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Report No. 186

Appeals to Supreme Court will persuade High Court not to interfere normally on the principle of 'alternative effective remedy'

As stated earlier, the proposal for a statutory appeal to the Supreme Court of India, both on fact and law, will be an important reason as to why the High Court will not normally interfere with the orders of the Environment Court. The case in L. Chandra Kumar vs. Union of India, AIR 1997 SC 1125 referred to earlier, is distinguishable because there the statute (the Administrative Tribunals Act) made under Article 323A sought to transfer judicial review power of the High Courts under Article 226 to a statutory Tribunal and excluded the power of the High Court to interfere.

Further, the statutes of the Administrative Tribunals Act did not provide for any statutory appeal to the Supreme Court in the manner we are now proposing. It was because of the above scheme of that Act, the Supreme Court felt that the powers of the High Court under Article 226, 227, which are part of the 159basic structure of the Constitution, could not be taken away and, therefore, the orders of the Administrative Tribunal would be amenable to Article 226 before our Division Bench.

The above decision does not apply here inasmuch as our proposal is not to take away any judicial review powers of the High Court either specifically or remotely, nor to vest such powers in the proposed Courts. Firstly, the proposed Court is a Civil Court with original jurisdiction in environmental matters and an appellate jurisdiction against orders passed by public authorities under three enactments (or other enactments to be notified). Secondly, we are proposing an affective alternative remedy of a statutory appeal to the Supreme Court on law and fact. The Court which we are proposing is not a Tribunal under Article 323A nor one under Article 323B, even on the basis that the list of subjects referred to in Article 323B for constituting such special Tribunals is not exhaustive.

We may point out that the Monopolies and Restrictive Trade Practices Act, in section 55 provides appeals against the orders of the Commission to the Supreme Court. Likewise, section 130E of the Customs Act, 1962 and section 35L of the Central Excise and Salt Act, 1944 provides for appeal to the Supreme Court. The Consumer (Protection) Act, 1986 provides appeal for the District Forum to the State Forum and from the State Forum to the National Forum. From National Forum judgments in certain cases, appeal lies to Supreme Court.

The High Courts, within whose territorial jurisdiction these Courts are located do not normally entertain writ petitions. Further, it is held that they will not ordinarily interfere under Article 226 or 227 in respect of order of Consumer fora because the Consumer (Protection) Act, 1986 provides an effective alternative remedy of appeal. (see long list of judgments of High Court referred to in Commentary on the 160Act by J.N. Barowalia (2nd Ed., 2000) (pp. 195 to 206) and Commentary by Shri Dilip K. Sheth (2001) (pp.66 to 69).

The Supreme Court has held, in a number of cases, that High Court will not normally interfere if there is an effective alternative right of appeal: S. Jagadeesan vs. Ayya, AIR 1984 SC 1512 ; Titagarh Paper Mills vs. State of Orissa, AIR 1983 SC 603.

Apart from this, when issues of environment raise serious disputes of fact, where oral as well as expert evidence is necessary, the High Courts are ill-suited to decide the issues on the basis of affidavits alone: Jai Singh vs. Union of India, AIR 1977 SC 898; Than Singh vs. Supat, AIR 1964 SC 1419. It is, therefore, proposed that appeals against the orders of the Environmental Court shall lie to the Supreme Court of India.

We are here adopting the appeal procedure that was contained in section 24 of the National Environment Tribunal Act, 1995. Further, the scheme of the Consumer (Protection) Act, the Monopolies and Restrictive Practices Act, Customs and Excise Act, Companies Act and other statutes is similar, where a right of appeal direct to the Supreme Court is given. Appeals under the proposed Act must be on fact and law.

This is a legislation by Parliament under Article 253 of the Constitution for the purpose of implementing the decisions in regard to protection to environment taken in the Stockholm Conference, 1972 and the Rio de Janeiro Conference of 1992 and in national interest. Further, the Courts are 161appellate bodies for purpose of Central Acts, Water Act, 1974, Air Act, 1985, Environment (Protection) Act, 1986 etc. Therefore, it is the duty of the Parliament to provide for the establishment of additional Courts and the Central Government has to bear the cost of establishing and maintaining these Courts under Article 247 of the Constitution of India. Article 247 reads thus:

"Article 247. Power of Parliament to provide for the establishment of certain additional Courts: Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any additional Courts for the better administration of laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List."

These Courts obviously come within the words in the first part of the last clause of Article 247, namely, "better administration of laws made by Parliament". (The second part of the clause deals with existing laws as on 26.1.50 which are with respect to matters in List I). There can be Environment Court for more than one State as stated earlier. Union Territories could avail of the Court in the neighbouring State. Delhi can have a separate Court.

We, therefore, recommend that a law be made by Parliament under Article 253 for constitution of Environmental Courts in each State (or group of States) having original and appellate jurisdiction as stated in this Chapter and having jurisdiction on environmental issues. The Courts will be manned each by three members with judicial or legal experience as stated 162and a panel of expert Commissioners. An appeal against the judgment shall be to the Supreme Court of India. The procedure to be followed by the Court will be as stated in this Chapter.

Other formal provisions like power of appointment of staff, rulemaking power, laying in the Houses of Parliament, can be made on the same lines as those contained in the recent amendment to Companies Act, 2002 or as in the Administrative Tribunals Act, 1985.



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