Saturday, April 13, 2024

Seeing Red over Green

The apex court has said that the Tribunal’s recurrent engagement in unilateral decision-making, provisioning ex-post facto review hearings and routinely dismissing them has regrettably become a prevailing norm

In a recent case while hearing two appeals challenging orders slapped by the National Green Tribunal (NGT), the Supreme Court expressed its displeasure over the NGT’s practice of passing ex parte orders and imposing penalties. The observation was made by a division bench of Justices PS Narasimha and Aravind Kumar.

The NGT in its main order had passed an ex parte order against the appellants in suo motu proceedings. Furthermore, the green court also ordered the payment of compensation. In its second order, the review petition filed by one of the appellants was dismissed. In the review, the appellant had argued that an adverse order was passed without hearing him. 

Referring to both the orders, the top court said that the NGT itself has noted that notices were not issued to the project proponents. The NGT, in fact, considers it unnecessary to hear the project proponents in order to verify the facts in the matter. The NGT thought it appropriate to adopt this method in view of a joint inspection report that had been submitted. The persons who were prejudiced by the order of the NGT naturally filed review petitions before the Tribunal. The review petitions were taken up and dismissed by the NGT in November 2021. 

“In its zealous quest for justice, the Tribunal must tread carefully to avoid the oversight of propriety. The practice of ex parte orders and the imposition of damages amounting to crores of rupees, have proven to be a counterproductive force in the broader mission of environmental safeguarding”, the division bench said.

The bench further observed, significantly, that such orders have consistently resulted in stays from the Court, unravelling the commendable efforts put forth by members, lawyers and other stakeholders. “It is imperative for the Tribunal to infuse a renewed sense of procedural integrity, ensuring that its actions resonate with a harmonious balance between justice and due process. Only then can it reclaim its standing as a beacon of environmental protection, where well-intentioned endeavours are not simply washed away”, the apex court said in its order, dated January 30, 2024. 

Further, the bench noted that the appellants did not have a full opportunity to contest the matter and place all their defence before the NGT. They filed this appeal, and by order of March 2022, the Court stayed the order passed by the NGT. “This was inevitable. Two years have passed by and the stay is still operating”, the top court said while setting aside the orders, dated August 31, 2021 and November 11, 2021, and remanding the matter back to the Tribunal.

The apex court directed that the Tribunal issue notices to all the necessary parties, hear them in detail and pass appropriate orders. The Court said that the Tribunal shall hear the case, uninfluenced by the observations and conclusions drawn in the orders dated August 31, 2021 and November 11, 2021. Further the Court clarified that this order does not deal with the merits of the matter and the actions of those guilty of statutory and environmental violation will have to be subject to strict scrutiny and legal consequences.

Earlier, the bench of Justices BV Nagarathna and Prashant Kumar Mishra had heard a batch of appeals against a common order passed by NGT, Principal Bench, New Delhi, directing a thermal power plant to install air pollution control, monitoring devices and timely utilisation and disposal of fly ash as remedial measures. The apex court had said that it would be useful to refer to what is known as the “official notice” doctrine, which is a device used in administrative procedure. Although an authority can rely upon materials familiar to it in its expert capacity without the need formally to introduce them in evidence, 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 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.

Last year in April, the Supreme Court had come down heavily on the Principal Bench of the NGT for hearing cases pertaining to the western zone, even after the apex court directed that the same would be heard by the NGT’s Western Zone Bench at Pune. 

The bench of Justices BR Gavai and Aravind Kumar had observed that despite there being a specific mandamus by this Court that all matters pertaining to the Western Zone would be heard by the Pune bench, the NGT Principal Bench was allegedly continuing to hear cases, in which it had taken suo motu cognisance. Calling it a “serious” issue, the apex court had said that it has consistently held that tribunals were even subordinate to the High Courts, when it came to territorial jurisdiction.

The NGT had moved the apex court against the Bombay High Court, which quashed administrative notices by the Registrar General of NGT, transferring cases from the Western Zone bench at Pune to special benches at the Principal Seat in the national capital. The full bench of the High Court, besides quashing the notices as “illegal”, ruled that the constitution of the special bench in New Delhi was “illegal”, and that only the members of the Western Zone could hear matters pertaining to the Western Zone bench, including matters arising from Goa and Maharashtra. 

The top court of the country, while issuing notice on the special leave petition, also stayed the operative portion of the High Court order, holding in abeyance its order to quash and set aside all impugned notices issued by the registrar general of the NGT. It further noted that since two members, one judicial and one expert member, were available at the Western Zone bench, all matters arising out of the region, including from Goa and Maharashtra, would have to be dealt with by the bench at Pune. The National Green Tribunal Bar Association (Western Zone) had moved the apex court, alleging that the Supreme Court order of October 2022 had been violated by the Principal Bench of the NGT. The top court of the country then observed that whatever has been filed before the Pune Bench before the October, 2022 directive, should be heard by the Pune Bench.

In July 2023, the top court held that the NGT is a judicial body, and therefore, exercises adjudicatory functions. 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 NGT 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 the law which would also include compliance with the principles of natural justice as envisaged in Section 19(1) of the Act which says: “Tribunal 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.” 

—By Shivam Sharma and India Legal Bureau

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