Supreme Court pulls up NGT (again) for relying on expert committee report without giving party opportunity to object

The Supreme Court recently reiterated that National Green Tribunals (NGTs) should not pass orders while relying directly on expert committee recommendations without first letting the affected parties respond to or refute the same. [Singrauli Super Thermal Power Station vs Ashwani Kumar Dubey].A bench of Justices BV Nagarathna and Prashant Kumar Mishra made it clear that alleged violators, against whom the NGT passes such directions, have to be given a chance to be heard before the tribunal adopts the remedial measures suggested by the experts..“If the NGT intends to rely upon an expert Committee report … it should disclose in advance to the party so as to give an opportunity for discussion and rebuttal … a reasonable opportunity must be afforded to present their observations and comments on such a report to the Tribunal. It is needless to observe that the experts’ opinion is only by way of assistance in arriving at a final conclusion,” the Court stated..The observations came while setting aside a slew of directions issued by the NGT, Delhi to certain thermal power companies in Himachal Pradesh. These directions included the installation of air pollution control and monitoring devices and measures for the use and disposal of fly ash. The NGT order, dated January 18, 2022, was passed three days after the committee’s reports were uploaded online.The affected parties moved the Supreme Court with a grievance that they were not given an opportunity to object to the expert committee's findings, before the committee's report was made the basis for the NGT's order. .The Supreme Court, in turn, found that the NGT order was passed in violation of the principles of natural justice envisioned in Section 19(1) of the NGT Act. .“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 Supreme Court observed. .The bench further observed that the NGT was a judicial body with adjudicatory powers and that it had to follow principles of natural justice, particularly since the proceedings before it were adversarial in nature. ."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 Court said. .The bench also relied on the ‘official notice‘ doctrine to elaborate its point. The Court explained that even though an authority may rely on materials submitted by experts without formally introducing the same 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," the Court added..The Court proceeded to dispose of the appeal by sending back the matter to the NGT for reconsideration, from the stage of the recommendations being put on record. The tribunal was directed to dispose of the matter after hearing the objections of the affected parties (appellants).Solicitor General Tushar Mehta and Additional Solicitor General Sanjay Jain appeared for the appellant companies. .Notably, the development comes months after another bench of the Supreme Court took strong exception to the manner in which many tribunals were passing orders based on reports of committees and experts, without actually hearing the parties to the case..Supreme Court pulls up NGT; says tribunals passing orders based on committee reports without hearing parties.In that case, the bench of Justices BR Gavai and CT Ravikumar pulled up the National Green Tribunal (NGT) for passing one such order without hearing the party to the case..[Read judgment]