M/s Punahchakran Private Limited vs Indotech Waste Solution & Ors.

Bio-Medical Waste Management Rules, 2016 (BMWM Rules) – Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities, 2016 (RG, 2016) – Whether the RG, 2016 is mandatory or directory in nature – Whether the grant of relaxation in land requirement in favour the appellant for the establishment of a CBWTF by the CPCB was permissible: Held: The RG, 2016 is mandatory in nature – It must be scrupulously followed by the relevant authorities and the project proponents alike during the process of obtaining/grant of permissions for the establishment of a CBWTF – Its non-publication in the Official Gazette could not be said to have affected its mandatory nature – The decision of this Court in B.K. Srinivasan had clarified that when a strict mode of publication has not been prescribed, either by the parent statute or the subordinate legislation, a reasonable mode of publication may be sufficient – Neither the EP Act nor the BMWM Rules prescribe a strict mode of publication for the RG, 2016 – Therefore, publication in the Official Gazette, although the general rule, cannot be said to be a sine qua non – The publication of such technical guidelines on the official website of the CPCB was reasonably sufficient – Moreover, the RG, 2016 lays down crucial standards which form the foundation for the grant of EC and CTE/CTO respectively to a CBWTF and are so deeply embedded in the existing authorisation mechanism – All project proponents are sufficiently made aware of its existence whilst commencing the process for obtaining different clearances – Therefore, it cannot be argued that they do not constitute enforceable standards for the grant as well as revocation of permissions – Any reliance on the ratio in Gulf Goans would, therefore, be misplaced – As per Clause 7 of the RG, 2016, the land requirement of one acre prescribed for setting up a CBWTF may be relaxed upon the fulfilment of one of the two pre-conditions i.e., the land must be situated either within municipal limits with a population of more than 25 lakh or within a rural area – Additionally, consultation with the CPCB and the imposition of additional control measures is mandatory – Appellant’s CBWTF is located within Village Noorpur and is therefore, in a rural area – Relaxation was granted only after due consultation with the CPCB and the imposition of additional control measures which took into account the operational effectiveness of the CBWTF in a smaller area – Therefore, the grant of relaxation cannot be faulted – Constitution of India – Art.77 – Water (Prevention and Control of Pollution) Act, 1974 – Air (Prevention and Control of Pollution) Act, 1981. [Para 110] Environment – Whether the UP SEAC and the UP SEIAA respectively could have proceeded with the grant of the second EC on the basis of the first ToR:

Held: The setting aside of the first EC by the decision of the Tribunal in Aniruda Panwar did not have the consequence of rendering the first ToR invalid – There was no deliberate concealment or non-disclosure of material information which affected the Form 1 application or the issuance of the first ToR – Therefore, the first ToR was intact – Considering that the first ToR was also valid for a period of four years, the grant of the second EC on the basis of the first ToR could not be said to be wrong. [Para 110]

Water (Prevention and Control of Pollution) Act, 1974 – s.25 – Air (Prevention and Control of Pollution) Act, 1981 – s.21 – Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities, 2016 (RG, 2016) – Clause

2 – EIA, 2006 – Clause 6 – Status of land acquisition required from a project proponent seeking to establish a CBWTF at the time of making the Form 1 application, at the stage of appraisal of the EC and at the time of applying for a CTE respectively:

Held: The stages involved in the process of obtaining a prior EC are four: Screening, Scoping, Public Consultation and Appraisal respectively – According to the O.M., the need for such a credible document only arises at the fourth stage – So, although the application in Form 1 can be made by a project proponent before such a credible document is obtained, yet this document must be available for scrutiny when the SEAC and SEIAA respectively, ‘finally appraise’ the EC application – Land allotment for the particular purpose/project is not necessary before the application under Form 1 can be made, i.e., before the first stage of screening – Identification is enough – Such a view is further substantiated by two things: (i) when the EC is inherently site-specific there arises no reason for placing such a high burden at the Form 1 stage itself, and (ii) a reading of the prescribed Form 1 enclosed as Annexure-I to the EIA, 2006, under the head ‘Basic Information’, requires the applicant to provide details of the “Location/site alternatives under consideration”, meaning thereby that the applicant is only to provide details of the site(s) in which he intends to setup the project/activity concerned – In the present case, the applications dated 06.07.2021 made to the UPSIDA seeking allotment of plots E-25 and E-26 respectively, for establishing a CBWTF, was sufficient to prove that the plots were identified or were being considered by the appellant – The second take-away is that, when the stage of appraisal arrives, a credible document becomes crucial – Undoubtedly, this credible document in the context of the present matter would either be a successful allotment in favour of the appellant or, if the allotment is not in vogue, then a provisional allotment/ acknowledgment issued by the UPSIDA – Clause 6 of the EIA, 2006 and the O.M. dated 07.10.2014 respectively clarify that legal possession by way of a sale deed, lease deed etc., may not necessarily be obtained, both before making the Form 1 application and at the stage of appraisal, respectively – Further, a perusal of the order dated 20.09.2021 issued by the MoEF&CC as well as s.25 of the Water Act and s.21 of the Air Act respectively, indicate that (a) the applicability of the EIA, 2006 and the necessity of obtaining prior EC must simply be ascertained/identified by the SPCB/PCC at the time of grant of CTE and, (b) prior EC must be obtained before a Consent to Operate (CTO) can be granted by the SPCB/PCC – Therefore, when the chronology is rightly understood, a CTE can be issued before the issuance of a prior EC upon a mere assessment of the applicability of the EIA, 2006 – In that case, when the identification of prospective site(s) is the land acquisition requirement for making a Form 1 application under the EIA, 2006, then successful land allotment for the CBWTF cannot be made a condition precedent, both for the making of an application for CTE and the grant of CTE respectively – Having said so, relaxation in land requirement, if any, in accordance with Clause 7 of the RG, 2016 must be granted by the SPCB/PCC in consultation with the CPCB before they can issue a CTE for land admeasuring less than one acre – Clause 2 of the RG, 2016 does not make land procurement or land allocation a strict pre-requisite for initiating the process of obtaining both the EC and CTE respectively. [Paras 69-73, 110] Words and Phrases – “land procured” in Clause 2 (d) and “upon allocation of site” in Clause 2(e) respectively of the Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities, 2016 (RG, 2016):

Held: A hyper technical view of the words “land procured” in Clause 2(d) and “upon allocation of site” in Clause 2(e) of the RG, 2016 respectively cannot be taken, in a manner which is contrary to the meaning evinced by the EIA, 2006 – Clause 6 of the EIA, 2006 and the O.M. dated 07.10.2014 communicate what is required from any project proponent while making the Form 1 application and at the appraisal stage, without any ambiguity – No reason, either in law or by way of technical necessity, why a stricter condition must be placed for a proponent seeking to establish CBWTF in comparison to proponents undertaking other activities/projects. [Para 81]

Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities, 2016 (RG, 2016) – Genesis, scope and nature of, discussed – Environment (Protection) Act, 1986 – Bio-Medical Waste Management Rules, 2016. [Paras 37-42] Environment (Protection) Act, 1986 – Bio-Medical Waste Management Rules, 2016 – Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities, 2016 (RG, 2016) – Publication in the Official Gazette not a sine qua non: Held: Neither the EP Act nor the BMWM Rules prescribe a strict mode of publication for the RG, 2016 – Undeniably, the case would fall under the third-type of scenario as per the decision in B.K. Srinivasan – Therefore, publication in the Official Gazette, although the general rule, cannot be said to be a sine qua non – Publication of such technical guidelines i.e. the RG, 2016, on the official website of the CPCB was reasonably sufficient – Moreover, the RG, 2016 lays down crucial standards which form the foundation for the grant of EC and CTE/CTO respectively to a CBWTF – They are so deeply embedded in the authorisation mechanism and all project proponents are sufficiently made aware of its existence whilst commencing the process for obtaining different clearances – Therefore, it cannot be argued that they do not constitute enforceable standards for the grant as well as revocation of permissions. [Para 54]