National Green Tribunal
Amaravati Fly Ash Bricks Manufacturers ... vs Union Of India on 16 December, 2024
Items No.02 to 04 Court No. 2
BEFORE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 327/2022
(I.A. No.666/2024, I.A. No.256/2022, I.A. No.174/2022
&
I.A. No.110/2022)
Amravati Fly Ash Bricks Manufacturers
Association Applicant
Versus
Union of India & Others Respondents
And
Original Application No. 878/2022
Tamilnadu Fly Ash Brick and Blocks
Manufactures Association Applicant
Versus
Union of India & Others Respondents
With
Original Application No.661/2024
Tamilnadu Fly Ash Brick and Blocks
Manufactures Association Applicant
Versus
Union of India & Others Respondents
Date of hearing: 16.12.2024
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicants: Ms. Chandrika Upadhyaya Proxy Counsel for the
Applicant (in O.A. No. 327/2022 and in O.A. No.
878/2022.).
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Mr. Akhil Pal Chhabra, Advocate for Applicant (through
VC) in O.A. No. 661/2024.
Respondents: Mr. K M Natraj, ASG (through VC) with Mr. Gigi C
George and Mr. Watsal, Advocates for Respondent no. 4
in O.A. No. 327/2022, Respondent no. 2-in O.A. No.
878/2022 and Respondent no. 4-in O.A. No. 661/2024.
Ms. Bihu Sharma, Advocate for Respondent no. 1 in
O.A. No. 327/2022, Respondent no. 1 in O.A. 878/2022
and Respondent no. 1 in O.A. No. 661/2024 (through
VC).
Mr. Chetan Sharm, ASG, Mr. Shailesh Madiyal, Senior
Advocate with Mr. Sudhanshu Prakash, AOR,
Vikramaditya Singh, Mr. Shubham Sharma and Mr.
Animesh Verma, Advocates for Respondent no.
Respondent No. 9 in O.A. No. 327/2022 and
Respondent no. 5 in O.A. No. 878/2022.
Mr. Raj Kumar, Advocate for Respondent No. 7 in O.A.
No. 327/2022 and Respondent no. 3 in O.A. No.
878/2022.
Ms. Anush Nagarajan and Ms. Carina Arora, Advocates
for respondent no. 6, 10 to 13 in O.A. No. 878/2022.
Mr. N. Nithianandam, Advocate for Respondent No.7
(through VC) in O.A. No. 878/2022.
Ms. Ritwika Nanda, Advocate and Ms. Swasti Misra,
Advocates for Respondent no. 8 in O.A. No. 878/2022.
Mr. Munawar Naseem and Ms. Anisha Gupta, Advocates
for respondent no. 14 to 17 in O.A. No. 878/2022.
Mr. Adarsh Tripathi, Mr. Vikram Singh Baid and Mr.
Ajitesh Garg Advocates for Respondent No. 18 in O.A.
No. 878/2022 (through VC).
None for Respondents no. 2,3,5,6,8,10,11,12,13,14 and
15 in O.A. No. 327/2022.
None for Respondents no. 4 and 9 in O.A. No.
878/2022.
None for Respondent no. 2 and 3 in O.A. No. 661/2024.
ORDER
1. Interlocutory Application No.666/2024 has been filed by Respondent no.4-Ministry of Power (MOP) in O.A. No.327/2022 for passing an order 2 taking on record additional facts of amendment notification dated 01.01.2024 issued by Respondent No.1-MoEF&CC amending notification dated 31.12.2021 issued earlier and Guidelines dated 15.03.2024 issued by Respondent No.4-MOP in supersession of guidelines dated 22.02.2022 and disposal of similar O.A. No. 436 of 2023 by this Tribunal as infructuous.
2. Ms. Chandrika Upadhyaya, Proxy Counsel for Mr. Gaurav Kumar Bansal, Counsel for the Applicant in O.A. No. 327/2022 and O.A. No. 878/2022 seeks adjournment on the ground of personal difficulty of learned counsel for the applicant in appearing before this Tribunal today.
3. Learned Additional Solicitor General has submitted that in view of above referred subsequent developments these Original Applications have become infructuous and has relied on order dated 16.04.2024 passed in O.A. No.436/2023 whereby the above said Original Application was disposed of as infructuous.
4. Notification dated 31.12.2021 has been amended on 01.01.2024 and guidelines dated 22.02.2022 have been superseded on 15.03.2024 during pendency of O.A. No. 327/2022 and O.A. No. 878/2022.
5. The question as to whether all the reliefs sought in these applications have become infructuous or not has to be adjudicated upon after filing of reply by applicants and hearing of submissions in respect thereof.
6. It may also be observed here that it is now well settled that the parties before the Court/Tribunal can amend the pleadings in view of subsequent developments and the Court/Tribunal can also mould the relief in view of subsequent developments.
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7. It may also be observed here that O.A. No. 661 of 2024 has been filed for quashing order dated 01.01.2024 issued by Respondent No.1- MOEF&CC and order dated 15.03.2024 issued by Respondent No.4 MOP.
8. Replies by applicants may be filed to I.A. No.666/2024 at least one week before the date of hearing fixed.
9. In their replies the applicants may also specifically mention as to whether the reliefs sought by them have become infructuous or not, as to whether any relief survives despite subsequent developments and as to whether any amendments are desired to be made to reiterate the grievances and assail validity of subsequent notification and guidelines.
10. In view of the facts that Hon'ble Supreme Court has given directions to this Tribunal for deciding the matters within a period of six months from the date of its order short dates of hearing have to be fixed in the matter for hearing and adjudication of the questions involved in compliance thereof.
11. It may also be observed here that vide order dated 18.01.2022 passed in O.A No.164/2018 (earlier O.A No. 276/2013) titled as "Ashwani Kumar Dubey Vs. Union of India and Others, this Tribunal had directed the respondents to file their responses giving information with respect to aspects mentioned therein which have the bearing on the question of scientific and expeditious disposal of fly ash for protection against adverse environmental impact thereof. Even under the notifications issued by MoEF&CC the concerned TPPs were required to upload the relevant information on their websites and also the High Level Committee constituted by MoEF&CC was required to deliberate upon the issues and upload its Minutes of Meeting on the website. 4
12. In the present case appeal was filed against order dated 25.08.2022 and it is noteworthy that no appeal was filed against order dated 15.12.2022 passed by this Tribunal in above mentioned O.A. so far as the information sought thereby is concerned and the respondents are bound to submit the same by filing appropriate responses.
13. Even otherwise, we reiterate the above order as part of this order as the information thereby sought is required for just and proper adjudication of the questions involved in the present applications.
14. Responses by the concerned respondents be filed specifically mentioning as to whether the information as directed by notification issued by MoEF&CC and guidelines issued by Ministry of Power, Central Pollution Control Board or concerned State Pollution Control Board/Pollution Control Committee is being uploaded on the website of concerned respondents or not.
15. It may be observed here that in the present cases despite service of notices, Respondents no. 2, 3, 5, 6, 8, 10, 11, 12, 13, 14 and 15 in O.A No. 327/2022, Respondents no. 4 and 9 in O.A. No. 878/2022 and Respondents no. 2 and 3 in O.A. No. 661/2024 have not appeared before this Tribunal and have not filed their responses.
16. Adjudication of cases involving substantial environmental questions is not governed by the principles of adversarial litigation and is on the other hand, governed by the principles of Sustainable Development Precautionary Principle and Polluter Pays Principle embodied in Section 20 of the National Green Tribunal Act, 2010 which are also part of our Municipal Environmental Law in view of treaties entered into by Government of India and Judgments of Hon'ble Supreme Court. In view of nature thereof the provisions of the Code of Civil Procedure, 1908, Indian 5 Evidence Act, 1872/Bhartiya Sakshya Adhiniyam, 2023 and similar procedural laws are not applicable to adjudication of substantial environmental questions.
17. State and its instrumentalities are under constitutional obligation to protect and improve environment and in view thereof State and its instrumentalities cannot absent from adjudication of substantial environmental questions on any ground and are constitutionally bound to cooperate and participate in the same.
18. Even though the National Green Tribunal (Practices and Procedure) Rules, 2011 provides for taking of ex-parte proceedings against the absentee respondents but we consider that in cases involving substantial environmental questions concerned respondents cannot be allowed to suffer themselves to be proceeded against ex-parte as any order passed ex- parte is also likely to adversely impact environment for lack of information which could be provided by such respondents.
19. However, in the present case we are giving one more opportunity to the absenting respondents to appear and file their responses and ensure their representations before this Tribunal. In the absence thereof not only exemplary costs may be imposed on absenting respondents on further dates of hearing but also their presence may be secured for being examined as witnesses in the case.
20. I.A. No.174/2022 and I.A. No. 256/2022 are pending before this Tribunal and replies to the same may also be filed by the concerned parties at least one week before the date of hearing fixed.
21. Mr. Munawar Naseem and Ms. Anisha Gupta, learned Counsels for respondents no.14 to 17 (in O.A. No. 878/2022) have submitted that copies of the original applications have not been supplied to them. 6
22. Learned counsels for the applicants are directed to supply copies of the original applications to them.
23. In case of failure of learned counsels for the applicants to do so, learned Counsels for respondents no.14 to 17 may obtain relevant copies from the Court Master of this Bench who is directed to do the needful if so requested.
24. Responses by respondents no.14 to 17 and all other respondents who have not filed their responses so far may be filed at least one week before the date of hearing fixed.
25. List on 16.01.2025 for further hearing.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM December 16th, 2024 O.A. No. 327/2022 With O.A. No. 878/2022 With O.A. No. 661/2024.
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