The apex Court has held that though the National Green Tribunal (NGT) is a special adjudicatory body constituted by an Act of Parliament, the discharge of its functions must be in accordance with law. This would include compliance with the principles of natural justice as envisaged in Section 19(1) of the National Green Tribunal Act, 2010.

The division bench of Justices BV Nagarathna and Prashant Kumar Mishra disposed of a batch of appeals against a common order passed by the NGT, Principal Bench, New Delhi, whereby it directed certain thermal power plants (TPPs) to: 

• Manage and utilise fly ash. The Mission is to be jointly headed by the Secretaries, Ministry of Environment, Forest and Climate Change (MoEFCC) and Coal and Power and the chief secretaries of UP and MP. The Secretary, MoEF&CC, will be the nodal person for coordination and compliance. The Mission will coordinate and monitor issues relating to handling and disposal of fly ash.
• With regard to past violations, power plants will remain liable and a joint committee of the Central Pollution Control Board, State Pollution Control Board and jurisdictional district magistrates may determine compensation following due process on the principles laid down in MC Mehta, (1987), Sterlite (2013) and Goel Ganga (2018) with regard to the period of violation and financial capacity of the unit.
• Statutory regulators may take action with regard to compliances in the light of recommendations made to individual plants. If they fail to comply, coercive measures will be taken by the statutory regulators in accordance with law.
• If the salaries of those appointed in jobs which were part of the compensation package to the victims are below minimum wages, the PP may ensure compliance of law, which may be also looked into by the concerned labour departments of UP and MP.

The petitioners were aggrieved by the NGT’s directions and the manner in which the original petition was disposed of and therefore, approached the Supreme Court. The Court noted that the NGT had simply accepted the recommendations suggested by the Expert Committee as remedial action, but had not given any hearing to the petitioners. The Bench found the procedure adopted by the NGT as a violation of the principles of natural justice. In fact, Section 19(1) of the NGT Act, 2010 reads: “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.”

The Bench observed that the recommendations made by an Expert Committee are not binding on the NGT; they are only meant to enable the NGT to arrive at a correct decision. The Court referred to its judgment in Sanghar Zuber Ismail where it was stated: “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.”

In Kantha Vibhag, the Court had criticised 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.”

In a recent landmark decision in Madhyamam Broadcasting Limited vs Union of India (2023), the principles of natural justice were stressed by Chief Justice DY Chandrachud too: “53. … The facet of audi alterum partem (listen to the other side) encompasses the components of notice, contents of the notice, reports of inquiry, 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….”

The Bench observed 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 the principles of natural justice are complied with, particularly when there is an adversarial system of hearing of cases before the Tribunal or for that matter before courts in India.

The Supreme Court referred to the “official notice” doctrine, which is a device used in administrative procedure. It said that although an authority can rely on 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 so that he can not only 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, the Court said.

The Bench held that if the NGT intends to rely upon an expert committee report or any other relevant material that comes to its knowledge, it should disclose this in advance to the other party so as to give it an opportunity for discussion and rebuttal.

“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,” the order read. 

—By Shivam Sharma and India Legal Bureau

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