SINGRAULI SUPER THERMAL POWER STATION versus ASHWANI KUMAR DUBEY & ORS
[2023] 10 S.C.R. 440, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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SINGRAULI SUPER THERMAL POWER STATION
v.
ASHWANI KUMAR DUBEY & ORS.
(Civil Appeal No. 3856 of 2022)
JULY 05, 2023
[B. V. NAGARATHNA AND
PRASHANT KUMAR MISHRA, JJ.]
National Green Tribunal Act, 2010 – s. 19(1) – Non-compliance
of principles of Natural justice – Opportunity not given to file
objections to the recommendations made by the Committee – NGT
constituted an expert committee and sought a report regarding the
alleged violations complained by the first respondent – However,
opportunity to raise objections to the report not given to appellants
– Held:It is apparent that the appellants were not given an
opportunity to file their objections to the recommendations made
by the Committee constituted by the NGT which is apparent by the
fact that the recommendations were uploaded on 15.01.2022 and
the final order of the NGT was passed three days later on, i.e.
18.01.2022 – Thus, this is a clear case of there being non compliance
with the principles of natural justice – NGT though is a special
adjudicatory body constituted by an Act of Parliament, nevertheless,
the discharge of its function must be in accordance with law which
would also include compliance with the principles of natural justice
as envisaged in s.19(1) of the Act – Therefore, the impugned order
set aside, matter is remanded to the NGT for re-consideration from
the stage of the recommendations filed by the expert Committee
constituted by the NGT.
Doctrines/Principles – ‘Official notice’ – A device used in
administrative procedure – The data on which an authority is acting
must be apprised to the party against whom the data is to be used
as such a party would then have an opportunity not only to refute it
but also supplement, explain or give a different perspective to the
facts upon which the authority relies.
Allowing the appeals, the Court
HELD: 1. That the NGT is a judicial body and therefore
exercises adjudicatory function. The very nature of an
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adjudicatory function would carry with it the requirement that
principles of natural justice are complied with, particularly when
there is an adversarial system of hearing of the cases before the
Tribunal or for that matter before the Courts in India. The NGT
though is a special adjudicatory body constituted by an Act of
Parliament, nevertheless, the discharge of its function must be
in accordance with law which would also include compliance with
the principles of natural justice as envisaged in Section 19(1) of
the Act. [Para 15][455-B-C]
2. In this context, it would be useful to refer to what is
known as the ‘official notice’ doctrine, which is a device used in
administrative procedure. Although an authority can rely upon
materials familiar to it in its expert capacity without the need
formally to introduce them in evidence, nevertheless, the parties
ought to be informed of materials so noticed and be given an
opportunity to explain or rebut them. The data on which an
authority is acting must be apprised to the party against whom
the data is to be used as such a party would then have an
opportunity not only to refute it but also supplement, explain or
give a different perspective to the facts upon which the authority
relies. This has been explained by Schwartz in his work on
Administrative Law. The aforesaid doctrine applies with greater
force to a judicial / adjudicatory body. Therefore, applying the
aforesaid principle to the cases that come up before
the NGT, if
the NGT intends to rely upon an expert Committee report or any
other relevant material that comes to its knowledge, it should
disclose in advance to the party so as to give an opportunity for
discussion and rebuttal. Thus, factual information which comes
to the knowledge of NGT on the basis of the report of the
Committee constituted by it, if to be relied upon by the NGT,
then, the same must be disclosed to the parties for their response
and a reasonable opportunity must be afforded to present their
observations or comments on such a report to the Tribunal. [Para
16][455-D-H]
3. It is needless to observe that the experts’ opinion is
only by way of assistance in arriving at a final conclusion. But, in
the instant case the report of the expert Committee as well as
the recommendations have been made the basis of the directions
and such an approach is improper. [Para 17][456-A-B]
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS.
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4. This Court has perused the impugned order of the NGT.
It is apparent that the appellant(s) herein who were respondents
before the NGT were not given an opportunity to file their
objections to the recommendations made by the Committee
constituted by the NGT which is apparent by the fact that the
recommendations were uploaded on 15.01.2022 and the final
order of the NGT was passed three days later on, i.e. 18.01.2022.
Thus, this is a clear case of there being non compliance with the
principles of natural justice. On the said ground alone the
impugned order is set aside, the matter is remanded to the NGT
for re-consideration from the stage of the recommendations filed
by the expert Committee constituted by the NGT. [Para 18][456-
B-D]
Sanghar Zuber Ismail vs. Ministry of Environment,
Forest and Climate Change and Another (2021) SCC
Online SC 669; Kantha Vibhag Yuva Koli Samaj
Parivartan vs. State of Gujarat 2022 SCC online SC
120; Madhyamam Broadcasting Limited v. Union of
India (2023) SCC Online 366 – relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.3856
of 2022.
From the Judgment and Order dated 18.01.2022 of the National
Green Tribunal, Principal Bench, New Delhi in Original Application
No.164 of 2018.
With
Civil Appeal Nos.4529, 4525 And 4581 of 2022.
Tushar Mehta, Solicitor General, Sanjay Jain, Sr. Adv., Adarsh
Tripathi, Ajitesh Garg, Ms. Alka Sinha, Anuvrat Sharma, Ashish Prasad,
Ms. Mukta Dutta,
Mahfooz Ahsan Nazki, Pruthvi Dhinoja, Ashwani
Kumar Dubey, Shailesh Madiyal, Sudhanshu Prakash, Advs. for the
Appellant.
Ms. Aishwarya Bhati, A.S.G., Gurmeet Singh Makker, Dr. Arun
Kumar Yadav, Ms. Deepabali Dutta, Divyansh H. Rathi, Devashish
Bharukha, Ms. Rukhmini Bobde, Ms. Manisha Chava, Ms. Poornima
Singh, Ms. Sthavi Asthana, Mrs. Swarupama Chaturvedi, Ms. Saumya
Kapoor, Advs. for the Respondents.
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The Judgment of the Court was delivered by
NAGARATHNA, J.
Since the grievances ventilated by the appellant(s) in these appeals
are common, they have been clubbed and heard together and are disposed
of by this common judgment.
2. The appellants(s) herein are aggrieved by the order passed by
the National Green Tribunal, Principal Bench, New Delhi (hereinafter
referred to as “NGT” for the sake of convenience) dated 18.01.2022.
By the said order the following directions have been issued against the
appellant(s) herein:-
“Directions:
21. In the light of above discussion, it is patent that remedial
measures are required in terms of recommendations set out in
para 15 above in respect of individual TPPs or other projects as
well as general issues applicable to all the TPPs such as timely
installation of air pollution control and monitoring devises, timely
utilization and disposal of fly ash, scientific designing of fly ash
dykes and safety norms, addressing public health issues, steps for
restoration of deteriorated environment by bringing down CEPI
scores in the entire area, restoration of Rihand Reservoir and
other damaged/degraded areas, providing arrangement for public
health facilities, including water supply and by coordinated and
concerted efforts and high level monitoring. The PP are to be
accountable for past violations and are under obligation to remedy
the violations and follow the norms for future. The regulators are
to enforce the same and higher
authorities are to oversee.
Accordingly, following direction are issued:
i. We direct constitution of a fly ash management and utilization
Mission to be jointly headed by the Secretaries, MoEF&&CC,
Coal and Power, GoI and Chief Secretaries of UP and MP. The
Secretary, MoEF&CC will be the nodal agency for coordination
and compliance. The Mission will coordinate and monitor issues
relating to handling and disposal of flyash as well as all associated
issues in the light of above discussion. It may hold its first meeting
within one month to take stock of the situation and to prepare
action plan in the light of recommendations of Joint Committees
quoted earlier in para 15 above in respect of individual plants as
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well as road map generally. Thereafter, it may meet atleast once
in a month for one year to review the progress. The resolutions of
the Mission and quarterly progress may be placed on the website
of MoEF&CC for information of the stake holders and inhabitants
in the area. The Mission will be free to interact with the concerned
Government Departments/ Expert institutions/individuals/other
stakeholders. The Mission may in its first meeting require voluntary
financial contribution by all the projects in proportion of the financial
capacity of the projects out of CSR funds or otherwise. The
contribution, alongwith compensation which may be collected may
be credited to a separate environment restoration account for
restoration of environment and relief to the victims of damage to
the environment in such manner as may be found necessary by
the Mission. Any victim or aggrieved party will be free to approach
the Mission for providing such relief. The Mission may also consider
the safeguards laid down in the Notification dated 31.12.2021,
particularly for safety audits of sh dykes which should be conducted
particularly for structural stability, as far as possible within six
months. Advisory issued by the Ministry of Power dated 22.9.2021
will not be enforced being against the spirit of notification dated
31. 12.2021 and obstructing much needed speedy utilisation/
disposal of legacy flyash. The Mission may evolve mechanism
for
interaction with stake holders, including associations of brick
kiln owners. Guidelines be also issued for siting, design and
engineering standards for the location, disposal, maintenance and
regulation of Ash Ponds as breach of a fly ash pond result in great
disaster. Public health and risk impact assessment in the areas of
operation of TPPs and generators of fly ash may be got conducted.
The Mission may also monitor scientific management and utilization
of fly ash by power projects outside Singrauli and Sonebhadra, in
coordination with Chief Secretaries of concerned States and
adopting safety measures for ash dykes, installing devices to control
air pollution, (including FGDs, OCEMS) in a time bound manner
and restoration of environment and public health. The Mission
may also consider use of beneficiated coal. It may in particular
consider on-site and off-site crisis management plans with regard
to fly ash ponds and dykes. As noted earlier, legacy fly ash is
1670.602 Million Tonnes as on.31.12.2021 and data of ash
generation and utilization of legacy fly ash is as follows:
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“Summary of of Ash Generation and Utilization during year 2020-
21
The Committee of Secretaries, in coordination with PPs and
statutory regulators, may draw a road map for utilization and
disposal of entire legacy fly ash for Sonebhadra and Singrauli
areas as well as for all the Power Plants located in clusters or
standalone with tagging the sources to utilize fly ash on voluntary
and compulsion mode for which required mechanism be laid down.
ii. With regard to past violations, the PPs remain liable and the
Joint Committee of CPCB, State PCB and jurisdictional District
Magistrates may determine compensation following due process,
on the principles laid down inter alia in M.C. Mehta, (1987) 1 sec
395, Sterlite (2013) 4 sec 575 and Goel Ganga (2018) 18 SCC
257, having regard to the period of violation and financial capacity
of the unit. The PPs may take remedial measures as per
recommendations of the Committee and as per law, failing with
coercive measures for continuing or future violations be taken by
concerned authorities.
iii. Statutoiy regulators may take action in terms of need for
compliances in the light of recommendations with regard to
individual Plants as well as generally so as to require the concerned
PPs to comply, failing which coercive measures be taken by the
statutory regulators In accordance with law.
iv. In respect of incident dated 10.04.2020, compensation paid to
heirs of the deceased at the rate of Rs. 10 lakhs per death is
increased
to Rs. 15 lakhs on principles laid down inter alia in Sarla
Verma (2009) 6 SCC 121 and Uphaar Cinema (2011) 14 SCC
481. We direct the remaining amount to be paid within one month.
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]
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This order will not debar the heirs of the victims to claim higher
compensation by approaching appropriate forum. If the salaries
to persons appointed as compensation to the victims are below
minimum wages, the PP may ensure compliance of law on the
subject which may be also looked into by the concerned Labour
Departments of the State of UP and MP. The statutory regulators
may take further remedial action in terms of recommendations of
the Committee in OA 148/2020, quoted earlier for restoration of
environment and preventing such incidents.
v. With regard to breach of Rihand Reservoir also, further remedial
measures be taken in terms of recommendations on the subject,
quoted in para 15 above.
All the matters (including IAs) will stand disposed of accordingly.
If any grievance survives, aggrieved parties are free to take
remedies as per law.
A copy of this order be forwarded to the Secretaries, MoEF&CC,
Coal and Power, GoI and Chief Secretaries of UP and MP, CPCB,
State PCBs, SEIAAs, PCCFs (HoFF) UP and MP, District
Magistrates, Singrauli and Sonebhadra, Labour Commissioners,
UP and MP, State Disaster Management Authorities of UP and
MP and SSPs by e-mail for compliance. CPCB may also circulate
the same by email to all TPPs or other concerned to facilitate
compliance.
Adarsh Kumar Goel, CP
Sudhlr Agarwal, JM
Brijesh Sethi, JM
Prof. A. Senthil Ve!, EM
Dr. Afroz Ahmad, EM
January 18, 2022
3. Being aggrieved by the
directions issued by the NGT and the
manner in which the original petition has been disposed of, the appellants
have filed these appeals.
4. At this stage itself it may be noted that the first respondent, the
original applicant before the NGT has been served in all the cases and
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has not appeared in these cases. In the circumstances, the appeals have
been heard and decided, by taking into consideration, the submissions of
the learned counsel appearing for the appellants herein.
5. Learned Solicitor General appearing for the appellants in C.A.
No.3856/2022 at the outset submitted that the proceedings of the NGT
are judicial proceedings and compliance of principles of natural justice is
a hallmark of all judicial proceedings. That in the instant case, while the
NGT was well within its powers to constitute an expert Committee and
to seek a report with regard to the alleged violations complained of by
the first respondent herein, on receipt of the said report, it was necessary
that the alleged violators were given an opportunity to object to the said
report and after consideration of the objections, the NGT ought to have
passed a considered order and issued only those directions which were
appropriate having regard to the facts of each industry that was made a
respondent before the NGT.
He further submitted that Section 19(1) of the National Green
Tribunal Act, 2010 (hereinafter referred to as the “Act” for the sake of
convenience) categorically states that the Tribunal, though not bound by
the procedure laid down by the Code of Civil Procedure, 1908, shall
nevertheless be guided by the principles of natural justice.
According to learned Solicitor General in the instant case, there
has been gross violation of the principles of
national justice on two counts:
firstly, the report of the Committee constituted by the NGT and the
recommendations made by the said Committee could not be objected to
by the appellant(s) herein as there was hardly any time given to the
appellants to even peruse the same. In this regard, he drew our attention
to the fact that the report and the recommendations of the Committee
constituted by the NGT were put up on the website of the NGT on
15.01.2022 and three days thereafter i.e., on 18.01.2022 the impugned
directions have been issued. Secondly, he submitted that the fact that in
such a short span of time the matters were considered and disposed of
by the NGT, in the absence of there being objections filed by the appellants
herein nor having heard the appellants herein, would also imply that there
has been no consideration by the NGT of the pros and cons vis-a-vis
the recommendations made by the expert Committee and as to whether
the directions issued were appropriate to the case of each of the
appellant(s) herein or not.
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]
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It was submitted that had the appellants herein had an opportunity
of filing their objections to the recommendations made by the Committee
constituted by the NGT and had the appellants been heard in the matter,
possibly appropriate directions could have been issued as against the
appellant(s) herein.
In conclusion, learned Solicitor General submitted that the
impugned order may be set aside and the matter may be remanded to
the NGT for re-consideration of the entire case of the first respondent
herein in compliance with the principles of natural justice, that is, firstly
by giving an opportunity to the appellants herein to file their objections, if
any, to the recommendations of the Committee constituted by the NGT
and secondly, by giving a further opportunity of hearing to the appellants
herein.
In this regard, learned Solicitor General relied upon a decision of
this Court in Sanghar Zuber Ismail vs. Ministry of Environment, Forest
and Climate Change and Another reported in (2021) SCC Online SC
669.
6. Learned senior counsel Mr. Sanjay Jain and Mr. Nazki adopted
the submissions of learned Solicitor General and also contended that the
manner in which the original petition has been disposed of by the NGT in
these cases was in gross violation of the principles of natural justice. In
this regard, reliance is also placed on another decision of this Court in
case of Kantha Vibhag Yuva Koli Samaj Parivartan vs. State of
Gujarat reported in 2022 SCC online SC 120.
7. The other learned counsel who have appeared, brought to our
notice that in the instant case, there were two reports filed and therefore,
it was all the more necessary that the said reports had to be considered
in order to examine as to whether there were contradictions in them and
were in accordance with law.
8. Learned ASG appearing for the respondent No.2 as well as
other learned counsel for private respondents also supported the
arguments of learned Solicitor General.
9. We find substance in the submissions made by learned Solicitor
General, learned senior counsel and learned counsel for the respective
parties.
As already noted, the first respondent is the contesting respondent
herein who has been served and has failed to appear in these cases.
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10. The directions issued by the NGT have been extracted
above.The aforesaid directions are in light of the recommendations made
by the expert Committee vide two reports submitted to the NGT. It is
noted that the NGT has extracted the report/s as well as the
recommendations at paragraphs 14-16 of the impugned order and has
observed as under:
“14. Points for determination are remedial action against pollution
due to failure to scientifically manage and utilise the flyash,
accountability for damage due to breach of Rihand reservoir and
due to breach of ash pond, resulting in deaths and injuries and
damage to the crops and environment. As already mentioned,
legacy fly ash is 1670.602 Million Tonnes as on 31.12.2021 which
has potential for serious damage to the environment as shown by
incidents of dyke breaches contaminating sources of water and
air pollution making industrial areas critically polluted. Air control
devices are not installed in many TPPs. There are incidents of
deaths, injuries and loss of flora and fauna.
15. We have considered the data furnished in the reports furnished
in pursuance of earlier orders of this Tribunal dated 04.11.2020 in
OA No. 117/2014, 14.07.2020 in OA No. 164/2018 and 29.6.2020
in OA No. 148/2020, including the recommendations for remedial
action. The compliance status as projected in the reports of the
Joint Committees/Oversight Committees shows huge gap in storing,
handling, management and utilization of fly ash and
consequential
continuing damage to the environment and public health. Such
huge gaps are patent from the recommendations part in the reports.
Deficiencies noted in respect of some individual TPPs appear to
be of representative nature and may exist in almost all TPPs,
unless shown otherwise on the ground and not in the form of self-
serving denial. In the light of the said recommendations, further
remedial action needs to be taken to enforce the principle of
sustainable development under section 20 of the NGT Act. The
recommendations are reproduced below:
“M/s NTPC Limited Shakti Nagar Sonbhadra:
Recommendations of the Committee
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SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]
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M/s NTPC Limited Rihand Super Thermal Power (Power
Plant)
Recommendations of the Committee
xxx
M/s Anpara Thermal Power Plant (Power Plant)
Recommendations of the Committee
xxx
M/s Anpara ‘C’ Lanco Thermal Power Station
Recommendations of the Committee
xxx
M/s Renusagar Thermal Power Plant
Recommendations of the Committee
xxx
M/s Obra Thermal Power Station (Power Plant)
Recommendations of the Committee
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Coal Mines of M/s Northern Coalfields Limited (NCL)
1. NCL Dudhichuwa Project, Sonbhadra
Recommendations of the Committee
xxx
2. NCL Bina Project, Bina, Sonbhadra
Recommendations of the Committee
xxx
3. NCL Krishna Shila Project
Recommendations of the Committee
xxx
4. M/s NCL Kakri Project, Sonbhadra
Recommendations of the Committee
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xxx
5. NCL Khadia Project Sonbhadra
Recommendations of the Committee
xxx
Aluminum Smelter: M/s HINDALCO Industries Ltd.,
Renukoot, Sonbhadra
Recommendations of the Committee
xxx
M/s Grasim Industries Limited Chemical Division,
Renukoot, Sonbhadra
Recommendations of the Committee
xxx
M/s Birla Carbon India Pvt. Ltd., Renukoot, Sonbhadra
Recommendations of the Committee
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Stone Crusher
Recommendations of the Committee
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A. Thermal Power Plants (TPPs) and Industries
B. Coal Mines of M/s Northern Coalfields Limited (NCL)
C. Stone Crushers
Recommendations”
16. From the above, it is seen that there is a long way to go for
protecting environment and public health. The failures of the TPPs
are alarming. We find no reason not to accept all the
recommendations and to direct remed1al action. Thus, all
recommendations are accepted and further remedial action is
directed to be taken by the statutory regulators which also be
overseen by the joint Committees of CPCB, State PCB and the
jurisdictional District Magistrates, with CPCB and State PCBs
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being nodal agencies. Quarterly reports may now be filed with
the MoEF&CC to be considered by the Coordinating Committee
being hereby constituted.”
11. In other words, the NGT has simply accepted the
recommendations as remedial action suggested by the Committee but
the same is in the absence of there being objections filed by the appellants
herein who were the respondents before the NGT and without giving
any hearing to them and against whom directions impugned in these
cases have been passed by the NGT. We find that the procedure adopted
by the NGT is an instance of violation of the principles of natural justice.
Section 19(1) of the NGT Act, 2010 reads as under:
“19.(1) The Tribunal shall not be bound by the procedure laid down
by the Code of Civil Procedure, 1908 (5 of 1908) but shall be
guided by the principles of natural justice.”
At this stage, we may also observe that the recommendations
made by an expert Committee are not binding on the NGT, they are only
by way of assistance to enable the NGT to arrive at a correct decision in
the matter.
12. In this regard reliance may be placed on paragraph 7 and 8 of
the judgment of this Court in Sanghar Zuber Ismail (supra) wherein it
has been stated as under:
“7. Having regard to the nature of its appellate power, the NGT
has to apply its mind to the substantive grounds of challenge. The
NGT has merely based its conclusion on the statement which has
been made by the
project proponent and has not conducted an
independent appraisal of the grounds of challenge.
8... the NGT has not dealt with the substantive grounds of challenge
in the exercise of its appellate jurisdiction. Constitution of an expert
committee does not absolve the NGT of its duty to adjudicate.
The adjudicatory function of the NGT cannot be assigned to
committees, even expert committees. The decision has to be that
of the NGT. The NGT has been constituted as an expert
adjudicatory authority under an Act of Parliament. The discharge
of its functions cannot be obviated by tasking committees to carry
out a function which vests in the tribunal.”
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13. Furthermore, in Kantha Vibhag (supra), this Court had
criticized the practice of delegation of core adjudication to the joint
committee:
15. It is first important to differentiate expert committees which
are set by the courts/tribunals from those set up by the Government
in exercise of executive powers or under a particular statute. The
latter are set up due to their technical expertise in a given area,
and their reports are, subject to judicially observed restraints, open
to judicial review before courts when decisions are taken solely
based upon them. The precedents of this court unanimously note
that courts should be circumspect in rejecting the opinion of these
committees, unless they find their decision to be manifestly arbitrary
or mala fide. On the other hand, courts/tribunals themselves set
up expert committees on occasion. These committees are set up
because the fact- finding exercise in many matters can be
complex, technical and time-consuming, and may often require
the committees to conduct field visits. These committees are set
up with specific terms of reference outlining their mandate, and
their reports have to conform to the mandate. Once these
committees submit their final reports to the court/tribunal, it is
open to the parties to object to them, which is then adjudicated
upon. The role of these expert committees does not substitute the
adjudicatory role of the court or tribunal. The role of an expert
committee appointed by an
adjudicatory forum is only to assist it
in the exercise of adjudicatory functions by providing them better
data and factual clarity, which is also open to challenge by all
concerned parties. Allowing for objections to be raised and
considered makes the process fair and participatory for all
stakeholders.
16. Sections 14 and Section 15 entrust adjudicatory functions to
the NGT. The NGT is a specialized body comprising of judicial
and expert members. Judicial members bring to bear their
experience in adjudicating cases. On the other hand, expert
members bring into the decision-making process scientific
knowledge on issues concerning the environment. In Hanuman
Laxman Aroskar v. Union of India9, a two- Judge Bench of this
Court noted that the NGT is an expert adjudicatory body on the
environment. The Court held:
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“133. The NGT Act provides for the constitution of a tribunal
consisting both of judicial and expert members. The mix of
judicial and technical members envisaged by the statute is for
the reason that the Tribunal is called upon to consider questions
which involve the application and assessment of science and
its interface with the environment...
134. NGT is an expert adjudicatory body on the environment.”
17. The NGT does not have a dearth of ‘expertise’ when it comes
to the issues of environment.
18. Section 15 empowers the NGT to award compensation to the
victims of pollution and for environmental damage, to provide for
restitution of property which has been damaged and for the
restitution of the environment. The NGT cannot abdicate its
jurisdiction by entrusting these core adjudicatory functions to
administrative expert committees. Expert committees may be
appointed to assist the NGT in the performance of its task and as
an adjunct to its fact-finding role. But adjudication under the statute
is entrusted to the NGT and cannot be delegated to administrative
authorities. Adjudicatory functions assigned to courts and tribunals
cannot be hived off to administrative committees.
19. The NGT has in the present case abdicated its jurisdiction and
entrusted judicial functions to an administrative expert committee.
An expert committee may be able to assist the NGT, for instance,
by carrying out a fact-finding exercise, but
the adjudication has to
be by the NGT. This is not a delegable function. Thus, the order
impugned in the appeal cannot be sustained. The consequence of
the impugned order is to efface the meticulous exercise which
was carried out by the earlier Benches. Valuable time has been
lost in the meantime and crucial issues pertaining to the
environment in the present case have been placed on the back-
burner.”
14. In a recent landmark decision, Madhyamam Broadcasting
Limited v. Union of India (2023) SCC Online 366, the principles of
natural justice have been crystalized in the words of Hon’ble CJI-Dr
Dhananjaya Y Chandrachud as under:
“53. …The facet of audi alterum partem encompasses the
components of notice, contents of the notice, reports of inquiry,
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and materials that are available for perusal. While situational
modifications are permissible, the rules of natural justice cannot
be modified to suit the needs of the situation to such an extent that
the core of the principle is abrogated because it is the core that
infuses procedural reasonableness….”
15. A reading of the above, clearly indicates that the NGT is a
judicial body and therefore exercises adjudicatory function. The very
nature of an adjudicatory function would carry with it the requirement
that principles of natural justice are complied with, particularly when
there is an adversarial system of hearing of the cases before the Tribunal
or for that matter before the Courts in India. The NGT though is a
special adjudicatory body constituted by an Act of Parliament,
nevertheless, the discharge of its function must be in accordance with
law which would also include compliance with the principles of natural
justice as envisaged in Section 19(1) of the Act.
16. In this context, it would be useful to refer to what is known as
the ‘official notice’ doctrine, which is a device used in administrative
procedure. Although an authority can rely upon materials familiar to it in
its expert capacity without the need formally to introduce them in evidence,
nevertheless, the parties ought to be informed of materials so noticed
and be given an opportunity to explain or rebut them. The data on which
an authority is acting must be apprised to the party against
whom the
data is to be used as such a party would then have an opportunity not
only to refute it but also supplement, explain or give a different perspective
to the facts upon which the authority relies. This has been explained by
Schwartz in his work on Administrative Law. The aforesaid doctrine
applies with greater force to a judicial / adjudicatory body.
Therefore, applying the aforesaid principle to the cases that come
up before the NGT, if the NGT intends to rely upon an expert Committee
report or any other relevant material that comes to its knowledge, it
should disclose in advance to the party so as to give an opportunity for
discussion and rebuttal. Thus, factual information which comes to the
knowledge of NGT on the basis of the report of the Committee constituted
by it, if to be relied upon by the NGT, then, the same must be disclosed
to the parties for their response and a reasonable opportunity must be
afforded to present their observations or comments on such a report to
the Tribunal.
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]
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SUPREME COURT REPORTS
[2023] 10 S.C.R.
17. It is needless to observe that the experts’ opinion is only by
way of assistance in arriving at a final conclusion. But we find that in the
instant case the report of the expert Committee as well as the
recommendations have been made the basis of the directions and such
an approach is improper.
18. We have perused the impugned order of the NGT and
particularly paragraph ‘16’ which has been extracted above. It is
apparent that the appellant(s) herein who were respondents before the
NGT were not given an opportunity to file their objections to the
recommendations made by the Committee constituted by the NGT which
is apparent by the fact that the recommendations were uploaded on
15.01.2022 and the final order of the NGT was passed three days later
on, i.e. 18.01.2022. Thus, this is a clear case of there being non compliance
with the principles of natural justice. On the said ground alone the
impugned order is set aside, the matter is remanded to the NGT for re-
consideration from the stage of the recommendations filed by the expert
Committee constituted by the NGT. The appellant(s) herein are permitted
to file their objections, if they are so advised. The NGT shall consider
the objections, if any, filed to the recommendations and thereafter dispose
of the applications in accordance with law and after giving a reasonable
opportunity to all parties.
19. The appeals are allowed and disposed of in the aforesaid terms.
Pending application(s), if any, shall stand disposed of.
Ankit Gyan
Appeals allowed.
(Assisted by : Tamana, LCRA)