Delhi High Court
Ultratech Cement Limited vs Union Of India & Ors. on 9 May, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
2023:DHC:3258
$~75
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 9th May, 2023
+ W.P.(C) 5809/2023 & CM APPL. 22747/2023
ULTRATECH CEMENT LIMITED ..... Petitioner
Through: Mr. Pinaki Misra, Sr. Advocate with
Ms. Vanita Bhargava, Mr. Ajay
Bhargava, Mr. Shantanu Chaturvedi
& Ms. Prerna Singh, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Kirtiman Singh, CGSC, Mr.
Waize Ali Noor, Ms. Shreya V
Mehra and Mr. Madhav Bajaj
Advocates for UOI. (M:
9910027557)
Mr. Balendu Shekhar, Mr. Sriansh
Prakash, Mr. Krishna Chaitanya,
Advocates. (M: 8434343838) with
Mr. Kamal Bandhu L.O.
Mr Arvind Kumar, Standing
Counsel and Mr Ankit Kumar Vats,
Advocates for R-3. (M:
9868001254)
None appeared for R-6
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
W.P.(C) 5809/2023 & CM APPL. 22747/2023 (stay)
1. This hearing has been done through hybrid mode.
2. The Petitioner-Ultratech Cement Ltd. has filed the present petition challenging the impugned orders passed by the National Green Tribunal (hereinafter, 'NGT') dated 29th September, 2022, 24th April, 2023 and 23rd Signature Not Verified Digitally Signed W.P.(C) 5809/2023 Page 1 of 6 By:DHIRENDER KUMAR Signing Date:11.05.2023 19:07:19 2023:DHC:3258 January, 2023 in OA No. 617 of 2022 titled 'Pushpender v. State of Uttar Pradesh and Ors'.
3. The Petitioner has various grievances, firstly, that the complaint made by Respondent No. 6-Pushpender before the NGT vide letter dated 23rd May 2022 contained very general allegations against the Petitioner. The said complaint is as follows:
"Respected Sir, I am Pushpendra Singh, Address Village Berai, Post Bevra, Shankargarh Police Station, Shankargarh Tehsil Bara, District Prayagraj, Uttar Pradesh. Sir, there is Tata and Ultratech Cement company in our village. This company is spreading pollution in the entire village. Our village is just adjacent to the boundary of the company.
The company stores cement ash inside its boundary through trucks, which is causing air pollution in the entire village. And the dirty water of the company flows from the village itself, due to which water pollution is also happening. So, the water of the village is no longer fit or fit for drinking.
Therefore, respected sir I requested to take appropriate action against these companies and save the people of the village from pollution."
However, despite the said allegations being extremely general in nature, vide order dated 29th September, 2022, a prima facie finding was given by the NGT without hearing the Petitioners.
4. Mr. Mishra, ld. Sr. counsel appearing for the Petitioner relies upon the judgment of the Supreme Court in Municipal Corporation of Greater Mumbai v. Ankita Sinha [2021 SCC Online SC 897] to argue that NGT can receive communications and letters, and can even take suo moto cognizance of the matters published in the media, however, notice would have to be Signature Not Verified Digitally Signed W.P.(C) 5809/2023 Page 2 of 6 By:DHIRENDER KUMAR Signing Date:11.05.2023 19:07:19 2023:DHC:3258 issued to the sender of the communication or author of the news item, and also give a notice to the person likely to be affected.
5. It is further submitted on behalf of the Petitioner that in this case prior to arriving at a prima facie finding, no notice was issued to the Petitioner and a Joint Committee was appointed by the NGT vide order dated 29th September 2022 to verify the factual position. The said Joint Committee filed a report before the NGT dated 17th January, 2023. As per the said report, it is stated that the Committee found no major violations by the Petitioner and only certain recommendations were made in the said report. The said report of the Joint Committee was taken on record by the NGT vide order dated 23rd January 2023.
6. Thereafter, vide order dated 23rd January, 2023 and 24th April, 2023 an Advocate was appointed by the NGT as an Amicus Curiae to make multiple visits to the Petitioner's premises and the fee of the said Commissioner is to be borne by the Respondent No. 4-Uttar Pradesh Pollution Control Board (hereinafter, 'UPPCB'). Further, vide order dated 24th April 2023, it is stated that the NGT wrongly recorded that the Joint Committee has referred to environmental violations and has proceeded to make recommendations on that basis. Further, the Petitioner states the NGT also noted that remedial measures have not been taken by the Petitioner, which is contrary to record. The submission is that the NGT is not following the proper procedure which is required to be followed.
7. On behalf of the UPPCB, it is submitted by Mr. Arvind Kumar, ld. Counsel, that the report of the Joint Committee found violations on behalf of the Petitioner. However, insofar as the appoint of the Amicus Curiae, and the fee being borne by the UPPCB is concerned, it is submitted that the UPPCB Signature Not Verified Digitally Signed W.P.(C) 5809/2023 Page 3 of 6 By:DHIRENDER KUMAR Signing Date:11.05.2023 19:07:19 2023:DHC:3258 would not be having proper head of funds to pay the Amicus Curiae and that the said Commissioner may not have the expertise in this matter. Thus, the UPPCB also objects to the appointment of the Advocate-Commissioner.
8. On behalf of the Respondent No. 2-Central Pollution Control Board (hereinafter, 'CPCB'), Mr. Shekar, ld. Counsel submits that the orders of the NGT are appealable before the Supreme Court under Section 22 of the NGT Act, 2010 and consequently the present writ is not maintainable.
9. This Court has considered the matter. There is a similar matter being W.P.(C) 13212/2022 titled 'Radico Khaitan v. Union of India' wherein certain orders have already been passed.
10. Firstly, this Court notices that in the judgment of the Supreme Court in Ankita Sinha (supra) clearly, the principles of natural justice would have to be followed by the NGT. In fact, whenever a communication, letter etc., or even a suo moto action is sought to be taken, the issuance of a notice to the party who is likely to be effect would be mandatory. In this respect, the Supreme Court has held as follows:
"105.When the Registry of the NGT does indeed receive a communication or letter, including matters published in media, it may cause to initiate suo motu action by inviting attention of NGT to such matters in the form of office report. Such circumstances would however require a notice to be given to the sender of the communication or author of the news item, as the case may be, to assist the NGT in the course of hearing and to substantiate the factual matters. It must also be said that the exercise of suo motu jurisdiction does not mean eschewing with the principles of natural justice and fair play. In other words, the party likely to be affected should be afforded due opportunity to present their side, before suffering adverse orders."Signature Not Verified Digitally Signed W.P.(C) 5809/2023 Page 4 of 6 By:DHIRENDER KUMAR Signing Date:11.05.2023 19:07:19
2023:DHC:3258 Clearly, in the present case, while passing the order dated 29th September, 2022 and arriving at a prima facie finding based on a one page complaint, the Petitioner was not heard.
11. Secondly, the Court has also considered the order dated 24th April 2023 of the NGT insofar as it relates to appointment of the Amicus Curiae. The said portion of the order dated is set out below:
"4. Vide order dated 23.01.2023, Ms. Jesal Wahi, Advocate was appointed as amicus curiae to assist this Tribunal in just and fair adjudication of the questions involved in the case. Learned amicus curiae may undertake such visits to the industries in question as considered necessary and respondents no. 4 and 5 are directed to allow the amicus curiae to make such visits. Learned amicus curiae may also submit report/suggestions regarding the questions relating to environment involved in the case within two weeks by email at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF. The UPPCB is directed to pay an amount of Rs. 50,000/- to the learned amicus curie besides expenses incurred on transportation (including economy class Air fare), Boarding/Lodging and other related/incidental charges."
12. While there can be no doubt that the NGT is duly empowered to appoint the Amicus Curiae, if the need so arises, clearly the same would have to be made after hearing all the parties concerned including the UPPCB inasmuch as the Advocate Amicus Curiae also ought to be having the requisite expertise in the matter.
Signature Not Verified Digitally Signed W.P.(C) 5809/2023 Page 5 of 6 By:DHIRENDER KUMAR Signing Date:11.05.2023 19:07:192023:DHC:3258
13. In order to have a proper prescribed procedure in the manner in which NGT ought to proceed in such matters, let a short note be placed on record by the Petitioners, CPCB, UPPCB and the Respondent No. 1-MoEF within four weeks.
14. In the meantime, let the proceedings before the NGT shall continue. Since the report by Joint Committee has been submitted before the NGT, let the Petitioner place on record in the NGT, a detailed action plan dealing with any deficiencies which may have been pointed out in the said report and the manner in which it intends to address the said deficiencies.
15. The CBCP's report or the UPPCB's report in this regard would also be taken into consideration by the NGT. Further, Petitioner's action plan to deal with the deficiencies pointed out by the Joint Committee, if any, shall also be considered by the NGT before it may pass appropriate orders in accordance with law.
16. If any officer of the Petitioner wishes to appear before the NGT as permitted by the NGT, they may appear virtually or physically as advised.
17. The proceedings before the NGT shall, accordingly, be continued in the above terms.
18. List on 10th November, 2023.
PRATHIBA M. SINGH JUDGE MAY 9, 2023 dj/dn Signature Not Verified Digitally Signed W.P.(C) 5809/2023 Page 6 of 6 By:DHIRENDER KUMAR Signing Date:11.05.2023 19:07:19