SC pulls up NGT for 'unilateral decisions', asks tribunal to act with 'procedural integrity'

In an unusual order, the Supreme Court has pulled up the National Green Tribunal (NGT) for its "recurrent engagement" in "unilateral decision making" and cautioned that in "its zealous quest for justice, the tribunal must tread carefully to avoid the oversight of propriety".

These hard hitting observations were made by a bench of Justices P S Narasimha and Aravind Kumar in its verdict on appeals filed by a Delhi-based business enterprises, which has challenged two orders of the green panel where it had slapped fine on the firm, in a suo motu proceedings for polluting the environment, without even giving it an opportunity to be heard.

"The National Green Tribunal's recurrent engagement in unilateral decision making, provisioning ex-post facto review hearings and routinely dismissing it has regrettably become a prevailing norm. In its zealous quest for justice, the tribunal must tread carefully to avoid the oversight of propriety," the bench said in its January 30 order, uploaded on Wednesday, 7 February.

It added that the practice of ex-parte orders and the imposition of damages amounting to crores of rupees, have proven to be a counterproductive force in the broader mission of environmental safeguarding.

The bench said that significantly, these orders of the NGT have consistently faced stays from the apex court, resulting in the unraveling of the commendable efforts put forth by the members, lawyers, and other stakeholders.

"It is imperative for the tribunal to infuse a renewed sense of procedural integrity, ensuring that its actions resonate with a harmonious balance between justice and due process. Only then can it reclaim its standing as a beacon of environmental protection, where well-intentioned endeavours are not simply washed away," it said.

The bench noted that these appeals arise out of two orders passed by the NGT on August 31, 2021 and on November 26, 2021.

"The main order arises out of an ex parte order in suo motu proceedings holding the appellants to be guilty and directing payment of compensation. The second order is the dismissal of the review petition filed by the appellant No.2 alleging that he had not been given an opportunity before an adverse order was passed against him," the bench noted in its verdict.

Referring to the orders, the bench said that it is evident from them that the tribunal itself has noted that notices were not issued to the project proponents.

"The tribunal, in fact, considers it unnecessary to hear the project proponent to verify the facts in issue. The tribunal thought it appropriate to adopt this method in view of a Joint Inspection Report that had been submitted. The persons who were prejudiced by the order of the tribunal naturally filed review petitions before the tribunal. Appellant No. 2 is one amongst them. The review petition was taken up and dismissed by the tribunal on November 26, 2021," it said.

The bench said it appears that the appellants did not have a full opportunity to contest the matter and place all their defences before the tribunal.

"They filed this appeal and by order dated March 4, 2022, this Court stayed the judgment and order passed by the tribunal. This was inevitable. Two years have passed by and the stay is still operating. We have no other alternative except to set aside the orders dated August 31, 2021 and November 26, 2021 and remand the matter back to the tribunal," the top court said, as it set aside the orders of the NGT and remanded the matter back to the tribunal.

It directed the green panel to issue notice to all the affected parties, hear them and then pass appropriate orders.

The bench, however, said that the tribunal shall hear the case, uninfluenced by the observations and conclusions drawn in the orders dated August 31, 2021 and November 26, 2021.

"We make it clear that this order does not deal with the merits of the matter and the actions of those guilty of statutory and environmental violation will have to be subject to strict scrutiny and legal consequences," it said.