After Nudge From Apex Court, Kerala High Court Vacates Its Stay On NGT's Order That Was Upheld By Apex Court

The Kerala High Court on Friday refused to extend its interim order of stay on the order passed by the National Green Tribunal (NGT) (Southern Zone) which had been upheld twice by the Supreme Court. Its order refusing to extend the interim order does not mention what weighted with it while granting or extending the interim order on earlier occasions. 

The Kerala High Court has however kept the writ petition pending, which challenges the order confirmed by the Apex Court.

Justice Viju Abraham of the Kerala High Court said in its order that "the interim order granted in both the writ petitions i.e., W.P(C) No.13221 of 2022 and W.P(C) No.17340 of 2022 on 15.06.2022 and subsequently extended, is not liable to be extended further and the request for extending the interim order in both the writ petitions is accordingly declined". 

This happened after the intervention of the Supreme Court, which had asked the Registrar General of the High Court to place the order passed by it in the SLP, before the bench of Kerala High Court adjudicating the matter.

The High Court had earlier stayed the order passed by the NGT which the Supreme Court upheld twice, once while dismissing the SLP through a speaking order and thereafter while dismissing a review petition against that order. Highlighting the lack of "judicial discipline", Advocate Yeshwant Shenoy had approached the Apex Court.

On March 24, 2023, the Supreme Court's bench of Justice M.R. Shah and Justice C.T. Ravikumar ordered, "It is reported that the proceedings before the High Court are conducted on day to day basis and the interim order passed by the High Court staying the order passed by the NGT dated 27.05.2021 has been issued which shall be in the teeth of the order passed by this Court dismissing the appeal as well as the review. Therefore, the Registry is directed to communicate these orders to the Registrar General of the High Court to place the present order before the High Court in the pending proceedings which may be taken into consideration by the High Court while hearing the proceedings before it and while extending the stay granted earlier staying the order passed by the NGT dated 27.05.2021 against which the Civil Appeal was preferred before this Court which came to be dismissed and subsequently the review application also came to be dismissed."

The Single Bench of the High Court in its order has stated that the Registry had placed before it the order passed by the Apex Court.

"In view of the fact that the order impugned in these writ petitions has been challenged unsuccessfully by filing an appeal and a review petition before the Hon’ble Apex Court, I am of the opinion that the interim order granted in both the writ petitions ..... and subsequently extended, is not liable to be extended further and the request for extending the interim order in both the writ petitions is accordingly declined", the Single Bench said in its order.

The Petitioners relied on the judgement of in the matter of State of Andhra Pradesh v. Reghu Ramakrishna Raju Kanumuru, (2022) 8 SCC 156 to contend that "there is primacy of orders of High Court over those of the statutory Tribunals and in case of conflicting orders passed by the National Green Tribunal and the High Court, it is the order passed by the Constitutional Court which would prevail over the orders passed by the Statutory Tribunals." 

Further, they submitted that as per the judgment in the matter of Madhya Pradesh High Court Advocates Bar Association & Anr. v. Union of India & Anr., 2022 (3) KLT 474, the High Court can entertain a challenge against the order passed by the National Green Tribunal. They contended that the "jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India and the power of judicial review remains intact and unaffected by the National Green Tribunal Act."

It appears from the order that the Petitioners did not answer the contention that the NGT's order merged with the order of the Apex Court while it dismissed the SLP against NGT's order and thereafter dismissed a review petition also.

Background: The NGT, by an order dated May 27, 2021, had declared the mining carried out by one M.D. Kuriakose in the name and style of 'cochin granites' was illegal and had directed the mining department to impose environmental damages.

The order of the NGT was challenged by the said M.D. Kuriakose and the Supreme Court by an order dated August 16, 2021, dismissed the SLP stating that "there is no error of fact or law in the order of National Green Tribunal". A review petition was filed to review the said order by the same individual and that was also dismissed by an order stating, "Court has carefully gone through the review petition and the connected papers and we find no merit in the review petition".

Thereafter, the State of Kerala filed a writ petition against the said order of NGT and obtained an interim stay of the NGT's order and subsequently, the stay was extended on multiple occasions.

Advocate Yeshwant Shenoy in the SLP before the Supreme Court had contended that "advocates who were aware of this gross violation kept silent when it was their duty to speak up. These advocates attributed their silence to the fear of victimisation by the State, the law officers of the State and even the Judges, because many had reason to believe that the Judges were involved too".

Case Title: State Of Kerala, Rep. By Its Principal Secretary To Government v. Shefy Joseph, D/O Late M.P. Joseph WP(C) NO. 13221 OF 2022

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