NGT Cannot Pass Directions Relying On Recommendations Of Expert Committee Without Giving Parties A Chance To Rebut It: Supreme Court

The Supreme Court recently held that the National Green Tribunal (NGT) being an adjudicatory body must comply with the principles of natural justice. It also held that if the NGT intends to rely on the report of an expert Committee or any other material that is brought to its knowledge, the concerned party must be informed of it in advance, and be given an opportunity for discussion and rebuttal.

The Division Bench of Justice B V Nagarathna and Justice Prashant Kumar Mishra 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 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.”

The Top Court was considering a batch of appeals against a common order passed by the National Green Tribunal, Principal Bench, New Delhi, whereby it directed certain thermal power plants to install air pollution control and monitoring devices and also directed timely utilization and disposal of fly ash as remedial measures.

The Apex Court observed that the NGT passed the directions in light of the recommendations in two reports submitted by an Expert Committee constituted by it. The Court observed that the NGT accepted the recommendations in the report and directed remedial measures without giving the appellants, against whom the order was passed, an opportunity to object to it. The Court found that this to be in violation of Section 19(1) of the NGT Act, 2010 which says that the Tribunal shall not be bound by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.

Official Notice Doctrine

In this context the Apex Court referred to the ‘official notice’ doctrine which says that the parties must be informed of the materials relied on by an authority and must 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” the Court observed.

Relying on the ‘official notice’ doctrine, the Court observed:

“..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.”

The Court also specifically noted that the recommendations made by an expert Committee are not binding on the NGT and are only to be considered as a guide to allow the Tribunal to arrive at its decision:

“…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 Court said.

The Court noted that the appellants were not given an opportunity to file their objections to the recommendations of the Expert Committee. The Court noted that the recommendations were uploaded on 15.01.2022 and the Tribunal passed its final order on 18.01.2022, i.e, only three days later.

Accordingly, on the ground of non-compliance of the principles of natural justice, the impugned order of the Tribunal was set aside and the matter was remanded to the NGT for re-consideration from the stage of recommendation of the Expert Committee.

Case Details:

Case : Singrauli Super Thermal Power Station V. Ashwani Kumar Dubey, Civil Appeal No. 3856/2022

Citation : 2023 LiveLaw (SC) 524

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