Non-adherence to principles of Natural Justice and prescribed procedures for sampling – Honourable Supreme Court of India sets aside NGT orders for Compensation.
By Dr. Yashpal Singh, Chairman, The Wealthy Waste School India
The Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment Protection Act of 1986 make a provision for collection and analysis of samples, the reporting of results of analysis of the samples so collected and their use as evidence in legal proceedings. It is provided that the results of the analysis of samples will not be admissible as legal evidence if the prescribed procedures for sampling and analysis are not followed.
The regulatory bodies have long been insensitive to these procedures and many samples have been reported to be taken in non-conformance to the prescribed procedures for sampling and analysis.
In a particular case where a penalty of Rs. 18 Crore was approved by the Honourable NGT and where the principles of Natural Justice and the procedures for samplings were not followed, the Honourable Supreme Court of India, has passed an important order on 01-09-2025 (in the matter of Civil Appeal Nos. 8119-8120 of 2022.) It has been held that:
“31. NGT exercises judicial functions. Therefore, it is all the more necessary for the NGT to adhere to a fair procedure which is statutorily laid down of which principles of natural justice are an inalienable part. Rigor of Section 19(1) of the National Green Tribunal Act, 2010 is qua the procedure to be adopted by the NGT in conducting its proceedings. It cannot be stretched to abandon the statutory procedure laid down under Sections 21 and 22 of the Water Act and by outsourcing investigation to administrative committees by overlooking the statutory provisions and basing its decisions on the recommendation of such administrative committee. This is not within the remit of NGT.
32. As we have noticed above, this is a classic case where in the quest for doing justice, NGT has ended up doing just the reverse.
33. Ordinarily, in a case where there is violation of the principles of natural justice, parties are relegated to the adjudicatory forum to re-do the exercise after following the due process. But in this case, the entire exercise has been vitiated because of non-conforming to the laid down procedure contemplated under Sections 21 and 22 of the Water (Prevention and Control of Pollution) Act, 1974. In such circumstances, relegating the parties back to the NGT in our considered opinion would serve no useful purpose. However, we clarify that it will always be open to the UPPCB to carry out inspection and take remedial measures qua the sugar mill of the appellant by following the procedure laid down under the Water Act and after complying with the due process statutorily laid down thereunder, including by adhering to the principles of natural justice.
34. Accordingly, and in the light of the above, the impugned orders dated 15.02.2022 and 16.09.2022 passed by the NGT in O.A. No. 71/2021 are hereby set aside. Consequently, the civil appeals are allowed. However, there shall be no order as to cost.”
Apart from the questions of adherence to the Principles of Natural justice or the statutory provisions for sampling, the Honourable Supreme Court has also raised the issue of outsourcing investigations to administrative committees by overlooking the statutory provisions and basing its decisions on the recommendations of the said committee. It has been the practice with the regulatory authorities to cause third party inspections and samplings and base their decisions on such inspections. This is not tenable and would need to be reconsidered. Inspections by agencies other than those empowered to do so under Law may not be acceptable.
Further, in light of the observations of the Honourable Supreme Court, the acceptance of analysis reports from the On-Line Continuous Effluent and Emission monitoring systems as legal evidence, may also be looked into. This is not a prescribed method of sampling and analysis as per the regulatory framework.
The Prescribed Procedures
The Water (Prevention and Control of Pollution) Act 1974, The Air (Prevention and Control of Pollution) Act 1981 and the Environment Protection Act 1986 have made specific provisions for procedures for sampling and analysis of samples.
Section 21 and 22 (Link) of the Water (Prevention and Control of Pollution) Act 1974 provide for sample collection, analysis and reporting of results and clearly specify that the analysis of samples shall not be admissible as legal evidence if the provisions of sampling are not complied with. It also provides for replicate sampling and analysis of samples and for the analysis of one sample so collected to be performed at the State Water Laboratory established under section 51 and 52 of the Water Act. The provisions of sampling do not recognise on line continuous emission/effluent monitoring as a legitimate tool for analysis of samplings under the Water Act. The act also provides for communication of results of the analysis to the occupier or his agent. Importantly, the procedure also prescribes that if there is any in consistency or discrepancy between the results of the two laboratories, the results of analysis performed at the State Water Laboratory as above, would prevail.
Section 26 (Link) of the Air (Prevention and Control of Pollution) Act 1981 also prescribes the procedure for collection and analysis of samples of emissions and reporting of results. Air samples are not to be divided into 2. The samples have to be sent to the laboratory established under section 17 of the Act. However, the occupier or his agent, (this is important) have the right to request to seek the analysis of the sample at the State Air Laboratory established under Section 28 of the Air Act which has to be respected as per law. This Act also provides that the result of any analysis of sample of emissions shall not be admissible in evidence in any legal proceedings unless the provisions of section 26.3 and 26.4 are complied with.
Rule 6 of the E.P. Rules 1986 also prescribes procedures for taking samples under the E.P. Act 1986. Provisions have been made to ensure that samples are divided into two, sealed and signed, one part handed over to the person from whom the sample has been taken and the other part sent to the Environmental Laboratory established under section 3(2)(xi) of the E.P. Act. It has also been provided that the report of this analysis shall be sent to the person from whom the sample has been taken, as soon as the report is received by the officer, sending the sample for analysis. If these procedures are not followed the results of analysis of samples will not be admissible as evidence in any court of law. (Section 11 of the E.P. Act 1986)