NATIONAL GREEN TRIBUNAL CANNOT PASS DIRECTIONS RELYING ON RECOMMENDATIONS OF EXPERT COMMITTEE WITHOUT GIVING PARTIES A CHANCE TO REBUT IT

[Mr. M. GOVINDARAJAN]

Section 3 of the National Green Tribunal Act, 2010 (‘Act’ for short) provides for the establishment of National Green Tribunal by the Central Government.  Section 14 of the Act gives powers to the National Green Tribunal (‘NGT’ for short) to settle the disputes relating to environment, including enforcing of any legal right relating to environment, is involved.  Section 15(1) of the Act provides that the NGT may, by an order, provide,-

• relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
• for restitution of property damaged;
• for restitution of the environment for such area or areas,

as the NGT may think fit.

Section 19 of the Act provides that the NGT shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.  Subject to the provisions of this Act, the NGT shall have power to regulate its own procedure.

In SINGRAULI SUPER THERMAL POWER STATION VERSUS ASHWANI KUMAR DUBEY & ORS. - 2023 (7) TMI 534 - SUPREME COURT ,  the appellants filed the present appeal before the Supreme Court against the order passed by the National Green Tribunal (‘NGT’ for short), Principal Bench, New Delhi, dated 18.01.2022.  In the said order the NGT issued some directions on the appellants on the basis of the report of ‘Fly ash Management and Utilization Mission’ constituted by the NGT.  The said mission was headed by the Secretaries, MOEF & CC, Coal and Power, Government of India and Chief Secretaries of Uttar Pradesh and Madhya Pradesh.  The NGT further directed that 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 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.

The NGT further directed that 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.   Statutory 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 are taken by the statutory regulators In accordance with law.

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.

The appellants submitted the following before the Supreme Court-

• The proceedings of the NGT are judicial proceedings and compliance of principles of natural justice is a hallmark of all judicial proceedings.
• The NGT was well within its powers to const 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.
• Section 19(1) of the Act 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.
• In the instant case, there has been gross violation of the principles of national justice on two counts-

• 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 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.

The appellants 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 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.

The Supreme Court considered the facts of the case and the submissions of the appellants.  The Supreme Court observed that 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.   The procedure adopted by the NGT is an instance of violation of the principles of natural justice.

The Supreme Court further observed that the recommendations made by an expert Committee are not binding on the matter.  The Supreme Court further differentiated 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.  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. Allowing for objections to be raised and considered makes the process fair and participatory for all stakeholders.

The NGT has, in the present case, abdicated its jurisdiction and entrusted judicial functions to an administrative expert committee.  In the instant case the Supreme Court found that the report of the expert Committee as well as the recommendations has been made the basis of the directions and such an approach is improper.

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 re the NGT were not given an opportunity to file their objections to the recommendations 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. The Supreme Court set aside the order of NGT.  The Supreme Court remanded the matter to NGT for re-consideration from the stage of the recommendations filed by the expert Committee constituted by the NGT.  The appellant(s) 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.