In a landmark ruling on bio-medical waste facility approvals, the Supreme Court has set aside the National Green Tribunal (NGT’s) order quashing the second Environmental Clearance (EC) and Consent to Establish (CTE). While clarifying that land allotment is not a precondition for filing a Form 1 application, the Apex Court held that the first Terms of Reference (ToR) survives even after the first EC is set aside. The Court said that the Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities, 2016 (RG, 2016) are mandatory and binding on all stakeholders, and their non-publication in the Official Gazette does not affect their enforceability since neither the parent statute nor the subordinate legislation prescribes a strict mode of publication.
Explaining on the issue, the Apex Court said that relaxation of the one-acre land requirement under Clause 7(b) of the RG, 2016 is permissible where the CBWTF is located in a rural area, even if situated close to a Nagar Panchayat with a population below 25 lakhs, provided the State Pollution Control Board (SPCB) consults the CPCB and imposes additional control measures. Essentially, land allotment is not a precondition for filing a Form 1 application under the EIA Notification, 2006, and identification of prospective sites suffices at the screening stage, while a credible document showing the status of land acquisition is required only at the appraisal stage (Stage IV).
Moving ahead, the Apex Court emphasised that the setting aside of an Environmental Clearance (EC) does not automatically invalidate the underlying Terms of Reference (ToR). The validity of the ToR depends on the nature and stage of the defect that vitiated the EC, and where the defect pertains to the appraisal stage alone, the ToR remains intact and can support a fresh EC. Further, the Court said that the grant of a CTE under the Water Act, 1974 and the Air Act, 1981 is not dependent on prior land allotment, and the EC and CTE/CTO processes are parallel and not inter-dependent, though a CTO cannot be granted without a prior EC.
A Two-Judge Bench comprising Justice J.B. Pardiwala and Justice Manoj Misra observed that the RG, 2016 is mandatory in nature and must be scrupulously followed by all stakeholders. The RG, 2016 was issued by the CPCB in pursuance of a clear statutory mandate under the Environment (Protection) Act, 1986 and the Bio-Medical Waste Management Rules, 2016 (BMWM Rules). Rules 3(c), 5, 14, and 17 of the BMWM Rules, along with Schedule III, expressly require compliance with the RG, 2016.
On the question of authentication under Article 77 of the Constitution, the Court relied on Air India Cabin Crew Assn. v. Yeshaswinee Merchant [(2003) 6 SCC 277] to hold that non-compliance with Article 77 does not ipso facto invalidate executive action, and it only precludes the drawing of an irrebuttable presumption. The Court further observed, applying B.K. Srinivasan v. State of Karnataka [(1987) 1 SCC 658], that where neither the parent statute nor the subordinate legislation prescribes a strict mode of publication, publication through a ‘reasonable mode’ suffices. Since neither the EP Act nor the BMWM Rules prescribe a strict mode of publication for the RG, 2016, publication on the official website of the CPCB was reasonably sufficient.
On the permissibility of relaxation in land requirement, the Court observed that Clause 7(b) of the RG, 2016 permits relaxation only if the CBWTF is located either within municipal limits having a population of more than 25 lakhs or within a rural area. Based on the District Magistrate’s report dated July 24, 2024, the Gazette notification dated Sep 05, 2001, issued under Section 2(d) of the UP Industrial Area Act, 1976, and confirmations from the Executive Officer of Babrala Nagar Panchayat, the Tehsildar at Gunnaur, and the Regional Manager, UPSIDA, the Court found that the UPSIDC Industrial Area is situated in Village Noorpur, Pargana Asadpur, Tehsil Gunnaur, District Sambhal, and falls within the Noorpur Gram Panchayat. The industrial area is approximately 2.6 km from the border of Babrala Nagar Panchayat. Therefore, the precondition under Clause 7(b) stood fulfilled, and the CPCB’s grant of relaxation after due consultation and imposition of additional control measures could not be faulted.
On the status of land acquisition at different stages, the Court observed that Clause 6 of the EIA Notification, 2006 requires only ‘identification of prospective sites’ before making a Form 1 application. The O.M. dated Oct 07, 2014, clarifies that full acquisition of land is not a prerequisite for considering an EC application, but a credible document showing the status of land acquisition must be available at the appraisal stage (Stage IV). Clause 2 of the RG, 2016 does not lay down a stricter condition than the EIA, 2006. The Court further observed that the order dated Sep 20, 2021, issued by the MoEF&CC makes it clear that EC and CTE/CTO processes are parallel and not inter-dependent, and that a CTO cannot be granted without a prior EC. Therefore, successful land allotment cannot be a strict precondition for obtaining a CTE.
On the validity of the first ToR, the Court observed that the setting aside of the first EC by the Tribunal in Aniruda Panwar did not automatically render the first ToR invalid. The Court distinguished Hanuman Laxman Aroskar v. Union of India [(2019) 15 SCC 401], holding that the concealment in the present case pertained to the appraisal stage (the change in land use from fabrication to CBWTF) and not to the Form 1 application itself. The Court further observed that the first ToR remained valid for a period of four years under the O.M.s dated Aug 29, 2017, and June 08, 2022. The mere issuance of the second ToR did not indicate that the first ToR could no longer be used, particularly since the second ToR was duly withdrawn on Nov 21, 2023, once plot E-27 was no longer required.
Briefly, Punahchakran Private Limited sought to establish a Common Bio-medical Waste Treatment Facility (CBWTF) on plots E-25 and E-26 (totalling 0.89 acres) in the UPSIDC Industrial Area, Babrala, District Sambhal, Uttar Pradesh. The appellant applied for land allotment on July 06, 2021, and submitted a Form 1 application before the UP SEIAA on Aug 11, 2021. The UPSIDA rejected the allotment for a CBWTF on Aug 12, 2021, but later allotted the same plots for ‘fabrication of industrial equipment’ on Sep 15, 2021. The first Terms of Reference (ToR) was issued on Aug 17, 2021, the first Consent to Establish (CTE) was granted on April 26, 2022, and the first Environmental Clearance (EC) was issued on July 13, 2022.
The first EC and first CTE were challenged before the National Green Tribunal in Aniruda Panwar v. MoEF&CC, where the Tribunal set them aside on July 31, 2023 on three grounds: (i) Clause 2 of the Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities, 2016 (RG, 2016) makes procurement of land a condition precedent; (ii) subsequent change in land use could not validate the EC; and (iii) the plot size of 0.89 acres was below the one-acre requirement under Clause 7 of the RG, 2016 without proper relaxation. The Tribunal granted liberty to the appellant to re-apply either by procuring additional land or seeking relaxation.
Pursuant to this liberty, the CPCB granted relaxation in land requirement from 1 acre to 0.89 acres on Nov 17, 2023, subject to additional control measures including zero liquid discharge, increased stack height, stringent emission norms, odour control, OCEMS installation, and restricted initial incinerator capacity of 2.5 tons/day. The second EC and second CTE were granted on Dec 20, 2023. Aggrieved, the respondent no. 1 (Indotech Waste Solution) preferred appeal before the NGT, which set aside the second EC and second CTE on July 05, 2024. The NGT held that Clause 7(b) of the RG, 2016 was inapplicable because Babrala was a Nagar Panchayat with a population far below 25 lakhs, and that the authorities had acted in a ‘mechanical and unmindful’ manner.
