court.”  

xxx xxx xxx  

“33. Act to have overriding effect.—The provisions  of this Act, shall have effect notwithstanding anything  inconsistent contained in any other law for the time  being in force or in any instrument having effect by  virtue of any law other than this Act.”  

18. It is important now to advert to both the orders dated  

08.08.2013 and 15.12.2018, insofar as they deal with the  

maintainability of the appeals before them.  

19. By the judgment of the NGT dated 08.08.2013, the NGT  

disposed of the plea on maintainability as follows:  

“62. Another aspect that would support the view that  we are taking is the doctrine of necessity. Wherever in  the facts and circumstances of the case, it is  absolutely inevitable for a person to exercise another  right available to it under the statute and where it is  unable to exercise the preliminary right of appeal  because of non-existence or non-proper constitution of  the appellate authority and for its effective and  efficacious exercise of right, it becomes necessary for  the appellant-company to invoke another remedy, then  the same would be permitted unless it was so  specifically barred by law governing the subject and  the rights of the parties. It was upon the appellant- company, particularly keeping in view the emergent

39  

situation created by issuance of the order dated  29th March, 2013, to avail of its right to appeal without  any undue delay and as was rightly done by it within  two days of the passing of the order. The unit of the  appellant-company had been directed to be shut down  and the appellant-company obviously could not have  taken recourse to the remedy under Section 31 of the  Air Act as the authority itself was not properly  constituted and was not functional. Besides the aid of  the doctrine of necessity, the appellant-company has  also placed its reliance on Section 31B of the Air Act.  An appeal against the order passed by the appellate  authority in exercise of its powers under Section 31 of  the Air Act lies to the NGT in terms of Section 31B of  the Air Act. In other words, the appellate order passed  by the proper authority under Section 31 of the Air Act  is appealable to the NGT in terms of Section 31B.  Thus, the NGT is the appellate authority of the  appellate authority constituted under Section 31 of the  Air Act by the State Government. The appellant- company has itself given up its right of first appeal  before the appellate authority in view of the peculiar  facts and circumstances of the case. The respondents  have placed reliance upon the judgment of the  Supreme Court in Manohar Lal v. Union of India,  (2010) 11 SCC 557 where the Court had taken the  view that no higher authority in the hierarchy or an  appellate or revisional authority can exercise the  power of the statutory authority nor the superior  authority can mortgage its wisdom and direct the  statutory authority to act in a particular manner. Firstly  this judgment on facts and law has no application to  the present case. Secondly, the non-constitution of the  authority itself would bring the present case outside  the application of the judgment of the Supreme Court  in the case of Manohar Lal (supra).  

63. We are unable to contribute ourselves to the  contention raised that a direction passed under

40  

Section 31A of the Air Act is not covered under the  expression ‘order’ used in Section 31 of the Air Act.  Any direction essentially would contain an element of  order as it requires and calls upon the parties to  comply with the same. ‘Direction’ itself means an  order; an instruction how to proceed, like the judge's  direction to the jury, while ‘Order’ is defined as a  command, direction or instruction. This is how  the Black's Law Dictionary, 9th Edition, refers to these  two expressions. In other words, they can be used as  synonyms. They are not conflicting terms and one can  be read into the other. Thus, we find no substance in  this contention raised on behalf of the respondents.  

64. An appellate authority, which is constituted under  the statute, is completely distinct and different from an  administrative authority constituted otherwise even to  deal with adjudicatory proceedings. In the case of an  appellate authority, it must satisfy the existence de  facto and must function de jure, in accordance with  law. If the appellate authority itself was not in  conformity with the notification, it cannot be said that it  could function in accordance with law without  constitution of the three Member appellate authority.  The cumulative effect of this discussion is that the  objection in regard to maintainability is without any  substance and is liable to be rejected. In view of this  finding, it is not necessary for us to examine whether  this could be treated as a petition under Section 14 of  the National Green Tribunal Act (for short ‘the NGT  Act’) even if it was not maintainable in view of the  objection taken by the respondent in regard to  maintainability of the present appeal.”  

20. Insofar as the judgment dated 15.12.2018 is concerned, the  

NGT, on maintainability, held as follows:  

41  

“44. It is undisputed that this Tribunal is an Appellate  Authority as far as orders of closure under the Air Act  and the Water Act are concerned. The impugned  orders dated 12.04.2018, 23.05.2018 and 28.05.2018  are such orders. Mere fact that an appeal against the  order declining renewal of Consent to Operate is  provided for and was filed cannot be in the facts and  circumstances of the present case, be a bar to  exercise of powers of the Appellate Authority by this  Tribunal. As already noted, the Appellate Authority has  declined to proceed with the matter. The grounds in  the impugned orders dated 09.04.2018, 12.04.2018,  23.05.2018 and 28.05.2018 are identical. If the  appeals are held to be not maintainable, the appellant  will be without any remedy against the order of  closure. Order of the Appellate Authority is also  appealable before this Tribunal under Section 16(f) of  the NGT Act, 2010. We, thus, do not find any merit in  this case in the objections of the respondent.   

45. Mere fact that the State of Tamil Nadu also  endorsed the order of the TNPCB and that order of the  State is not appealable to this Tribunal, does not  deviate from the legal position that order of TNPCB is  appealable to this Tribunal. Moreover, order of the  State of Tamil Nadu is not a policy matter but mere  endorsement of order of the TNPCB.   

46. The judgments relied upon by the respondents are  distinguishable. Unlike Educanti Kistamma v. Deokar’s  Distillery [(2003) 5 SCC 669], this is not a case where  the first order has not been challenged. Challenge  before us is to the first order as well as subsequent  orders. Basis for all the orders is common.  

xxx xxx xxx  

48. The order of the Government of Tamil Nadu issued  under Section 18(1)(b) of the Water Act also cannot be  said to be an independent order but relied on and  endorsing the views of the TNPCB which is under

42  

challenge and that are not sufficient for ordering  closure or refusal to grant even consent. If there are  no other materials for the Government of Tamil Nadu  to arrive at conclusion of closure on the ground of  irreversible pollution being caused to the environment  allowing the unit to function, then it cannot be said to  be a policy decision to close down the industry  permanently and if any order was passed based on  the order by the Pollution Control Board, without  independent application of mind and arbitrarily, then  that can also be incidentally considered by the  Tribunal for the purpose of deciding the question of  legality of that order. So, under the present  circumstances, it is not a case of this Tribunal  entertaining the appeals where there is inherent lack of  jurisdiction to entertain the same.   

49. In the present proceedings, as already noted, the  Appellate Authority having declined to proceed with  the matter and the order of closure being appealable  before this Tribunal, there is no ground to reject the  appeal on the ground of maintainability so as to  deprive the appellant any judicial remedy in the  matter.”  

(I) RE: ORDER DATED 09.04.2018  

21. This order is an order which rejected renewal of consent to  

operate, and therefore, is traceable to Section 27 of the Water Act and  

Section 21 of the Air Act. There is no doubt whatsoever that an appeal  

against an order made under Section 27 of the Water Act is  

appealable to the appellate authority under Section 28 of the said Act.  

Under Section 33B(a) of the said Act, if a person is aggrieved by an

43  

order or decision of the appellate authority under Section 28, it is then  

appealable to the NGT. This is made clear also by Section 16(a) of the  

NGT Act.  Equally, an order refusing consent under Section 21 of the  

Air Act is appealable to the appellate authority under Section 31 of the  

Air Act, and thereafter, from the said appellate authority’s order, to the  

NGT, under Section 31B of the Air Act and Section 16(f) of the NGT  

Act.   

22. As has been stated hereinabove, it is clear that an appeal to the  

appellate authority under the Air Act and the Water Act was, in fact,  

preferred, being Appeal Nos. 36-37 of 2018. While these appeals were  

pending before the appellate authority, the composite Appeal No. 87 of  

2018 was filed on 22.06.2018 before the NGT inter alia against the  

order of refusal of consent to operate dated 09.04.2018. Shri  

Sundaram, however, argued before us that the order dated 06.06.2018  

made by the appellate authority, which we have set out hereinabove,  

makes it clear that the appeals could not be heard since the State  

Government had passed an order dated 28.05.2018 directing the  

TNPCB to close down the plant permanently. What is missed by Shri  

Sundaram is the fact that the said order expressly states that the

44  

appeals could not be decided at this juncture and were hence  

adjourned to 10.07.2018. The said appeals on 10.07.2018 were further  

adjourned, and it is only on 18.12.2018 that they were finally  

withdrawn as being infructuous in view of the fact that the NGT had  

passed its order on 15.12.2018 in which it had set aside the order  

dated 09.04.2018.   

23. What becomes clear from the above narration of facts is the  

fact that while an appeal was still pending before the appellate  

authority, the NGT took up a matter directly against the original order  

dated 09.04.2018 which was challenged before the appellate authority  

even before the appellate authority could decide the same. However,  

Shri Sundaram referred to Section 28(4) of the Air Act and Section  

31(4) of the Water Act to argue that appeals to the appellate authority  

must be decided expeditiously, and if they were not so decided, an  

appeal would lie to the NGT against a decision by the appellate  

authority not to decide the matter before it expeditiously. This  

argument must also be negatived as, in point of fact, no appeal was  

preferred from any orders of the appellate authority adjourning the

45  

proceedings. As we have seen, an appeal was directly filed from the  

order of the TNPCB dated 09.04.2018.  

24. At this point, it is important to advert to a few judgments of this  

Court. In Kundur Rudrappa v. Mysore Revenue Appellate Tribunal  

and Ors., (1975) 2 SCC 411, this Court, while dealing with Section 64  

of the Motor Vehicles Act, 1939, stated:  

“4. The point that arises for consideration is whether  any appeal lay under Section 64 of the Act to the State  Transport Appellate Tribunal against the issue of a  permit in pursuance of an earlier resolution of the  Regional Transport Authority granting the permit. It is  only necessary to read Section 64(1)(a) which is  material for the purpose of this appeal:  

“64. (1)(a) Any person aggrieved by the  refusal of the State or a Regional Transport  Authority to grant a permit, or by any  condition attached to a permit granted to him  . . .  

may within the prescribed time and in the  prescribed manner, appeal to the State  Transport Appellate Tribunal constituted  under sub-section (2), who shall, after giving  such person and the original authority an  opportunity of being heard, give a decision  thereon which shall be final.”  

We are not required to consider the other clauses of  Section 64(1) which are admittedly not relevant.  Section 64 has to be read with Rule 178 of the Rules  which prescribes the procedure for appeal to the  various authorities.

46  

5. Appeal is a creature of the statute. There is no  dispute that Section 64 of the Act is the only section  creating rights of appeal against the grant of permit  and other matters with which we are not concerned  here. There is no appeal provided for under Section 64  against an order issuing a permit in pursuance of the  order granting the permit. Issuance of the permit is  only a ministerial act necessarily following the grant of  the permit. The appeals before the State Transport  Appellate Tribunal and the further appeal to the  Mysore Revenue Appellate Tribunal are, therefore, not  competent under Section 64 of the Act and both the  tribunals had no jurisdiction to entertain the appeals  and to interfere with the order of the Regional  Transport Authority granting the permit which had  already been affirmed in appeal by the State Transport  Appellate Tribunal and further in second appeal by the  Mysore Revenue Appellate Tribunal. There was,  therefore, a clear error of jurisdiction on the part of  both the Tribunals in interfering with the grant of the  permit to the appellant. The High Court was, therefore,  not right in dismissing the writ application of the  appellant which ought to have been allowed.”  

(emphasis supplied)  

 25. Similarly, in a concurring judgment of Sinha, J., in Cellular  

Operators Association of India and Ors. v. Union of India and  

Ors., (2003) 3 SCC 186, the learned Judge observed:  

“27. TDSAT was required to exercise its jurisdiction in  terms of Section 14-A of the Act. TDSAT itself is an  expert body and its jurisdiction is wide having regard to  sub-section (7) of Section 14-A thereof. Its jurisdiction  extends to examining the legality, propriety or  correctness of a direction/order or decision of the  authority in terms of sub-section (2) of Section 14 as

47  

also the dispute made in an application under sub- section (1) thereof. The approach of the learned  TDSAT, being on the premise that its jurisdiction is  limited or akin to the power of judicial review is,  therefore, wholly unsustainable. The extent of  jurisdiction of a court or a tribunal depends upon the  relevant statute. TDSAT is a creature of a statute. Its  jurisdiction is also conferred by a statute. The purpose  of creation of TDSAT has expressly been stated by  Parliament in the amending Act of 2000. TDSAT, thus,  failed to take into consideration the amplitude of its  jurisdiction and thus misdirected itself in law.”  

(emphasis supplied)  

26. In B. Himmatlal Agrawal v. Competition Commission of  

India, Civil Appeal No. 5029/2018 [decided on 18.05.2018], this Court,  

while dealing with Section 53B of the Competition Act, 2002 held:  

“7. The aforesaid provision, thus, confers a right upon  any of the aggrieved parties mentioned therein to  prefer an appeal to the Appellate Tribunal. This  statutory provision does not impose any condition of  pre-deposit for entertaining the appeal. Therefore, right  to file the appeal and have the said appeal decided on  merits, if it is filed within the period of limitation, is  conferred by the statute and that cannot be taken  away by imposing the condition of deposit of an  amount leading to dismissal of the main appeal itself if  the said condition is not satisfied. Position would have  been different if the provision of appeal itself contained  a condition of pre-deposit of certain amount. That is  not so. Subsection (3) of Section 53B specifically cast  a duty upon the Appellate Tribunal to pass order on  appeal, as it thinks fit i.e. either confirming, modifying  or setting aside the direction, decision or order  appealed against. It is to be done after giving an

48  

opportunity of hearing to the parties to the appeal. It,  thus, clearly implies that appeal has to be decided on  merits. The Appellate Tribunal, which is the creature of  a statute, has to act within the domain prescribed by  the law/statutory provision. This provision nowhere  stipulates that the Appellate Tribunal can direct the  appellant to deposit a certain amount as a condition  precedent for hearing the appeal. In fact, that was not  even done in the instant case. It is stated at the cost of  repetition that the condition of deposit of 10% of the  penalty was imposed insofar as stay of penalty order  passed by the CCI is concerned. Therefore, at the  most, stay could have been vacated. The Appellate  Tribunal, thus, had no jurisdiction to dismiss the  appeal itself.”  

(emphasis supplied)  

27. In Raja Soap Factory v. S.P. Shantharaj, (1965) 2 SCR 800,  

the plaintiffs instituted an action in the nature of passing off against the  

defendants in the High Court of Mysore, stating that they are exclusive  

owners of a particular trade mark. This Court found that exercise of  

jurisdiction by the High Court of Mysore is governed by Mysore Act 5  

of 1962. Holding that the said High Court does not exercise any  

original jurisdiction, this Court held:  

“The High Court of Mysore is by its constitution  primarily a court exercising appellate jurisdiction: it is  competent to exercise original jurisdiction only in those  matters in respect of which by special Acts it has been  specifically invested with jurisdiction. The High Court is  competent to exercise original jurisdiction under  Section 105 of the Trade and Merchandise Marks Act

49  

43 of 1958 if it is invested with the ordinary original  civil jurisdiction of a District Court, and not otherwise,  and the High Court of Mysore not being invested by  any statute of under its constitution with that  jurisdiction was incompetent to entertain a passing off  action.  

But it was urged that in a State the High Court is at the  apex of the hierarchy of civil courts and has all the  powers which the subordinate courts may exercise,  and it is competent to entertain all actions as a Court  of original jurisdiction which may lie in any court in the  State. For this exalted claim, there is no warrant in our  jurisprudence. Jurisdiction of a court means the extent  of the authority of a court to administer justice  prescribed with reference to the subject-matter,  pecuniary value and local limits. Barring cases in  which jurisdiction is expressly conferred upon it by  special statutes, e.g. the Companies Act; the Banking  Companies Act, the High Court of Mysore exercises  appellate jurisdiction alone. As a court of appeal it  undoubtedly stands at the apex within the State, but  on that account it does not stand invested with original  jurisdiction in matters not expressly declared within its  cognizance.”  

(at page 802)  

28. In Northern Plastics Ltd. v. Hindustan Photo Films Mfg. Co.  

Ltd. and Ors., (1997) 4 SCC 452, Section 129-D of the Customs Act,  

1962 was referred to, under which, the Board of Excise and Customs  

may direct a Collector to apply to the Appellate Tribunal for  

determination of points which arise out of an order or decision. In

50  

repelling an argument that even without such direction, the Union of  

India may file an appeal directly, this Court held:  

“10. …… The aforesaid provisions of the Act leave no  room for doubt that they represent a complete scheme  or code for challenging the orders passed by the  Collector (Customs) in exercise of his statutory  powers. …… So far as departmental authorities  themselves are concerned including the Collector of  Customs no direct right of appeal is conferred on the  Collector to prefer appeal against his own order before  the CEGAT. However there is sufficient safeguard  made available to the Revenue by the Act for placing  in challenge erroneous orders of adjudication as  passed by the Collector of Customs by moving the  Central Board of Excise and Customs under Section  129-D(1) for a direction to the Collector to apply to the  CEGAT for determination of such point arising out of  the decision or order as may be specified by the Board  of Revenue in this connection……”  

xxx xxx xxx  

“12. …… But even if it is so, the statutory procedure  laid down by Parliament in its wisdom for enabling the  challenge to the adjudication order of the Collector of  Customs by way of appeals or revisions as per the  aforesaid relevant statutory provisions, to which we  have made a mention, has got to be followed in such  an eventuality. Bypassing the said statutory procedure  a direct frog leap to CEGAT is contra-indicated by the  statutory scheme of the Act. If such direct appeals are  permitted the very scheme of Section 129-D(1) would  get stultified. It must, therefore, be held that direct  appeal filed by the Union of India through Industries  Ministry to CEGAT under Section 129-A(1) was clearly  incompetent. It may be added that the Union of India

51  

could have used the mode set out in Section 129-D,  but it did not do so.”  

 29. In Manohar Lal v. Ugrasen, (2010) 11 SCC 557, one of the  

questions involved, under sub-paragraph 2(a) of the judgment, was as  

follows:  

“2. In these appeals, three substantial questions of law  for consideration of this Court are involved. They are,  namely:  

(a) As to whether the State Government, a  revisional authority under the statute, could  take upon itself the task of a lower statutory  authority?  

xxx xxx xxx”    

After reviewing a number of cases, this Court then concluded:  

“23. Therefore, the law on the question can be  summarised to the effect that no higher authority in the  hierarchy or an appellate or revisional authority can  exercise the power of the statutory authority nor can  the superior authority mortgage its wisdom and direct  the statutory authority to act in a particular manner. If  the appellate or revisional authority takes upon itself  the task of the statutory authority and passes an order,  it remains unenforceable for the reason that it cannot  be termed to be an order passed under the Act.”  

30. In Arcot Textile Mills Ltd. v. Regional Provident Fund  

Commissioner, (2013) 16 SCC 1, appeals lay to the Tribunal  

constituted under the Employees’ Provident Funds and Miscellaneous

52  

Provisions Act, 1952, under Section 7-I of the Act. Whereas appeals  

lay against orders passed under Section 7-A of the Act, which  

provided for determination of monies due from employers, no appeal  

lay against orders made under Section 7-Q of the said Act, which  

spoke of interest payable by the employer. This Court held:  

“20. On a scrutiny of Section 7-I, we notice that the  language is clear and unambiguous and it does not  provide for an appeal against the determination made  under Section 7-Q. It is well settled in law that right of  appeal is a creature of statute, for the right of appeal  inheres in no one and, therefore, for maintainability of  an appeal there must be authority of law. This being  the position a provision providing for appeal should  neither be construed too strictly nor too liberally, for if  given either of these extreme interpretations, it is  bound to adversely affect the legislative object as well  as hamper the proceedings before the appropriate  forum. Needless to say, a right of appeal cannot be  assumed to exist unless expressly provided for by the  statute and a remedy of appeal must be legitimately  traceable to the statutory provisions. If the express  words employed in a provision do not provide an  appeal from a particular order, the court is bound to  follow the express words. To put it otherwise, an  appeal for its maintainability must have the clear  authority of law and that explains why the right of  appeal is described as a creature of statute. (See  Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393], Gujarat  Agro Industries Co. Ltd. v. Municipal Corpn. of the City  of Ahmedabad [(1999) 4 SCC 468], State of Haryana  v. Maruti Udyog Ltd. [(2000) 7 SCC 348], Super  Cassettes Industries Ltd. v. State of U.P. [(2009) 10  SCC 531 : (2009) 4 SCC (Civ) 280], Raj Kumar

53  

Shivhare v. Directorate of Enforcement [(2010) 4 SCC  772 : (2010) 3 SCC (Civ) 712], Competition  Commission of India v. SAIL [(2010) 10 SCC 744].)”  

In paragraph 21, this Court further went on to hold that in case an  

order under Section 7-A speaks of delay in payment as well as  

interest, a composite order passed would be amenable to appeal  

under Section 7-I, as interest is only parasitic on the principal sum due  

under Section 7-A.   However, if an independent order is passed under  

Section 7-Q for interest alone, the same was held to be not  

appealable.    

31. From the above authorities, it is clear that an appeal is a  

creature of statute and an appellate tribunal has to act strictly within  

the domain prescribed by statute. It is obvious that an appeal would lie  

from an order or decision of the appellate authority under Section 28 of  

the Water Act to the NGT only under Section 33B(a) of the Water Act  

read with Section 16(a) of the NGT Act. Similarly, an appeal would lie  

from an order or decision of the appellate authority under Section 31 of  

the Air Act to the NGT only under Section 31B of the Air Act read with  

Section 16(f) of the NGT Act. Obviously, since no order or decision  

had been made by the appellate authority under either the Water Act

54  

or the Air Act, any direct appeal against an original order to the NGT  

would be incompetent. NGT’s jurisdiction being strictly circumscribed  

by Section 33B of the Water Act, read with Section 31B of the Air Act,  

read with Section 16(a) and (f) of the NGT Act, would make it clear  

that it is only orders or decisions of the appellate authority that are  

appealable, and not original orders. On the facts of the present case, it  

is clear that an appeal was pending before the appellate authority  

when the NGT set aside the original order dated 09.04.2018. This  

being the case, the NGT’s order being clearly outside its statutory  

powers conferred by the Water Act, the Air Act, and the NGT Act,  

would be an order passed without jurisdiction.  

32. In fact, in the United Kingdom, there are several Acts under  

which a leapfrog appeal is permitted if a point of law of general public  

importance is involved. Thus, the Administration of Justice Act, 1969  

states that such a leapfrog appeal directly to the Supreme Court may  

be filed on grant of certificate by the Trial Judge in the following terms:  

“12. Grant of certificate by trial judge.  

(1) Where on the application of any of the parties to  any proceedings to which this section applies the  judge is satisfied—

55  

(a) that the relevant conditions are fulfilled in  relation to his decision in those  proceedings or that the conditions in  subsection (3A) (“the alternative conditions”)  are satisfied in relation to those proceedings,  and  (b) that a sufficient case for an appeal to  the Supreme Court under this Part of this Act  has been made out to justify an application  for leave to bring such an appeal, ...  (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

the judge, subject to the following provisions of this  Part of this Act, may grant a certificate to that effect.   

(2) This section applies to any civil proceedings in the  High Court which are either—  

(a) proceedings before a single judge of the  High Court  (including a person acting as  such a judge under section 3 of  the Judicature Act 1925), or  

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    

(c) proceedings before a Divisional Court.  

(3) Subject to any Order in Council made under the  following provisions of this section, for the purposes of  this section the relevant conditions, in relation to a  decision of the judge in any proceedings, are that a  point of law of general public importance is involved in  that decision and that that point of law either—  

(a) relates wholly or mainly to the  construction of an enactment or of a statutory  instrument, and has been fully argued in the  proceedings and fully considered in the  judgment of the judge in the proceedings, or  

(b) is one in respect of which the judge is  bound by a decision of the Court of Appeal or  of the Supreme Court in previous  proceedings, and was fully considered in the

56  

judgments given by the Court of Appeal or  the Supreme Court (as the case may be) in  those previous proceedings.  

xxx xxx xxx”    

33. To similar effect are sections of the Tribunals, Courts and  

Enforcement Act, 2007, and the Employment Tribunals Act, 1996.   

Such appeals in the U.K. are referred to as “leapfrog appeals” [see S  

Franses Ltd. v. The Cavendish Hotel (London) Ltd., [2018] UKSC  

62 (at paragraph 7)].  

34. It is, therefore, clear that no such provisions, as are contained  

in the U.K. Acts, being present in any of the Acts that we are  

concerned with, such leapfrog appeals to the NGT would necessarily  

be without jurisdiction.  

(II) RE: ORDERS PASSED UNDER SECTION 33A OF THE WATER ACT AND  

SECTION 31A OF THE AIR ACT  

35. We have referred to the orders dated 12.04.2018, 23.05.2018,  

and 28.05.2018 passed by the TNPCB under Sections 33A and 31A of  

the Water Act and Air Act respectively. At this juncture, it is important  

to state that Section 33B of the Water Act and Section 31B of the Air

57  

Act were both enacted on 18.10.2010, which is the very date on which  

the NGT Act came into force. What is important to note is that whereas  

Section 33B(c) of the Water Act read with Section 16(c) of the NGT Act  

make it clear that directions issued under Section 33A of the Water Act  

are appealable to the NGT, directions issued under Section 31A of the  

Air Act are not so appealable. In fact, the statutory scheme is that  

directions given under Section 31A of the Air Act are not appealable.   

This being the case, all the aforesaid orders, being composite orders  

issued under both the Water Act and the Air Act, it will not be possible  

to split the aforesaid orders and say that so far as they affect water  

pollution, they are appealable to the NGT, but so far as they affect air  

pollution, a suit or a writ petition would lie against such orders. Shri  

Sundaram’s argument that these orders being substantially relatable to  

the Water Act would, therefore, not hold, as such orders are composite  

orders made both under the Water Act and the Air Act. Equally  

disingenuous is the reference to Section 14 of the NGT Act which only  

refers to the original jurisdiction of the NGT and not to its appellate  

jurisdiction. Also, to state generally that the subject matter of  

environment lies with the NGT, is an argument of despair that must be  

dismissed for the reason that as held by us hereinabove, an appeal

58  

being a creature of statute, a statute either confers a right of appeal or  

it does not. In the present case, we have seen that so far as directions  

issued under Section 31A of the Air Act are concerned, there is no  

right of appeal conferred by the Air Act read with the NGT Act.  The  

ingenious argument made by Shri Sundaram that, in any case, a  

“direction” under Section 31A of the Air Act is nothing but an “order”,  

and would, therefore, be appealable as such under Section 31B of the  

Air Act read with Section 16(f) of the NGT Act would drive a coach-

and-four through the statutory scheme that has just been adverted to.   

We have seen how all the appellate proceedings to the NGT, whether  

under the Air Act, the Water Act, or the NGT Act have been brought  

into force on the same date. Whereas the identical power to give  

directions by the Board under the Water Act is appealable to the NGT,  

the same power to give directions by the Board under the Air Act is not  

so appealable. The absence of any mention of Section 31A in Section  

31B of the Air Act, given the statutory scheme as aforesaid, makes it  

clear that even this argument must be rejected. Also, “directions” that  

are issued under Section 31A of the Air Act are of a different quality  

from “orders” referred to in Section 31 of the same Act. Directions are  

issued in the exercise of powers and performance of functions under

59  

the Act and are not quasi-judicial in nature, whereas orders that are  

appealed against under Section 31 are quasi-judicial orders made,  

inter alia, under Section 21 of the Air Act. For this reason also, we  

cannot accept the aforesaid argument of Shri Sundaram. However,  

Shri Sundaram argued, with particular reference to the explanation to  

Section 31A of the Air Act that “directions” partake of the nature of  

“orders” when closure of any particular industry or stoppage of supply  

of electricity qua any single industry is made, and therefore, such  

directions are appealable as orders under Section 31 of the Air Act.  

This argument is also of no avail as Section 33A of the Water Act  

contains an identical explanation to that contained in Section 31A of  

the Air Act. Despite this, the legislative scheme, as stated  

hereinabove, is that so far as directions under the Water Act are  

concerned, they are appealable, but so far as directions under the Air  

Act are concerned, they are not appealable.  Hence, reference made  

to P. Ramanatha Aiyer’s Law Lexicon and Black’s Law Dictionary,  

which state that in certain circumstances, orders are also directions  

and vice versa, would not apply to the present case, given the express  

statutory scheme. In this connection, Shri Sundaram cited Kanhiya  

Lal Omar v. R.K. Trivedi, (1985) 4 SCC 678, and relied upon

60  

paragraph 17, where this Court held, referring to Article 324(1) of the  

Constitution of India, that a “direction” may be equated with a specific  

or a general order. The context of Article 324 being wholly different, it  

is obvious that this authority also has no application, given the  

statutory scheme in the present case.  

36. Shri Sundaram then cited Maharashtra State Board of  

Secondary and Higher Secondary Education v. Paritosh  

Bhupeshkumar Sheth, (1984) 4 SCC 27. In this judgment, the High  

Court had struck down Regulation 104 of the Maharashtra Secondary  

and Higher Secondary Boards Regulations, 1977, by which, no re-

evaluation of an answer book given in an examination can be  

undertaken. In setting aside the High Court judgment, this Court stated  

that the process of re-evaluation of answer papers is extremely time  

consuming, would involve several thousand man-hours, and is bound  

to throw the entire system out of gear. Further, it is in public interest  

that the results of public examinations, when published, should have  

some finality attached to them [see paragraph 27]. It is in this context  

that this Court held:   

“29. …… It is equally important that the Court should  also, as far as possible, avoid any decision or

61  

interpretation of a statutory provision, rule or bye-law  which would bring about the result of rendering the  system unworkable in practice. ……”  

To bodily lift the aforesaid sentence and apply it to the fact situation  

here would be a huge leap which we are not prepared to make.  

Further, given the statutory scheme as aforesaid, it is not possible for  

us to provide an appeal where there is none in the guise of making an  

appellate system workable in practice.   

37. Shri Sundaram then relied upon this Court’s judgments in  

Galada Power & Telecommunication Ltd. v. United India  

Insurance Co. Ltd., (2016) 14 SCC 161 and Allokam Peddabbayya  

v. Allahabad Bank, (2017) 8 SCC 272 for the proposition that the right  

of appeal is a statutory right, and like all other statutory rights, it can be  

waived, unless its waiver is detrimental to public interest. The question  

in these appeals is not whether an appellant may waive a statutory  

right of appeal. The question is whether the NGT, which is only  

invested with the jurisdiction of entertaining an appeal from an order of  

an appellate authority, is jurisdictionally capable of entertaining an  

appeal directly from the original authority. It is clear, as has been held  

by us, that the NGT possesses no such jurisdiction.

62  

38. One further argument was made that these matters are only  

procedural, and therefore, substantially, an appeal to the NGT would  

be maintainable. It is well settled that the right to appeal is not a  

procedural matter but a substantive one. In Garikapati Veeraya v. N.  

Subbiah Choudhury, 1957 SCR 488, this Court held:  

“From the decisions cited above the following  principles clearly emerge:  

(i) That the legal pursuit of a remedy, suit,  appeal and second appeal are really but  steps in a series of proceedings all connected  by an intrinsic unity and are to be regarded  as one legal proceeding.  

(ii) The right of appeal is not a mere matter of  procedure but is a substantive right.  

(iii) The institution of the suit carries with it the  implication that all rights of appeal then in  force are preserved to the parties thereto till  the rest of the career of the suit.  

(iv) The right of appeal is a vested right and  such a right to enter the superior court  accrues to the litigant and exists as on and  from the date the lis commences and  although it may be actually exercised when  the adverse judgment is pronounced such  right is to be governed by the law prevailing  at the date of the institution of the suit or  proceeding and not by the law that prevails at  the date of its decision or at the date of the  filing of the appeal.  

(v) This vested right of appeal can be taken  away only by a subsequent enactment, if it so

63  

provides expressly or by necessary  intendment and not otherwise.”  

(at pp. 514-515)    

This argument must, therefore, be rejected.  

(III) RE: ORDER PASSED UNDER SECTION 18 OF THE WATER ACT   

39.  So far as the order dated 28.05.2018 is concerned, this order is  

expressly stated to be made under Section 18 of the Water Act. There  

is no doubt whatsoever that such an order is not appealable to the  

NGT either under the Water Act or under the NGT Act. However, Shri  

Sundaram has argued that Section 18 is referable to orders generally  

made, and falls under Chapter IV of the Water Act, which deals with  

powers and functions of Boards, as opposed to the Sections that  

follow in Chapter V, which deals with prevention and control of water  

pollution, which orders are made against individuals and individual  

industries. On the assumption that Shri Sundaram is correct in this  

argument, it is clear that such order can only be set aside in a suit by a  

Civil Court, or under Article 226 of the Constitution of India by a High  

Court. It is not possible to agree with the argument of Shri Sundaram  

that such orders can be ignored, being non est. It is settled that an  

administrative order, when made, does not bear the brand of invalidity

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on its forehead, as has been held in Smith v. East Elloe Rural  

District Council, [1956] 1 All E.R. 855 (at page 871), which has been  

followed by this Court in State of Punjab v. Gurdev Singh, (1991) 4  

SCC 1 (at page 6); Tayabbhai M. Bagasarwalla v. Hind Rubber  

Industries (P) Ltd., (1997) 3 SCC 443 (at page 455); Pune Municipal  

Corpn. v. State of Maharashtra, (2007) 5 SCC 211 (at page 225);  

Krishnadevi Malchand Kamathia v. Bombay Environmental Action  

Group, (2011) 3 SCC 363 (at page 369); and Kandla Port v.  

Hargovind Jasraj, (2013) 3 SCC 182 (at page 193). Therefore, this  

order can only be set aside either in a suit, or by the High Court in the  

exercise of judicial review. Faced with this, Shri Sundaram then  

argued that though the said order states that it is traceable to Section  

18 of the Water Act, it can, in fact, be traced to Section 29 of the same  

Act. Section 29 deals with the revisional power, in which the State  

Government is to pass a quasi-judicial order after hearing both the  

State Board and the person who is affected. Quite obviously, this order  

is not a quasi-judicial order as the State Government has not found it  

necessary to hear either the State Board, or any person affected by  

such order. Further, such order does not purport to be an order which  

either affirms or sets aside any order made under Sections 25, 26, or

65  

27 of the Water Act.  This argument of despair, therefore, must also be  

rejected.   

40. Shri Sundaram then argued that this Court in L. Chandra  

Kumar (supra) made it clear that Tribunals that are set up, generally  

have the power of judicial review, save and except a challenge to the  

vires of the legislation under which such Tribunals are themselves set  

up. For this, he relied strongly upon paragraphs 90 and 93 of the  

judgment in L. Chandra Kumar (supra). It is important to notice that L.  

Chandra Kumar (supra) pertained to a Tribunal that was set up under  

Article 323A of the Constitution of India. Under Article 323A(2)(d), the  

Administrative Tribunal so set up would be able to exercise the  

jurisdiction of all courts except the jurisdiction of the Supreme Court  

under Article 136 of the Constitution. This would mean that the  

Administrative Tribunal so set up could exercise the jurisdiction of all  

High Courts when it came to the matters specified in Article 323A. This  

is further made clear by a conjoint reading of Section 14 and Section  

28 of the Administrative Tribunals Act, 1985, which read as follows:  

“14. Jurisdiction, powers and authority of the  Central Administrative Tribunal.—(1) Save as  otherwise expressly provided in this Act, the Central  Administrative Tribunal shall exercise, on and from the

66  

appointed day, all the jurisdiction, powers and  authority exercisable immediately before that day by  all courts (except the Supreme Court) in relation to—  

(a) recruitment, and matters concerning  recruitment, to any All-India Service or to any  civil service of the Union or a civil post under  the Union or to a post connected with  defence or in the defence services, being, in  either case, a post filled by a civilian;  

(b) all service matters concerning—  

(i) a member of any All-India  Service; or  

(ii) a person not being a member of  an All-India Service or a person  referred to in clause (c) appointed to  any civil service of the Union or any  civil post under the Union; or  

(iii) a civilian not being a member of  an All-India Service or a person  referred to in clause (c) appointed to  any defence services or a post  connected with defence,  

and pertaining to the service of such  member, person or civilian, in connection with  the affairs of the Union or of any State or of  any local or other authority within the territory  of India or under the control of the  Government of India or of any corporation or  society owned or controlled by the  Government;  

(c) all service matters pertaining to service in  connection with the affairs of the Union  concerning a person appointed to any service  or post referred to in sub-clause (ii) or sub- clause (iii) of clause (b), being a person  whose services have been placed by a State

67  

Government or any local or other authority or  any corporation or society or other body, at  the disposal of the Central Government for  such appointment.  

Explanation.—For the removal of doubts, it is hereby  declared that references to “Union” in this sub-section  shall be construed as including references also to a  Union Territory.  

(2) The Central Government may, by notification, apply  with effect from such date as may be specified in the  notification the provisions of sub-section (3) to local or  other authorities within the territory of India or under  the control of the Government of India and to  corporations or societies owned or controlled by  Government, not being a local or other authority or  corporation or society controlled or owned by a State  Government:  

Provided that if the Central Government considers it  expedient so to do for the purpose of facilitating  transition to the scheme as envisaged by this Act,  different dates may be so specified under this sub- section in respect of different classes of, or different  categories under any class of, local or other authorities  or corporations or societies.  

(3) Save as otherwise expressly provided in this Act,  the Central Administrative Tribunal shall also exercise,  on and from the date with effect from which the  provisions of this sub-section apply to any local or  other authority or corporation or society, all the  jurisdiction, powers and authority exercisable  immediately before that date by all courts (except the  Supreme Court) in relation to—  

(a) recruitment, and matters concerning  recruitment, to any service or post in  connection with the affairs of such local or  other authority or corporation or society; and

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(b) all service matters concerning a person  other than a person referred to in clause (a)  or clause (b) of sub-section (1) appointed to  any service or post in connection with the  affairs of such local or other authority or  corporation or society and pertaining to the  service of such person in connection with  such affairs.”  

xxx xxx xxx  

“28. Exclusion of jurisdiction of courts except the  Supreme Court under Article 136 of the  Constitution.—On and from the date from which any  jurisdiction, powers and authority becomes exercisable  under this Act by a Tribunal in relation to recruitment  and matters concerning recruitment to any Service or  post or service matters concerning members of any  Service or persons appointed to any Service or post,  no court except—  

(a) the Supreme Court; or  

(b) any Industrial Tribunal, Labour Court or  other authority under the Industrial Disputes  Act, 1947 or any other corresponding law for  the time being in force,  

shall have, or be entitled to exercise any jurisdiction,  powers or authority in relation to such recruitment or  matters concerning such recruitment or matters  concerning such recruitment or such service matters.”  

Article 323B of the Constitution of India also provides for Tribunals for  

certain other matters which are specified by sub-clause (2) thereof.  

Suffice it to say that the NGT is not a Tribunal set up either under  

Article 323A or Article 323B of the Constitution, but is a statutory

69  

Tribunal set up under the NGT Act. That such a Tribunal does not  

exercise the jurisdiction of all courts except the Supreme Court is clear  

from a reading of Section 29 of the NGT Act (supra). Thus, a conjoint  

reading of Section 14 and Section 29 of the NGT Act must be  

contrasted with a conjoint reading of Section 14 and Section 28 of the  

Administrative Tribunals Act, 1985.  

41. It is in the context of Article 323A and the Administrative  

Tribunals Act, 1985 that this Court in L. Chandra Kumar (supra) has  

observed in paragraph 93 as follows:  

“93. Before moving on to other aspects, we may  summarise our conclusions on the jurisdictional  powers of these Tribunals. The Tribunals are  competent to hear matters where the vires of statutory  provisions are questioned. However, in discharging  this duty, they cannot act as substitutes for the High  Courts and the Supreme Court which have, under our  constitutional set-up, been specifically entrusted with  such an obligation. Their function in this respect is only  supplementary and all such decisions of the Tribunals  will be subject to scrutiny before a Division Bench of  the respective High Courts. The Tribunals will  consequently also have the power to test the vires of  subordinate legislations and rules. However, this  power of the Tribunals will be subject to one important  exception. The Tribunals shall not entertain any  question regarding the vires of their parent statutes  following the settled principle that a Tribunal which is a  creature of an Act cannot declare that very Act to be

70  

unconstitutional. In such cases alone, the High Court  concerned may be approached directly. All other  decisions of these Tribunals, rendered in cases that  they are specifically empowered to adjudicate upon by  virtue of their parent statutes, will also be subject to  scrutiny before a Division Bench of their respective  High Courts. We may add that the Tribunals will,  however, continue to act as the only courts of first  instance in respect of the areas of law for which they  have been constituted. By this, we mean that it will not  be open for litigants to directly approach the High  Courts even in cases where they question the vires of  statutory legislations (except, as mentioned, where the  legislation which creates the particular Tribunal is  challenged) by overlooking the jurisdiction of the  Tribunal concerned.”  

42. In Bharat Sanchar Nigam Limited v. Telecom Regulatory  

Authority of India and Ors., (2014) 3 SCC 222 [“BSNL”], this Court  

had to construe the appellate power that is contained in Section 14 of  

the Telecom Regulatory Authority of India Act, 1997, by which, the  

TDSAT was conferred with the power to hear and dispose of appeals  

against any direction, decision, or order of the TRAI. In this context,  

after distinguishing the judgment in L. Chandra Kumar (supra), this  

Court held:  

“108. Before the 2000 Amendment, the applications  were required to be filed under Section 15 which also  contained detailed procedure for deciding the same.  While sub-section (2) of Section 15 used the word

71  

“orders”, sub-sections (3) and (4) thereof used the  word “decision”. In terms of sub-section (5), the orders  and directions of TRAI were treated as binding on the  service providers, Government and all other persons  concerned. Section 18 provided for an appeal against  any decision or order of TRAI. Such an appeal could  be filed before the High Court. The Amendment made  in 2000 is intended to vest the original jurisdiction of  TRAI in TDSAT and the same is achieved by Section  14(a). The appellate jurisdiction exercisable by the  High Court is also vested in TDSAT by virtue of Section  14(b) but this does not include decision made by TRAI.  Section 14-N provides for transfer to all appeals  pending before the High Court to TDSAT and in terms  of clause (b) of sub-section (2), TDSAT was required to  proceed to deal with the appeal from the stage which  was reached before such transfer or from any earlier  stage or de novo as considered appropriate by it.  Since the High Court while hearing appeal did not  have the power of judicial review of subordinate  legislation, the transferee adjudicatory forum  i.e. TDSAT cannot exercise that power under Section  14(b).”  

xxx xxx xxx  

“114. …… From the above-extracted portion of the  order it is evident that the Bench, which decided the  matter, felt that the view taken by TDSAT would  encourage rampant violation of the orders without any  penal consequence and the entire scheme of the TRAI  Act would become unworkable. The word “directions”  used in Section 29 of the TRAI Act was interpreted to  include orders and regulations in the context of the  factual matrix of that case and the apprehension of the  Court that Section 29 would otherwise become  unworkable, but the same cannot be read as laying  down a proposition of law that the words “direction”,  “decision” or “order” used in Section 14(b) would

72  

include regulations framed under Section 36, which  are in the nature of subordinate legislation.”  

xxx xxx xxx  

“123. In Union of India v. Madras Bar Assn. [(2010) 11  SCC 1] and State of Gujarat v. Gujarat Revenue  Tribunal Bar Assn. [(2012) 10 SCC 353 : (2012) 4  SCC (Civ) 1229 : (2013) 1 SCC (Cri) 35 : (2013) 1  SCC (L&S) 56 : (2012) 10 Scale 285], this Court  applied the principles laid down in L. Chandra Kumar  case [L. Chandra Kumar v. Union of India, (1997) 3  SCC 261 : 1997 SCC (L&S) 577] and reiterated the  importance of tribunals created for resolution of  disputes but these judgments too have no bearing on  the decision of the question formulated before us.  

124. In the result, the question framed by the Court is  answered in the following terms: in exercise of the  power vested in it under Section 14(b) of the TRAI  Act, TDSAT does not have the jurisdiction to entertain  the challenge to the regulations framed by TRAI under  Section 36 of the TRAI Act.”  

In the present case, it is clear that Section 16 of the NGT Act is cast in  

terms that are similar to Section 14(b) of the Telecom Regulatory  

Authority of India Act, 1997, in that appeals are against the orders,  

decisions, directions, or determinations made under the various Acts  

mentioned in Section 16. It is clear, therefore, that under the NGT Act,  

the Tribunal exercising appellate jurisdiction cannot strike down rules  

or regulations made under this Act. Therefore, it would be fallacious to  

state that the Tribunal has powers of judicial review akin to that of a

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High Court exercising constitutional powers under Article 226 of the  

Constitution of India. We must never forget the distinction between a  

superior court of record and courts of limited jurisdiction that was, in  

the felicitous language of Gajendragadkar, C.J., in Re: Special  

Reference, (1965) 1 SCR 413, made in the following words:  

“We ought to make it clear that we are dealing with the  question of jurisdiction and are not concerned with the  propriety or reasonableness of the exercise of such  jurisdiction. Besides, in the case of a superior Court of  Record, it is for the court to consider whether any  matter falls within its jurisdiction or not. Unlike a Court  of limited jurisdiction, the superior Court is entitled to  determine for itself questions about its own jurisdiction.  “Prima facie”, says Halsbury, “no matter is deemed to  be beyond the jurisdiction of a superior court unless it  is expressly shown to be so, while nothing is within the  jurisdiction of an inferior court unless it is expressly  shown on the face of the proceedings that the  particular matter is within the cognizance of the  particular court [Halsbury’s Laws of England, vol. 9, p.  349]”.  

(at page 499)    

For this reason also, we are of the view that the State Government  

order made under Section 18 of the Water Act, not being the subject  

matter of any appeal under Section 16 of the NGT Act, cannot be  

“judicially reviewed” by the NGT. Following the judgment in BSNL  

(supra), we are of the view that the NGT has no general power of

74  

judicial review akin to that vested under Article 226 of the Constitution  

of India possessed by the High Courts of this country. Shri Sundaram’s  

strong reliance on the NGT judgment dated 17.07.2014 in Wilfred v.  

Ministry of Environment and Forests must also be rejected as this  

NGT judgment does not state the law on this aspect correctly. This  

contention is also without merit, and therefore, rejected.  

43. Shri Sundaram then argued that, in any case, this order is an  

order made by the State Government against the TNPCB, and is  

therefore, a direction to the TNPCB and not a direction to his client. If  

this were so, and the order had no effect on his client, there would  

have been no necessity to file an appeal before the NGT against such  

order. We have seen, however, that this order has been challenged on  

merits by the respondent before the NGT. To then say that this order  

which is challenged would be defended on certain grounds, as a result  

of which, the NGT then gets vested with the jurisdiction to decide the  

same, is again to put the cart before the horse. It is clear that no  

appeal is provided against orders made under Section 18 of the Water  

Act, and the attempt to bring the NGT in by the backdoor, as it were,  

would, therefore, have to be rejected. Also, to argue that as against a

75  

writ court acting under Article 226 of the Constitution of India, the NGT  

is an expert body set up only to deal with environmental matters, again  

does not answer the specific issue before this Court. As we have held  

earlier, an appeal being a creature of statute, an order passed under  

Section 18 of the Water Act is either appealable or it is not. If it is not,  

no general argument as to the NGT being an expert body set up to  

hear environmental matters can be of any help.  

44. Equally, so far as the order dated 08.08.2013 is concerned, we  

have seen how the NGT stated that the doctrine of necessity would  

take over if an appellate authority under the Act is not properly  

constituted so that no appeal can then be effectively preferred. This,  

again, is an argument that cannot be countenanced. If an appellate  

authority is either not yet constituted, or not properly constituted, a  

leapfrog appeal to the NGT cannot be countenanced. As has been  

held by us supra, the NGT is only conferred appellate jurisdiction from  

an order passed in exercise of first appeal. Where there is no such  

order, the NGT has no jurisdiction.   

76  

45. In conclusion, we are cognizant of the fact that the respondent’s  

plant has been shut down since 09.04.2018. Since we have set aside  

the impugned judgments of the NGT on the ground of maintainability,  

the order dated 22.01.2019 passed by the TNPCB, being a  

consequential order, is also set aside. The respondents are relegated  

to the position that the six orders impugned before the NGT, dealt with  

by the impugned judgment dated 15.12.2018, and the order dated  

29.03.2013, dealt with by the final judgment dated 08.08.2013, are  

alive and operative. Given the fact that we are setting aside the NGT  

judgments involved in these appeals on the ground of maintainability,  

we state that it will be open for the respondents to file a writ petition in  

the High Court against all the aforesaid orders. If such writ petition is  

filed, it will be open for the respondent to apply for interim reliefs  

considering that their plant has been shut down since 09.04.2018.  

Also, since their plant has been so shut down for a long period, and  

they are exporting a product which is an important import substitute,  

the respondent may apply to the Chief Justice of the High Court for  

expeditious hearing of the writ petition, which will be disposed of on  

merits notwithstanding the availability of an alternative remedy in the

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case of challenge to the 09.04.2018 order of the TNPCB. The appeals  

are disposed of accordingly.  

      ……………………J.                                                                                   (R.F. Nariman)      

      ……………………J.  New Delhi            (Navin Sinha)  February 18, 2019