Singrauli Super Thermal Power Station v. Ashwani Kumar Dubey & Ors
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.
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:-
“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 a s
well as general issues applicable to all the TPPs such as timely
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
health facilities, including water supply and by coordinated and
concerted efforts and high level monitoring. The PP are to b e
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 o versee.
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
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
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS.
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/oth er
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. T he
contribution, alongwith compensation which may be collected may
be credited to a separate environment restoration account for
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
particularly for structural stability, as far as possi ble 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
for interaction with stake holders, including associations of brick
kiln owners. Guidelines be also issued for siting, design a nd
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.
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 Stat es and
adopting safety measures for ash dykes, installing devices to control
air pollution, (including FGDs, OCEMS) in a time bound manner
and restoration of environment and public health. The Mission
may also consider use of beneficiated coal. It may in parti cular
consider on-site and off-site crisis management plans with regard
to fly ash ponds and dykes. As noted earlier, legacy fly ash i s
1670.602 Million Tonnes as on.31.12.2021 and data o f ash
generation and utilization of legacy fly ash is as follows:
445
“Summary of of Ash Generation and Utilization during year 2020-
21
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 clus ters or
standalone with tagging the sources to utilize fly ash on voluntary
and compulsion mode for which required mechanism be laid down.
ii. With regard to past violations, the PPs remain liable a nd 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
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.
iii. Statutoiy regulators may take action in terms of ne ed for
compliances in the light of recommendations with regar d 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.
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.
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]
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 be low
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
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 subjec t,
quoted in para 15 above.
All the matters (including IAs) will stand disposed of accordingly.
If any grievance survives, aggrieved parties are free to ta ke
remedies as per law.
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, Distric t
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
the same by email to all TPPs or other concerned to faci litate
compliance.
Adarsh Kumar Goel, CP
Sudhlr Agarwal, JM
Brijesh Sethi, JM
Prof. A. Senthil Ve!, EM
Dr. Afroz Ahmad, EM
January 18, 2022
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
447
has not appeared in these cases. In the circumstances, the appeals have
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
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
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 Gre en
Tribunal Act, 2010 (hereinafter referred to as the “Act” for the sake of
convenience) categorically states that the Tribunal, though not bound by
the procedure laid down by the Code of Civil Procedure, 1908, sha ll
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:
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 giv en 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 C ommittee
constituted by the NGT were put up on the website of the NG T 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 dispos ed 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
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.
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]
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 aga inst the
appellant(s) herein.
In conclusion, learned Solicitor General submitted that the
impugned order may be set aside and the matter may be rem anded to
the NGT for re-consideration of the entire case of the firs t 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
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
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
this regard, reliance is also placed on another decision of this Court in
case of Kantha Vibhag Yuva Koli Samaj Parivartan vs. State o f
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,
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.
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
herein who has been served and has failed to appear in these cases.
449
10. The directions issued by the NGT have been extr acted
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 we ll as the
recommendations at paragraphs 14-16 of the impugned order and h as
observed as under:
“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 a nd
damage to the crops and environment. As already mentioned,
legacy fly ash is 1670.602 Million Tonnes as on 31.12.2021 which
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.
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
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 TP Ps,
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:
“M/s NTPC Limited Shakti Nagar Sonbhadra:
Recommendations of the Committee
xxx
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]
M/s NTPC Limited Rihand Super Thermal Power (Power
Plant)
Recommendations of the Committee
xxx
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
xxx
Coal Mines of M/s Northern Coalfields Limited (NCL)
1. NCL Dudhichuwa Project, Sonbhadra
Recommendations of the Committee
xxx
2. NCL Bina Project, Bina, Sonbhadra
Recommendations of the Committee
xxx
3. NCL Krishna Shila Project
Recommendations of the Committee
xxx
4. M/s NCL Kakri Project, Sonbhadra
Recommendations of the Committee
451
xxx
5. NCL Khadia Project Sonbhadra
Recommendations of the Committee
xxx
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 for
protecting environment and public health. The failures of the TPPs
are alarming. We find no reason not to accept all t he
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 al so be
overseen by the joint Committees of CPCB, State PCB and the
jurisdictional District Magistrates, with CPCB and State PCBs
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]
being nodal agencies. Quarterly reports may now be filed wi th
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 Commit tee but
the same is in the absence of there being objections filed by the appellants
herein who were the respondents before the NGT and without g iving
any hearing to them and against whom directions impugned in th ese
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:
“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 recommendat ions
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
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
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 expe rt
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.”
453
13. Furthermore, in Kantha Vibhag (supra), this Court had
criticized the practice of delegation of core adjudicatio n 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. 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
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 adjudi cated
upon. The role of these expert committees does not substitute the
adjudicatory role of the court or tribunal. The role of an expert
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 b y all
concerned parties. Allowing for objections to be rais ed and
considered makes the process fair and participatory for all
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
members bring into the decision-making process scie ntific
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:
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]
“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...
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
victims of pollution and for environmental damage, to provide for
restitution of property which has been damaged and fo r the
restitution of the environment. The NGT cannot abdicate its
jurisdiction by entrusting these core adjudicatory functions to
administrative expert committees. Expert committees ma y be
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.
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
the impugned order is to efface the meticulous exercise whi ch
was carried out by the earlier Benches. Valuable time h as been
lost in the meantime and crucial issues pertaining to the
environment in the present case have been placed on the back -
burner.”
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 H on’ble CJI-Dr
Dhananjaya Y Chandrachud as under:
“53. …The facet of audi alterum partem encompasses the
components of notice, contents of the notice, reports of inquiry,
455
and materials that are available for perusal. While situ ational
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 N GT is a
judicial body and therefore exercises adjudicatory function. T he very
nature of an adjudicatory function would carry with it the requirement
that principles of natural justice are complied with, par ticularly 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 tho ugh 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.
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 a dministrative
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 material s 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 opport unity 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 doc trine
applies with greater force to a judicial / adjudicatory body.
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 k nowledge, 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 opportuni ty must be
afforded to present their observations or comments on such a report to
the Tribunal.
SINGRAULI SUPER THERMAL POWER STATION v.
ASHWANI KUMAR DUBEY & ORS. [B.V. NAGARATHNA, J.]
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.
18. We have perused the impugned order of the NGT a nd
particularly paragraph ‘16’ which has been extracted above. It is
apparent that the appellant(s) herein who were respondents befor e the
NGT were not given an opportunity to file their objec tions to the
recommendations made by the Committee constituted by the NGT which
is apparent by the fact that the recommendations were up loaded 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. On the said ground al one 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
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.
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)