[Environment Protection Act] Can NGT hear constitutional challenge to notification under Section 3? Supreme Court to examine

The Supreme Court is set to examine whether the National Green Tribunal (NGT) can hear constitutional challenges to notifications issued under Section 3 of the Environment Protection Act [Vanashakti and anr vs Union of India and ors]..A Bench of Justices L Nageswara Rao and BR Gavai issued notice on a special leave petition (SLP) challenging a Bombay High Court judgment that dismissed a PIL challenging the Coastal Regulation Zone (CRZ) Notification of 2019.The petitioners moved the instant appeal seeking interim relief to stay the High Court judgment as well the 2019 CRZ notification, apart from restraining the respondent authorities from giving permissions under the said notification. The petition, filed through advocate A Karthik, is by a Mumbai-based non-governmental organisation, Vanashakti, working towards environmental conservation..The Bombay High Court had dismissed the petitioner's plea, saying it was beyond the limitation period, but added it was free to move the NGT seeking changes to the Coastal Zone Management Plan that had been finalised during the course of the hearing. The PIL had, among other things, pointed to the relaxed norms for environment impact assessment, floor space index rules, slum rehabilitation and mangrove buffer areas. The notification had been challenged as being a disproportionate measure that is arbitrary.The High Court had said that the NGT was the right authority to approach towards the reliefs sought in the PIL, since the CRZ notifications were not delegated legislation but administrative orders in pursuance of the Environment Protection Act. This led to the present appeal before the Supreme Court.The appellants have contended that the reasoning is against the ratio of the Supreme Court decision in Alembic Pharmaceuticals v. Rohit Prajapati & Ors where it was held that the NGT does not have jurisdiction to hear a challenge to a notification under Section 3 of the Environment Protection Act.Notifications issued under Section 3 read with the Environment Protection Rules cannot be subject to judicial review by a tribunal created under statute, the plea before Supreme Court said.The petitioners argued that while the notification was issued in 2019, it came into effect much later and subsequently the pandemic arose. They were aggrieved with the PIL being dimissed and the remedy being limited to moving the Tribunal for changes in the CZMP. .The following questions of law were raised in the SLP:"A. Whether the NGT has jurisdiction/authority/power to decide whether Regulations made under Section 3 of the Environment Protection Act (“EPA”) e.g. the CRZ Notification are unconstitutional and/or ultra-vires?B. Whether the NGT has jurisdiction to decide a constitutional challenge to a Notification under Section 3 of the EPA were challenged on the basis that they violate Articles 14 and 21 of the Constitution of India?C. Whether per contra, only High Courts can decide the issues/questions set out in (A) and (B) above?D. Whether Regulations made under Section 3 of the EPA (e.g. the CRZ Notification, EIA Notification etc.) are “delegated legislation” or merely “administrative orders”?E. Whether the Bombay High Court, after having declined to exercise jurisdiction on the stated basis that the NGT had jurisdiction to decide the challenge raised in the P.I.L could (and/or should) have granted liberty to the Petitioners to approach the NGT only with respect to the challenge to the CZMP Plans and not the CRZ Notification?F. Whether the impugned judgment is contrary to the judgment in Alembic Pharmaceuticals v. Rohit Prajapati & Ors. (2020 SCC OnLine SC 347)?G. Whether the Bombay High Court, after having held that the NGT could decide the challenge raised in the PIL and therefore declining to exercise jurisdiction, ought not to have then decided or concluded that the challenge to the CRZ Notification was barred by delay and laches: the effect of this conclusion would be to make the challenge before the NGT meaningless and/or its results foregone?H. Whether in light of Clause 6 (i) of the CRZ 2019 (which stipulates that until the provisions of the CZMP are updated the provisions of CRZ 2019 will not apply and CRZ 2011 will continue to be followed), the Public Interest Litigation could be considered as barred by delay and laches when the provisions of the CRZ 2019 had come into operation only on 29th September 2021 with the preparation of the CZMPs for Mumbai?".Senior Advocate Venkatesh Dhond and advocates A Karthik, Akash Rebello and Zaman Ali appeared for the petitioners. .Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.