Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 1382 (AP)

C Kasturi Bai v. State of Andhra Pradesh

2023-10-11

A.V.SESHA SAI, VENKATA JYOTHIRMAI PRATAPA

body2023
JUDGMENT A.V.SESHA SAI, J. - Heard Sri N. Bharat Babu, learned counsel for the writ petitioner, and Sri V. Surender Reddy, learned standing counsel for the Andhra Pradesh Pollution Control Board, apart from perusing the material available on record. 2. Order of the National Green Tribunal (hereinafter referred to as "NGT"), Southern Zone, Chennai, dtd. 2/3/2022, in Original Application No.115 of 2021 (SZ), and the consequential notice bearing No.718 / APPCB / HO / UH-II / TF / KDP / 2022, dtd. 6/9/2022, issued by the Andhra Pradesh Pollution Control Board (hereinafter referred to as "APPCB"), are under challenge in the present writ petition, instituted under Article 226 of the Constitution of India. 3. The petitioner in the present writ petition is the lessee of Barytes Mine in the State of Andhra Pradesh. The NGT, obviously, exercising the jurisdiction conferred under Sec. 16 of the National Green Tribunal Act, 2010 (for short "the Act, 2010"), took up the issue, vide Original Application No.115 of 2021 (SZ), and passed an order on 2/3/2022, directing the petitioner to pay environmental compensation of Rs.4, 25, 38, 966.00. As a consequence of the said order, the APPCB-5th respondent herein, vide notice, dtd. 6/9/2022, directed the petitioner to pay the aforesaid amount, quantified by the NGT, with an observation that, in the event of failure to pay the said amount within the specified period, further coercive action would be initiated against the petitioner under Sec. 33 (A) of the Water (Prevention & Control of Pollution) Act, 1974 and under Sec. 31 (A) of the Air (Prevention & Control of Pollution) Act, 1981 and amendments thereof and as provided under the respective statutes, in accordance with law. 4. On 27/5/2023, the writ petitioner filed an application, vide M.A.No.8 of 2023 in Original Application No.115 of 2021 (SZ), under Rule 22 of the National Green Tribunal (Practices and Procedure) Rules, 2011 (for brevity "the Rules, 2011"), seeking the following reliefs: "a. Implead this applicant as party to proceedings and conduct fresh enquiry and decide the matter on merits by affording fair and reasonable opportunity of being heard for this applicant. b. And pass such and further order as this Hon'ble Tribunal may deem fit and necessary considering the facts and circumstances of the case and thus render justice." 5. The NGT, Southern Zone, Chennai, passed an order on 31/5/2023, which reads as follows: 1. b. And pass such and further order as this Hon'ble Tribunal may deem fit and necessary considering the facts and circumstances of the case and thus render justice." 5. The NGT, Southern Zone, Chennai, passed an order on 31/5/2023, which reads as follows: 1. When the matter was taken up for hearing, one Mr. P. Prajeeth, the learned counsel on record appeared and submitted that the applicant has to be impleaded as party to the proceedings in O.A.No.115 of 2021 (SZ). The said Original Application [O.A.No.115 of 2021 (SZ)] was disposed of by this Tribunal vide judgment dtd. 2/3/2022. 2. The grievance of the applicant seems to be that the Andhra Pradesh Pollution Control Board had levied an environmental compensation on the applicant herein. If he is aggrieved by the same, he can challenge the same in the manner known to law and he cannot come before this Tribunal seeking impleadment in the disposed of application, particularly when the Original Application is registered Suo Motu cognizance by this Tribunal. 3. After making submissions, the learned counsel for the applicant wanted to withdraw the application and accordingly, this Miscellaneous Application [M.A.No.08 of 2023 in O.A.No.115 of 2021 (SZ)] is dismissed as withdrawn and the learned counsel for the applicant is directed to send an e-mail to the Registry to this effect." Eventually, the matter has landed before this Court by way of the instant writ petition. 6. It is contended by the learned counsel for the petitioner that the orders passed by the NGT and the consequential notice issued by the APPCB are highly erroneous, contrary to law, opposed to the very spirit and object of the provisions of 2010 Act and the Rules made thereunder and also in violation of the principles of natural justice. It is further contended by the learned counsel for the petitioner that the NGT, without giving any notice and without affording any opportunity of being heard to the petitioner, levied the compensation amount on the petitioner and the same offends Article 14 of the Constitution of India. In support of his submissions and contentions, the learned counsel for the petitioner places reliance on the judgments of the Hon'ble Supreme Court in the cases of Madhya Pradesh High Court Advocates Bar Association and another Vs. Union of India and another., (2022) AIR (SC) 2713 and Singrauli Super Thermal Power Station Vs. In support of his submissions and contentions, the learned counsel for the petitioner places reliance on the judgments of the Hon'ble Supreme Court in the cases of Madhya Pradesh High Court Advocates Bar Association and another Vs. Union of India and another., (2022) AIR (SC) 2713 and Singrauli Super Thermal Power Station Vs. Ashwani Kumar Dubey and others (Civil Appeal No.3856 of 2022 and batch dtd. 5/7/2023). 7. On the contrary, Sri V. Surender Reddy, learned standing counsel for the APPCB, strongly resisting the writ petition, contends that the present writ petition, instituted under Article 226 of the Constitution of India, is not maintainable, in view of the effective alternative remedy as provided under Sec. 22 of the Act. It is also the submission of the learned standing counsel that, after analysing various issues involved in the matter meticulously, the NGT passed the order under challenge, as such, neither the order of the NGT nor the consequential notice issued by the APPCB warrant any judicial review under Article 226 of the Constitution of India. To bolster his submissions and contentions, learned standing counsel for the APPCB places reliance on the judgment of the Hon'ble Supreme Court in the case of Mantri Techzone Private Limited Vs. Forward Foundation and others., (2019) 18 SCC 494 8. In the above background, now the issues, which this Court is called upon to consider and answer in the present writ petition, are as follows: 1) Whether the present writ petition, filed by the petitioner, in the facts and circumstances of the case, is maintainable? and 2) Whether the order of the NGT and the consequential notice issued by the APPCB are sustainable and tenable in the eye of law? 9. ISSUES 1 and 2: It is a settled and well established proposition of law that when an alternative and efficacious remedy is available, the constitutional Courts should not entertain the writ petitions. It is equally important to note that when the impugned action or the order suffers from inherent lack of jurisdiction and taken/passed in violation of the principles of natural justice, the alternative remedy is absolutely not a bar for entertaining the writ petitions under Article 226 of the Constitution of India. 10. It is equally important to note that when the impugned action or the order suffers from inherent lack of jurisdiction and taken/passed in violation of the principles of natural justice, the alternative remedy is absolutely not a bar for entertaining the writ petitions under Article 226 of the Constitution of India. 10. In the instant case, there is absolutely no controversy with regard to the reality that, after taking up the matter suo moto, the NGT, on the basis of the experts' reports, passed the impugned order in Original Application No.115 of 2021 (SZ), quantifying the environmental compensation amount payable by the writ petitioner. There is also no controversy, with regard to the fact that the NGT passed the orders in O.A.No.115 of 2021 (SZ), dtd. 2/3/2022, without giving any notice to the writ petitioner and without affording any opportunity of being heard. It is also a settled proposition of law that any action, which has civil consequences, must necessarily be preceded by notice and opportunity of being heard to the persons likely to be affected by such action. Admittedly, the NGT adhered to the said principle in breach. Though an application had been filed under Rule 22 of the Rules, 2011 by the petitioner before the NGT, the petitioner had withdrawn the said application, in view of the circumstances mentioned in the order passed by the NGT and extracted above. It is also a settled principle of law that no citizen of this country should be deprived of the legal remedy. 11. In this context, it may be appropriate to refer to certain provisions of 2010 Act and the Rules made thereunder. The Parliament, in order to provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto, brought in the present legislation called "the National Green Tribunal Act, 2010". Chapter-III of the Act, 2010 deals with the jurisdiction, powers and proceedings of the Tribunal. Sec. 19 of the Act, 2010 deals with the procedure and powers of the Tribunal. Chapter-III of the Act, 2010 deals with the jurisdiction, powers and proceedings of the Tribunal. Sec. 19 of the Act, 2010 deals with the procedure and powers of the Tribunal. According to sub-Sec. (1) of Sec. 19 of the Act, 2010, the 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. According to sub-Sec. (4) of Sec. 19 of the Act, the Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:- a) Summoning and enforcing the attendance of any person and examining him on oath; b) requiring the discovery and production of documents; c) receiving evidence on affidavits; d) subject to the provisions of Sec. 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; e) issuing commissions for the examination of witnesses or documents; f) reviewing its decision; g) dismissing an application for default or deciding its ex parte; h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act; j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I; k) any other matter which may be prescribed. 12. In exercise of the powers conferred by sub-Sec. (4) of Sec. 19 of the Act read with Sec. 35 of the Act, the Central Government made the Rules called "National Green Tribunal (Practices and Procedure) Rules, 2011. Rule 8 of the Rules prescribes the procedure for filing application or appeal. Rule 22 of the Rules prescribes for filing application for review. 13. In the instant case, admittedly, the writ petitioner was neither shown as a party to the Original Application No.115 of 2021 (SZ) nor was afforded any opportunity of being heard by the NGT before passing the order under challenge. Rule 22 of the Rules prescribes for filing application for review. 13. In the instant case, admittedly, the writ petitioner was neither shown as a party to the Original Application No.115 of 2021 (SZ) nor was afforded any opportunity of being heard by the NGT before passing the order under challenge. Therefore, the said reality drives this Court towards an irresistible conclusion that the NGT, in violation of the provisions of law mentioned supra and in violation of the principles of natural justice, passed the impugned order, levying environmental compensation amount on the writ petitioner. 14. In this context, it may also be appropriate to refer to the judgment cited by the learned counsel for the writ petitioner in the case of Madhya Pradesh High Court Advocates Bar Association and another Vs. Union of India and another (1st cited supra), wherein the Hon'ble Apex Court, at paragraph No.38, ruled as follows: "38. In consequence of the above analysis, our conclusions are: A. The National Green Tribunal under Sec. 14 and 22 of the NGT Act does not oust the High Court"s jurisdiction under Article 226 and 227 as the same is a part of the basic structure of the Constitution. B. The remedy of direct appeal to the Supreme Court under Sec. 22 of the NGT Act is intra vires the Constitution of India. C. Sec. 3 of the NGT Act is not a case of excessive delegation of power to the Central Government. D. The seat of the NGT benches can be located as per exigencies and it is not necessary to locate them in every State. The prayer for relocating the Bhopal NGT to Jabalpur is unmerited and is rejected." 15. In the case of Singrauli Super Thermal Power Station Vs. Ashwani Kumar Dubey and others (Civil Appeal No.3856 of 2022 and batch dtd. 5/7/2023), the Hon'ble Supreme Court, while dealing with the provisions of the Act, at paragraph Nos.11, 14, 15 and 16, held as follows: "11. In other words, the NGT has simply accepted the recommendations as remedial action suggested by the Committee 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 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. Sec. 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 recommendations 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. 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 components of notice, contents of the notice, reports of inquiry, and materials that are available for perusal. While situational 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 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 Sec. 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 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. 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 14 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. 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 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." 16. Having regard to the mandatory requirements of law, as provided under the provisions of the Act and the principles laid down in the aforesaid judgments, it has to be necessarily concluded that the order passed by the NGT, levying the environmental compensation on the writ petitioner, and the consequential notice issued by the APPCB, which are impugned in the present writ petition, if tested on the touchstone of Article 14 of the Constitution of India, cannot stand for judicial scrutiny. 17. Coming to the contention advanced by the learned standing counsel for the APPCB as to the maintainability of the writ petition, in view of Sec. 22 of the Act, 2010, it is to be noted that in view of the law laid down in the aforesaid judgments, the said contention is liable to be rejected and is, accordingly, rejected. 18. Coming to the contention advanced by the learned standing counsel for the APPCB as to the maintainability of the writ petition, in view of Sec. 22 of the Act, 2010, it is to be noted that in view of the law laid down in the aforesaid judgments, the said contention is liable to be rejected and is, accordingly, rejected. 18. In the facts and circumstances of the case, the judgment cited by the learned standing counsel in the case of Mantri Techzone Private Limited Vs. Forward Foundation and others (2nd cited supra) would not render any assistance to the case of the respondents, as in the said judgment, the aspects of jurisdiction and the violation of principles of natural justice never fell for consideration. 19. For the aforesaid reasons, the Writ Petition is allowed, setting aside the order, dtd. 2/3/2022, passed by the National Green Tribunal, Southern Zone, Chennai, in Original Application No.115 of 2021 (SZ), and the consequential notice bearing No.718/APPCB/HO/UHII/TF/KDP/2022, dtd. 6/9/2022, issued by the Andhra Pradesh Pollution Control Board, and the matter is remanded to the National Green Tribunal, Southern Zone, Chennai, for consideration of all the issues afresh, after giving opportunity of hearing to the petitioner. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall stand closed.