National Green Tribunal
Som Distilleries Pvt Ltd vs Madhya Pradesh Pollution Control Board on 17 August, 2022
Item No. 03
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Appeal No.05/2022 (CZ)
Som Distilleries Ltd. Appellant (s)
Versus
Madhya Pradesh Pollution Control Board Respondent(s)
Date of hearing: 17.08.2022
Date of Uploading : 20.08.2022
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Appellant (s): Ms. Gunjan Chowksey, Adv.
For Respondent(s) : Ms. Parul Bhadoria, Adv.
ORDER
1. Challenge in this Appeal is the order dated 21.10.2021 and 31.12.2021 passed by the Madhya Pradesh Pollution Control Board. The relevant portion of order dated 21.10.2021 is as follows :
"AND WHEREAS, an inspection of your unit was conducted by the officers of MPPCB on 02.07.2021and 17.08.2021, and during both the inspections various shortcomings were found and no remedial measures were taken by your unit and you have also failed to comply with the conditions stipulated in the consent to operate issued as a result of which closure directions dated 27.08.2021 have been issued to your unit mentioning all the shortcomings and violations in detail. Also that, time was being granted to your unit to install pollution control equipments and zero liquid discharge facilities; however, same has not been complied by you till date. The compliance status of consent conditions indicating the violations are mentioned in the table below :-
1
S Board's Consent Consent Condition Status As found on N Outward no. dated 17/08/2021 Page and condition No. 1 Consent Outward no. The industry shall use only Condition not complied.
33756, Dt. lined (impervious) lagoons 03 emergency storage 26/06/2016 for storage of treated lagoons located near Pg. no. 4, Add. effluent. The unlined digester are not Condition no. 3 lagoons shall be kept impervious due to rupture empty and dismantle the of liner and flag stone same within 3 months if lining. Lagoons located any. A free-board of near Jogikhar nalla are minimum three feet shall also unlined and at be maintained in all bottom, the lagoons are storage lagoons. not impervious.
Pg. no. 4, Add. The industry shall Analysis report of tube Condition no. 4 monitor the quality of well water inside the tube well water inside premises and nearby area the premises and nearby has not been submitted area and the analysis every three months to the report shall be submitted Board, hence Condition to the Board in every not complied.
three month.
Pg. no. 4, Add. The industry shall not use Waste water is stored in Condition no. 5 treated/untreated effluent non- impervious and on land for irrigation or unlined lagoons hence gardening and the zero zero liquid discharge liquid discharge condition Condition is not found shall be maintained by maintained and condition using MEE & incineration is not complied.
system as per CPCB directions.
Pg. no. 4, Add. No effluent shall be stored Not complied with the
Condition no. 6 in the premises except for reason mentioned above
emergency storage of 7 for condition no. 3 and
days in environmentally condition no. 5.
safe manner.
Pg. no. 4, Add. Industry shall provide a Garland drain around the
Condition no. 7 garland drain around the unit along with a catch pit
unit along with a catch pit to collect/pump back any
to collect/pump back any discharge has not been
accidental discharge to the constructed, hence
treatment system. condition not complied
Pg. no. 6, Add. Industry shall install CAAQMS to monitor
Condition no. 4 CAAQMS stations at ambient air quality within
2
suitable locations to Industry premises has not
monitor ambient air been installed, hence
quality and stack emission. condition not complied. The management shall provide suitable connectivity of CAAQMS with Environment Surveillance Centre at the HQ of M.P. Pollution Control Board for monitoring and data transmission purpose.
2 Consent Outward The debris generated from Debris generated from the no.100096, the dismantling of old dismantling of old Dt. 20/03/2020 distillation plant shall be distillation plant has not Pg. no. 1, disposed in environment been complete disposed Note Condition no. 4 friendly method and same off, hence condition not shall be reported to the complied.
Board.
Pg. no. 2, Water Trade Effluent Treatment:- Drier / ATFD has not
condition : No. 2 The applicant shall operate been installed so far,
and maintain the hence condition not
comprehensive effluent complied.
treatment system to
achieve ZLD for Molasses
based distillation- ETP.
RO, Integrated
Evaporation, Stand alone
Evaporator, Incineration
Boiler and for Grain Based
Distillation- ETP,
Decanter, Integrated ,
Evaporation, Dryer/
ATFD and in case of
accidental discharge
following standard shall
be achieved
Pg. no. 4, Additional Treatment of other Condition not complied
Water condition : effluents such as plant because separate ETP has
no. 4 washing, leakages, bottle not been installed so far
washing, boiler blow and DM back wash
down, softener effluent collected in
regeneration, DM plant, equalization tank only.
regeneration, plate heat Pipeline for reuse whithin
exchangers cleaning etc in plant not observed from
a separate ETP and shall equalization tank to
be utilized for evaporator system
process/utilities. directly.
Pg. no. 4, Condition The industry shall make Coloured and highly
No. 6 all possible protection polluted effluent was
3
arrangements for control found stored in lagoons
of pollution in nearby which may be discharged
nallah from the industry accidently during rains,
hence condition not
complied
Pg. no. 4, Condition The industry shall install DDGS Drier not installed No. 7 dryer for DDGS to achieve so far, hence condition not zero discharge from grain complied based distillery as per CPCB Pg. no. 7, Condition Industry shall strictly Waste water is stored in No. 2 comply the direction non- impervious and issued by CPCB vide letter unlined lagoons hence no. B-410/PCI- zero liquid discharge III/DIST/2k15-16/4305 Condition is not found Dt. 09/08/2015 to achieve maintained and condition ZLD. is not complied.
Pg. no. 7, Condition The industry shall Not dismantled so far. 13
No. 3 complete the dismantling/ lagoons located near
de-sludging of the lagoons Jogikhar nalla which are
immediately and all kachcha on bottom and
Kuccha lagoons shall be stone pitched at sides and
dismantled. some of them were found
filled with colored /
polluted water. Sludge
from bottom
Pg. no. 7, Condition The pucca lagoons shall be Colloured effluent has
No. 4 cleaned in such a way so been found stored in 3
that the water stored shall lagoons and 1 collection remain colour less. tank located near digester on the inspection day, hence condition not complied.
Pg. no. 7, Condition Industry shall install the DDGS (Dried Distillers No. 5 Dryer with grain based Grains Soluble) drier has distillation unit for not been installed so far.
DDGS (Dried Distillers 14 month time was given
Grains Soluble) as per the as per action plan and
CPCB guidelines bank guarantee submitted
within next 14 months by industry vide letter
time and submit the PERT dated 09/03/2020 but the
CHART for each industry failed to comply
activity along with and drier has not found
estimate of the unit with been installed on
BG of 25% cost of the inspection day. hence
dryer within one month condition not complied.
from the date of issue to
this letter.
4
Authorities assigned for levy of EC and taking penal actions are listed below:
SN Actions Authority
1. To seal illegal bore-well/tubewell to District Collector stop extraction of water and further closure of project
2. To levy ECGw as per prescribed District Collector method
3. To levy EC on water pollution as CPCB/SPCB/PCC per the method prescribed in report of CPCB--"EC on industrial pollution"
4. Prosecution of violator CGWA under EP Act SPCB/PCC under Air and Water Act THEREFORE, in view of the continuous non-compliance of the consent conditions and subsequent operations without obtaining valid consent to operate, you are you are liable to pay Environmental Compensation to the tune of Rs 90,60,000/- (Ninety lakh sixty thousand only) calculated as per the guidelines laid down by the Central Pollution Control Board [CPCB] for operating in violation during 01.11.2020 to 28.08.2021 (302Days) the calculation is as under :-
Pl = 80 (Red Category Industry) Pollution Index of industrial sector N= 302 Days (Days of Violation) Number of days of violation took place R= 250 (As per Guidelines) A factor in Rs. for EC LF= 1 (Industry is located > 10 km from Municipal Boundary) Location factor Environment Compensation EC = Pl x N x R x S x LF Environment Compensation EC per day = 80 x 250 x 1.5 x 1 EC per day = 30,000/-, for N = 302 days Total Amount of EC = 302 x 30,000 Total Amount of EC (in Rs) = 90,60,000/-
You are, hereby, given an opportunity of hearing and submit your reply/objection (if any) pertaining to above stated computation of Environmental Compensation within 15 days. In case no reply is received within 15 days from the date of issue of this notice, above proposed Environmental Compensation shall be confirmed and compensation amount shall be deposited in the account -:
2. The relevant portion of the impugned order dated 31.12.2021 is as follows:
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"WHEREAS, the validity of the consent to operate granted by the MP Pollution Control Board to your unit had expired on 31.10.2020 and you were found operating the unit without renewal of consent to operate till 29.08.2021 in violation of the provisions of Water (Prevention & Control of Pollution) Act, 1974.
AND WHEREAS, vide letter dated 21.10.2021 show cause notice has been issued to your unit to pay the Environmental Compensation for the violation of consent conditions and for operating the unit without valid consent to operate. Your reply to show cause notice dated
05.11.2021 was not found to be adequate/satisfactory. However, in order to verify the status of compliance, an inspection of your unit was carried out on 03.12.2021 in presence of the representatives of your unit.
That, the Environmental Compensation is being levied for the period of violation i.e. from 01.11.2020 to 29.08.2021 (301 Days), therefore, the rectification measures taken thereafter do not have any difference on the amount of environmental compensation proposed to be imposed on your unit.
Further, on 07.12.2021an opportunity of hearing was provided to your unit, wherein following points were raised by your unit:
SN Points Raised vide letter dated Board's Reply asper 05.11.2021 and during Personal inspection dated Hearing dated 07.12.2021 03.12.2021
1. The unit does not fall within the Firstly, the unit has prescribed ground for imposition of operated without having EC as per the Chapter 1, point 1.3 valid consent to operate, of the CPCB guidelines which is a clear violation of law.
Secondly, the unit has violated the condition of zero liquid discharge by storing untreated waste water innon-
impervious/kachcha lagoons resulting in ground water pollution and the same is covered under point 1.3 (f) of chapter 1 of CPCB guidelines stating "injection of treated/partially treated/untreated effluents to ground water".
6
2. The unit has deemed consent as The unit is not eligible to per section 25(7) of the have deemed consent under Water(Prevention & Control of Section 25(7) of the water Pollution) Act, 1974 and the act, since the consent consent application was not applications filed by the decided within 4 months. unit were incomplete and were rejected within 04 months. It is to be noted that, the online consent application dated 25.10.2020 and 09.04.2021 were incomplete and were duly rejected on 18.03.2021 and 14.08.2021 respectively.
3. The unit was not operational for 80 As per the Board's record days during the period of violation your unit was operational calculated by Board during 01.11.2020 to 29.08.2021 (301 Days) without valid consent to operate and also in violation of the consent conditions. The unit is required send monthly information to the Board in case it is non-operation for any reason. However, you have failed to send any such information to the Board.
THEREFORE, in light of the finding of the inspection team and the violations found on the site the proposed Environmental Compensation of Rs 90,60,000/- (Ninety lakh sixty thousand only) has been approved and confirmed by the committee [constituted vide office order dated 30.07.2019 for the computation the environmental compensation] in its meeting dated 07.12.2021.
3. The Learned Counsel for the appellant has submitted that the authority under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 was granted on 30.10.2016 which was valid up to 31.10.2017, thereafter renewed. Later on applicant applied for renewal of consent on 25.10.2020 but vide letter dated 30.12.2020, respondent raised certain quarries regarding the appellant applications for consent. As per contention raised by the 7 appellant when the consent was not issued upto 4 months the matter came within the proviso of section (7) of Water (Prevention and Control of Pollution) Act, 1974 and the appellant was deemed to have been granted consent. Later on the respondents visited the site and found certain irregularities which has been enumerated in the order impugned and notices for imposing Environment Compensation were issued.
4. After challenge the matter was taken up by this Tribunal and notices were issued to the respondent to file the reply. Respondent No. 1 has filed the reply, that the Impugned Order passed by the Answering Respondent was appealable before the National Green Tribunal, the Appellant filled Writ Petition No. 16925 of 2021 and Review Petition No. 722 of 2021 which was dismissed vide order dated 03.09.2021 and 27.09.2021 by the Hon'ble High Court, Jabalpur. Thereafter the Appellant filled an SLP No. 16682-83 of 2021 before the Hon'ble Supreme Court of India, New Delhi,wherein compliance of Order dated 11.01.2022, the Respondent vide Order No. 1733 dated 17.05.2022 constituted a Committee to ensure that the Appellant has complied with all the conditions stated in the Closure Order dated 27.08.2021.
5. That the Committee visited the plant of the Appellant on 18.05.2022, wherein it was found that the work to ensure the compliance of all issues raised by the Respondent was in progress, but was still incomplete, and thus a further deadline of 27.05.2022 was granted to the Appellant to ensure all the issues raised by the Respondent are complied with. On 06.06.2022 the committee re-inspected the plant of the Appellant and recorded that all the issues raised by the Respondent in its Closure Order have been complied with. 8
6. Vide Order dated 31.12.2021 the Respondent imposed an Environmental Compensation of Rs. 90,60,000/- (Ninety Lakhs and Sixty Thousand) for the violation of the conditions of the Consent Order and operating without valid Consent for a total of 302 days, whereas during physical hearing dated 17.05.2022 the Excise Commissioner verified that the unit was non-operational for 120 days out of total 302 days of violation and also verified the same vide letter dated 08.04.2022 of the Excise Commissioner. That upon this information the Respondent in its meeting dated 17.05.2022 revised the amount of Environmental Compensation for a violation of 182 days instead of 302 days, to a total of Rs. 54,60,000/- (Fifty- four lakhs and sixty thousand).
7. The Appellant has paid a sum of Rs. 45,30,000/- (forty-five lakhs and thirty thousand) through RTGS to the Respondent on 18.05.2022, and the remainder amount of Rs. 9,30,000/- (nine lakhs and thirty thousand) was also paid on 30.05.2022, thus the entire amount Environmental Compensation of Rs. 54,60,000/- (Fifty-four lakhs and sixty thousand) has been duly paid by the Appellant. In light of the compliances made by the Appellant and payment of Environmental Compensation, the Respondent vide Order dated 07.06.2022 has revoked the Closure Order dated 27.08.2021 and has issued Consent Order dated 15.06.2022 to continue operations of the Appellant's unit.
8. It is further submitted that the allegations made by the Appellant are false and baseless, and all the actions taken by the Respondent are reasonable and in accordance to the due process of law, and in compliance of the CPCB Guidelines. Since the Appeal has become infructuous the Answering 9 Respondent is not replying to the merits of the case, and bringing forth the changed circumstances in the knowledge of the Hon'ble Tribunal."
9. Learned Counsel for the appellant has submitted that proper opportunity of hearing was not given to the appellant while the respondent has submitted that the objections and submissions raised by the appellant were considered and competent authority has passed an order and communicated to the appellant. The copy of the order dated 18.03.2021 have been annexed as Annexure P-7 to the appeal. Learned Counsel for the respondent has submitted that the appellant raised the grievances before the Hon'ble High Court and Hon'ble Supreme Court of India and the prayed reliefs were either refused or petition was disposed of without any direction.
10. In SLP No. 16682, 16683 of 2021, which were considered against the Order dated 03.09.2021 in Writ Petition No. 16925 of 2021 passed by the Hon'ble High Court of Madhya Pradesh, Principal Seat at Jabalpur the Hon'ble Supreme Court of India disposed of the application in the following manner :
Special Leave to Appeal 16682-16683/2021.
"UPON hearing the counsel the Court made the following order IA No. 135322/2021 and IA No.142514/2021 Having heard learned counsel on the issues and contentions raised and on consideration of the impugned orders passed by the High Court, we are inclined to dispose of the special leave petitions with the following directions :
(i) The petitioner(s) shall file an appeal under Section 28 of The Water (Prevention and Control of Pollution) Act, 10 1974 („The Water Act‟), against the order dated 14th August, 2021, on or before 12th January, 2022, along with interim application(s). The appeal would be considered and decided on or before 15th February, 2022. The interim application(s) would be taken up for consideration and hearing in the week commencing 17th January, 2022 and thereafter as necessary and required.
The interim application(s) would be decided expeditiously, but not later than 15th February, 2022.
(ii) The Madhya Pradesh Pollution Control Board („the Board‟) has agreed that the petitioner(s) may undertake cleaning of lagoons 1, 2 and 3 , albeit, in the presence of the Officers of the Board. The aforesaid exercise would be undertaken between 17th to 21st January, 2022. The petitioner(s) would be permitted to run/operate the unit for the limited purpose of cleaning, during the said period. Production, if any during the cleaning process would not be transferred/taken out of the factory premises or sold to third parties.
(iii) The Board would file its report regarding the cleaning of the lagoons and the compliance statedly made by the petitioner(s) as per I.A. No. 2795 of 2022 before the Appellate Authority on or before 27th January, 2022.
(iv) It is also open to the petitioner(s) to challenge the order of closure passed by the Board dated 27th August, 2021 under Section 33 A of The Water Act, before the National Green Tribunal. Such appeal filed would be 11 considered and decided in accordance with law.
(v) Liberty is granted to the parties to approach this Court, if required and necessary. However,the petitioner(s), if aggrieved with the order passed under Section 28 of the Water Act, would have to file an appeal under Section 33 B of the Water Act before the National Green Tribunal.
We clarify that we have not expressed any opinion on the merits of the case.
The applications along with special leave petitions are disposed of accordingly.
All pending applications stand disposed of."
11. The Learned Counsel for the respondent has further submitted that the appellant was given liberty by Hon'ble the Supreme Court of India to file an appeal under Section 33 (b) of the Water (Prevention and Control of Pollution) Act, 1974 or Under Section 28 of Water (Prevention and Control of Pollution) Act, 1974 and the appellant raised the issues before the competent authority of the State Government and vide order dated 09.02.2022 the appeal was finally disposed of by the Principal Secretary, State of Madhya Pradesh. The findings as contained in the order reveal that there were violations of environmental rules and conditions of EC.
12. Learned Counsel for the appellant has submitted that the environmental compensation which was calculated by the respondents are not according to the methodology as prescribed by the Central Pollution Control Board. The calculation method which has been issued by the Central Pollution Control Board are as follow :
12
"Environment Compensation for Discharge of Untreated/Partially Treated Sewage by Concerned Individual/Authority:
BIS IS-1172:1993 suggests that for communities with population above 100,000, minimum of 150 to 200 lpcd of water demand is to be supplied. Further, 85% of return rate (CPHEEO Manual on Sewerage and Sewage Treatment Systems, 2013), may be considered for calculation of total sewage generation in a city. CPCB Report on "Performance evaluation of sewage treatment plants under NRCD, 2013", describes that the capital cost for 1 MLD STP ranges from 0.63 Cr. to 3 Cr. and O&M cost is around Rs. 30,000 per month. After detail deliberations, the Committee suggested to assume capital cost for STPs as Rs. 1.75 Cr/MLD (marginal average cost). Further, expected cost for conveyance system is assumed as Rs. 5.55 Cr./MLD (marginal average cost) and annual O&M cost as 10% of the combined capital cost. Population of the city may be taken as per the latest Census of India. Based on these assumptions, Environmental Compensation to be levied on concerned ULB may be calculated with the following formula:
EC= Capital Cost Factor x [Marginal Average Capital Cost for Treatment Facility x (Total Generation-Installed Capacity) + Marginal Average Capital Cost for Conveyance Facility x (Total Generation -Operational Capacity)] + O&M Cost Factor x Marginal Average O&M Cost x (Total Generation- Operational Capacity) x No. of Days for which facility was not available + Environmental Externality x No. of Days for which facility was not available Alternatively;
EC (Lacs Rs.) = [17.5(Total Sewage Generation - Installed Treatment Capacity) + 55.5(Total Sewage Generation- Operational Capacity)] + 0.2(Sewage Generation-Operational Capacity) x N + Marginal Cost of Environmental Externality x (Total Sewage Generation-Operational Capacity) x N 13 Where; N= Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority Quantity of Sewage is in MLD Table No. 3.5: Sample calculation for EC to be levied for discharge of untreated/partial treated Sewage City Delhi Agra Gurugra Ambala m Population 1,63,49,831 17,60,285 8,76,969 5,00,774 (2011) Class Mega-City Million- Class-I Class-I plus City Town Town Sewage 4195 381 486 37 Generation (MLD) (as per the latest data available with CPCB) Installed 2500 220 404 45.5 Treatment Capacity (MLD) (as per the latest data available with CPCB) Operational 1900 140 300 24.5 Capacity (MLD) (as per the latest data available with CPCB) Treatment 2295 241 186 12.5 Capacity Gap (MLD) Calculated 29662.50 2817.50 1435.00 0.00 EC (capital cost component for STPs) in Lacs Rs.
Calculated 127372.50 13375.50 10323.00 693.75 EC (capital cost component for Conveyance System) in Lacs. Rs.
Calculated 157035.00 16193.00 11758.00 693.75 EC (Total capital cost component) in Lacs Rs.
Minimum Min. 2000 Min. Min. 100 Min. 100
and Max. 20000 1000 Max. Max. 1000
Maximum Max. 1000
values of EC 10000
(Total Capital
Cost
Component)
recommended
by the
Committee
(Lacs Rs.)
14
Final EC 20000.00 10000.00 1000.00 693.75
(Total Capital
Cost
Component)
in Lacs Rs.
Calculated 459.00 48.20 37.20 2.50
EC (O&M
Component
in Lacs
Rs./day
Minimum Min. 2 Min. 1 Min. 0.5 Min. 0.5
and Max. 20 Max. 10 Max. 5 Max. 5
Maximum
values of EC
(O&M Cost
Component)
recommended
by the
Committee
(Lacs
Rs./day)
Final EC 20.00 10.00 5.00 2.50
(O&M
Component)
in Lacs.
Rs./Day
Calculated 2.0655 0.2049 0.1395 0.0094
Environment
al Externality
(Lacs Rs .Per
Day)
Minimum Min. 0.60 Min. Min. Min. 0.05
and Max. 0.80 0.25 0.05 Max. 0.10
Maximum
value of Max. Max.
Environment 0.35 0.10
al Externality
recommended
by the
Committee
(Lacs Rs. Per
Day)
Final 0.80 0.25 0.10 0.05
Environment
al Externality
(Lacs Rs. Per
day)
3.4 Environment Compensation to be Levied on Concerned Individual/Authority for Improper Solid Waste Management:
It is known that estimated MSW generation is approximately 1.5 lakh MT/Day in India (MoHUA Report- 2016). As per the principles of SWM Rules, 2016 and PWM Rules 2016, as amended in 2018, the total cost of Municipal Solid Waste management in a city/town includes cost for door to door collection, cost of segregation at source, cost for transportation in segregated manner, cost for processing of MSW and disposal through facility like composting, biomethanation, recycling, co-processing in cement kilns etc. In view of above, it is estimated that the total cost of 15 processing and treatment of MSW for a city having population size of 1 lakh and generating approximately 50 tons/day of MSW is Rs.15.5 Crores, including capital cost (one time) and O & M cost for one year. The expenditure for subsequent years would be only Rs. 3.5 crores/annum.
CPCB sponsored a survey to ascertain the status of municipal solid waste disposal in 59 cities/towns of India. The survey was conducted by the Environment Protection Training Research Institute (EPTRI), Hyderabad. As per the survey, it is estimated that solid waste generated in small, medium and large cities and towns is about 0.1 kg (Class-III), 0.3-0.4 kg (Class-II) and 0.5 kg (Class-I) per capita per day respectively. The committee opined that 0.6 kg/day, 0.5 kg/day and 0.4 kg/day per capita waste generation may be assumed for mega-cities, million-plus UAs/towns and Class-I UA/Towns respectively for calculation of environmental compensation purposes. Based on these assumptions, Environmental Compensation to be levied on concerned ULB may be calculated with the following formula:
EC = Capital Cost Factor x Marginal Average Cost for Waste Management x (Per day waste generation-Per day waste disposed as per the Rules) + O&M Cost Factor x Marginal Average O&M Cost x (Per day waste generation-Per day waste disposed as per the Rules) x Number of days violation took place + Environmental Externality x N Where;
Waste Quantity in tons per day (TPD) N= Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority Simplifying;
EC (Lacs Rs.) = 2.4(Waste Generation - Waste Disposed as per the Rules) +0.02 (Waste Generation - Waste Disposed as per the Rules) x N + Marginal Cost of Environmental Externality x (Waste Generation - Waste Disposed as per the Rules) x N 16
13. The matter of calculation of EC was further taken up by this Tribunal (Principal Bench at New Delhi) in O.A. NO. 593 of 2017 titled as Paryavaran Suraksha Samiti & Ors. vs. Union of India in light of the order of Hon'ble Supreme Court of India reported in (2017) V SCC 326 and in compliance of the order issued by the National Green Tribunal the draft environmental compensation was circulated among all the Pollution Control Board of States for further consideration and later on it was finalised by the Tribunal vide order dated 06.12.2018 and 03.01.2019.
14. Learned Counsel for the respondent Ms. Parul Bhadoria has further submitted that the appellant has raised the issue and challenged the environmental compensation of Rs. 90.60 lakhs by way of filing Writ Petition No. 2338 of 2022 and Hon'ble High Court of Judicator at Jabalpur considered the allegations of the appellant and dispose of the Writ Petition vide order dated 09.02.2022 the relevant portion are quoted as below :
"The instant petition filed under Article 226 of Constitution assails order dated 31.12.2021 (Annexure P/2) and order dated 14.01.2022 (Annexure P/3) both issued by M.P. Pollution Control Board, asking petitioner to show cause as to why petitioner should not pay the environmental compensation of Rs.90,60,000/- in terms of the formula laid down by order dated 28.08.2019 of the National Green Tribunal, Principal Bench New Delhi (for brevity "NGT") in O.A. No.593/2017 arising out of W.P. (Civil) No.375/2012 decided on 22.02.2017 by the Apex Court, for not having complied with the mandatory terms and conditions of consent granted by the M.P. Pollution Control Board in respect of the distillery plant run by petitioner/company situated at village Pipalkhiriya, Sehatganj, District Raisen.
2. The violations causing emergent hazardous situation due to water pollution as revealed by the Board are detailed below:- 17
(i) Lagoons used for storage of treated effluent are not of impervious material thereby allowing effluent to be absorbed in the ground to reach the ground water.
(ii) Analysis report of monitoring the quality of tube well water in the nearby area not submitted once in three months.
(iii) Waste water stored in non-impervious and unlined lagoons, thus, zero liquid discharge condition not found maintained.
(iv) Condition of storage of effluent except in emergency for more than seven days not complied with.
(v) Garland drain around the unit alongwith catch pit not constructed.
(vi) CAAQMS to monitor ambient air quality not installed.
(vii) Debris generated from dismantling old distillation plant not completely disposed of. (viii) Drier/ ATFD not installed so for.
(ix) Separate ETP (effluent treatment plant) not installed so far.
(x) Coloured and highly polluted effluent found stored in lagoons with ever present danger of discharge during rains.
(xi) DDGS (Drier Distillers Grains Soluble) drier not installed so far.
(xii) Unlined kachcha lagoons not yet dismantled. Some of such lagoons found filled with coloured polluted water.
(xiii) Condition of cleaning pakka lagoons so that water restored therein remains colourless not complied with. (ivx) DDGS drier ought to have been installed, but despite expiry of 14 months‟ time, not yet installed.
3. Pointing out the aforesaid lapses which violate the Water (Prevention & Control of Pollution) Act, 1974 (for brevity "Water 18 Pollution Act"), the respondent No.1-Board after finding the reply to the show cause to be unsatisfactory and the breach of conditions and violations of Water Pollution Act being imminently hazardous to public health, environmental compensation of Rs.90,60,000/- was directed to be paid by petitioner vide Annexure P/2 within 15 days with reiterated request letter vide Annexure P/3.
4. Learned senior counsel, Ms. Pinky Anand, submits that earlier, the respondent-Board vide order on 14.08.2021 rejected the consent application of petitioner to operate Consolidated Consents and Authorization (CCA). This was closely followed by order dated 27.08.2021 passed u/S.33A of the Water Pollution Act directing closure of production of industrial plant of petitioner and disconnection of electric supply. Both these orders dated 14.08.2021 and 27.08.2021 of the respondent-Board were unsuccessfully challenged in W.P. No.16925/2021 (Jagdish Arora & Anr. Vs. State of M.P. and Ors.). The said W.P. No.16925/2021 was dismissed on 03.09.2021 declining interference on merits and relegating the petitioner to avail remedy of appeal u/Ss.28 and 33B of Water Pollution Act before the NGT.
4.1 Pertinently, the said order dated 03.09.2021 was assailed by petitioner before the Apex Court in SLP (C) No.16682-16683/2021 which was finally disposed of on 11.01.2022 by passing following orders:-
"IA No. 135322/2021 and IA No. 142514/2021 Having heard learned counsel on the issues and contentions raised and on consideration of the impugned orders passed by the High Court, we are inclined to dispose of the special leave petitions with the following directions :
(i) The petitioner(s) shall file an appeal under Section 28 of The Water (Prevention and Control of Pollution) Act, 1974 („The Water Act‟), against the order dated 14th August, 2021, on or before 12th January, 2022, along with interim application(s). The appeal would be considered and decided on or before 15th February, 2022. The interim application(s) would be taken up for consideration and hearing in the week commencing 19 17th January, 2022 and thereafter as necessary and required. The interim application(s) would be decided expeditiously, but not later than 15th February, 2022.
(ii) The Madhya Pradesh Pollution Control Board („the Board‟) has agreed that the petitioner(s) may undertake cleaning of lagoons 1, 2 and 3 , albeit, in the presence of the Officers of the Board. The aforesaid exercise would be undertaken between 17th to 21st January, 2022.
The petitioner(s) would be permitted to run/operate the unit for the limited purpose of cleaning, during the said period. Production, if any during the cleaning process would not be transferred/taken out of the factory premises or sold to third parties.
(iii) The Board would file its report regarding the cleaning of the lagoons and the compliance statedly made by the petitioner(s) as per I.A. No. 2795 of 2022 before the Appellate Authority on or before 27th January, 2022.
(iv) It is also open to the petitioner(s) to challenge the order of closure passed by the Board dated 27th August, 2021 under Section 33 A of The Water Act, before the National Green Tribunal. Such appeal filed would be considered and decided in accordance with law.
(v) Liberty is granted to the parties to approach this Court, if required and necessary. However, the petitioner(s), if aggrieved with the order passed under Section 28 of the Water Act, would have to file an appeal under Section 33 B of the Water Act before the National Green Tribunal.
We clarify that we have not expressed any opinion on the merits of the case.
20
The applications along with special leave petitions are disposed of accordingly.
All pending applications stand disposed of."
4.2 Learned senior counsel submits that pursuant to the aforesaid liberty, petitioner has already filed an appeal against order dated 14.08.2021 before the Appellate Authority, whereas qua the order dated 27.08.2021, appeal is likely to be filed in the near future. 4.3 In the aforesaid factual background, learned senior counsel submits that once the foundational order of rejecting the consent application was pending adjudication before the appellate authority (NGT), it was beyond jurisdiction of respondent-Board to have issued impugned show-cause notice, order and letter vide Annexures P/1, P/2 and P/3 respectively.
4.4 Learned senior counsel though does not dispute that further remedy of appeal/revision before the NGT under the Water Pollution Act is available to petitioner, but contends that in the attending facts and circumstances where the foundational order of rejecting consent application is pending adjudication in appeal, the remedy of invoking judicial powers of this Court under Article 226 of Constitution by way of this petition is very much available. For this purpose, decision of Apex Court in Radha Krishan Industries Vs. State of Himachal Pradesh and others, (2021) 6 SCC 771, is relied upon.
5. Per contra, learned counsel for the respondent-Board has sought dismissal of this petition on the ground of failure of petitioner to avail statutory remedy before the State Government/NGT with further submission that in the face of gross violations of Water Pollution Act which are continuing till date, the Board rightly issued the impugned show-cause notice and order, failing which the Board would have been blamed for abdicating its statutory functions under the Water Pollution Act.
6. There is no dispute that the order of rejection of application for consent passed on 14.08.2021 is under challenge in an appeal 21 preferred u/S.28 of Water Pollution Act before the Appellate Authority, where it is informed by learned senior counsel for petitioner that arguments have been extended.
6.1 It goes without saying that if petitioner loses the battle before appellate authority/State Government, then further remedy of approaching the NGT u/S.33B of Water Pollution Act is available. 6.2 A bare perusal of impugned show-cause notice and the order levying environmental compensation upon petitioner reveals that the same is based on shortcomings noticed in the inspection carried out by the functionaries of respondent-Board on 02.07.2021 and 17.08.2021. Both these inspections were also one of the causes for issuance of orders dated 14.08.2021 and 27.08.2021, which is presently subject matter of appeal before the Appellate Authority. 6.3 From bare perusal of order of Apex Court, it is evident that no interference on merits was caused in the order dated 03.09.2021 passed in W.P. No.16925/2021 except for granting liberty to petitioner to approach the Appellate Authority by recording consent of the Board that petitioner shall undertake cleaning of lagoons Nos. 1, 2 & 3, albeit, in presence of functionaries of the Board and the said exercise shall be completed between 17th to 21st January, 2022. However, the petitioner was restrained from operating the industrial plant for any other purpose except cleaning the lagoons. The Board was also directed to file its report as regards cleaning of lagoons. Petitioner was further given liberty to challenge the order of Board dated 27.08.2021 closing the unit of petitioner before NGT.
6.4 Learned counsel for the Board on direction of this Court has produced a report before this Court as regards cleaning of lagoons No.1, 2 & 3 undertaken by the petitioner which inter alia reveals that there are glaring shortcomings and deficiencies in cleaning the lagoons as per undertaking of petitioner before the Apex Court. Some of the major deficiencies as per the report are as follows:- 22
Sr. Reason of rejection mentioned in Compliance Status as on 17/01/2022 No. Board's rejection letter dated 14/08/2021 1 Industry has not improved treatment and Separate ETP for treatment of DM plant disposal of DM plant back wash effluent. Back wash, softener regeneration, boiler It was still disposed into nallah passing blowdown etc. still not installed. High TDS through industry premises. effluent is required to be treated and reused via RO/MEE.
2 Treatment facility of effluent is not Not Complied as effluent was found adequate as per full production capacitycollected of in lagoons which is indication rectified spirit of industry. MEE and Dryer of inadequacy.
were not found operational and effluent was found collected in lagoons.
3 Lagoons were not demolished despite Not Complied and lagoons are already Board's direction and 3 lagoons were inexistance within and outside the found completely filled and 3 lagoons premises filled with effluent were found partially filled.
4 Housekeeping near ETP, coal handling and Not Complied, fugitive emission was ash handling in boiler section was very observed at coal handling and ash poor. Ash handling from every handling plants. Garland drain and discharge point is not adequate. settling tank.
5 There is no proper management of solid Not Complied as old machinery and
waste, packaging material, garbage, equipments as scrap are found at many
soil,ash, plastic bottle, wrapper, old
places in the premises alongwith
machinery etc. in the industry pipelines, plastics etc.
S. Board's Consent Condition Status as found on dated
Consent 21/01/2022
No Outward no.
Page and
Condition No.
1 Consent The industry shall use only Condition not complied. 03
Outward no. lined (impervious) lagoons for emergency storage lagoons located
33756, Dt. storage of treated effluent. The near digester are not impervious
26/06/2016 unlined lagoons shall be kept due to rupture of liner and flag
Page no. 4, Add. empty and dismantle the stone lining. Lagoons located near
Condition no. 3 same within 3 months if any Jogikhar nalla are also unlined at
A free-board of minimum three bottom and the lagoons are no
feet shall be maintained in all impervious. Waste water found storage lagoons. filled in lagoon No. 1,2,3 in factory premises and 20 kachha lagoon in village Pipalkhirya.
Page no. 4, Add. The industry shall monitor the Analysis report of tube well water Condition no. 4 quality of tube well water inside the premises and near by inside premises and nearby area has not been submitted every area and the analysis report three months to the Board, hence shall be submitted to the Condition not complied. Board in every three month.
23 Page no. 4, Add. The industry shall not use Waste water is stored in non- Condition no. 5 treated/untreated effluent on impervious and unlined land for irrigation or gardening lagoons hence zero liquid discharge and the zero liquid discharge Condition is not found maintained condition shall be maintained and condition is not complied as by using MEE & incineration waster water is stored in unlined system as per CPCB and kachha lagoons.
directions.
Page no. 4, Add. No effluent shall be stored in Not complied with the reason Condition no. 6 the premises except for mentioned above for condition no. 3 emergency storage of 7 days in and condition no. 5. environmentally safe manner.
Page no. 4, Add. Industry shall provide a Garland drain around the unit Condition no. 7 garland drain around the unit along with a catch pit to along with a catch pit to collect/pump back any discharge collect/pump back any has not been accidental discharge to the found, hence condition not treatment system. complied.
Page no. 6, Add. Industry shall install CAAQMS to monitor ambient air Condition no. 4 CAAQMS stations at suitable quality within Industry premises locations to monitor ambient has not been installed, hence air quality and stack condition not complied.
emission. The management shall provide suitable connectivity of CAAQMS with Environment Surveillance Centre at the HQ of M.P. Pollution Control Board for monitoring and data transmission purpose.
2 Consent The debris generated from the Debris generated from the Outward no. dismantling of old distillation dismantling of old distillation plant 100096, Dt. plant shall be disposed in has not been complete disposed 20/03/2020 environment friendly method off, hence condition not complied.
Page no. 1, and same shall be reported to
Note Condition the Board.
no. 4
24
Page no. 2, Trade Effluent Treatment:- DDGS Dryer has been installedand
Water condition : The applicant shall operate commissioned on dated
No. 2 and maintain the 18/01/2022 ETP for condensate
comprehensive effluent treatment is not complete as
treatment system to achieve aeration and settling unit for
ZLD for Molasses based biological treatment of condensate
distillation- ETP, RO, from integrated evaporator and
Integrated Evaporation, Stand multi effect evaporator. Hence
alone Evaporator, Incineration condition is partially complied.
Boiler and for Grain Based
Distillation- ETP, Decanter,
Integrated Evaporation,
Dryer/ATFD and in case of
accidental discharge following
standard shall be achieved.
Page no. 4, Treatment of other effluents Separate ETP has not been
Additional Water such as plant washing, installed so far and DM back wash
condition : no. 4 leakages, bottle washing, effluent collected in equalization
boiler blow down, softener tank only. High TDS effluent is
regenaration, DM plant, required to be treated and
regeneration, plate heat
exchangers cleaning etc in a
separate ETP and shall be reused via RO/MEE.
utilized for process/utilities.
Page no. 4, The industry shall make all Coloured and highly polluted
Condition No. 6 possible protection effluent was found stored in
arrangements for control of lagoons which may be discharged
pollution in nearby nallah accidentally during rains, hence
from the industry. condition not complied.
Page no. 4, The industry shall install DDGS Dryer has been
Condition No. 7 dryer for DDGS to achieve installed and commissioned on
zero discharge from grain dated 18/01/2022 hence condition
based distillery as per CPCB. complied.
Page no. 7, Industry shall strictly comply Waster water is stored in non-
Condition No. 2 the direction issued by CPCB impervious and unlined lagoons
vide letter no. B- 410/PCI- hence zero liquid discharge.
III/DIST/2k15- Condition is not found maintained
16/4305 Dt. 09/08/2015 to and condition is not complied.
achieve ZLD.
25
Page no. 7, The industry shall complete Lagoon No. 1,2 and 3 within
Condition No. 3 the dismantling/de-sludging premises are also non-impervious of the lagoons immediately 07 kachcha lagoons (No. 06 to 12) and all Kuccha lagoons shall located near Jogikhar nalla be dismantled. within premises and 21 kachcha lagoonslocated at Pipalkhirya have not been dismantled. The industry has not completed the dismantling/de-sludging of the lagoons. Hence condition not complied.
Page no. 7, The pucca lagoons shall be Coloured effluent has been found Condition No. 4 cleaned in such a way so that stored in lagoons and sludge has the water stored shall remain not been removed so far, hence colour less. condition not complied Page no. 7, Industry shall install the DDGS Dryer has been Condition No. 5 Dryer with grain based installed and Commissioned on distillation unit for DDGS dated 18/01/2022.Hence (Dried Distillers Grains with condition complied. Solubles) as per the CPCB guidelines within next 14 months time and submit the PERT CHART for each activity along with estimate of the unit with BG of 25% cost of the dryer within one month from the date of issue to this letter 6.5 In the aforesaid fact situation where the Board was faced with the ground reality of repeated and rampant violation of Water Pollution Act causing eminent danger to the surrounding areas and having potentiality of rendering ground water non-potable, the Board could not have turned a blind eye towards environmental degradation. The Board in furtherance of the object behind Water Pollution Act and to prevent further damage to the surrounding areas, the vegetation, health and life of inhabitants, galvanized into action by performing their statutory duty under the Water Pollution Act by issuing impugned show cause notice and imposing environmental compensation. 6.6 Pertinently, the impugned show cause notice and the order are based on the order of NGT laying down formula for all the State Pollution Boards to be adopted for calculation levying of environmental compensation and recovering the same from the polluters. Pertinently, the directions of NGT are in turn based on the verdict of Apex Court in the case of Paryavaran Suraksha Samiti (supra).
7. Thus, in the considered opinion of this Court, the respondent- Board has acted in accordance with law by issuing impugned show 26 cause notice and the order. Had the respondent-Board ignored the environmental damage being caused by effluents exuded by petitioner‟s plant and the lagoons then the Board surely would have been guilty of abdicating its statutory duty under Water Pollution Act.
8. As a sequel to the above discussion, this Court holds that there is no jurisdictional error in the impugned show cause notice and the order passed by the respondent-Board and thus, no cause arises for invoking the power of judicial review under Article 226 of Constitution. However, petitioner is free to avail the alternative statutory remedy under the law.
9. Any comments or findings made by this Court touching the merits of the matter are merely to decide the present case, and therefore, shall prejudice the Appellate/Revisional Authority, as the case may be, if approached by the petitioner.
10. Accordingly, the petition stands dismissed with the aforesaid liberty."
15. It has further been submitted by the Respondent that Excise Commissioner Gwalior has considered and heard the applications, report and issued necessary directions vide order dated 19.01.2020 and further found that there are violation of environmental rules and the Madhya Pradesh Aswani Niyam 1995 Rule 8 (5) and violation of Section 31 of Madhya Pradesh Abkari Adhiniyam 1915.
16. Other Writ Petition No. 6333 of 2021 and Writ Petition No. 7979 of 2021 was also filed by the appellant. The relevant paras of order dated 06.04.2021 passed in Writ Petition No. 7979/2021 are as follows :
"Shri Prashant Singh, learned senior counsel with Shri Anvesh Shrivastava, learned counsel for the petitioners. 27 Shri Swapnil Ganguly, learned Deputy Advocate General for the respondents-State.
Learned counsel for the petitioners argued that this Court has passed the order granting relief in favour of the petitioners in two writ petitions, one by the Division Bench in W.P.No.6333/2021 on 24/03/2021 and another by Single Bench in W.P.No.6743/2021 on 20/03/2021. The respondents have deliberately withheld renewal of the licence of the petitioner on one or other pretext. They initially by communication dated 31/03/2021, which is impugned in the present writ petition, required the petitioner to clear the dues of Rs.21,12,500/- of the Energy and Renewal Energy Department, Government of M.P. of which, infact a sum of Rs. 5,00,000/- was the principal amount and Rs.16,12,500/- was the amount of interest. Although the claim of the respondents for demanding the interest amount is exaggerated besides the whole claim has become time barred, but still they are after the petitioners asking them to deposit the entire amount.
Considering that the factory and distilleries of the petitioner which employ about three thousand workers should remain idle, the petitioner deposited the said amount under protest vide cheque dated 01/04/2021. But, now at this stage the respondents again with a view to withholding renewal of the licence of the petitioners have adopted different ploy by demanding a sum of Rs.355.32 Crore, which is allegedly due to M.P. Industrial Development Corporation and on that basis the Secretary, Finance Department of M.P. sent a communication to the petitioner on 01/04/2021. The aforesaid disputes pertain to the demand of principal amount of Rs.7 Crore towards one petitioner and Rs.50 lac for another petitioner, the former of which is subject matter of litigation before the Delhi High 28 Court in Company Petition 198/2008. Reference is made to the order passed by the Delhi High Court dated 26/07/2016 whereby as per the direction dated 3rd May 2013 to pay an amount of Rs.10.97 Crore, the present petitioners had already deposited the amount of Rs.8.35 Crore on which interest of Rs.2.15 Crore had accrued till filing of the said application and thereafter they deposited a further amount of Rs.1 Crore, without prejudice to their rights. The dispute is pending before the Delhi High Court wherein it has been directed that further action by Official Liquidator shall remain in abeyance. Even then the respondents are unduly demanding the aforesaid sum.
Issue notice to the respondents, returnable within eight weeks. In the meantime, the operation of the impugned order/notice dated 31.03.2021 (Annexure-P/15) shall remain stayed and the respondents shall not insist on payment of the aforementioned recovery amount to M.P. Urja Vikas Nigam Ltd. which is the subject matter of litigation before the Delhi High Court, and on that basis shall not withhold renewal of their licence for that reason and process the application of the petitioners for renewal of the licence and grant of work permission, within a period of a week, from the date of receiving copy of this order."
17. It is further argued that guidelines issued by the Principle Bench of this Tribunal passed in O.A. No. 593/2017 decided on 22.02.2021 titled as Paryavaran Suraksha Samiti vs. Union of India have been followed and method and methodology of the calculation of EC adopted by the respondents are in accordance with the guidelines issued by the CPCB and National Green Tribunal in the matter referred above.
29
18. Learned Counsel appearing for the appellant has submitted that the activities of the Project Proponent/Appellant was continued under the provision of Section 33 (A) of Water (Prevention and Control of Pollution) Act, 1974 which provides the deemed consent and in view of the provisions unless and until show cause notice is issued and opportunity of hearing is given to the aggrieved, the respondents has no authority to pass any order imposing environmental compensation. In reply thereof the Learned Counsel for the respondent has submitted that the matter of deemed consent does not operate for the reasons that the respondent has issued the necessary directions and orders after considering the application of the appellant the application was rejected and was communicated to the appellant for complying the conditions of "Consent to Establish & Consent to Operate". The Learned Counsel appearing for the appellant has relied on Civil Appeal No. 716 of 2021 titled as Samsual Hak vs. Uttar Pradesh Pollution Control Board & Ors. order dated 12.03.2021 and other relevant orders and submitted that the rate should be 100 instead of 250 as discussed in the order dated 12.03.2021. Learned Counsel appearing for the respondent has submitted that in view of the orders of Hon'ble High Court and Hon'ble Supreme Court of India in which the matter was directly and substantially in issue and was heard by the Competent Court having jurisdiction to pass an order was heard and finally decided and thus the similar matter cannot be raised before this Tribunal.
19. Learned Counsel appearing for the appellant has submitted that on the basis of the parties agreement it was directed that the representation, if any, moved by the appellant before the respondent, may be suitably considered in accordance with law and in view of above the representation was moved before the State Pollution Control Board and certain modifications have been done on the basis of which the amount of EC has been reduced. Learned Counsel for the appellant has submitted that she wants to challenge the latest order in which EC was reduced. The matter in issue before this Tribunal is orders dated 30 21.10.2021 & 31.12.2021, in which the core issue was the opportunity of hearing was given to the appellant or not. After perusal of record and after hearing the parties, we are of the view that proper opportunity of hearing was given to the appellant and there is no violation of principles of natural justice.
20. In the present case, nothing has been shown by the petitioner that there is a case of failure to exercise the discretion or excess or abuse of discretionary power vested to the respondents. Learned counsel for the appellant has submitted that the opportunity of hearing was not provided to the petitioner before passing the order impugned.
21. On the other hand, learned counsel for the respondents has submitted that the opportunity of hearing was provided to the appellant. 22 . In Chairman, Board of Mining Examination and Chief Inspector of Mines & Anr. Vs. Ramjee, AIR 1977 SC 965 the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artefact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. 31
23. In Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416 the Hon‟ ble Supreme Court held:-
"Though the two rules of natural justice, namely, nemojudex in causasua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible."
24. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in SohanLal Gupta &Ors. Vs. Asha Devi Gupta &Ors., (2003) 7 SCC 492; Mardia Chemicals Ltd. Vs. Union of India, AIR 2004 SC 2371 and Canara Bank Vs. Debasis Das, AIR 2003 SC 2041.
25. In Hira Nath Mishra & Ors. Vs. The Principal, Rajendra Medical College, Ranchi &Anr. AIR 1973 SC 1260, the Hon‟ ble Supreme Court held that principles of natural justice are not inflexible and may differ in different circumstances. Rules of natural justice cannot remain the same applying to all conditions.
26. The Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad Vs. B. Karunakar, AIR 1994 SC 1074 made reference to its earlier decisions and observed:-
"In A.K. Kraipak & Ors. Vs. Union of India &Ors., AIR 1970 SC 150, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but 32 supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasijudicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice."
(Emphasis added)"
27. The Hon‟ ble Supreme Court in Bihar School Examination Board Vs. Subhas Chandra Sinha & Ors., AIR 1970 SC 1269 while considering the cancellation of the entire examination because of use of mass copy considered the scope of the principles of natural justice in such a matter and observed :-
"It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be 33 wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go........."
28. After referring to the aforesaid decision, the Supreme Court in Chairman J&K State Board of Education Vs. Feyaz Ahmed Malik, AIR 2000 SC 1039, emphasized that the Board is entrusted with the duty of proper conduct of examinations.
29. In Biswa Ranjan Sahoo & Ors., Vs. Sushanta Kumar Dinda & Ors., AIR 1996 SC 2552, the Hon'ble Supreme Court had the occasion to examine whether principles of natural justice were required to be followed in a matter where because of large scale malpractice in the selection process, the selection was cancelled and in this context it was observed:-
"Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment."
30. In Union of India &Ors. Vs. O. Chakradhar, AIR 2002 SC 1119, the Hon'ble Supreme Court considered the question whether it was necessary to issue individual show cause notices to each selected person when the entire selection was cancelled because of widespread and all pervasive irregularities affecting the result of selection and it was observed:-
"The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be 34 relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable."
31. In the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. &Ors., AIR 1994 SC 853, the Hon'ble Supreme Court refused to interfere on the ground of breach of principles of natural justice by observing that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
32. It is further to be noted that the Court is to proceed as to whether nonobservance of any of the principles enshrined in statutory rules or principles of natural justice have resulted in deflecting the course of justice. Even, if in a given case, like the fact of the present case there may be some deviation but it has not resulted in grave injustice or has not prejudiced the cause of the petitioner because the decision taken by the respondent was based on the scientific report. This Court does not function as a Court of appeal on the finding of scientific report submitted by the experts. On examining the facts and circumstances of the present case, it cannot be held that the process adopted or decision made by the respondents is in anyway arbitrary or irrational or in any way in violation of the principles of natural justice. The conclusion is that the petition is devoid of merit and deserves to be dismissed.
33. Natural justice is at least as old as the first man created on earth - the biblical "Adam ". J.R. Lucas in his book "On Justice" states (at page 86):
"Hence, when we are judging deeds, and may find that a man did wrong, there is a requirement of logic that we should allow the putative agent to correct misinterpretations or disavow the intention imputed to him or otherwise disown the action. God needed to ask Adam „Hast thou eaten of the tree whereof I commanded thee that 35 thou shouldest not eat?‟ Because it was essential that Adam should not be blamed or punished unless he had done exactly that deed. If the serpent had planted the evidence, or if he had beguiled Adam into eating it under the misapprehension that it came from another, non-forbidden tree, then Adam had not sinned and should not have been expelled from Eden. Only if the accused admits the charge, or, faced with the accusation, cannot explain his behaviour"
34. In some of the early judgments of the Court, the non-observance of natural justice was said to be prejudice in itself to the person affected, and proof of prejudice, independent of proof of denial of natural justice, was held to be unnecessary. The only exception to this rule is where, on "admitted or indisputable" facts only one conclusion is possible, and under the law only one penalty is permissible. In such cases, a Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because Courts do not issue writs which are "futile" - see S.L. Kapoor v. Jagmohan and Ors. (1980) 4 SCC 379 at paragraph 24. In P.D. Agrawal v. State Bank of India and Ors. (2006) 8 SCC 776, however, the Court observed that this statement of the law has undergone a "sea change", as follows:
"39. Decision of this Court in S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] whereupon Mr Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decisions of this Court in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] the principle of law is that some real 36 prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula."
(emphasis supplied)
35. Equally, the prejudice that is caused, apart from natural justice itself being denied, cannot be said to be present in a case in which there are admitted facts. Thus, in K.L. Tripathi v. State Bank of India and Ors. (1984) 1 SCC 43, the Court held:
"29. We are of the opinion that Mr. Garg is right that the rules of natural justice as we have set out hereinbefore implied an opportunity to the delinquent officer to give evidence in respect of the charges or to deny the charges against him. Secondly, he submitted that even if the rules had no statutory force and even if the party had bound himself by the contract, as he had accepted the Staff Rule, there cannot be any contract with a Statutory Corporation which is violative of the principles of natural justice in matters of domestic enquiry involving termination of service of an employee. We are in agreement with the basic submission of Mr. Garg in this respect, but we find that the relevant rules which we have set out hereinbefore have been complied with even if the rules are read that requirements of natural justice were implied in the said rules or even if such basic principles of natural justice were implied, there has 37 been no violation of the principles of natural justice in respect of the order passed in this case. In respect of an order involving adverse or penal consequences against an officer or an employee of Statutory Corporations like the State Bank of India, there must be an investigation into the charges consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation. So whether a particular principle of natural justice has been violated or not has to be judged in the background of the nature of charges, the nature of the investigation conducted in the background of any statutory or relevant rules governing such enquiries. Here the infraction of the natural justice complained of was that he was not given an opportunity to rebut the materials gathered in his absence. As has been observed in On Justice by J.R. Lucas, the principles of natural justice basically, if we may say so, emanate from the actual phrase "audi alteram partem" which was first formulated by St. Augustine (De Duabus Animabus, XIV, 22 J.P. Migne, PL. 42, 110). xxx xxx xxx
32. The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon 88 the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by 38 absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement.
33. The party who does not want to controvert the veracity of the evidence from record or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross examination does not create any prejudice in such cases."
(emphasis supplied)
36. Likewise, in State of U.P. v. Neeraj Awasthi and Ors. (2006) 1 SCC 667, this Court held that where, on undisputed facts, a retrenchment would be valid in law, the principles of natural justice would not be attracted, unless there is some stigma or punitive measure which would be attached, which would then cause prejudice, as follows:
"47. If the employees are workmen within the purview of the U.P. Industrial Disputes Act, they are protected thereunder. Rules 42 and 43 of the U.P. Industrial Disputes Rules provide that before effecting any retrenchment in terms of the provisions of Section 6-N of the U.P. Industrial Disputes Act, the employees concerned would be entitled to a notice of one month or in lieu thereof pay for one month and 15 days' wages for each completed year of service by way of compensation. If such a retrenchment is effected under the Industrial Disputes Act, the question of complying with the principles of natural 39 justice would not arise. The principle of 89 natural justice would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached.
48. In Viveka Nand Sethi v. Chairman, J&K Bank Ltd. [(2005) 5 SCC 337] it was held: (SCC p. 345, para 22) "22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash [(2004) 5 SCC 263].] The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case."
49. The High Court, therefore, must be held to have erred in law in holding that the principles of natural justice were required to be complied with."
37. In the five-Judge Bench decision in Managing Director, ECIL and Ors. v. B. Karnakumar and Ors. (1993) 4 SCC 727, this Court, after discussing the constitutional requirement of a report being furnished under Article 311(2), held thus:
"30. Hence the incidental questions raised above may be answered as follows:
xxx xxx xxx [v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him 40 in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with backwages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.
31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the 41 report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present.
The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."
(emphasis supplied)
38. B. Karunakar (supra) was followed by this Court in Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja (2008) 9 SCC 31, as follows:
"21. From the ratio laid down in B. Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to 42 satisfy the court on that point, the order of punishment cannot automatically be set aside."
(emphasis in original)
39. What is important to note is that it is the Court or Tribunal which must determine whether or not prejudice has been caused, and not the authority on an ex parte appraisal of the facts. This has been well explained in a later judgment, namely Dharampal Satyapal Ltd. v. Dy. Comm. Of Central Excise, Gauhati and Ors. (2015) 8 SCC 519, in which, after setting out a number of judgments, this Court concluded:
"38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be 43 permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.
39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason-- perhaps because the evidence against the individual is thought to be utterly compelling--it is felt that a fair hearing "would make no difference"--meaning that a hearing would not change the ultimate conclusion reached by the decisionmaker--then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578], who said that: (WLR p. 1595) "... A breach of procedure ... cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain."
Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [(1980) 1 WLR 582] that: (WLR p. 593) "
... no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing."
44
In such situations, fair procedures appear to serve no purpose since the "right" result can be secured without according such treatment to the individual.
40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it 93 is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of "prejudice". The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.
xxx xxx xxx
42. So far so good. However, an important question posed by Mr Sorabjee is as to whether it is open to the authority, which has to take a decision, to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference? To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be 45 considered at a later stage and such things cannot be presumed by the authority.
This was so held by the English Court way back in the year 1943 in General Medical Council v. Spackman [1943 AC 627]. This Court also spoke in the same language in Board of High School and Intermediate Education v. Chitra Srivastava [(1970) 1 SCC 121], as is apparent from the following words: (SCC p. 123, para 7) "7. The learned counsel for the appellant, Mr C.B. Agarwala, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show-cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show-cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show-cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed."
43. In view of the aforesaid enunciation of law, Mr Sorabjee may also be right in his submission that it was not open for the authority to dispense with the requirement of principles of natural justice on the presumption that no prejudice is going to be caused to the appellant since the judgment in R.C. Tobacco [(2005) 7 SCC 725] had closed all the windows for the appellant.
44. At the same time, it cannot be denied that as far as courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the 46 action is taken. This was so clarified in ECIL itself in the following words: (SCC p. 758, para 31) "31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/tribunal comes to the conclusion that the nonsupply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."
45. Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, 95 we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant. In the facts of the present case, we find that 47 such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco [(2005) 7 SCC 725]."
(emphasis supplied)
40. In State Bank of Patiala and Ors. v. S.K. Sharma (1996) 3 SCC 364, a Division Bench of the Court distinguished between "adequate opportunity" and "no opportunity at all", and held that the "prejudice" exception operates more especially in the latter case. This judgment also speaks of procedural and substantive provisions of law which embody the principles of natural justice which, when infracted, must lead to prejudice being caused to the litigant in order to afford him relief, as follows:
"32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise.
33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in 48 violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the 96 Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed.
Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is 49 over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of 50 punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar [(1993) 4 SCC 727]. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it „void‟ or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] 51 (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
41. In M.C. Mehta v. Union of India and Ors. (1999) 6 SCC 237, the expression "admitted and indisputable facts" laid down in Jagmohan (supra), as also the interesting divergence of legal opinion on whether it is necessary to show "slight proof" or "real likelihood" of prejudice, or the fact that it is an "open and shut case", were all discussed in great detail as follows:
"16. Courts are not infrequently faced with a dilemma between breach of the rules of natural justice and the Court's discretion to refuse relief even though the rules of natural justice have been breached, on the ground that no real prejudice is caused to the affected party.
xxx xxx xxx
22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable caselaw and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of "real substance" or that 52 there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578] (per Lord Reid and Lord Wilberforce), Glynn v. Keele University [(1971) 1 WLR 487], Cinnamond v. British Airports Authority [(1980) 1 WLR 582] and other cases where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates' court, ex p Fannaran [(1996) 8 Admn LR 351, 358] (Admn LR at p. 358) (see de Smith, Suppl. p. 89) (1998) where Straughton, L.J. held that there must be "demonstrable beyond doubt" that the result would have been different. Lord Woolf in Lloyd v. McMahon [(1987) 2 WLR 821, 862] (WLR at p. 862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant [1959 NZLR 1014] however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is "real likelihood -- not certainty -- of prejudice". On the other hand, Garner Administrative Law (8th Edn., 1996, pp. 271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin [1964 AC 40], Megarry, J. in John v. Rees [(1969) 2 WLR 1294] stating that there are always "open and shut cases" and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J. has said that the "useless formality theory" is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that "convenience and justice are often not on speaking terms". More recently Lord Bingham has deprecated the "useless formality" theory n R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton [1990 IRLR 344] by giving six reasons. (See also his article "Should Public Law Remedies be Discretionary?" 1991 PL, 53 p. 64.) A detailed and emphatic criticism of the "useless formality theory" has been made much earlier in "Natural Justice, Substance or Shadow" by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch [(1971) 1 WLR 1578] and Glynn [(1971) 1 WLR 487] were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decisionmaking authority de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a "real likelihood" of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their "discretion", refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364], Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.
54
23. We do not propose to express any opinion on the correctness or otherwise of the "useless formality" theory and leave the matter for decision in an appropriate case, inasmuch as, in the case before 100 us, "admitted and indisputable" facts show that grant of a writ will be in vain as pointed out by Chinnappa Reddy, J."
42. In Aligarh Muslim University and Ors. v. Mansoor Ali Khan (2000) 7 SCC 529, the aforesaid authorities were relied upon, and the answer given was that there is no absolute rule, and prejudice must be shown depending on the facts of each case, as follows:
"24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India [(1984) 1 SCC 43] Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 472- 75), as follows: (SCC p. 58, para 31) "[I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth."
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in 55 State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364]. In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. [(1996) 5 SCC 460]
25. The "useless formality" theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
43. In Union of India and Ors. v. Alok Kumar (2010) 5 SCC 349, the Court, after eschewing a hyper-technical approach, held that prejudice must not merely be the apprehension of a litigant, but should be a definite inference of the likelihood of prejudice flowing from the refusal to follow natural justice, as follows:
"83. Earlier, in some of the cases, this Court had taken the view that breach of principles of natural justice was in itself a prejudice and no other "de facto" prejudice needs to be proved. In regard to statutory 56 rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the rule is merely directory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non-mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance, in a departmental enquiry where the department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof.
xxx xxx xxx
87. In ECIL v. B. Karunakar [(1993) 4 SCC 727] this Court noticed the existing law and said that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are neither incantations to be invoked nor rites to be performed on all and sundry occasions. Whether, in fact, prejudice has been caused to the employee or not on account of denial of report to him, has to be considered on the facts and circumstances of each case. The Court has clarified even the stage to which the departmental proceedings ought to be reverted in the event the order of punishment is set aside for these reasons.
57
88. It will be useful to refer to the judgment of this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja [(2008) 9 SCC 31] at pp. 38-39 where the Court held as under: (SCC para 21) "21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the enquiry officer's report to the delinquent if such enquiry officer is other than the disciplinary authority. It is also clear that nonsupply of report of the enquiry officer is in breach of natural justice. But it is equally clear that failure to supply a report of the enquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."
89. The well-established canons controlling the field of bias in service jurisprudence can reasonably be extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations. It will not be permissible to set aside the departmental enquiries in any of these classes merely on the basis of apprehended prejudice."
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44. Under the broad rubric of the Court not passing futile orders as the case is based on "admitted" facts, being admitted by reason of estoppel, 103 acquiescence, non-challenge or non-denial, the following judgments of this Court are all illustrations of a breach of the audi alteram partem rule being established on the facts of the case, but with no prejudice caused to the person alleging breach of natural justice, as the case was one on admitted facts:
(i) Punjab and Sind Bank and Ors. v. Sakattar Singh (2001) 1 SCC 214 (see paragraphs 1, 4 and 5);
(ii) Karnataka SRTC and Anr. v. S.G. Kotturappa and Anr. (2005) 3 SCC 409 (see paragraph 24);
(iii) Viveka Nand Sethi v. Chairman, J&K Bank Ltd. and Ors. (2005) 5 SCC 337 (see paragraphs 21, 22 and 26);
(iv) Mohd. Sartaj and Anr. v. State of U.P. and Ors. (2006) 2 SCC 315 (see paragraph 18);
(v) Punjab National Bank and Ors. v. Manjeet Singh and Anr. (2006) 8 SCC 647 (see paragraphs 17 and 19);
(vi) Ashok Kumar Sonkar v. Union of India and Ors. (2007) 4 SCC 54 (see paragraphs 26 to 32);
(vii) State of Manipur and Ors. v. Y. Token Singh and Ors. (2007) 5 SCC 65 (see paragraphs 21 and 22);
(viii) Secretary, A.P. Social Welfare Residential Educational Institutions v. Pindiga Sridhar and Ors. (2007) 13 SCC 352 (see paragraph 7)
(ix) Peethani Suryanarayana and Anr. v. Repaka Venkata Ramana Kishore and Ors. (2009) 11 SCC 308 (see paragraph 18);
(x) Municipal Committee, Hoshiapur v. Punjab State Electricity Board and Ors. (2010) 13 SCC 216 (see paragraphs 31 to 36, and paragraphs 44 and 45);
(xi) Union of India and Anr. v. Raghuwar Pal Singh (2018) 15 SCC 463 (see paragraph 20).
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45. An analysis of the aforesaid judgments thus reveals:
(1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
(2)Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
(3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of nonchallenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice. (4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. (5) The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the nonobservance of natural justice. 60
46. In view of the above, we are of the view that local administrative authorities had conducted the public consultations by the available means and the contention as raised by the applicant that there are no public consultation has no relevance. Issue is resolved accordingly.
47. In view of the above, we are of the view that the Respondent has provided an opportunity of hearing and there is nothing to show that the prejudice has been caused to the appellant and there is no violation of procedural or substantive provision of law of Principle of Natural Justice. There are violation of environmental conditions thus the respondent has provided an opportunity of hearing to the appellant and there is no violation of Principle of Natural Justice.
48. Learned Counsel for the Respondent has submitted that the matter has been raised and agitated before concerned appellate authority of the State before Hon'ble High Court and Hon'ble Supreme Court and it is intended to continue till the appellant does not achieve a desired goal. The platform of the Tribunal or the Courts cannot be made a platform to compel the opposite party to pass a desired order. The matter cannot be agitated and to be continued till infinity and it should come at rest. The Hon'ble Supreme Court in Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.
In Tamil Nadu Electricity Board & Anr. Vs. N. Raju Reddiar & Anr. AIR 1997 SC 1005 the Hon‟ble Supreme Court held that filing 61 successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand. In Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly.
In Abdul Rahman Vs. Prasoni Bai & Anr., (2003) 1 SCC 488, the Hon'ble Supreme Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law."
"It is well established rule of interpretation of a statute by reference to the exposition it has received from contemporary authority. However, the Apex Court added the words of caution that such a rule must give way where the language of the statute is plain and unambiguous. Similarly, in Collector of Central Excise, Bombay-I & Anr. Vs. M/s. Parle Export (P) Ltd., AIR 1980 SC 644, the Hon‟ble Supreme Court observed that the words used in the provision should be understood in the same way in which they have been understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. In Indian Metals and Ferro Alloys Ltd., Cuttack Vs. The Collector of Central Excise, Bhubaneshwar, AIR 1991 SC 1028, the Hon‟ble Supreme Court has applied the same rule of interpretation by holding that "contemporanea expositio by the administrative authority is a very 62 useful and relevant guide to the interpretation of the expression used in a statutory instrument." Same view has been taken by the Hon‟ble Supreme Court in State of Madhya Pradesh Vs. G.S. Daal and Flour Mills (Supra); and Y.P. Chawla & Ors. Vs. M.P. Tiwari and Anr., AIR 1992 SC 1360. In N. Suresh Nathan & Ors. Vs. Union of India & Ors, 1992 (Suppl) 1 SCC 584; and M.B. Joshi & Ors. Vs. Satish Kumar Pandey & Ors., 1993 (Suppl.) 2 SCC 419, the Apex Court observed that construction in consonance with long-standing practice prevailing in the concerned department is to be preferred."
49. In M/s. J.K. Cotton Spinning & Weaving Mills Ltd. & Anr. Vs. Union of India & Ors., AIR 1988 SC 191, it has been held that the maxim is applicable in construing ancient statute but not to interpret Acts which are comparatively modern and an interpretation should be 37 given to the words used in context of the new facts and situation, if the words are capable of comprehending them. Similar view had been taken by the Apex Court in Senior Electric Inspector & Ors. Vs. Laxminarayan Chopra & Anr., AIR 1962 SC 159.
50. In Desh Bandhu Gupta & Co. & Ors Vs. Delhi Stock Exchange Association Ltd., AIR 1979 SC 1049, the Apex Court observed that the principle of contemporenea expositio, i.e. interpreting a document by reference to the exposition it has received from Competent Authority can be invoked though the same will not always be decisive of the question of construction. The administrative construction, i.e. the contemporaneous construction placed by administrative or executive officers responsible for execution of the Act/Rules etc. generally should be clearly wrong before it is over-turned. Such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight and is highly persuasive. However, it may be disregarded for cogent reasons. In a clear case of error the Court should, without hesitation refuse to follow such construction 63 for the reason that "wrong practice does not make the law." (Vide Municipal Corporation for City of Pune & Anr. Vs. Bharat Forge Co. Ltd. & Ors., AIR 1996 SC 2856). In D. Stephen Joseph Vs. Union of India & Ors., (1997) 4 SCC 753, the Hon'ble Supreme Court has held that "past practice should not be upset provided such practice conforms to the rules" but must be ignored if it is found to be de hors the rules.
51. However, in Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra & Anr., AIR 2003 SC 3502, the Apex Court held that "the manner in which a statutory authority had understood the application of a statute would not confer any legal right upon a party unless the same finds favour with the Court of law dealing with the matter".
Therefore, "contemporanea exposito" by the State instrumentality is very useful and relevant for providing guidance to interpretation of expression used in the Rules. The administrative construction placed by the executive officers, responsible for execution of rules should be accepted and does not warrant over-turning unless found not in conformity of the Rules."
"When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another."
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52. In Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:
"..............Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."-
Similarly, in Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors., AIR 1997 SC 1236, the Hon‟ble Apex Court observed as under:-
"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis- à-vis the private interest while exercising the power under Art. 226...... indeed any of their discretionary powers. (Emphasis added)"
In Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon‟ble Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.
In M/s. Tilokchand Motichand & Ors. Vs. H.B. Munshi & Anr., AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. 65 State of U.P. & Ors., (1999) 1 SCC 271, the Hon‟ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court."
53. In Agriculture & Process Food Products Vs. Oswal Agro Furane & Ors., AIR 1996 SC 1947, the Apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a petitioner is guilty of suppression of very important fact his case cannot be considered on merits. Thus, a litigant is bound to make "full and true disclosure of facts". While deciding the said case, the Hon'ble Supreme Court had placed reliance upon the judgment in King Vs. General Commissioner, (1917) 1 KB 486, wherein it has been observed as under:
"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any 40 further with the examination of its merits......."
In Abdul Rahman Vs. Prasony Bai & Anr., AIR 2003 SC 718; and S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., (2004) 7 SCC 166, the Hon‟ble Supreme Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court 66 by deceiving it. However, the suppressed fact must be material one in the sense that had it not been suppressed, it would have led any fact on the on the merit of the case."
54. Further the matter was repeatedly raised before the Hon'ble High Court and Hon'ble Supreme Court of India and the relief as prayed by the appellant was not granted. Nothing has been shown by the appellant with regard to the illegality/irregularity or any irregularity in the calculation of EC, the order impugned dated 21.10.2021 and 31.12.2021 is a detailed order disclosing the inspection done by the authorities and the violation of environmental rules and it was found that the unit was in operation without a valid consent to operate and was in violation of environmental rules.
55. In view of the above, we are of the view that there is no illegality/irregularity in order impugned, appeal has no merits and deserves to be dismissed and accordingly dismissed. The appellant is at liberty to challenge the latest order if aggrieved, as per law.
Sheo Kumar Singh, JM Arun Kumar Verma, EM 20th August, 2022 Appeal No. 05/2022 (CZ) K 67