SINGRAULI SUPER THERMAL POWER STATIONversusASHWANI KUMAR DUBEY & ORS

440               [2023] 10
               SUPREME      S.C.R.REPORTS
                         COURT     440 : 2023 INSC 618
                                                   [2023] 10 S.C.R.


A            SINGRAULI SUPER THERMAL POWER STATION
                                       v.
                    ASHWANI KUMAR DUBEY & ORS.
                        (Civil Appeal No. 3856 of 2022)
B                             JULY 05, 2023
                      [B. V. NAGARATHNA AND
                   PRASHANT KUMAR MISHRA, JJ.]
             National Green Tribunal Act, 2010 – s. 19(1) – Non-compliance
      of principles of Natural justice – Opportunity not given to file
C     objections to the recommendations made by the Committee – NGT
      constituted an expert committee and sought a report regarding the
      alleged 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 an
D     opportunity to file their objections to the recommendations made
      by the Committee constituted by the NGT which is apparent by the
      fact that the recommendations were uploaded on 15.01.2022 and
      the 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 compliance
      with the principles of natural justice – NGT though is a special
E     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 s.19(1) of the Act – Therefore, the impugned order
      set aside, matter is remanded to the NGT for re-consideration from
F     the stage of the recommendations filed by the expert Committee
      constituted by the NGT.
            Doctrines/Principles – ‘Official notice’ – A device used in
      administrative procedure – The data on which an authority is acting
      must be apprised to the party against whom the data is to be used
G     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.
            Allowing the appeals, the Court
           HELD: 1. That the NGT is a judicial body and therefore
H     exercises adjudicatory function. The very nature of an
                                      440
     SINGRAULI SUPER THERMAL POWER STATION v.                          441
           ASHWANI KUMAR DUBEY & ORS.

adjudicatory function would carry with it the requirement that         A
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
                                                                       B
in accordance with law which would also include compliance with
the principles of natural justice as envisaged in Section 19(1) of
the Act. [Para 15][455-B-C]
      2. In this context, 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          C
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         D
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. 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       E
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         F
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. [Para
16][455-D-H]                                                           G

      3. It is needless to observe that the experts’ opinion is
only by way of assistance in arriving at a final conclusion. But, 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. [Para 17][456-A-B]                   H
442            SUPREME COURT REPORTS                      [2023] 10 S.C.R.


A            4. This Court has perused the impugned order of the NGT.
      It is apparent that the appellant(s) herein who were respondents
      before the NGT were not given an opportunity to file their
      objections to the recommendations made by the Committee
      constituted by the NGT which is apparent by the fact that the
      recommendations were uploaded on 15.01.2022 and the final
B
      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 compliance with the
      principles of natural justice. On the said ground alone the
      impugned order is set aside, the matter is remanded to the NGT
      for re-consideration from the stage of the recommendations filed
C     by 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) SCC
            Online SC 669; Kantha Vibhag Yuva Koli Samaj
D           Parivartan vs. State of Gujarat 2022 SCC online SC
            120; Madhyamam Broadcasting Limited v. Union of
            India (2023) SCC Online 366 – relied on.
            CIVIL APPELLATE JURISDICTION : Civil Appeal No.3856
      of 2022.
E          From the Judgment and Order dated 18.01.2022 of the National
      Green Tribunal, Principal Bench, New Delhi in Original Application
      No.164 of 2018.
            With

F           Civil Appeal Nos.4529, 4525 And 4581 of 2022.
            Tushar Mehta, Solicitor General, Sanjay Jain, Sr. Adv., Adarsh
      Tripathi, Ajitesh Garg, Ms. Alka Sinha, Anuvrat Sharma, Ashish Prasad,
      Ms. Mukta Dutta, Mahfooz Ahsan Nazki, Pruthvi Dhinoja, Ashwani
      Kumar Dubey, Shailesh Madiyal, Sudhanshu Prakash, Advs. for the
      Appellant.
G
            Ms. Aishwarya Bhati, A.S.G., Gurmeet Singh Makker, Dr. Arun
      Kumar Yadav, Ms. Deepabali Dutta, Divyansh H. Rathi, Devashish
      Bharukha, Ms. Rukhmini Bobde, Ms. Manisha Chava, Ms. Poornima
      Singh, Ms. Sthavi Asthana, Mrs. Swarupama Chaturvedi, Ms. Saumya
      Kapoor, Advs. for the Respondents.
H
      SINGRAULI SUPER THERMAL POWER STATION v.                                 443
            ASHWANI KUMAR DUBEY & ORS.

      The Judgment of the Court was delivered by                               A
      NAGARATHNA, J.
       Since the grievances ventilated by the appellant(s) in these appeals
are common, they have been clubbed and heard together and are disposed
of by this common judgment.
                                                                               B
       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:-
                                                                               C
      “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         D
      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           E
      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 obligation to remedy
      the violations and follow the norms for future. The regulators are
      to enforce the same and higher authorities are to oversee.               F
      Accordingly, following direction are issued:
      i. We direct constitution of a fly ash management and utilization
      Mission to be jointly headed by the Secretaries, MoEF&&CC,
      Coal and Power, GoI and Chief Secretaries of UP and MP. The
      Secretary, MoEF&CC will be the nodal agency for coordination
                                                                               G
      and compliance. The Mission will coordinate and monitor issues
      relating to handling and disposal of flyash as well as all associated
      issues in the light of above discussion. It may hold its first meeting
      within one month to take stock of the situation and to prepare
      action plan in the light of recommendations of Joint Committees
      quoted earlier in para 15 above in respect of individual plants as       H
444      SUPREME COURT REPORTS                            [2023] 10 S.C.R.


A     well as road map generally. Thereafter, it may meet atleast once
      in a month for one year to review the progress. The resolutions of
      the Mission and quarterly progress may be placed on the website
      of MoEF&CC for information of the stake holders and inhabitants
      in the area. The Mission will be free to interact with the concerned
      Government Departments/ Expert institutions/individuals/other
B
      stakeholders. The Mission may in its first meeting require voluntary
      financial contribution by all the projects in proportion of the financial
      capacity of the projects out of CSR funds or otherwise. The
      contribution, alongwith compensation which may be collected may
      be credited to a separate environment restoration account for
C     restoration of environment and relief to the victims of damage to
      the environment in such manner as may be found necessary by
      the Mission. Any victim or aggrieved party will be free to approach
      the Mission for providing such relief. The Mission may also consider
      the safeguards laid down in the Notification dated 31.12.2021,
      particularly for safety audits of sh dykes which should be conducted
D
      particularly for structural stability, as far as possible within six
      months. Advisory issued by the Ministry of Power dated 22.9.2021
      will not be enforced being against the spirit of notification dated
      31. 12.2021 and obstructing much needed speedy utilisation/
      disposal of legacy flyash. The Mission may evolve mechanism
E     for interaction with stake holders, including associations of brick
      kiln owners. Guidelines be also issued for siting, design 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.
F
      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
G     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:
H
   SINGRAULI SUPER THERMAL POWER STATION v.                                445
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]

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




                                                                           B




                                                                           C
     The Committee of Secretaries, in coordination with PPs and
   statutory regulators, may draw a road map for utilization and
   disposal of entire legacy fly ash for Sonebhadra and Singrauli
   areas as well as for all the Power Plants located in clusters or
   standalone with tagging the sources to utilize fly ash on voluntary     D
   and compulsion mode for which required mechanism be laid down.
   ii. With regard to past violations, the PPs remain liable and the
   Joint Committee of CPCB, State PCB and jurisdictional District
   Magistrates may determine compensation following due process,
   on the principles laid down inter alia in M.C. Mehta, (1987) 1 sec      E
   395, Sterlite (2013) 4 sec 575 and Goel Ganga (2018) 18 SCC
   257, having regard to the period of violation and financial capacity
   of the unit. The PPs may take remedial measures as per
   recommendations of the Committee and as per law, failing with
   coercive measures for continuing or future violations be taken by
   concerned authorities.                                                  F
   iii. Statutoiy regulators may take action in terms of need for
   compliances in the light of recommendations with regard to
   individual Plants as well as generally so as to require the concerned
   PPs to comply, failing which coercive measures be taken by the
   statutory regulators In accordance with law.                            G
   iv. In respect of incident dated 10.04.2020, compensation paid to
   heirs of the deceased at the rate of Rs. 10 lakhs per death is
   increased to Rs. 15 lakhs on principles laid down inter alia in Sarla
   Verma (2009) 6 SCC 121 and Uphaar Cinema (2011) 14 SCC
   481. We direct the remaining amount to be paid within one month.        H
446             SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A           This order will not debar the heirs of the victims to claim higher
            compensation by approaching appropriate forum. If the salaries
            to persons appointed as compensation to the victims are below
            minimum wages, the PP may ensure compliance of law on the
            subject which may be also looked into by the concerned Labour
            Departments of the State of UP and MP. The statutory regulators
B
            may take further remedial action in terms of recommendations of
            the Committee in OA 148/2020, quoted earlier for restoration of
            environment and preventing such incidents.
            v. With regard to breach of Rihand Reservoir also, further remedial
            measures be taken in terms of recommendations on the subject,
C           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.

D           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
E           the same by email to all TPPs or other concerned to facilitate
            compliance.
                                                       Adarsh Kumar Goel, CP
                                                            Sudhlr Agarwal, JM
F                                                              Brijesh Sethi, JM
                                                       Prof. A. Senthil Ve!, EM
                                                         Dr. Afroz Ahmad, EM
            January 18, 2022
G           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
H
   SINGRAULI SUPER THERMAL POWER STATION v.                                     447
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]

has not appeared in these cases. In the circumstances, the appeals have         A
been heard and decided, by taking into consideration, the submissions of
the 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 NGT
are judicial proceedings and compliance of principles of natural justice is     B
a hallmark of all judicial proceedings. That in the instant case, while the
NGT was well within its powers to constitute an expert Committee and
to seek a report with regard to the alleged violations complained of by
the first respondent herein, on receipt of the said report, it was necessary
that the alleged violators were given an opportunity to object to the said
report and after consideration of the objections, the NGT ought to have         C
passed a considered order and issued only those directions which were
appropriate having regard to the facts of each industry that was made a
respondent before the NGT.
      He further submitted that Section 19(1) of the National Green
Tribunal Act, 2010 (hereinafter referred to as the “Act” for the sake of        D
convenience) categorically states that the Tribunal, though not bound by
the procedure laid down by the Code of Civil Procedure, 1908, shall
nevertheless be guided by the principles of natural justice.
        According to learned Solicitor General in the instant case, there
has been gross violation of the principles of national justice on two counts:   E
firstly, the report of the Committee constituted by the NGT and the
recommendations made by the said Committee could not be objected to
by the appellant(s) herein as there was hardly any time given to the
appellants to even peruse the same. In this regard, he drew our attention
to the fact that the report and the recommendations of the Committee            F
constituted by the NGT were put up on the website of the NGT on
15.01.2022 and three days thereafter i.e., on 18.01.2022 the impugned
directions have been issued. Secondly, he submitted that the fact that in
such a short span of time the matters were considered and disposed of
by the NGT, in the absence of there being objections filed by the appellants
herein nor having heard the appellants herein, would also imply that there      G
has been no consideration by the NGT of the pros and cons vis-a-vis
the recommendations made by the expert Committee and as to whether
the directions issued were appropriate to the case of each of the
appellant(s) herein or not.
                                                                                H
448             SUPREME COURT REPORTS                           [2023] 10 S.C.R.


A             It was submitted that 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.
B            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
C     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
D     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 the NGT in
      these cases was in gross violation of the principles of natural justice. In
E     this regard, reliance is also placed on another decision of this Court in
      case of Kantha Vibhag Yuva Koli Samaj Parivartan vs. State of
      Gujarat reported in 2022 SCC online SC 120.
             7. The other learned counsel who have appeared, brought to our
      notice that in the instant case, there were two reports filed and therefore,
F     it was all the more necessary that the said reports had to be considered
      in order to examine as to whether there were contradictions in them and
      were in accordance with law.
            8. Learned ASG appearing for the respondent No.2 as well as
      other learned counsel for private respondents also supported the
      arguments of learned Solicitor General.
G
             9. We find substance in the submissions made by learned Solicitor
      General, learned senior counsel and learned counsel for the respective
      parties.
            As already noted, the first respondent is the contesting respondent
H     herein who has been served and has failed to appear in these cases.
   SINGRAULI SUPER THERMAL POWER STATION v.                                    449
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]

      10. The directions issued by the NGT have been extracted                 A
above.The aforesaid directions are in light of the recommendations made
by the expert Committee vide two reports submitted to the NGT. It is
noted that the NGT has extracted the report/s as well as the
recommendations at paragraphs 14-16 of the impugned order and has
observed as under:
                                                                               B
      “14. Points for determination are remedial action against pollution
      due to failure to scientifically manage and utilise the flyash,
      accountability for damage due to breach of Rihand reservoir and
      due to breach of ash pond, resulting in deaths and injuries and
      damage to the crops and environment. As already mentioned,
      legacy fly ash is 1670.602 Million Tonnes as on 31.12.2021 which         C
      has potential for serious damage to the environment as shown by
      incidents of dyke breaches contaminating sources of water and
      air pollution making industrial areas critically polluted. Air control
      devices are not installed in many TPPs. There are incidents of
      deaths, injuries and loss of flora and fauna.                            D
      15. We have considered the data furnished in the reports furnished
      in pursuance of earlier orders of this Tribunal dated 04.11.2020 in
      OA No. 117/2014, 14.07.2020 in OA No. 164/2018 and 29.6.2020
      in OA No. 148/2020, including the recommendations for remedial
      action. The compliance status as projected in the reports of the         E
      Joint 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,            F
      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:                                    G
         “M/s NTPC Limited Shakti Nagar Sonbhadra:
                Recommendations of the Committee
                                        xxx
                                                                               H
450   SUPREME COURT REPORTS                    [2023] 10 S.C.R.


A     M/s NTPC Limited Rihand Super Thermal Power (Power
      Plant)
            Recommendations of the Committee
                                xxx
B     M/s Anpara Thermal Power Plant (Power Plant)
            Recommendations of the Committee
                                xxx
      M/s Anpara ‘C’ Lanco Thermal Power Station
C           Recommendations of the Committee
                                xxx
      M/s Renusagar Thermal Power Plant
            Recommendations of the Committee
D                               xxx
      M/s Obra Thermal Power Station (Power Plant)
            Recommendations of the Committee
                                xxx
E
      Coal Mines of M/s Northern Coalfields Limited (NCL)
      1. NCL Dudhichuwa Project, Sonbhadra
         Recommendations of the Committee
                                xxx
F
      2. NCL Bina Project, Bina, Sonbhadra
         Recommendations of the Committee
                                xxx
      3. NCL Krishna Shila Project
G
         Recommendations of the Committee
                                xxx
      4. M/s NCL Kakri Project, Sonbhadra
         Recommendations of the Committee
H
   SINGRAULI SUPER THERMAL POWER STATION v.                             451
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]

                                   xxx                                  A
      5. NCL Khadia Project Sonbhadra
         Recommendations of the Committee
                                   xxx
      Aluminum Smelter: M/s HINDALCO Industries Ltd.,                   B
      Renukoot, Sonbhadra
             Recommendations of the Committee
                                   xxx
                                                                        C
      M/s Grasim Industries Limited Chemical Division,
      Renukoot, Sonbhadra
             Recommendations of the Committee
                                   xxx
                                                                        D
      M/s Birla Carbon India Pvt. Ltd., Renukoot, Sonbhadra
             Recommendations of the Committee
                                   xxx
      Stone Crusher
                                                                        E
             Recommendations of the Committee
                                   xxx
      A. Thermal Power Plants (TPPs) and Industries
      B. Coal Mines of M/s Northern Coalfields Limited (NCL)            F
      C. Stone Crushers
         Recommendations”
   16. From the above, it is seen that there is a long way to go for
   protecting environment and public health. The failures of the TPPs
                                                                        G
   are alarming. We find no reason not to accept all the
   recommendations and to direct remed1al action. Thus, all
   recommendations are accepted and further remedial action is
   directed to be taken by the statutory regulators which also be
   overseen by the joint Committees of CPCB, State PCB and the
   jurisdictional District Magistrates, with CPCB and State PCBs        H
452             SUPREME COURT REPORTS                           [2023] 10 S.C.R.


A           being nodal agencies. Quarterly reports may now be filed with
            the MoEF&CC to be considered by the Coordinating Committee
            being hereby constituted.”
             11. In other words, the NGT has simply accepted the
      recommendations as remedial action suggested by the Committee but
B     the same is in the absence of there being objections filed by the appellants
      herein who were the respondents before the NGT and without giving
      any hearing to them and against whom directions impugned in these
      cases have been passed by the NGT. We find that the procedure adopted
      by 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 down
            by the Code of Civil Procedure, 1908 (5 of 1908) but shall be
            guided by the principles of natural justice.”
            At this stage, we may also observe that the recommendations
D     made by an expert Committee are not binding on the NGT, they are only
      by way of assistance to enable 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
E     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
F           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
G
            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.”

H
   SINGRAULI SUPER THERMAL POWER STATION v.                                    453
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]

       13. Furthermore, in Kantha Vibhag (supra), this Court had               A
criticized 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       B
      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   C
      or mala fide. On the other hand, courts/tribunals themselves set
      up expert committees on occasion. These committees are set up
      because the fact- finding exercise in many matters can be
      complex, technical and time-consuming, and may often require
      the committees to conduct field visits. These committees are set         D
      up with specific terms of reference outlining their mandate, and
      their reports have to conform to the mandate. Once these
      committees submit their final reports to the court/tribunal, it is
      open to the parties to object to them, which is then adjudicated
      upon. The role of these expert committees does not substitute the
      adjudicatory role of the court or tribunal. The role of an expert        E
      committee appointed by an adjudicatory forum is only to assist it
      in the exercise of adjudicatory functions by providing them better
      data and factual clarity, which is also open to challenge by all
      concerned parties. Allowing for objections to be raised and
      considered makes the process fair and participatory for all              F
      stakeholders.
      16. Sections 14 and Section 15 entrust adjudicatory functions to
      the NGT. The NGT is a specialized body comprising of judicial
      and expert members. Judicial members bring to bear their
      experience in adjudicating cases. On the other hand, expert              G
      members bring into the decision-making process scientific
      knowledge on issues concerning the environment. In Hanuman
      Laxman Aroskar v. Union of India9, a two- Judge Bench of this
      Court noted that the NGT is an expert adjudicatory body on the
      environment. The Court held:
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454            SUPREME COURT REPORTS                           [2023] 10 S.C.R.


A              “133. The NGT Act provides for the constitution of a tribunal
               consisting both of judicial and expert members. The mix of
               judicial and technical members envisaged by the statute is for
               the reason that the Tribunal is called upon to consider questions
               which involve the application and assessment of science and
               its interface with the environment...
B
               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
C           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
D           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.

E           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 carrying out a fact-finding exercise, but the adjudication has to
            be by the NGT. This is not a delegable function. Thus, the order
            impugned in the appeal cannot be sustained. The consequence of
F           the impugned order is to efface the meticulous exercise which
            was carried out by the earlier Benches. Valuable time has been
            lost in the meantime and crucial issues pertaining to the
            environment in the present case have been placed on the back-
            burner.”
G           14. In a recent landmark decision, Madhyamam Broadcasting
      Limited v. Union of India (2023) SCC Online 366, the principles of
      natural justice have been crystalized in the words of Hon’ble CJI-Dr
      Dhananjaya Y Chandrachud as under:
            “53. …The facet of audi alterum partem encompasses the
H           components of notice, contents of the notice, reports of inquiry,
   SINGRAULI SUPER THERMAL POWER STATION v.                                      455
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]

       and materials that are available for perusal. While situational           A
       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….”
       15. A reading of the above, clearly indicates that the NGT is a           B
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,                   C
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.
       16. In this context, it would be useful to refer to what is known as
the ‘official notice’ doctrine, which is a device used in administrative         D
procedure. Although an authority can rely upon 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            E
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. This has been explained by
Schwartz in his work on Administrative Law. The aforesaid doctrine
applies with greater force to a judicial / adjudicatory body.
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        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         G
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.
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456              SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A           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.
B             18. We have perused the impugned order of the NGT and
      particularly paragraph ‘16’ which has been extracted above. It is
      apparent that the appellant(s) herein who were respondents before the
      NGT were not given an opportunity to file their objections to the
      recommendations made by the Committee constituted by the NGT which
      is apparent by the fact that the recommendations were uploaded on
C     15.01.2022 and the 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 compliance
      with the principles of natural justice. On the said ground alone the
      impugned order is set aside, the matter is remanded to the NGT for re-
      consideration from the stage of the recommendations filed by the expert
D     Committee constituted by the NGT. The appellant(s) herein are permitted
      to file their objections, if they are so advised. The NGT shall consider
      the objections, if any, filed to the recommendations and thereafter dispose
      of the applications in accordance with law and after giving a reasonable
      opportunity to all parties.
E            19. The appeals are allowed and disposed of in the aforesaid terms.
             Pending application(s), if any, shall stand disposed of.

      Ankit Gyan                                                    Appeals allowed.
      (Assisted by : Tamana, LCRA)
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