It is definitely most significant to note that in a major step that pertains directly to the Indian Army, the Karnataka High Court at Bengaluru in a most learned, laudable, landmark, logical and latest oral judgment titled UoI Vs State of Karnataka in Writ Petition No. 26954 of 2024 (GM-POL) and cited in Neutral Citation No. NC: 2024:KHC:48449-DB that was pronounced as recently as on November 26, 2024 has set aside the order of the National Green Tribunal (NGT) which in May 2022 had imposed a penalty of Rs 2.94 crore ex parte on Bengaluru-based Madras Engineers Group & Centre (MEG&C) which is a training facility centre of the Indian Army and is a part of Corps of Engineer in the Army which is a military unit based in Bengaluru dating back over two centuries for allegedly polluting Ulsoor lake in the city. It must be mentioned here that this writ petition was filed under Article 226 and 227 of Constitution praying to issue a writ or certiorari issue a writ or order by way of certiorari quashing the order dated 23.09.2021, 20.05.2022 (Annexure-A and A1) passed by the National Green Tribunal, Southern Zone, Chennai in the matter of suo motu based on the news item published in “The Hindu” newspaper dated 08.03.2016 titled “Lake In Heart Of Bengaluru City Turns Graveyard For Fish” in OA No. 54/2016 (SZ) by holding it to be illegal, arbitrary and contrary to the principle of natural justice & etc. It must be mentioned here that the Karnataka High Court was most categorical in holding that the NGT had failed to follow the law of principles of natural justice as no opportunity of hearing was given to the MEG & C, which was not a party in the proceedings on the issue of pollution of Ulsoor lake that was taken up suo motu by the NGT.
It must be noted that the Additional Solicitor General Mr K Arvind Kamath had argued on behalf of MEG that the orders were in breach of natural justice as the MEG had not been heard. It was also argued that MEG had previously complained that the Bangalore Water Supply and Sewerage Board (BWSSB) had diverted sewage from various areas to flow through the MEG. The primary argument of MEG was that its sewage load was low and the primary polluters were in fact BWSSB and others. Above all, we definitely cannot be ever oblivious of the most irrefutable fact that the judgment by NGT not only failed to follow the principles of natural justice but also utterly and most miserably failed astoundingly to adhere firmly to the most fundamental tenet that is enshrined in the legal maxim titled “Audi Alteram Partem” which means in simple language that, “Let the other party be heard”!
At the very outset, this brief, brilliant, bold and balanced oral judgment authored by Hon’ble The Chief Justice Mr Justice NV Anjaria for a Division Bench of the Karnataka High Court at Bengaluru sets the ball in motion by first and foremost putting forth in para 1 that, “At the outset, learned Additional Solicitor General Mr. K. Arvind Kamath, assisted by learned Central Government Standing Counsel Mr. B. Pramod for the petitioners does not press prayer (ii) in paragraph 32, seeking to delete the same.”
To put things in perspective, the Division Bench envisages in para 3 that, “The Union of India along with its two limbs namely M/s. Madras Engineering Group and Centre and M/s. Garrison Engineers (North) Bangalore which are under the Ministry of Defence, have filed the present petition.
3.1 The petitioner No.2-Madras Engineering Group is a category-B Training establishment, having designed capacity to train 2700 Agniveers and 1500 Soldiers. The Centre has authorized 51 Officers, 267 Junior Commissioned Officers and 1093 other Ranks. They along with the soldier-trainees undergo regular training. About 5000 employees and trainees stay within the campus with their family. Petitioner No.3-M/s.Garrison Engineers provide accommodation complexes.
3.2 Invoking the jurisdiction of this Court under Article 226 of the Constitution, the petitioners have challenged order dated 23rd September 2021 and 20th May 2022 passed by the National Green Tribunal, Southern Zone, Chennai passed in Original Application No.54 of 2015 which was a suo motu proceedings, based on the news item published in ‘The Hindu’ daily dated 8th March 2016 titled as ‘Lake in the heart of Bengaluru City turns graveyard for fish’.
3.3 An interim order was passed by the National Green Tribunal (NGT) on 23rd September 2021 in the aforesaid proceedings, whereby the NGT imposed environment compensation to the tune of Rs.2,94,60,000/- on petitioner No.2-Madras Engineering Group on the ground of non-compliance of the discharge standards in 100 KLD STP. Order dated 20th May 2022 thereafter came to be passed, finally disposing of the said proceedings of Original Application No.54 of 2016. In that order, a finding was inter alia recorded in paragraph 12 that Madras Engineering Group-petitioner No.2 along with the slaughter house Bangalore Water Supply and Sewerage Board (BWSSB) has contributed to the pollution.
3.4 It was directed that the compensation be assessed and recovered by Karnataka State Pollution Control Board-respondent No.3 herein from the petitioner No.2. The Tribunal provided that the BWSSB may contribute Rs.1,00,00,000/- (Rupees One Crore only) towards the interim compensation. It is to be noticed that the petitioners herein were not party in the aforesaid proceedings before the NGT.
3.5 The prayer which was deleted as recorded above, was in respect of the notice-cum-order dated 9th July 2024, whereby the competent authority of Karnataka State Pollution Control Board called upon the petitioner to pay the environmental compensation of Rs.2,94,63,000/- as per the order dated 23rd September 2021 of the NGT within seven days, failing which, it was provided that, the closure order would be issued under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974.
3.6 With the above background of the order passed by the NGT, the case of the petitioners in the present petition may be noticed. While calling in question the aforementioned order dated 20th May 2022 as well as previous order which was interim order dated 23rd September 2021, it is stated that the petitioners were not party to the said suo motu proceedings initiated by the NGT. It is stated that open storm water drain of BWSSB flows through MEG & Centre adjacent to the 100 KLD STP commissioned in 2019 culminating in Ulsoor Lake.
3.6.1 It is stated that it is only when the Joint Committee appointed by the NGT came for inspection, the petitioner knew that suo motu proceedings were taken up by the NGT in the year 2016. It appears, it was stated that the Committee in its report dated 10th August 2020 recommended to the NGT that the STP was operated without Consent of Establishment and Consent of Operation and that the treated water did not comply the discharge standards. The Committee recommended imposition of environmental compensation from the date of sample collection.
3.6.2 It was stated that Central Pollution Control Board addressed letter dated 2nd July 2021 to inform the petitioner, to which reply was forwarded. The STP and SWD was re-inspected by the Joint Committee on 28th July 2021 and report was submitted to NGT. It is the case that even during this re-inspection, the petitioners were not given opportunity by the Joint Committee of being heard and put forward their case. The NGT thereafter passed the impugned orders invoking suo motu proceedings on the basis of newspaper report, in which also, the petitioners were not party.
3.7 Notice dated 9th July 2024 came to be issued from the Environmental officer, State Pollution Control Board with reference to the proceedings and the orders passed by the NGT to call upon the petitioners to pay the imposed environment compensation of Rs.2,94,60,000/-, failing which, it was intimated, action in law would be initiated. The petitioners have filed Appeal No.53 of 2024 before the NGT against the said notice.”
Most fundamentally and so also most remarkably, the Division Bench then postulates precisely in para 5 which we shall discuss only most relevant ones stating that, “5.7 An aspect of delay was attempted to be raised in vain by the respondents. It is not possible to come to a conclusion that there was a culpable omission on the part of the appellants in not challenging the orders immediately. Not only that the appellants were not party to the proceedings before the NGT, they had never an opportunity to put forward their rebuttal or the case in defence to the finding and conclusion by the NGT about their liability to pay the compensation. Even if the appellants could be attributed with the knowledge of the proceedings before the Tribunal, when they were not given opportunity to put forward their case and that they were not heard, their right to challenge the finding and the decision could be said to be remaining alive to be exercised in Court of law. It was legitimate for the appellant to file the petition when the effect of the order was felt. A litigant, in the present case, the Union of India and Defence Units under it, would not while away the time for the sake of whiling away. The aspect of delay has to be assessed and applied in the setting of facts and in the context of dispute.
5.8 The principles of natural justice are intended to operate in the areas not chattered by any law even though any legal provisions may not contemplate the observance of natural justice. The consequence of the action and the prejudice which may be caused to the party would necessitate the compliance of natural justice. The natural justice is a principle which ensures fair and non-prejudicial adjudication whenever a decision making process is going to effect the rights of any person.
5.9 More recent decisions laying down that the NGT is obliged to comply with the principles of natural justice, finally reiterates the position of law. The Apex Court in Singrauli Super Thermal Power Station vs. Ashwini Kumar Dubey which was Civil Appeal No.3856 of 2022 decided on 05.07.2023, disapproved the order of the National Green Tribunal which was passed without compliance of natural justice. The National Green Tribunal had constituted an expert Committee with regard to the alleged violations, in respect of which there was no opportunity was given to the opponent.
5.9.2 A decision of the Supreme Court in Madhyamam Broadcasting Ltd. vs. Union of India [(2023) SCC Online 366], was referred to notice observations therefrom, “The facet of audi alteram 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.” (Para 14)
5.9.5 Such repetitive orders without affording opportunity of hearing and without compliance of natural justice by the NGT, came under scanner of the Apex Court in the following observations, “The National Green Tribunal’s recurrent engagement in unilateral decision making, provisioning ex post factor review hearing 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 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.” (Para 4).”
It is worth noting that the Division Bench notes in para 6 that, “For all the aforesaid considerations and the position of law highlighted, this Court is inclined to exercise powers under Article 226 of the Constitution in limited context and in respect of specific area which is non compliance of principles of natural justice, in as much as the order against the petitioners came to be passed by the NGT imposing the liability of payment of environment compensation without affording hearing to the petitioners. The NGT passed interim order and then confirmed the finding against the petitioners to confirm the liability even when the NGT had no version available from the petitioners, which could have been raised in defence.”
Most significantly and as a corollary, the Division Bench then encapsulates in para 7 what constitutes the cornerstone of this notable judgment holding succinctly stating that, “In light of foregoing reasons and discussion, following order is passed,
(i) Order dated 20th May 2022 passed by the National Green Tribunal Special Bench in Original Application No.64 of 2015 is set aside in so far as and to the extent that it records a finding that the M/s. Madras Engineering Group and Centre-the appellant herein has contributed to pollution.
(ii) The aforesaid order dated 20th May 2022 of the National Green Tribunal Special Bench is set aside also in so far as it confirms interim order dated 23 rd September 2021, ex parte imposing on the appellant environment compensation of Rs.2,94,60,000/- on the alleged ground of non-compliance of the discharge standards in two MLD-STP operated at Ulsoor Lake, Bangalore Water Supply and Sewerage Board.
(iii) The setting aside of the order and the finding imposing the environment compensation on the appellant are on the sole ground that they are passed without affording of opportunity of hearing to the appellant and thus in breach of principles of natural justice.
(iv) The matter is remitted back to the National Green Tribunal, Southern Zone, Chennai to reconsider and decide afresh the question of imposition or otherwise of the environment compensation on the appellant, and to decide as to whether the appellants are liable to pay such compensation, after extending opportunity of hearing to the appellants.
(v) The NGT shall permit the appellants to produce all the documents and the materials in their defence to put forward their case and the appellant shall also be heard for their case.
(vi) The parties shall co-operate in expeditious completion of above exercise by NGT.
(vii) The appellants, however, shall be obliged to deposit amount of Rs.1,00,00,000/- (Rupees One Crore only) with the Karnataka State Pollution Control Board in view of order dated 21st August 2024, passed by the National Green Tribunal in Appeal No.53 of 2024. At the same time, the said deposit shall remain subject to outcome of the fresh exercise and order afresh to be passed by the National Green Tribunal as per the above directions.”
For sake of clarity, the Division Bench clarifies in para 8 that, “It is clarified that the aforesaid order and directions are passed only on the ground of non compliance of principles of natural justice.”
Adding more to it, the Division Bench then also further clarifies in para 9 that, “This Court has not gone into, nor has expressed any opinion on merits.”
Finally, the Division Bench then concludes by holding in para 10 that, “The present petition is allowed in part as above.”
In sum, it is high time and NGT must stop repeatedly violating the principles of natural justice as held by the Division Bench of the Karnataka High Court in this leading case also! The Division Bench very rightly quoted many relevant judgments of the Apex Court and we have discussed only most relevant ones here. If NGT fails to comply as directed by the Karnataka High Court in this leading case and so also by many other High Courts in different cases from time to time and so also by the Apex Court then its order will be set aside in the manner as we see here! No denying it!
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