Biomedical waste facility guidelines are mandatory, but land allotment need not precede an EC application: Supreme Court restores clearances for CBWTF project

The appellant sought to establish a Common Bio-medical Waste Treatment Facility (“CBWTF”) at plots E-25 and E-26 in the UPSIDC Industrial Area, Babrala, Uttar Pradesh.

It initially applied for allotment of the plots for a CBWTF, but the application was rejected; the plots were subsequently allotted for fabrication of industrial equipment.

Despite this, the appellant obtained a Terms of Reference (“first ToR”), a Consent to Establish (“first CTE”), and an Environmental Clearance (“first EC”) for the CBWTF.

The National Green Tribunal (“NGT”), in Aniruda Panwar v. MoEFCC, set aside the first EC and CTE for non-compliance with the Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities, 2016 (“RG, 2016”), particularly regarding land allocation and the one-acre requirement.

The appellant thereafter obtained permission from UPSIDA to change the land use to a CBWTF, secured relaxation of the one-acre land requirement from the Central Pollution Control Board (“CPCB”) from 1 acre to 0.89 acres subject to additional safeguards, and obtained a second EC and second CTE on 20.12.2023.

On appeal by Indotech Waste Solution, the NGT set aside the second EC and CTE, holding that the RG, 2016 was mandatory, that the relaxation was unavailable because Babrala was neither a rural area nor a municipality with a population exceeding 25 lakhs, and that the authorities had acted mechanically and with malice in law.

1. Whether the RG, 2016 is mandatory and enforceable, notwithstanding its non-publication in the Official Gazette, and whether Gulf Goans Hotels Co. Ltd. v. Union of India, (2014) 10 SCC 673, invalidated its binding character.

2. Whether relaxation of the one-acre land requirement under Clause 7(b) of the RG, 2016 was legally permissible in the appellant’s case.

3. Whether successful land allotment or procurement was required before: (a) filing a Form 1 application for EC; (b) appraisal of the EC application; and (c) applying for or obtaining a CTE under the Water Act and Air Act.

4. Whether the second EC could validly be granted on the basis of the first ToR after the first EC and CTE had been set aside by the NGT.

The Court applied the Environment (Protection) Act, 1986, particularly Sections 6, 8 and 25, and the Bio-Medical Waste Management Rules, 2016 (“BMWM Rules”), especially Rules 3, 5 and 17 and Schedule III, which require CBWTFs to comply with CPCB guidelines.

It held that the RG, 2016 is mandatory because the BMWM Rules expressly incorporate CPCB guidelines into the authorisation, site-selection and operational framework for CBWTFs.

Under Gulf Goans and B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658, publication in the Official Gazette is generally required where prescribed by statute, but where no specific mode is prescribed, a reasonable mode of publication may suffice.

Clause 7(b) of the RG, 2016 permits relaxation of the one-acre requirement where the facility is proposed in a rural area or within municipal limits having a population exceeding 25 lakhs, subject to CPCB consultation and additional environmental safeguards.

Clause 6 of the EIA Notification, 2006 requires only identification of prospective sites at the Form 1 stage, while the Office Memorandum dated 07.10.2014 requires credible evidence of land status at the appraisal stage.

Sections 25 of the Water Act, 1974 and 21 of the Air Act, 1981 require prior consent before establishment or operation, but do not make completed land allotment an absolute pre-condition for applying for or obtaining a CTE.

Under Hanuman Laxman Aroskar v. Union of India, (2019) 15 SCC 401, concealment or submission of material false information in Form 1 may invalidate the EC process; however, the effect depends on the stage and materiality of the defect.

The validity of a ToR is ordinarily three years, extendable by one year, subject to the applicable Office Memoranda dated 29.08.2017 and 08.06.2022.

The Court held that the RG, 2016 had statutory backing through the BMWM Rules and was therefore binding; its publication on the CPCB’s official website was a reasonable mode of publication because neither the Environment (Protection) Act nor the BMWM Rules prescribed Gazette publication as the exclusive mode.

The appellant’s facility was located in Village Noorpur, within a rural area and outside the Babrala Nagar Panchayat; consequently, the threshold condition under Clause 7(b) was satisfied.

The CPCB had also been consulted and had imposed additional safeguards, including zero liquid discharge, increased stack height, odour-control measures, online monitoring and an initial capacity restriction.

The NGT therefore erred in treating the relaxation as legally unavailable or as vitiated by malice in law.

The Court further distinguished the requirements applicable at different stages.

Identification of plots for the proposed CBWTF was sufficient for filing Form 1. At the appraisal stage, however, a credible document showing the status of land acquisition was required.

By the time the second EC was appraised, the appellant had obtained UPSIDA’s permission for change of use and had secured land relaxation from the CPCB.

The first EC had been defective because, at the time of its appraisal, the land was allotted for a different industrial purpose; however, that defect did not invalidate the first ToR, since the Form 1 application had correctly identified the plots for the proposed CBWTF and no material defect in the Form 1 application or ToR was established.

As the first ToR remained within its validity period and the project site remained unchanged, the second EC could validly be based on the first ToR.

It held that the RG, 2016 is mandatory; that its non-publication in the Official Gazette did not affect its enforceability; that relaxation of the one-acre requirement was permissible because the facility was located in a rural area and the prescribed safeguards and CPCB consultation were satisfied; that completed land allotment was not required at the Form 1 or CTE-application stage, though credible land-status documentation was required at EC appraisal; and that the first ToR remained valid and could support the second EC.

Consequently, the second EC and second CTE dated 20.12.2023 were restored, and the pending applications were disposed of.