SINGRAULI SUPER THERMAL POWER STATION versus ASHWANI KUMAR DUBEY & ORS on 5 July 2023

[2023] 10 S.C.R.

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SINGRAULI SUPER THERMAL POWER STATION

v.

ASHWANI KUMAR DUBEY & ORS.

(Civil Appeal No. 3856 of 2022)

BJULY 05, 2023

[B. V. NAGARATHNA ANDPRASHANT KUMAR MISHRA, JJ.]

National Green Tribunal Act, 2010 – s. 19(1) – Non-complianceof principles of Natural justice – Opportunity not given to fileCobjections to the recommendations made by the Committee – NGTconstituted an expert committee and sought a report regarding thealleged 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 anDopportunity to file their objections to the recommendations madeby the Committee constituted by the NGT which is apparent by thefact that the recommendations were uploaded on 15.01.2022 andthe 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 compliancewith the principles of natural justice – NGT though is a specialEadjudicatory body constituted by an Act of Parliament, nevertheless,the discharge of its function must be in accordance with law whichwould also include compliance with the principles of natural justiceas envisaged in s.19(1) of the Act – Therefore, the impugned orderset aside, matter is remanded to the NGT for re-consideration fromFthe stage of the recommendations filed by the expert Committeeconstituted by the NGT.

Doctrines/Principles – ‘Official notice’ – A device used inadministrative procedure – The data on which an authority is actingmust be apprised to the party against whom the data is to be usedGas such a party would then have an opportunity not only to refute itbut also supplement, explain or give a different perspective to thefacts upon which the authority relies.

Allowing the appeals, the Court

HELD: 1. That the NGT is a judicial body and thereforeHexercises adjudicatory function. The very nature of an adjudicatory function would carry with it the requirement thatprinciples of natural justice are complied with, particularly whenthere is an adversarial system of hearing of the cases before theTribunal or for that matter before the Courts in India. The NGTthough is a special adjudicatory body constituted by an Act ofParliament, nevertheless, the discharge of its function must bein accordance with law which would also include compliance withthe principles of natural justice as envisaged in Section 19(1) ofthe Act. [Para 15][455-B-C]

2. In this context, it would be useful to refer to what isknown as the ‘official notice’ doctrine, which is a device used inadministrative procedure. Although an authority can rely uponmaterials familiar to it in its expert capacity without the needformally to introduce them in evidence, nevertheless, the partiesought to be informed of materials so noticed and be given anopportunity to explain or rebut them. The data on which anauthority is acting must be apprised to the party against whomthe data is to be used as such a party would then have anopportunity not only to refute it but also supplement, explain orgive a different perspective to the facts upon which the authorityrelies. This has been explained by Schwartz in his work onAdministrative Law. The aforesaid doctrine applies with greaterforce to a judicial / adjudicatory body. Therefore, applying theaforesaid principle to the cases that come up before the NGT, ifthe NGT intends to rely upon an expert Committee report or anyother relevant material that comes to its knowledge, it shoulddisclose in advance to the party so as to give an opportunity fordiscussion and rebuttal. Thus, factual information which comesto the knowledge of NGT on the basis of the report of theCommittee constituted by it, if to be relied upon by the NGT,then, the same must be disclosed to the parties for their responseand a reasonable opportunity must be afforded to present theirobservations or comments on such a report to the Tribunal. [Para16][455-D-H]

3. It is needless to observe that the experts’ opinion isonly by way of assistance in arriving at a final conclusion. But, inthe instant case the report of the expert Committee as well asthe recommendations have been made the basis of the directionsand such an approach is improper. [Para 17][456-A-B]

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A4. This Court has perused the impugned order of the NGT.It is apparent that the appellant(s) herein who were respondentsbefore the NGT were not given an opportunity to file theirobjections to the recommendations made by the Committeeconstituted by the NGT which is apparent by the fact that therecommendations were uploaded on 15.01.2022 and the finalBorder 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 theprinciples of natural justice. On the said ground alone theimpugned order is set aside, the matter is remanded to the NGTfor re-consideration from the stage of the recommendations filedCby 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) SCCOnline SC 669; Kantha Vibhag Yuva Koli SamajDParivartan vs. State of Gujarat 2022 SCC online SC120; Madhyamam Broadcasting Limited v. Union ofIndia (2023) SCC Online 366 – relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.3856of 2022.EFrom the Judgment and Order dated 18.01.2022 of the NationalGreen Tribunal, Principal Bench, New Delhi in Original ApplicationNo.164 of 2018.

With

FCivil Appeal Nos.4529, 4525 And 4581 of 2022.

Tushar Mehta, Solicitor General, Sanjay Jain, Sr. Adv., AdarshTripathi, Ajitesh Garg, Ms. Alka Sinha, Anuvrat Sharma, Ashish Prasad,Ms. Mukta Dutta, Mahfooz Ahsan Nazki, Pruthvi Dhinoja, AshwaniKumar Dubey, Shailesh Madiyal, Sudhanshu Prakash, Advs. for theAppellant.G

Ms. Aishwarya Bhati, A.S.G., Gurmeet Singh Makker, Dr. ArunKumar Yadav, Ms. Deepabali Dutta, Divyansh H. Rathi, DevashishBharukha, Ms. Rukhmini Bobde, Ms. Manisha Chava, Ms. PoornimaSingh, Ms. Sthavi Asthana, Mrs. Swarupama Chaturvedi, Ms. SaumyaKapoor, Advs. for the Respondents.H

The Judgment of the Court was delivered by NAGARATHNA, J.

Since the grievances ventilated by the appellant(s) in these appealsare common, they have been clubbed and heard together and are disposedof by this common judgment.

2. The appellants(s) herein are aggrieved by the order passed bythe National Green Tribunal, Principal Bench, New Delhi (hereinafterreferred to as “NGT” for the sake of convenience) dated 18.01.2022.By the said order the following directions have been issued against theappellant(s) herein:- “Directions:

21. In the light of above discussion, it is patent that remedialmeasures are required in terms of recommendations set out inpara 15 above in respect of individual TPPs or other projects aswell as general issues applicable to all the TPPs such as timelyinstallation of air pollution control and monitoring devises, timelyutilization and disposal of fly ash, scientific designing of fly ashdykes and safety norms, addressing public health issues, steps forrestoration of deteriorated environment by bringing down CEPIscores in the entire area, restoration of Rihand Reservoir andother damaged/degraded areas, providing arrangement for publichealth facilities, including water supply and by coordinated andconcerted efforts and high level monitoring. The PP are to beaccountable for past violations and are under obligation to remedythe violations and follow the norms for future. The regulators areto enforce the same and higher authorities are to oversee.Accordingly, following direction are issued:

i. We direct constitution of a fly ash management and utilizationMission to be jointly headed by the Secretaries, MoEF&&CC,Coal and Power, GoI and Chief Secretaries of UP and MP. TheSecretary, MoEF&CC will be the nodal agency for coordinationand compliance. The Mission will coordinate and monitor issuesrelating to handling and disposal of flyash as well as all associatedissues in the light of above discussion. It may hold its first meetingwithin one month to take stock of the situation and to prepareaction plan in the light of recommendations of Joint Committeesquoted earlier in para 15 above in respect of individual plants as A

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well as road map generally. Thereafter, it may meet atleast oncein a month for one year to review the progress. The resolutions ofthe Mission and quarterly progress may be placed on the websiteof MoEF&CC for information of the stake holders and inhabitantsin the area. The Mission will be free to interact with the concernedGovernment Departments/ Expert institutions/individuals/otherstakeholders. The Mission may in its first meeting require voluntaryfinancial contribution by all the projects in proportion of the financialcapacity of the projects out of CSR funds or otherwise. Thecontribution, alongwith compensation which may be collected maybe credited to a separate environment restoration account forrestoration of environment and relief to the victims of damage tothe environment in such manner as may be found necessary bythe Mission. Any victim or aggrieved party will be free to approachthe Mission for providing such relief. The Mission may also considerthe safeguards laid down in the Notification dated 31.12.2021,particularly for safety audits of sh dykes which should be conductedparticularly for structural stability, as far as possible within sixmonths. Advisory issued by the Ministry of Power dated 22.9.2021will not be enforced being against the spirit of notification dated31. 12.2021 and obstructing much needed speedy utilisation/disposal of legacy flyash. The Mission may evolve mechanismfor interaction with stake holders, including associations of brickkiln owners. Guidelines be also issued for siting, design andengineering standards for the location, disposal, maintenance andregulation of Ash Ponds as breach of a fly ash pond result in greatdisaster. Public health and risk impact assessment in the areas ofoperation of TPPs and generators of fly ash may be got conducted.The Mission may also monitor scientific management and utilizationof fly ash by power projects outside Singrauli and Sonebhadra, incoordination with Chief Secretaries of concerned States andadopting safety measures for ash dykes, installing devices to controlair pollution, (including FGDs, OCEMS) in a time bound mannerand restoration of environment and public health. The Missionmay also consider use of beneficiated coal. It may in particularconsider on-site and off-site crisis management plans with regardto fly ash ponds and dykes. As noted earlier, legacy fly ash is1670.602 Million Tonnes as on.31.12.2021 and data of ashgeneration and utilization of legacy fly ash is as follows:

“Summary of of Ash Generation and Utilization during year 2020-21

The Committee of Secretaries, in coordination with PPs andstatutory regulators, may draw a road map for utilization anddisposal of entire legacy fly ash for Sonebhadra and Singrauliareas as well as for all the Power Plants located in clusters orstandalone with tagging the sources to utilize fly ash on voluntaryand compulsion mode for which required mechanism be laid down.

ii. With regard to past violations, the PPs remain liable and theJoint Committee of CPCB, State PCB and jurisdictional DistrictMagistrates may determine compensation following due process,on the principles laid down inter alia in M.C. Mehta, (1987) 1 sec395, Sterlite (2013) 4 sec 575 and Goel Ganga (2018) 18 SCC257, having regard to the period of violation and financial capacityof the unit. The PPs may take remedial measures as perrecommendations of the Committee and as per law, failing withcoercive measures for continuing or future violations be taken byconcerned authorities.

iii. Statutoiy regulators may take action in terms of need forcompliances in the light of recommendations with regard toindividual Plants as well as generally so as to require the concernedPPs to comply, failing which coercive measures be taken by thestatutory regulators In accordance with law.

iv. In respect of incident dated 10.04.2020, compensation paid toheirs of the deceased at the rate of Rs. 10 lakhs per death isincreased to Rs. 15 lakhs on principles laid down inter alia in SarlaVerma (2009) 6 SCC 121 and Uphaar Cinema (2011) 14 SCC481. We direct the remaining amount to be paid within one month.

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SUPREME COURT REPORTS

AThis order will not debar the heirs of the victims to claim highercompensation by approaching appropriate forum. If the salariesto persons appointed as compensation to the victims are belowminimum wages, the PP may ensure compliance of law on thesubject which may be also looked into by the concerned LabourDepartments of the State of UP and MP. The statutory regulatorsBmay take further remedial action in terms of recommendations ofthe Committee in OA 148/2020, quoted earlier for restoration ofenvironment and preventing such incidents.

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v. With regard to breach of Rihand Reservoir also, further remedialmeasures be taken in terms of recommendations on the subject,Cquoted in para 15 above.

All the matters (including IAs) will stand disposed of accordingly.If any grievance survives, aggrieved parties are free to takeremedies as per law.

DA 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, DistrictMagistrates, Singrauli and Sonebhadra, Labour Commissioners,UP and MP, State Disaster Management Authorities of UP andMP and SSPs by e-mail for compliance. CPCB may also circulateEthe same by email to all TPPs or other concerned to facilitatecompliance.

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Adarsh Kumar Goel, CPSudhlr Agarwal, JMBrijesh Sethi, JMProf. A. Senthil Ve!, EM

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Dr. Afroz Ahmad, EM

January 18, 2022

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3. Being aggrieved by the directions issued by the NGT and themanner in which the original petition has been disposed of, the appellantshave filed these appeals.

4. At this stage itself it may be noted that the first respondent, theoriginal applicant before the NGT has been served in all the cases and H

has not appeared in these cases. In the circumstances, the appeals havebeen heard and decided, by taking into consideration, the submissions ofthe 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 NGTare judicial proceedings and compliance of principles of natural justice isa hallmark of all judicial proceedings. That in the instant case, while theNGT was well within its powers to constitute an expert Committee andto seek a report with regard to the alleged violations complained of bythe first respondent herein, on receipt of the said report, it was necessarythat the alleged violators were given an opportunity to object to the saidreport and after consideration of the objections, the NGT ought to havepassed a considered order and issued only those directions which wereappropriate having regard to the facts of each industry that was made arespondent before the NGT.

He further submitted that Section 19(1) of the National GreenTribunal Act, 2010 (hereinafter referred to as the “Act” for the sake ofconvenience) categorically states that the Tribunal, though not bound bythe procedure laid down by the Code of Civil Procedure, 1908, shallnevertheless be guided by the principles of natural justice.

According to learned Solicitor General in the instant case, therehas been gross violation of the principles of national justice on two counts:firstly, the report of the Committee constituted by the NGT and therecommendations made by the said Committee could not be objected toby the appellant(s) herein as there was hardly any time given to theappellants to even peruse the same. In this regard, he drew our attentionto the fact that the report and the recommendations of the Committeeconstituted by the NGT were put up on the website of the NGT on15.01.2022 and three days thereafter i.e., on 18.01.2022 the impugneddirections have been issued. Secondly, he submitted that the fact that insuch a short span of time the matters were considered and disposed ofby the NGT, in the absence of there being objections filed by the appellantsherein nor having heard the appellants herein, would also imply that therehas been no consideration by the NGT of the pros and cons vis-a-visthe recommendations made by the expert Committee and as to whetherthe directions issued were appropriate to the case of each of theappellant(s) herein or not.

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AIt was submitted that had the appellants herein had an opportunityof filing their objections to the recommendations made by the Committeeconstituted by the NGT and had the appellants been heard in the matter,possibly appropriate directions could have been issued as against theappellant(s) herein.BIn conclusion, learned Solicitor General submitted that the A

BIn conclusion, learned Solicitor General submitted that theimpugned order may be set aside and the matter may be remanded tothe NGT for re-consideration of the entire case of the first respondentherein in compliance with the principles of natural justice, that is, firstlyby giving an opportunity to the appellants herein to file their objections, ifany, to the recommendations of the Committee constituted by the NGTCand secondly, by giving a further opportunity of hearing to the appellantsherein.

In this regard, learned Solicitor General relied upon a decision ofthis Court inSanghar Zuber Ismail vs. Ministry of Environment, Forestand Climate Change and Another reported in (2021) SCC Online SCD669.

6. Learned senior counsel Mr. Sanjay Jain and Mr. Nazki adoptedthe submissions of learned Solicitor General and also contended that themanner in which the original petition has been disposed of by the NGT inthese cases was in gross violation of the principles of natural justice. InEthis regard, reliance is also placed on another decision of this Court incase of Kantha Vibhag Yuva Koli Samaj Parivartan vs. State ofGujaratreported in 2022 SCC online SC 120.

7. The other learned counsel who have appeared, brought to ournotice that in the instant case, there were two reports filed and therefore,Fit was all the more necessary that the said reports had to be consideredin order to examine as to whether there were contradictions in them andwere in accordance with law.

8. Learned ASG appearing for the respondent No.2 as well asother learned counsel for private respondents also supported thearguments of learned Solicitor General.G

9. We find substance in the submissions made by learned SolicitorGeneral, learned senior counsel and learned counsel for the respectiveparties.

As already noted, the first respondent is the contesting respondentHherein who has been served and has failed to appear in these cases.

10. The directions issued by the NGT have been extractedabove.The aforesaid directions are in light of the recommendations madeby the expert Committee vide two reports submitted to the NGT. It isnoted that the NGT has extracted the report/s as well as therecommendations at paragraphs 14-16 of the impugned order and hasobserved as under:

“14. Points for determination are remedial action against pollutiondue to failure to scientifically manage and utilise the flyash,accountability for damage due to breach of Rihand reservoir anddue to breach of ash pond, resulting in deaths and injuries anddamage to the crops and environment. As already mentioned,legacy fly ash is 1670.602 Million Tonnes as on 31.12.2021 whichhas potential for serious damage to the environment as shown byincidents of dyke breaches contaminating sources of water andair pollution making industrial areas critically polluted. Air controldevices are not installed in many TPPs. There are incidents ofdeaths, injuries and loss of flora and fauna.

15. We have considered the data furnished in the reports furnishedin pursuance of earlier orders of this Tribunal dated 04.11.2020 inOA No. 117/2014, 14.07.2020 in OA No. 164/2018 and 29.6.2020in OA No. 148/2020, including the recommendations for remedialaction. The compliance status as projected in the reports of theJoint Committees/Oversight Committees shows huge gap in storing,handling, management and utilization of fly ash and consequentialcontinuing damage to the environment and public health. Suchhuge gaps are patent from the recommendations part in the reports.Deficiencies noted in respect of some individual TPPs appear tobe 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, furtherremedial action needs to be taken to enforce the principle ofsustainable development under section 20 of the NGT Act. Therecommendations are reproduced below:

“M/s NTPC Limited Shakti Nagar Sonbhadra:

Recommendations of the Committee

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M/s NTPC Limited Rihand Super Thermal Power (PowerPlant)

Recommendations of the Committee

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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, SonbhadraRecommendations of the Committee xxx

2. NCL Bina Project, Bina, SonbhadraRecommendations of the Committee xxx

3. NCL Krishna Shila ProjectRecommendations of the Committee

4. M/s NCL Kakri Project, SonbhadraRecommendations of the Committee xxx

5. NCL Khadia Project Sonbhadra

Recommendations of the Committee

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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 xxx Stone Crusher Recommendations of the Committee xxx

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 forprotecting environment and public health. The failures of the TPPsare alarming. We find no reason not to accept all therecommendations and to direct remed1al action. Thus, allrecommendations are accepted and further remedial action isdirected to be taken by the statutory regulators which also beoverseen by the joint Committees of CPCB, State PCB and thejurisdictional District Magistrates, with CPCB and State PCBs

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Abeing nodal agencies. Quarterly reports may now be filed withthe MoEF&CC to be considered by the Coordinating Committeebeing hereby constituted.”

11. In other words, the NGT has simply accepted therecommendations as remedial action suggested by the Committee butBthe same is in the absence of there being objections filed by the appellantsherein who were the respondents before the NGT and without givingany hearing to them and against whom directions impugned in thesecases have been passed by the NGT. We find that the procedure adoptedby the NGT is an instance of violation of the principles of natural justice.Section 19(1) of the NGT Act, 2010 reads as under:C

“19.(1) The Tribunal shall not be bound by the procedure laid downby the Code of Civil Procedure, 1908 (5 of 1908) but shall beguided by the principles of natural justice.”

At this stage, we may also observe that the recommendationsDmade by an expert Committee are not binding on the NGT, they are onlyby way of assistance to enable the NGT to arrive at a correct decision inthe matter.

12. In this regard reliance may be placed on paragraph 7 and 8 ofthe judgment of this Court in Sanghar Zuber Ismail(supra) wherein ithas been stated as under:E

“7. Having regard to the nature of its appellate power, the NGThas to apply its mind to the substantive grounds of challenge. TheNGT has merely based its conclusion on the statement which hasbeen made by the project proponent and has not conducted anFindependent appraisal of the grounds of challenge.

8... the NGT has not dealt with the substantive grounds of challengein the exercise of its appellate jurisdiction. Constitution of an expertcommittee does not absolve the NGT of its duty to adjudicate.The adjudicatory function of the NGT cannot be assigned tocommittees, even expert committees. The decision has to be thatGof the NGT. The NGT has been constituted as an expertadjudicatory authority under an Act of Parliament. The dischargeof its functions cannot be obviated by tasking committees to carryout a function which vests in the tribunal.”

13. Furthermore, in Kantha Vibhag(supra), this Court hadcriticized the practice of delegation of core adjudication to the jointcommittee:

15. It is first important to differentiate expert committees whichare set by the courts/tribunals from those set up by the Governmentin exercise of executive powers or under a particular statute. Thelatter are set up due to their technical expertise in a given area,and their reports are, subject to judicially observed restraints, opento judicial review before courts when decisions are taken solelybased upon them. The precedents of this court unanimously notethat courts should be circumspect in rejecting the opinion of thesecommittees, unless they find their decision to be manifestly arbitraryor mala fide. On the other hand, courts/tribunals themselves setup expert committees on occasion. These committees are set upbecause the fact- finding exercise in many matters can becomplex, technical and time-consuming, and may often requirethe committees to conduct field visits. These committees are setup with specific terms of reference outlining their mandate, andtheir reports have to conform to the mandate. Once thesecommittees submit their final reports to the court/tribunal, it isopen to the parties to object to them, which is then adjudicatedupon. The role of these expert committees does not substitute theadjudicatory role of the court or tribunal. The role of an expertcommittee appointed by an adjudicatory forum is only to assist itin the exercise of adjudicatory functions by providing them betterdata and factual clarity, which is also open to challenge by allconcerned parties. Allowing for objections to be raised andconsidered makes the process fair and participatory for allstakeholders.

16. Sections 14 and Section 15 entrust adjudicatory functions tothe NGT. The NGT is a specialized body comprising of judicialand expert members. Judicial members bring to bear theirexperience in adjudicating cases. On the other hand, expertmembers bring into the decision-making process scientificknowledge on issues concerning the environment. In HanumanLaxman Aroskar v. Union of India9, a two- Judge Bench of thisCourt noted that the NGT is an expert adjudicatory body on theenvironment. The Court held:

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“133. The NGT Act provides for the constitution of a tribunalconsisting both of judicial and expert members. The mix ofjudicial and technical members envisaged by the statute is forthe reason that the Tribunal is called upon to consider questionswhich involve the application and assessment of science andits interface with the environment...

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134. NGT is an expert adjudicatory body on the environment.”

17. The NGT does not have a dearth of ‘expertise’ when it comesto the issues of environment.

18. Section 15 empowers the NGT to award compensation to thevictims of pollution and for environmental damage, to provide forrestitution of property which has been damaged and for therestitution of the environment. The NGT cannot abdicate itsjurisdiction by entrusting these core adjudicatory functions toadministrative expert committees. Expert committees may beappointed to assist the NGT in the performance of its task and asan adjunct to its fact-finding role. But adjudication under the statuteis entrusted to the NGT and cannot be delegated to administrativeauthorities. Adjudicatory functions assigned to courts and tribunalscannot be hived off to administrative committees.

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E19. The NGT has in the present case abdicated its jurisdiction andentrusted 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 tobe by the NGT. This is not a delegable function. Thus, the orderimpugned in the appeal cannot be sustained. The consequence ofFthe impugned order is to efface the meticulous exercise whichwas carried out by the earlier Benches. Valuable time has beenlost in the meantime and crucial issues pertaining to theenvironment in the present case have been placed on the back-burner.”

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14. In a recent landmark decision, Madhyamam BroadcastingLimited v. Union of India (2023) SCC Online 366, the principles ofnatural justice have been crystalized in the words of Hon’ble CJI-DrDhananjaya Y Chandrachud as under:

“53. …The facet of audi alterum partem encompasses theHcomponents of notice, contents of the notice, reports of inquiry, and materials that are available for perusal. While situationalmodifications are permissible, the rules of natural justice cannotbe modified to suit the needs of the situation to such an extent thatthe core of the principle is abrogated because it is the core thatinfuses procedural reasonableness….”

15. A reading of the above, clearly indicates that the NGT is ajudicial body and therefore exercises adjudicatory function. The verynature of an adjudicatory function would carry with it the requirementthat principles of natural justice are complied with, particularly whenthere is an adversarial system of hearing of the cases before the Tribunalor for that matter before the Courts in India. The NGT though is aspecial adjudicatory body constituted by an Act of Parliament,nevertheless, the discharge of its function must be in accordance withlaw which would also include compliance with the principles of naturaljustice as envisaged in Section 19(1) of the Act.

16. In this context, it would be useful to refer to what is known asthe ‘official notice’ doctrine, which is a device used in administrativeprocedure. Although an authority can rely upon materials familiar to it inits expert capacity without the need formally to introduce them in evidence,nevertheless, the parties ought to be informed of materials so noticedand be given an opportunity to explain or rebut them. The data on whichan authority is acting must be apprised to the party against whom thedata is to be used as such a party would then have an opportunity notonly to refute it but also supplement, explain or give a different perspectiveto the facts upon which the authority relies. This has been explained bySchwartz in his work on Administrative Law. The aforesaid doctrineapplies with greater force to a judicial / adjudicatory body.

Therefore, applying the aforesaid principle to the cases that comeup before the NGT, if the NGT intends to rely upon an expert Committeereport or any other relevant material that comes to its knowledge, itshould disclose in advance to the party so as to give an opportunity fordiscussion and rebuttal. Thus, factual information which comes to theknowledge of NGT on the basis of the report of the Committee constitutedby it, if to be relied upon by the NGT, then, the same must be disclosedto the parties for their response and a reasonable opportunity must beafforded to present their observations or comments on such a report tothe Tribunal.

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17. It is needless to observe that the experts’ opinion is only byway of assistance in arriving at a final conclusion. But we find that in theinstant case the report of the expert Committee as well as therecommendations have been made the basis of the directions and suchan approach is improper.

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B18. We have perused the impugned order of the NGT andparticularly paragraph ‘16’ which has been extracted above. It isapparent that the appellant(s) herein who were respondents before theNGT were not given an opportunity to file their objections to therecommendations made by the Committee constituted by the NGT whichis apparent by the fact that the recommendations were uploaded onC15.01.2022 and the final order of the NGT was passed three days lateron, i.e. 18.01.2022. Thus, this is a clear case of there being non compliancewith the principles of natural justice. On the said ground alone theimpugned order is set aside, the matter is remanded to the NGT for re-consideration from the stage of the recommendations filed by the expertDCommittee constituted by the NGT. The appellant(s) herein are permittedto file their objections, if they are so advised. The NGT shall considerthe objections, if any, filed to the recommendations and thereafter disposeof the applications in accordance with law and after giving a reasonableopportunity to all parties.

E19. The appeals are allowed and disposed of in the aforesaid terms.Pending application(s), if any, shall stand disposed of.

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Ankit Gyan

(Assisted by : Tamana, LCRA)

Appeals allowed.

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