Section 5A: Appeal to the National Green Tribunal

In one line

Before 2010 a person closed by a direction had to file a writ petition; now he has a statutory appeal.

In the wording a student can write in an examination: section 5A of the Environment (Protection) Act 1986, inserted by the National Green Tribunal Act 2010, provides that any person aggrieved by any direction issued under section 5 on or after the commencement of that Act may file an appeal to the National Green Tribunal established under section 3 of that Act, in accordance with its provisions.

Why the section was inserted

Because a direction under section 5 can close a business and there was no appeal against it. The only remedy was a writ petition under Article 226, in which the court reviews the legality of the direction and does not examine the environmental merits or the evidence.

The National Green Tribunal Act 2010 inserted appeal provisions into every one of the environmental statutes at the same time, so that a single specialist forum would hear all of them. Section 5A of this Act, section 33B of the Water Act and section 31B of the Air Act were all inserted by section 36 and the Schedule of the Act of 2010.

Reading the section

Any person aggrieved. Wider than the person to whom the direction was issued. A person affected by a direction, for example a workman or a neighbouring occupier, may be aggrieved by it.

By any direction issued under section 5. Only a section 5 direction. An order refusing consent, a penalty under section 15 and a rejection of a clearance are separate, with their own appeal routes, and it is a common error to bring them under this section.

On or after the commencement of the National Green Tribunal Act 2010. So the appeal is prospective; directions issued before 18 October 2010 were not appealable under it.

May file an appeal to the National Green Tribunal. The forum, and its own Act supplies the procedure, the limitation and the powers.

The rest of the machinery

The limitation. Under the Act of 2010 an appeal against an order or direction of an authority is to be filed within thirty days from the date on which the order or decision is communicated, and the Tribunal may allow a further period of sixty days if satisfied that there was sufficient cause for not filing within the first thirty.

The bench. At least one Judicial Member and one Expert Member, so the technical question is heard by a technical member.

The powers. The Tribunal may confirm, modify or set aside the direction, and by section 20 of its Act it must apply the principles of sustainable development, the precautionary principle and the polluter pays principle in passing any order.