The Supreme Court has held that prior allotment or procurement of land is not a mandatory condition for filing a Form 1 application seeking environmental clearance for establishing a Common Bio-medical Waste Treatment Facility (CBWTF). At the initial stage, identification of the prospective project site is sufficient, the Court ruled.
A Bench comprising Justice J.B. Pardiwala and Justice Manoj Misra clarified that credible documentation concerning the acquisition or allotment of land becomes necessary when the environmental clearance proposal reaches the appraisal stage.
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Identification of Prospective Site Sufficient for Form 1 Application
Interpreting Clause 6 of the Environmental Impact Assessment Notification, 2006, the Supreme Court said a project proponent can submit a Form 1 application after identifying a prospective site for the proposed project.
The Court distinguished between the requirements applicable at the initial application stage and those that arise at the final appraisal stage.
At the Form 1 stage, the project proponent is only required to identify the land being considered for the particular project. Successful allotment or legal possession of that land is not compulsory at this stage.
However, when the proposal reaches Stage IV—the appraisal stage—the project proponent must produce a credible document showing the status of land acquisition for the proposed project. In cases involving government or industrial-development-authority land, such a document may include a successful allotment, provisional allotment or acknowledgement concerning the project.
“Land allotment cannot be said to be a pre-condition for the making of an application under Form 1,” the Court concluded.
The Bench added that legal possession through a registered sale deed or lease deed is not necessarily required either before submitting Form 1 or at the appraisal stage.
Biomedical Waste Guidelines Are Mandatory Despite Non-Publication in Gazette
The Supreme Court also declared that the Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities, 2016 are mandatory and must be strictly followed by project proponents and regulatory authorities.
The Court rejected the contention that the guidelines were unenforceable because they had not been published in the Official Gazette.
Neither the Environment (Protection) Act, 1986 nor the Bio-Medical Waste Management Rules prescribed publication in the Official Gazette as an indispensable requirement for bringing the guidelines into force, the Court observed.
Publication of the technical guidelines on the Central Pollution Control Board’s official website constituted a reasonable and sufficient mode of publication. The standards prescribed by the guidelines were also deeply integrated into the process for granting environmental clearance, Consent to Establish and Consent to Operate.
Accordingly, project proponents could not contend that they were unaware of the guidelines or that the standards were unenforceable.
One-Acre Land Requirement Can Be Relaxed in Rural Areas
The case also concerned the requirement that a CBWTF should ordinarily be established on a plot measuring at least one acre.
The project in question was proposed on two adjoining plots—E-25 and E-26—measuring approximately 0.89 acres in the UPSIDC Industrial Area at Babrala, Sambhal.
Clause 7 of the 2016 Guidelines permits relaxation of the one-acre requirement where the facility is proposed within municipal limits having a population exceeding 25 lakh or in a rural area. The relaxation cannot ordinarily reduce the project area below 0.5 acres and must be granted in consultation with the CPCB, subject to additional pollution-control measures.
The NGT had concluded that the site fell within the limits of the Babrala Nagar Panchayat, whose population was far below 25 lakh. It consequently held that the authorities had mechanically granted the relaxation.
The Supreme Court, however, relied on a report submitted by the District Magistrate, Sambhal, along with official records produced by other authorities. These documents established that the industrial area was formed in Village Noorpur and did not fall within the limits of the Babrala Nagar Panchayat.
The site was situated approximately 2.6 kilometres from the boundary of the Nagar Panchayat and fell under the Noorpur Gram Panchayat. A notification issued under the Uttar Pradesh Industrial Area Development Act also identified the concerned industrial area as being situated in Village Noorpur.
The Court consequently held that the facility was located in a rural area and satisfied the threshold condition for relaxation under Clause 7 of the guidelines.
CPCB Imposed Additional Environmental Safeguards
The CPCB had granted relaxation on November 17, 2023, reducing the prescribed land requirement from one acre to 0.89 acres.
The relaxation was accompanied by several additional safeguards, including:
- Assessment of an increased stack height and imposition of stringent emission norms;
- Treatment and complete reuse of effluent within the facility;
- Maintenance of zero liquid discharge;
- Adequate measures for controlling odour;
- Installation of an Online Continuous Emission Monitoring System connected to CPCB and UPPCB servers; and
- Initial restriction of the incinerator’s operating capacity to 2.5 tonnes per day, subject to review after six months of monitoring.
The Supreme Court said relaxation of the minimum land requirement could not be claimed as a matter of right and should not be granted casually. In the present case, however, the relaxation was granted after consultation with the CPCB and after prescribing additional safeguards concerning the facility’s operation on a smaller plot.
The respondent had also failed to demonstrate that the safeguards prescribed by the CPCB were inadequate, the Court noted.
Merely because the authorities also considered the investment already made by the project proponent did not establish malice in law.
The Court rejected the NGT’s earlier interpretation that Clause 2 of the 2016 Guidelines made procurement of land a condition precedent for initiating the environmental clearance and Consent to Establish processes.
Clause 2 provides two routes for developing a new CBWTF. Under the first, the State Pollution Control Board or the relevant government department identifies the requirement and makes land available to the selected proponent. Under the alternative route, an entrepreneur may procure suitable land in accordance with the location criteria.
The Supreme Court said the expressions “land procured” and “upon allocation of site” should not be interpreted hyper-technically to create a stricter standard for biomedical waste facilities than the standard applicable to other projects under the EIA Notification.
The guidelines require land to be procured before the facility is actually established. They do not expressly require completion of land allotment before the submission of Form 1 or legal possession before appraisal.
There was, therefore, no conflict between Clause 2 of the 2016 Guidelines and Clause 6 of the EIA Notification, the Court held.
The Supreme Court also clarified the sequence in which a project proponent may obtain a Consent to Establish and an environmental clearance.
According to the Court, a State Pollution Control Board must determine whether the EIA Notification applies to the proposed project while considering an application for Consent to Establish. However, the prior environmental clearance must necessarily be obtained before the Board grants Consent to Operate.
Thus, a Consent to Establish may be issued before the final environmental clearance, provided the applicability of the EIA Notification has been properly assessed.
Successful allotment of the project land cannot be treated as a condition precedent either for applying for or obtaining a Consent to Establish.
The Court, however, cautioned that where a CBWTF is proposed on land measuring less than one acre, the prescribed relaxation under Clause 7 must be obtained from the State Pollution Control Board in consultation with the CPCB before the Consent to Establish is issued.
Punahchakran had initially applied to the Uttar Pradesh State Industrial Development Authority in July 2021 for allotment of plots E-25 and E-26 to establish a CBWTF.
Before the allotment was finalised, the company submitted a Form 1 application to the Uttar Pradesh State Environment Impact Assessment Authority. The company was granted its first Terms of Reference on August 17, 2021.
Its initial applications for allotment of land for a CBWTF were rejected. The plots were subsequently allotted for setting up a fabrication unit for industrial equipment. The company later obtained approval to change the proposed land use from fabrication of industrial equipment to a biomedical waste treatment facility.
The first Consent to Establish was issued in April 2022, followed by the first environmental clearance in July 2022.
In July 2023, the NGT declared those approvals illegal, null and void. It held that the company had not secured the land for the intended purpose before applying for the approvals and that the facility did not fulfil the minimum one-acre requirement.
The NGT nevertheless granted the company liberty to apply afresh after procuring additional land or obtaining a lawful relaxation of the land requirement.
The company thereafter explored acquiring an adjoining plot and simultaneously applied for relaxation. The CPCB ultimately permitted the facility to be developed on 0.89 acres subject to additional environmental safeguards.
Following the relaxation, the UP SEIAA and UPPCB issued the second environmental clearance and second Consent to Establish on December 20, 2023. A Consent to Operate was subsequently issued on February 19, 2024.
Indotech Waste Solution, which also operates in the field of biomedical waste treatment, challenged the renewed approvals before the NGT.
On July 5, 2024, the NGT once again set aside the environmental clearance and Consent to Establish.
The Tribunal held that the land-relaxation provision was unavailable because the project was located within the Babrala Nagar Panchayat, whose population was below 25 lakh. It further observed that the regulatory authorities had relied on irrelevant considerations, including the investment made by the company, while granting relaxation.
The NGT went to the extent of holding that the officials issuing the approvals had acted for reasons other than bona fide considerations and that the exercise was vitiated by malice in law.
The Supreme Court found that the NGT’s conclusion regarding the location of the facility was factually incorrect. Official records demonstrated that the facility was situated in Village Noorpur, a rural area, and not within the Babrala Nagar Panchayat.
Another question before the Supreme Court was whether the company could rely upon the first Terms of Reference after the first environmental clearance had been quashed.
The Court held that setting aside an environmental clearance does not automatically invalidate the Terms of Reference on which it was based.
Whether the process must restart from the Form 1 stage depends on the nature of the deficiency that led to cancellation of the environmental clearance. A fresh application should not be mechanically required when repeating the process would produce the same Terms of Reference, the same environmental study and the same result.
The Court found no deliberate concealment or submission of materially false information that affected the company’s original Form 1 application or the first Terms of Reference.
The first Terms of Reference remained valid for a period of three years, extendable by another year. Since it continued to be valid and the project site remained the same, the second environmental clearance could lawfully be granted on its basis.
The Bench observed that restarting the entire environmental clearance process would have added nothing to the regulatory exercise and would merely have caused unnecessary cost and delay.
A fresh Terms of Reference would have been necessary only if the company had added the adjoining Plot E-27 to the project site, since environmental clearances are site-specific. After receiving relaxation for the existing 0.89-acre site, the company abandoned the proposal to add Plot E-27 and withdrew the second Terms of Reference.
Allowing the appeal, the Supreme Court concluded that the second environmental clearance and Consent to Establish were issued after the land had been allotted for establishing the CBWTF and after the CPCB had granted the required relaxation.
The approvals were therefore not vitiated either by non-compliance with the land requirements or by reliance on the original Terms of Reference.
The Court set aside the NGT’s July 5, 2024 decision and restored the environmental clearance and Consent to Establish granted on December 20, 2023.
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