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TMI Blog2023 (7) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : "Summary of of Ash Generation and Utilization during year 2020-21 No. of Thermal Power Stations 191 Capacity (MW) 2,13,030 MW Coal Consumed 672.130 Million Tonnes Fly Ash Generation 222.789 Million Tonnes Fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 has not appeared in these cases. In the circumstances, the appeals have been heard and decided, by taking into consideration, the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 xxx 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 xxx Coal Mines of M/s North ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." 13. Furthermore, in Kantha Vibhag (supra), this Court had criticized the practice of delegation of core adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplain 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. 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. ..... 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