2026 INSC 956 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7367 OF 2024

M/S PUNAHCHAKRAN PRIVATE LIMITED …APPELLANT(S)

VERSUS

INDOTECH WASTE SOLUTION & ORS …RESPONDENT(S)

J U D G M E N T

Civil Appeal No. 7367 of 2024 Page 1 of 78

J.B. PARDIWALA, J.:

For the convenience of exposition, this judgment is divided into the

following parts:-

INDEX

I. FACTUAL MATRIX .................................................................................. 2

II. SUBMISSIONS OF THE PARTIES ...................................................... 17

A. Submissions on behalf of the Appellant ...................................... 17

B. Submissions on behalf of the Respondent No. 1 ........................ 19

III. ISSUES FOR CONSIDERATION ......................................................... 22

IV. ANALYSIS ................................................................................................ 23

A. Mandatory nature of the RG, 2016 and the decision of this Court

in Gulf Goans ..................................................................................... 23

i. The genesis, scope and nature of the RG, 2016 ............................... 26

ii. The requirement of authentication under Article 77 of the

Constitution .................................................................................... 31

iii. Whether the non-publication of the RG, 2016 in the Official Gazette

could be said to affect its mandatory nature ................................... 33

B. Permissibility of the grant of relaxation in land requirement 41

C. The 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 ................................ 46

i. Clause 6 of the EIA, 2006 read with the O.M. dated 07.10.2014 46

ii. Clause 2 of the RG, 2016................................................................. 50

Civil Appeal No. 7367 of 2024 Page 2 of 78

iii. Applying for a CTE under the Water Act and Air Act respectively.

. ............................................................................................................................. 53

D. The grant of the second EC on the basis of the first ToR .......... 60

i. Whether the decision in Aniruda Panwar could be said to have set-

aside the first ToR ........................................................................... 60

ii. Validity period of the ToR ............................................................... 69

V. CONCLUSION ......................................................................................... 74

1. This appeal arises from the judgment and order dated 05.07.2024

passed by the National Green Tribunal, Principal Bench, New Delhi

(hereinafter, the “Tribunal”) in Appeal No. 04 of 2024 (hereinafter,

the “impugned decision”), whereby the Tribunal set-aside the

Environmental Clearance (“EC”) dated 20.12.2023 and Consent to

Establish (“CTE”) dated 20.12.2023 respectively granted in favour of

the appellant herein in connection with the establishment of a

Common Bio-medical Waste Treatment Facility (“CBWTF”).

I. FACTUAL MATRIX

2. The Environmental Impact Assessment Notification dated 14.09.2006

(“EIA, 2006”) issued by the Ministry of Environment, Forest and

Climate Change, Government of India (“MoEF&CC”) makes

provisions requiring prior EC in respect of certain

projects/activities/industries. Initially, a CBWTF did not fall within

its ambit. However, vide notification dated 17.04.2015, the expression

“bio-medical waste treatment facility” was inserted to the Schedule

Civil Appeal No. 7367 of 2024 Page 3 of 78

of the EIA, 2006, thereby adding it to the list of projects/activities

requiring a prior EC.

3. M/s Punahchakran Private Limited (hereinafter, the “appellant”)

submitted two applications dated 06.07.2021 to the Uttar Pradesh

State Industrial Development Authority (“UPSIDA”) for the

allotment of plot nos. E-25 and E-26 admeasuring 0.45 acres and 0.44

acres respectively, situated at the UPSIDC Industrial Area, Babrala,

District Sambhal, Uttar Pradesh, for the purpose of establishing a

CBWTF.

4. Before the said land could be allotted to the appellant, on 11.08.2021,

it submitted an application in Form 1 before the Uttar Pradesh State

Impact Assessment Authority (“UP SEIAA”) for the issue of Terms

of Reference (“ToR”) to commence the Environmental Impact

Assessment (“EIA”) study.

5. On 12.08.2021, the UPSIDA rejected the allotment applications made

by the appellant. In the immediate aftermath of this rejection, the

appellant submitted yet another application before the UPSIDA

seeking allotment of the same plots but for a different purpose i.e.,

for the establishment of an industrial unit for “fabrication of industrial

equipment”.

6. On 17.08.2021, the UP SEIAA issued a standard ToR (hereinafter, the

“first ToR”) to the appellant, thereby commencing the process for an

EIA study.

Civil Appeal No. 7367 of 2024 Page 4 of 78

7. On 15.09.2021, the appellant’s land allotment application for

establishing an industrial equipment fabrication unit was allowed by

the UPSIDA.

8. Thereafter, the appellant approached the Uttar Pradesh Pollution

Control Board (hereinafter, the “UPPCB”) and submitted an

application dated 27.09.2021 seeking the grant of a Consent to

Establish (“CTE”) for the CBWTF under the provisions of the Water

(Prevention and Control of Pollution) Act, 1974 (“Water Act”) and

the Air (Prevention and Control of Pollution) Act, 1981 (“Air Act”)

respectively. Plots E-25 and E-26 respectively of the UPSIDC

Industrial Area were indicated to be the land in which the CBWTF

was proposed to be set-up.

9. It is pertinent to note that as per the O.M. dated 27.04.2018 the

requirement of a public hearing under Paragraph

7(i)(III)Stage(3)(i)(b) of the EIA, 2006 was exempted since the site was

located in an industrial area. Therefore, on 18.02.2022, after obtaining

the EIA study report, the appellant submitted its proposal to the UP

SEIAA for grant of prior EC.

10. On 26.04.2022, the UPPCB had granted a conditional CTE

(hereinafter, the “first CTE”) to the appellant.

11. On 03.06.2022, in compliance with Clause 2 of the Revised Guidelines

for Common Bio-Medical Waste Treatment and Disposal Facilities,

2016, (hereinafter, the “RG, 2016”), a GAP Analysis Report was

Civil Appeal No. 7367 of 2024 Page 5 of 78

submitted to the UP SEAC by the Member, Secretary, UPPCB. This

report indicated the details of the bio-medical waste generated in the

eight nearby districts along with the proposed/operating CBWTFs in

the concerned areas as under:

S.

No

.

District Bedded,

HCF

Non-

Bedded

HCF

No

Beds

Covered Facility

1 Muradabad 481 707 6699 • Sushila Bio-

Medical

(Operated)

• Bhagwatsaran

(Proposed)

2 Sambhal 111 252 1034 • M/s

Punahchakran

Pvt. Ltd.

(Proposed)

3 Badayu 147 30 1988 -

4 Aligarh 474 387 9512 -

5 Hathras 148 207 1822 -

6 Etah 122 128 1319 -

7 Kasganj 81 102 1043 -

8 Bulandsheha 293 243 4482 -

Total Beds 1857 2056 27899

Amount of Bio-Medical

Waste in Kg

102.8

Kg

6974.75

Kg

Total – 7080.55

Kg

12. Upon a consideration of the GAP Report and taking into account all

the other details, the UP SEAC in its 663

rd meeting dated 16.06.2022

recommended the grant of EC to the appellant. Thereafter, on

05.07.2022, the UP SEIAA in its 625

th meeting expressed agreement

Civil Appeal No. 7367 of 2024 Page 6 of 78

with the recommendation of the UP SEAC. As a consequence, the EC

(hereinafter, the “first EC”) was issued to the appellant on 13.07.2022.

13. However, on 19.08.2022, the first CTE and first EC granted in favour

of the appellant by the UPPCB and UP SEIAA respectively were

challenged before the Tribunal in Original Application No. 622 of

2022 titled Aniruda Panwar and Anr. v. Ministry of Environment,

Forests and Climate Change and Ors.

14. After obtaining the first CTE and the first EC and after the institution

of the aforesaid O.A., the appellant approached the UPSIDA through

its online application dated 15.09.2022 requesting consent for a

change in the nature of use and category of industry being proposed

to be set-up in the allotted plots i.e., from “fabrication of industrial

equipment” to “CBWTF”. This change was allowed by the UPSIDA

vide letter dated 19.09.2022.

15. Indotech Waste Solution (hereinafter, the “respondent no. 1”)

situated in the District Kasganj is also engaged in the business of

treatment and disposal of bio-medical waste generated by health care

facilities. It had similarly made a Form 1 application sometime in the

year 2021 to establish a CBWTF. The UP SEAC and UP SEIAA

respectively are said to have also arrived at a decision to issue an EC

to the respondent no. 1 in their meetings dated 19.10.2022 and

14.11.2022 respectively i.e., after the first EC was already issued to the

appellant. However, it is admitted that a consequent order of EC was

not issued in favour of the respondent no. 1.

Civil Appeal No. 7367 of 2024 Page 7 of 78

16. The Tribunal vide its judgment dated 31.07.2023 in Aniruda Panwar

(supra) converted the O.A. No. 622 of 2022 in Appeal, allowed the

same and declared the first CTE and first EC respectively to be illegal,

null, void and of no effect for the following reasons:

i. First, Clause 2 of the RG, 2016 unequivocally establishes that

procurement of land for the purpose of establishing a CBWTF is

a condition precedent for filing an application seeking the grant

of EC and CTE respectively.

ii. Secondly, subsequent approval of change in land use granted by

the UPSIDA could neither legalise nor validate the first CTE and

first EC respectively.

iii. Lastly, Clause 7 of the RG, 2016 requires that the CBWTF be set-

up in a plot size of not less than one acre. As an exception,

relaxation of this land requirement may be granted after the

fulfilment of certain criteria and along with the imposition of

additional control measures. Considering that the appellant’s

plot size was 0.89 acres and that the UPPCB and UP SEIAA had

not specifically granted any such relaxation or, stipulated

additional control measures or, consulted with the CPCB to do

so, the first EC and first CTE respectively could not have been

validly issued.

17. Having held so, the Tribunal nevertheless granted liberty to the

appellant to re-apply for the grant of EC and CTE respectively, either

after procuring additional land or after seeking relaxation of the land

Civil Appeal No. 7367 of 2024 Page 8 of 78

requirement in accordance with law. The operative portion of the

Tribunal’s decision in Aniruda Panwar (supra) is reproduced thus:

“78. In view of the above, the application converted to appeal is

allowed and CTE and EC being violative of CBWTF Guidelines

2016 are held to be illegal, null and void and to be of no effect.

79. However, the Applicant shall be at liberty to apply again for

grant of EC and CTE for establishment of CBWTF after

procuring additional land in Babrala Industrial Area or seek

relaxation of land requirement in accordance with law and in

case any such application is filed by Respondent no. 7 again

UPPCB and UPSEIAA shall be bound to dispose of the same

strictly not only in accordance with the statutory provisions

/environmental norms but also CPCB Guidelines.”

(Emphasis supplied)

18. It is the case of the appellant that they made earnest efforts to pursue

both the alternatives suggested by the Tribunal in Aniruda Panwar

(supra), i.e., procure additional land and apply for relaxation in land

requirement respectively. It seems to have approached the UPSIDA

for procuring the adjacent plot no. E-27 and was waiting to

participate in the bidding process. Since the EC process is site-

specific, on 07.08.2023, it also submitted a fresh Form 1 application

for the issuance of a new ToR accounting for plot E-27 along with

plots E-25, and E-26 respectively. On, 10.08.2023, a new ToR

(hereinafter, the “second ToR”) inclusive of plot E-27 was also issued

by the UP SEIAA. Parallelly, the appellant approached the UPPCB

through its representation dated 08.08.2023 seeking relaxation in the

land area requirement in consultation with the CPCB.

Civil Appeal No. 7367 of 2024 Page 9 of 78

19. While the fate of the bidding process for plot no. E-27 is unknown, it

appears that land area relaxation was granted by the CPCB as per the

proposal made by the UPPCB, with accompanying control measures

on 17.11.2023 and the same reads thus:

“It is to inform that the criteria outlined under CPCB revised

guidelines for development of new CBWTF is required to be

followed to ensure effective compliance of BMWM Rules, 2016.

However as requested by UPPCB the area criteria may be

relaxed for the proposed plot from 1.0 Acre (4046 m

2) to 0.89

Acre (3601 m

2) by adopting the following additional measures.

a. UPPCB shall assess the increased stack height with

stringent emission norms and take other measures to ensure

that the operation of CBWTF shall have minimal impact on

human health & environment around the proposed site;

b. Effluent generated shall be treated up to the standards as

prescribed under the BMWM Rules, 2016 and shall be

utilized completely for vehicle floor washing, cooling tower

make up, gardening etc. CBWTF shall maintain zero liquid

discharge from the CBWTF

c. Adequate measures shall be taken for odour control by the

CBWTF

d. OCEMS should be installed and connected with CPCB and

UPPCB server for transmission of real time data for

prescribed parameters of incinerator.

e. Initially the Operating capacity of incinerator of CBWTF

may be restricted to 2.5 ton/day. UPPCB shall monitor the

CBWTF for six months and based on its performance

operational capacity may be increased accordingly with prior

information to CPCB.

Civil Appeal No. 7367 of 2024 Page 10 of 78

This is issued with the approval of Competent Authority,

CPCB”.

(Emphasis supplied)

20. After the UP SEIAA had revoked the appellant’s first EC in

accordance with the Tribunal’s judgment in Aniruda Panwar (supra),

on 17.10.2023, the appellant had submitted a fresh proposal to the UP

SEIAA for the grant of prior EC.

21. Vide its e-mail communication dated 17.11.2023, the respondent no. 1

addressed a complaint against the appellant to the UP SEAC

highlighting the following aspects: (i) that plot no. E-27 had not yet

been allotted to the appellant, (ii) that since plot nos. E-25 and E-26

respectively were originally allotted to the appellant for the

establishment of a ‘green category’ industry i.e., the fabrication of

industrial equipment, the process of allotment should not have been

revisited by the UPSIDA to entitle the appellant to establish a ‘red

category’ industry in the same plot, and (iii) that the GAP Analysis

for the entire State as mandated by the RG, 2016 had not been

conducted and therefore, the appellant’s case must not be considered

for the issuance of CTE.

22. Since relaxation was granted by the CPCB and it was no longer

necessary to procure plot E-27, vide letter dated 21.11.2023, the

appellant applied to withdraw the second ToR issued in its favour.

23. Despite the aforesaid allegations levelled by the respondent no. 1, on

20.11.2023, the UP SEAC in its 810

th meeting recommended the grant

Civil Appeal No. 7367 of 2024 Page 11 of 78

of EC to the appellant. It must be noted that it was the first ToR and

its consequent EIA study, not the second ToR, which was taken into

consideration during its decision-making process. The UP SEIAA

also concurred with the said decision and therefore, the EC dated

20.12.2023 (“hereinafter, the “second EC”) was granted.

24. Further, on the same date i.e., on 20.12.2023, the UPPCB also granted

the CTE (hereinafter, the “second CTE”) to the appellant.

25. Aggrieved, on 16.01.2024, the appellant preferred an Appeal bearing

Appeal No. 4 of 2024 under Sections 16(g) and (h) of the National

Green Tribunal Act, 2010 (“NGT Act”) before the Tribunal

challenging the second EC and the second CTE respectively.

26. In the meantime, on 19.02.2024, a Consent to Operate (“CTO”) was

also granted to the appellant by the UPPCB.

27. Vide the impugned decision dated 05.07.2024, the Tribunal decided

to set-aside the second EC and second CTE respectively for being

illegal and held as under:

i. First, that the RG, 2016 have been framed in exercise of statutory

power and are mandatory, enforceable and binding in nature.

ii. Secondly, Clause 7(b) of the RG, 2016 which allows a deviation

from the one acre plot size requirement is anchored on the

fulfilment of a crucial precondition i.e., the CBWTF must be

established within municipal limits with population of more

than 25 lakhs or be established in a rural area. Babrala does not

Civil Appeal No. 7367 of 2024 Page 12 of 78

fulfil either criteria and the authorities failed to look further into

this aspect. Therefore, the UP SEAC, UP SEIAA, UPPCB and the

CPCB respectively have acted in a very mechanical and

unmindful manner insofar as applying Clause 7(b) to the instant

project was concerned.

iii. Thirdly, that this Tribunal in Aniruda Panwar (supra) did not

strictly lay down that the appellant’s application for land

relaxation must be allowed. It was clear that the process shall be

undertaken in accordance with law and not in an illegal or

arbitrary manner. Hence, it cannot be suggested that there was

any direction in this regard made by the Tribunal in Aniruda

Panwar (supra).

iv. Lastly, that in granting such land relaxation, the UPPCB and

CPCB respectively have paid undue weight to irrelevant factors

like the investment made by the appellant and the GAP analysis

report. Moreover, the UPPCB had either deliberately or

unintentionally projected that the first EC and first CTE

respectively were only declared null and void and not illegal. No

heed was paid to the multivarious factors relevant to operational

effectiveness of the plant in a smaller area. Therefore, when

considerations which were either untrue or irrelevant had been

relied upon by the authorities, it undoubtedly showed that there

was no real application of mind and as a result, the entire

exercise of grant of land relaxation was vitiated on account of

malice in law.

Civil Appeal No. 7367 of 2024 Page 13 of 78

The relevant observations made by the Tribunal in the impugned

decision are reproduced thus:

“140. A perusal of para 7(a) shows that it requires setting up of

CBWTF preferably on a plot size of not less than one acre in all

the areas. However, CBWTF can be developed in adjacent plots

to cover up requirement of the area but cannot be set up in two

or more different plots located in different areas.

141. Para 7(b) contemplates a deviation from the requirement

of not less than one acre land and says that if there is a new

CBWTF to be established in a municipal limit with population

of more than 25 lakhs or rural areas, the land area requirement

may be relaxed but not in any case less than 0.5 acres by

SPCB/SPCC with additional control measures such as zero

liquid discharge, increase in stack height, stringent emission

norms, odour control measures or any other measures felt

necessary by the prescribed authority on case to case basis, only

in consultation with CPCB

142 One of the conditions for relaxation or deviation in the

requirement of not less than one acre of land is that the

municipal limit wherein a new CBWTF is proposed, should

have a population of more than 25 lakhs or CBWTF is proposed

to be established in a rural area. It is not disputed before us that

Babrala is a Nagar Panchayat. It is thus, not a rural area.

143. A Nagar Panchayat is an urban local body i.e.,

Municipality. […]

-xxx-

145. Article 243Q refers to three kinds of municipalities i.e., (a)

Nagar Panchayat (by whatever name called) for a transitional

area, that is to say, an area in transition from a rural area to an

urban area, (b) a Municipal Council for a smaller urban area;

and (c) a Municipal Corporation for a larger urban area.

Civil Appeal No. 7367 of 2024 Page 14 of 78

147 The population of Babrala Nagar Panchayat whether taking

as per 2011 census or as per any subsequent estimation is not

even one lakh, what to say of more than 25 lakhs. Para 7(b) of

RG 2016, therefore, was outrightly inapplicable for exercising

the power of relaxation in respect of the proposed CBWTF of

respondent 7 It is really surprising and very astonishing that

neither SEIAA UP nor CPCB have looked into this aspect of

the matter at all and acted in a very mechanical and unmindful

manner,

148. Suggestions has been made that since there was a direction

by this Tribunal in Aniruda Panwar vs. Ministry of

Environment, Forest and Climate Change & Others (supra)

that application for grant of EC may be considered by exercising

the power of relaxation in respect of requirement of area but

authorities have totally misled themselves by ignoring that

Tribunal clearly said that such consideration shall be in

accordance with law and not in an arbitrary and illegal manner.

149. We also notice that the then Member Secretary, UPPCB

by seeking clarification from CPCB regarding relaxation in land

requirement for CBWTF vide letter dated 16.10.2023 has only

stressed upon the fact that proponent has made investment of

132 lakhs which include cost of land, building, plant and

machinery; as per Gap Analysis, there was requirement of

CBWTF to be established and that respondent 7 was already

granted CTE and EC but due to gap in certain procedure and

formalities, earlier CTE and EC became null and void and not

illegal. This is clear misreading and appears to be a deliberate

attempt on the part of the then Member Secretary, UPPCB to

suggest that earlier CTE and EC was only null and void and

not illegal though judgment of Tribunal in Aniruda Panwar vs.

Ministry of Environment, Forest and Climate Change & Others

(supra) clearly declares that CTE and EC, not in conformity

with the RG 2016 in respect of requirement of area is null, void

and illegal and nullity for all purposes […]

-xxx-

Civil Appeal No. 7367 of 2024 Page 15 of 78

151. We further find that CPCB in its letter dated 17.11.2023,

instead of applying mind on this aspect directing SEIAA UP

to look into the question whether any relaxation is admissible or

permissible in accordance with provisions of RG 2016 in the

case in hand, has simply observed that the area criteria may be

relaxed from one acre to 0.89 acres by adopting certain measures

which relates to additional conditions necessary for prevention

of pollution of air. There is no reference to the question as to

whether the area where CBWTF is proposed qualify the

requirement of population for the purpose of attracting the

provisions of para 7(b) or not.

152 In the ultimate order granting relaxation, again the same

considerations, as are mentioned in the letter dated 16.10.2023,

have been reiterated which in our view, were irrelevant since it

is not investment made by respondent 7 which was relevant but

the operational effectiveness of the plant in a smaller area ought

to have been considered. There is no application of mind on this

aspect. There is no consideration whether sufficient space for

storage of BMW generated by health care facilities collected by

CBWTF for processing and also for storage of inert/residual

matter etc., and for other operational purposes was available.

-xxx-

154. We also do not find any hesitation in observing that the

officer concerned who has issued EC and CTE to respondent 7

after judgment of Tribunal in Aniruda Panwar vs. Ministry of

Environment, Forest and Climate Change & Others (supra) has

acted for reasons other than bonafide and clearly it is malicious

in law.There was/is no extraordinary urgency in proceeding to

grant the requisite clearance to respondent 7 instead of

considering the matter in the light of relevant provisions and by

application of mind to the relevant factors. The entire exercise

is clearly malicious in law. It is well settled that even if there is

no malice in fact but if there is something malicious m law, it is

vitiated in law.

-xxx-

Civil Appeal No. 7367 of 2024 Page 16 of 78

164. In brief the malice in law can be said when a power is

exercised for an unauthorized purpose or on a fact which is

claimed to exist but in fact, is non-est or for the purpose for

which it is not meant though apparently it is shown that the

same is being exercised for the purpose the power is supposed to

be exercised […]

-xxx-

166. In view of the above discussion, we have no hesitation but

to hold that EC and CTE granted in the case in hand, cannot be

sustained. They are contrary to law, illegal and are liable to be

set aside.

167 The Appeal is accordingly allowed. Impugned EC dated

20.12 2023 and CTE dated 20 12.2023 are hereby set aside.”

(Emphasis supplied)

28. In such circumstances referred to above, the appellant has preferred

the present appeal.

29. This Court vide its order dated 15.07.2024 directed that a report be

furnished by the District Magistrate, Sambhal regarding the location

of the CBWTF established by the appellant and the population of the

Babrala Nagar Panchayat. The relevant portions of the said order of

this Court is reproduced thus:

“4. According to the appellant, its CBWTF is situated in a rural

area. However, this is contested by the respondent who contends

that the Facility is not situated in a rural area, but is situated

within the limits of Babrala Nagar Panchayat with a population

much less than twenty-five lacs.

Civil Appeal No. 7367 of 2024 Page 17 of 78

5. We have heard Mr Shyam Divan, senior counsel appearing

for the appellant and Mr Pinaki Misra, senior counsel for the

respondent.

6. Certain documents have been produced by the appellants in

the course of the hearing, in interlocutory applications, but it

has been fairly accepted that these were not part of the record

before the NGT. In order to obviate any controversy on the

factual aspect so as to allow this Court to have a clear indication

in regard to the location of the Bio-medical Waste Treatment

Facility which has been conducted by the appellant, we are of

the view that a report should be called for from the District

Magistrate, Sambhal, Uttar Pradesh.

7. The CBWTF of the appellant is situated on plot No E-25/26,

UPSIDC Industrial Area, Babrala – 243751, District Sambhal.

The District Magistrate, Sambhal shall submit a report to this

Court on the following aspects:

(i). Whether the CBWTF of the appellant is situated within the

limits of Babrala Nagar Panchayat;

(ii). In the event, that the answer to (i) above is in the

affirmative, the population of the Babrala Nagar Panchayat; and

(iii). In the event, that the answer to (i) above is in the negative,

whether the CBWTF is situated in a rural area.

8 The report to be submitted by the District Magistrate shall be

based on the official records as available. The report shall be

submitted within a period of one week.”

(Emphasis supplied)

II. SUBMISSIONS OF THE PARTIES

A. Submissions on behalf of the Appellant

30. Mr. Shyam Divan, the learned Senior Counsel appearing on behalf of

the appellant canvassed the following submissions:

Civil Appeal No. 7367 of 2024 Page 18 of 78

i. The CBWTF plant established by the appellant is located in a

rural area, more specifically under Village Noorpur. The same is

brought forth by the report dated 24.07.2024 furnished by the

District Magistrate, Sambhal in compliance with the order of this

Court dated 15.07.2024 as also the letter dated 10.07.2024

addressed by the Revenue Inspector, Sambhal respectively. The

location of the appellant’s facility does not fall within the limits

of the Babrala Nagar Panchayat. In fact, the distance between the

plant and the border of the Babrala Nagar Panchayat is about 2.6

km.

ii. It must be further noted that the Governor of the State of Uttar

Pradesh, vide notification dated 05.09.2001, in exercise of the

power under Section 2(d) of the Uttar Pradesh Industrial Area

Development Act, 1976 (“UP Industrial Area Act”) notified the

Industrial Area, Babrala (at serial no.78 of the Gazette

Notification) wherein, it has been categorically mentioned that it

is situated in Village Noorpur.

iii. Therefore, the pre-condition under Clause 7(b) of the RG, 2016

as regards the relaxation of land requirement for a CBWTF

stands fulfilled and the grant of such relaxation with additional

control measures by the CPCB on 17.11.2023 cannot be faulted

with. As a result, the impugned decision setting aside the second

EC and second CTE respectively on this ground was completely

erroneous.

Civil Appeal No. 7367 of 2024 Page 19 of 78

iv. The first ToR granted to the appellant was never set-aside by the

Tribunal vide its decision in Aniruda Panwar (supra). Moreover,

the Office Memorandums (“O.M.”) dated 29.08.2017 and

08.06.2022 respectively issued by the MoEF&CC explicitly state

that the validity of a ToR is for a period of four years. Therefore,

there was no requirement for the appellant to obtain a fresh ToR.

v. The second ToR which was issued to the appellant on 10.08.2023

was subsequently withdrawn vide letter dated 21.11.2023.

Therefore, it can neither be said that the appellant provided any

false or misleading information to the authorities, nor can it be

said that the authorities were wrong in considering the first ToR

while issuing the second EC and second CTE respectively.

vi. The relevant authorities had duly applied their mind during the

process of granting the second EC and second CTE respectively,

and the same can be independently demonstrated by the

chronology of events placed on record. As such, it cannot be

stated that the decision(s) of the UP SEAC, UP SEIAA, UPPCB

and the CPCB respectively lacked application of mind or was

malicious in law.

B. Submissions on behalf of the Respondent No. 1

31. Mr. Pinaki Misra, the learned Senior Counsel appearing on behalf of

the respondent no. 1 canvassed the following submissions:

Civil Appeal No. 7367 of 2024 Page 20 of 78

i. The information furnished by the project proponent in Form

1/1A along with the proposed ToR form the basis and soul of

the grant of EC for any project. Providing missing or misleading

information in Form 1/1A significantly impedes the functioning

of the authorities and the conduct of the EIA study. It is for this

reason that Clause 8(vi) of the EIA, 2006 provides that “Deliberate

concealment and/or submission of false or misleading information or

data which is material to screening or scoping or appraisal or decision

on the application shall make the application liable for rejection, and

cancellation of prior environmental clearance granted on that basis.”

In the present case, both the first and the second ToR were

granted on deliberate concealment and/or the submission of

false/misleading data. Reliance was placed on the decision of

this Court in Hanuman Laxman Aroskar v. Union of India

reported in (2019) 15 SCC 401 to submit that such lapses must

vitiate the whole process and the appellant must recommence

from the Form 1 stage.

ii. The issue whether allocation or procurement of land is a

condition precedent for filing an application for grant of EC and

CTE respectively to a CBWTF was considered by the Tribunal in

Aniruda Panwar (supra) and was answered in the affirmative in

light of Clause 2 of the RG, 2016. In consonance with such a

finding, the decision in Aniruda Panwar (supra) held the first

ToR granted in favour of the appellant to be illegal and void.

Naturally, the second EC and second CTE respectively which

Civil Appeal No. 7367 of 2024 Page 21 of 78

were granted on the basis of the defunct first ToR cannot have

any validity under law. Therefore, the impugned decision

rightly set-aside the second set of permissions.

iii. Even the second ToR granted in favour of the appellant would

be hit by the decision of the Tribunal in Aniruda Panwar (supra)

since it mentions plot E-27 without the appellant having actually

procured the said plot from the UPSIDA.

iv. Moreover, the very issuance of the second ToR clearly evinces

that the first ToR could no longer be put to use.

v. The relaxation in land requirement granted by the CPCB cannot

be sustained for three reasons: First, the letter dated 16.10.2023

addressed by the Member Secretary, UPPCB to the CPCB had

observed that the first EC and first CTE granted to the appellant

were declared null and void ‘but not illegal’ by the Tribunal in

Aniruda Panwar (supra). This false premise contributed to the

decision granting relaxation and hence, such a decision is

vitiated by malice in law. Secondly, relaxation cannot be given as

a matter of right and must be reserved only for exceptional

circumstances. Such an exception must seldom be used

especially when the project in question is located in an industrial

area and the same was emphasized by the Tribunal in Aniruda

Panwar (supra). Lastly, the UPPCB and CPCB respectively were

preoccupied with irrelevant considerations like the investment

made by the appellant and ignored the crucial question as

Civil Appeal No. 7367 of 2024 Page 22 of 78

regards the operational effectiveness of the CBWTF in a smaller

area. Therefore, their decision suffers from due application of

mind.

vi. The decisions of this Court in Indian Railway Construction Co.

Ltd. v. Ajay Kumar reported in (2003) 4 SCC 579 and State of

NCT of Delhi v. Sanjeev reported in (2005) 5 SCC 181

respectively lay down the criteria for judicial review of

discretionary administrative action and the present case was a

fit one for interference by the Tribunal.

III. ISSUES FOR CONSIDERATION

32. Having heard the learned counsel for the parties and having gone

through the materials on record, the question which falls for our

consideration is whether the NGT vide the impugned judgment and

order dated 05.07.2024 was right in setting aside the second EC and

second CTE respectively granted to the appellant by the UP SEIAA

and UPPCB respectively.

33. In order to arrive at a finding on the aforesaid, the following legal

issues need to be dealt with:

i. Whether the RG, 2016 is mandatory or directory in nature?

ii. Whether the grant of relaxation in land requirement in favour

the appellant for the establishment of a CBWTF by the CPCB was

permissible?

Civil Appeal No. 7367 of 2024 Page 23 of 78

iii. On a combined reading of the EIA, 2006 and the RG, 2016

respectively, what is the status of land acquisition required for

establishing a CBWTF at the time of making a Form 1

application, at the stage of Appraisal of the EC and at the time of

making an application for the issuance of CTE respectively?

iv. 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?

IV. ANALYSIS

A. Mandatory nature of the RG, 2016 and the decision of this

Court in Gulf Goans

34. Before we proceed to the other issues raised in this appeal, it is

imperative that we deal with the question pertaining to the

mandatory nature of the RG, 2016. This is especially because there

seems to be a repeated trend of submissions being made before the

Tribunal that in light of the decision of this Court in Gulf Goans

Hotels Company Limited and Another v. Union of India and Others

reported in (2014) 10 SCC 673, the guidelines may not have the ‘force

of law’. The impugned decision has held that the RG, 2016 is binding,

however, in doing so it has not made any specific reference to the

ratio in Gulf Goans (supra) or the line of argument referenced

hereinabove.

Civil Appeal No. 7367 of 2024 Page 24 of 78

35. Gulf Goans (supra) was concerned with a set of guidelines pertaining

to permissible construction activity in the coastal areas of Goa, more

specifically the distance that has to be maintained from the high tide

line. It is to be noted that these guidelines were issued before the

enactment of the Environment (Protection) Act, 1986 (“EP Act”)

which penalized environmental violations through statutory power.

In this background, it was held that such executive guidelines cannot

be enforced to the prejudice of an individual unless shown to have

acquired the force of law. To acquire such character, the guidelines

were required to satisfy certain minimum elements i.e., they must

inter alia have (i) a certain form possessed by other laws in force; (ii)

encapsulate a clear mandate or explicit command which may be

prescriptive, permissive or penal; (iii) disclose the achievement of a

specific and identifiable purpose; (iv) have some authentication and

(v) be notified or published either in the mode prescribed by the

statute or in the Official Gazette. It was added that the first element

itself i.e., the form, or the absence thereof will not be determinative.

However, the second and third elements i.e., a clear mandate and

purpose, were indispensable.

36. In effect, Gulf Goans (supra) held that the impugned

guidelines/notifications therein had not acquired the force of law for

several reasons including the lack of an expressed or clearly defined

dicta which supported that they were not mere suggestions or

expressions of opinion, the government failing to discharge the

burden that the guidelines were authenticated in accordance with

Civil Appeal No. 7367 of 2024 Page 25 of 78

Article 77 of the Constitution, and the failure to notify or publish

them in the Official Gazette. The relevant observations are

reproduced below:

“17. […]However, we are unable to find in the said guidelines

any expressed or clearly defined dicta. In fact, having read and

considered the guidelines, we are left with a reasonable doubt as

to whether what has been spelt out therein are not mere

suggestions or opinions expressed in the process of a continuing

exploration to identify the correct parameters that would

effectuate the purpose i.e. safeguarding and protecting the

environment (sea beaches) from human exploitation and

degradation.

19. Article 77 of the Constitution provides the form in which

the Executive must make and authenticate its orders and

decisions. Clause (1) of Article 77 provides that all executive

action of the Government must be expressed to be taken in the

name of the President. The celebrated author H.M. Seervai in

Constitutional Law of India, 4th Edn., Vol. 2, 1999 describes

the consequences of government orders or instructions not

being in accordance with clauses (1) or (2) of Article 77 by

opining that the same would deprive the orders of the immunity

conferred by the aforesaid clauses and they may be open to

challenge on the ground that they have not been made by or

under the authority of the President in which case the burden

would be on the Government to show that they were, in fact, so

made. In the present case, the said burden has not been

discharged in any manner whatsoever. […]

20. Clause (2) of Article 77 also provides for the authentication

of orders and instruments in a manner as may be prescribed by

the Rules. In this regard, vide S.O. No. 2297 dated 3-11-1958

published in the Gazette of India, the President has issued the

Authentication (Orders and Other Instruments) Rules, 1958.

The said Rules have been superseded subsequently in 2002.

Admittedly, the provisions of the said 1958 Rules had not been

Civil Appeal No. 7367 of 2024 Page 26 of 78

followed in the present case insofar as the promulgation of the

guidelines is concerned.

21. In the absence of due authentication and promulgation of

the guidelines, the contents thereof cannot be treated as an order

of the Government and would really represent an expression of

opinion.[…]

22. It is also essential that what is claimed to be a law must be

notified or made public in order to bind the citizen. […]

24. It will not be necessary to notice the long line of decisions

reiterating the aforesaid view. So far as the mode of publication

is concerned, it has been consistently held by this Court that

such mode must be as prescribed by the statute. In the event the

statute does not contain any prescription and even under the

subordinate legislation there is silence in the matter, the

legislation will take effect only when it is published through the

customarily recognised official channel, namely, the Official

Gazette (B.K. Srinivasan v. State of Karnataka) [(1987) 1 SCC

658] . Admittedly, the “guidelines” were not gazetted.

25. If the guidelines relied upon by the Union of India in the

present case fail to satisfy the essential and vital

parameters/requirements of law as the trend of the above

discussion would go to show, the same cannot be enforced to the

prejudice of the appellants as has been done in the present

case.[…]”

(Emphasis supplied)

i. The genesis, scope and nature of the RG, 2016

37. At this juncture, it would be appropriate for us to pause and look into

how the RG, 2016 came into existence. Section 8 of the EP Act

mandates that no person shall handle or cause to be handled any

Civil Appeal No. 7367 of 2024 Page 27 of 78

hazardous substance except in accordance with such procedure and

after complying with such safeguards as may be prescribed. Sections

6 and 25 of the EP Act respectively, grant powers to the Central

Government to make rules in respect of the aforesaid and requires

the publication of these rules in the Official Gazette. In exercise of the

powers conferred under the aforementioned provisions of the EP

Act, the Bio-Medical Waste Management Rules, 2016 (“BMWM

Rules”) came into existence through publication in the Official

Gazette.

38. The BMWM Rules, in turn, under several provisions, refer to certain

guidelines which are to be issued by the CPCB that would further

regulate the standards and procedures to be followed by operators of

CBWTFs i.e., the RG, 2016. As per Rule 3(c), the authorisation granted

by the prescribed authority must itself be in accordance with the RG,

2016. Rule 5 relating to the duties of a CBWTF operator also relies on

the RG, 2016 for prescribing detailed responsibilities. Rule 17, which

is of some relevance to the broad issue canvassed under the present

appeal, also states that site selection for setting up a CBWTF shall be

made in accordance with the RG, 2016. For better context, the

relevant provisions of the BMWM Rules are reproduced

hereinbelow:

“3. Definitions -

[…]

(c) "authorisation" means permission granted by the prescribed

authority for the generation, collection, reception, storage,

Civil Appeal No. 7367 of 2024 Page 28 of 78

transportation, treatment, processing, disposal or any other

form of handling of bio-medical waste in accordance with these

rules and guidelines issued by the Central Government or

Central Pollution Control Board as the case may be;

(d) "authorised person" means an occupier or operator

authorised by the prescribed authority to generate, collect,

receive, store, transport, treat, process, dispose or handle bio-

medical waste in accordance with these rules and the guidelines

issued by the Central Government or the Central Pollution

Control Board, as the case may be;

5. Duties of the operator of a common bio-medical waste

treatment and disposal facility.-It shall be the duty of every

operator to -

(a) take all necessary steps to ensure that the bio-medical waste

collected from the occupier is transported, handled, stored,

treated and disposed of, without any adverse effect to the human

health and the environment, in accordance with these rules and

guidelines issued by the Central Government or, as the case may

be, the central pollution control board from time to time;

14. Maintenance of records.- (1) Every authorised person

shall maintain records related to the generation, collection,

reception, storage, transportation, treatment, disposal or any

other form of handling of bio-medical waste, for a period of five

years, in accordance with these rules and guidelines issued by

the Central Government or the Central Pollution Control Board

or the prescribed authority as the case may be.

17. Site for common bio-medical waste treatment and

disposal facility.-(1) Without prejudice to rule 5 of these

rules, the department in the business allocation of land

assignment shall be responsible for providing suitable site for

setting up of common biomedical waste treatment and disposal

facility in the State Government or Union territory

Administration.

Civil Appeal No. 7367 of 2024 Page 29 of 78

(2) The selection of site for setting up of such facility shall be

made in consultation with the prescribed authority, other

stakeholders and in accordance with guidelines published by the

Ministry of Environment, Forest and Climate Change or

Central Pollution Control Board.”

(Emphasis supplied)

39. In addition to the above, Schedule III to the BMWM Rules which lists

out every prescribed authority and the corresponding duties

entrusted to them, require the CPCB to “prepare Guidelines on bio-

medical waste management” and “lay down criteria for establishing

common bio-medical waste treatment facilities in the country”, amongst

other things. Additionally, the Schedule also requires Municipalities

or Corporations, Urban Local Bodies and Gram Panchayats to

provide or allocate suitable land for development of common bio-

medical waste treatment facilities in their respective jurisdictions “as

per the guidelines of the Central Pollution Control Board”.

40. What can be gathered from all these different provisions under the

BMWM Rules is that the rules themselves require the RG, 2016 to be

made and scrupulously followed for its effective implementation.

This aspect could not have been conveyed with better clarity. In such

circumstances, there must arise no doubt as regards the mandatory

nature of the RG, 2016. To alleviate any residual uncertainty, the RG,

2016 itself in its introductory paragraph reads thus:

“Also, the Bio-medical Waste Management Rules, 2016

mandates that the operator of a CBWTF authorised by the

prescribed authority is required to take all necessary steps to

ensure that the bio-medical waste collected from the occupier is

Civil Appeal No. 7367 of 2024 Page 30 of 78

transported, handled, stored, treated and disposed of, without

any adverse effect to the human health and the environment, in

accordance with the BMWM Rules and the guidelines issued by

the Central Government or the Central Pollution Control

Board (CPCB) from time to time. Therefore, these guidelines

have been prepared with an aim to have uniformity in ensuring

site selection, allowing and establishment of a state-of-the-art

CBWTF, operation as well as verification of compliance to the

BMWM Rules, 2016 throughout the country. However, any

other aspects which are not been covered under these guidelines

and needs attention, in such a case, the prescribed authority

may take suitable action in the interest of protection of the

environment in consultation with MoEF & CC/CPCB. Also, it

is pertinent to mention here that these guidelines are mandatory

henceforth under the Bio-medical Waste Management Rules,

2016.”

(Emphasis supplied)

41. Moreover, observing alleged non-compliance to the BMWM Rules

and the RG, 2016 in the State of Uttar Pradesh by the UP SEIAA and

UP SEAC respectively in the process of grant of EC to CBWTFs, the

MoEF&CC thought fit to issue an OM dated 01.04.2022, the relevant

parts of which reads thus:

“2. The communications highlights that the SEIAA abd SEAC

of Uttar Pradesh is not taking into consideration the Biomedical

Waste Management Rules, 2016 and Revised CPCB Guideline

provisions while according Environmental Clearance for

CBWTFs.

3. In view of the above, it is requested to kindly examine the

matter as per provisions stipulated under Biomedical Waste

Management Rules, 2016 and respective CPCB Guidelines. It

is to emphasize here that the provisions contained in guidelines

may be strictly followed while giving clearance to new facilities

through Gap-Analysis. Further, CPCB may ensure the

Civil Appeal No. 7367 of 2024 Page 31 of 78

compliance through regular monitoring. An Action taken

Report may also kindly be provided to the Ministry.”

(Emphasis supplied)

42. Therefore, the intention behind bringing in the RG, 2016 and making

it a binding mandate on all the stakeholders is as clear as a noon day.

However, it seems as though the ratio in Gulf Goans (supra) is still

blindly being resorted to, as one final attempt, by project proponents

and surprisingly, State SEIAAs/SEACs alike, to avoid compliance

with RG, 2016. To thwart such devious attempts, we must take a

closer look at necessary elements laid down in Gulf Goans (supra)

and contextualise them with the RG, 2016. No doubt, the first three

i.e., a form, a clear mandate and an identifiable purpose, don’t

require much debate insofar as the RG, 2016 is concerned.

ii. The requirement of authentication under Article 77 of the Constitution

43. As regards the question of authentication under Article 77 of the

Constitution, this Court in Air India Cabin Crew Assn. v.

Yeshaswinee Merchant and Others reported in (2003) 6 SCC 277 held

that the object and effect of Article 77 is to insulate the executive

action of the government which is formally taken in the name of the

President from challenge on the ground that it is not an order or

instrument made or executed by the President. However, this cannot

be read to mean that all other executive action which is not formally

expressed to have been taken in the name of the President, ipso facto

becomes invalid. In other words, any alleged non-compliance with

Article 77 only precludes the drawing of an irrebuttable presumption

Civil Appeal No. 7367 of 2024 Page 32 of 78

that it is an order or instrument made in the name of the President

and by no stretch of imagination, invalidates the order itself. It can

always be established by evidence aliunde that the order was made

by the competent authority of the Central Government in the name

of the President [See also, Major E.G. Barsay v. State of Bombay

reported in 1961 SCC OnLine SC 30]. The relevant observations

made in Air India Cabin Crew Assn (supra)are thus:

“72. In our opinion, reference to Article 77 is wholly

inappropriate. The exercise of statutory power under Section 34

by the Central Government, even though not expressed to have

been taken in the name of President, does not render it invalid.

Clause (2) of Article 77 insulates an executive action of the

Government formally taken in the name of President from

challenge on the ground that it is not an order or instrument

made or executed by President. Even if an executive action of

the Central Government is not formally expressed to have been

taken in the name of President, Article 77 does not provide that

it would, therefore, be rendered void or invalid.[…]”

(Emphasis supplied)

44. Keeping in mind the clarification made by Air India Cabin Crew

Assn (supra), it would be even more absurd to assert that executive

guidelines issued in exercise of statutory power would be

automatically invalid if not authenticated. We say so because, it

cannot be disputed that the RG, 2016 has been, in fact, made by the

appropriate authority i.e., the CPCB, in pursuance of a clear mandate

outlined by the EP Act and the BMWM Rules respectively.

Furthermore, what is of particular note is that Gulf Goans (supra) was

Civil Appeal No. 7367 of 2024 Page 33 of 78

concerned with guidelines which did not have statutory backing. As

a matter of fact, Gulf Goans (supra) itself, while differentiating Air

India Cabin Crew Assn (supra) recognised that when executive

guidelines or directions are issued pursuant to a statute, it may not

be necessary that the burden of proof of authentication under Article

77 be discharged and observed thus:

“19. […] The decision in Air India Cabin Crew Assn. v.

Yeshaswinee Merchant [(2003) 6 SCC 277, p. 311, para 72 :

2003 SCC (L&S) 840] , taking a somewhat different view can,

perhaps, be explained by the fact that in the said case the

impugned directions contained in the government letter (not

expressed in the name of the President) was in exercise of the

statutory power under Section 34 of the Air Corporations Act,

1953. In the present case, the impugned guidelines have not

been issued under any existing statute.”

45. As a result, the only element that now requires some explanation is

that of publication, that too, whether it must be made in the Official

Gazette.

iii. Whether the non-publication of the RG, 2016 in the Official Gazette

could be said to affect its mandatory nature

46. While it would have been possible for us to differentiate Gulf Goans

(supra) from the present case by stating that the RG, 2016 came to be

issued in furtherance of several statutory provisions and thereby

dispense with the requirement of publication in the Official Gazette,

we are afraid that doing so may lead to an oversimplified and

fallacious misinterpretation that all statutory guidelines need not be

Civil Appeal No. 7367 of 2024 Page 34 of 78

published in the Official Gazette. The answer is, rather, slightly more

layered.

47. This Court in B.K. Srinivasan and Others v. State of Karnataka and

Others reported in (1987) 1 SCC 658 largely dealt with a similar issue

wherein the consequences of a failure to publish the Outline

Development Plan and the Regulations therein in the Official Gazette

was being ascertained to see if the violations committed by the

appellants deserved commensurate action. Holding that the non-

publication in the Official Gazette was not detrimental, this Court

observed that:

i. First, a law along with all the changes and/or additions made to

it by various processes, whether permanent or subordinate,

must be notified ‘directly and reliably’ to those from whom it

seeks compliance. To put it simply, that law must be so made

that it can be known.

ii. Secondly, the question whether non-publication of something in

the Official Gazette is fatal must be viewed from three

perspectives or angles: (a) the first angle wherein a specific mode

is prescribed for its publication by the parent statute. In such

cases, the said mode must be followed; (b) the second type

wherein there is a silence in the parent statute but the

subordinate legislation prescribes a mode for its publication. In

such cases, the prescribed mode may be sufficient, if reasonable.

(c) The third-type wherein both the parent and subordinate

legislation are silent, or where the subordinate legislation

Civil Appeal No. 7367 of 2024 Page 35 of 78

prescribes a plainly unreasonable mode. In such cases, effect can

be given only if it is published through the customarily

recognised official channel i.e., the Official Gazette or “some other

reasonable mode”.

The relevant observations are thus:

“15. There can be no doubt about the proposition that where a

law, whether parliamentary or subordinate, demands

compliance, those that are governed must be notified directly

and reliably of the law and all changes and additions made to it

by various processes. Whether law is viewed from the

standpoint of the “conscientious good man” seeking to abide by

the law or from the standpoint of Justice Holmes's

“unconscientious bad man” seeking to avoid the law, law must

be known, that is to say, it must be so made that it can be known.

[…] Where the parent statute prescribes the mode of publication

or promulgation that mode must be followed. Where the parent

statute is silent, but the subordinate legislation itself prescribes

the manner of publication, such a mode of publication may be

sufficient, if reasonable. If the subordinate legislation does not

prescribe the mode of publication or if the subordinate

legislation prescribes a plainly unreasonable mode of

publication, it will take effect only when it is published through

the customarily recognised official channel, namely, the Official

Gazette or some other reasonable mode of publication. There

may be subordinate legislation which is concerned with a few

individuals or is confined to small local areas. In such cases

publication or promulgation by other means may be sufficient

[Narayana Reddy v. State of A.P., (1969) 1 Andh WR 77]”

(Emphasis supplied)

48. In B.K. Srinivasan (supra), it was not the parent statute but the rules

which prescribed a mode by stating that “The Outline Development

Plan and the Regulations as approved by the State Government under sub-

section (4) of Section 13 shall be published in the Official Gazette”.

Civil Appeal No. 7367 of 2024 Page 36 of 78

Therefore, the factual circumstances fell under the second-type

aforementioned. Hence, in an attempt to discover whether the mode

prescribed by the rules was ‘reasonable’, this Court probed into what

was, in essence, required as a consequence of the publication and

attempted at a holistic reading of the entire scheme of the Act and

rules thereunder. In doing so, it was held that the plan and the

regulations themselves need not have been ‘bodily published’ or

reproduced in the Official Gazette. For better clarity, we deem it

necessary to reproduce the relevant observations:

“16. In the present case Section 13(4) has prescribed the mode

of publication of the Outline Development Plan and the

Regulations. It requires the Outline Development Plan and the

Regulations to be published in the prescribed manner and the

Plan and particulars to be permanently displayed in the offices

of the Director and the Planning Authority and a copy to be

kept available for the inspection of the public at the office of the

Planning Authority. The particulars referred to, we presume,

are the particulars mentioned in Section 12(2) of the Act

consisting of various reports, including the Regulations. “The

prescribed manner” is what is prescribed by Rule 33, that is,

publication in the Official Gazette. If we now turn to Section

9(1) and 9(2), we find that there too the Outline Development

Plan is required to be published in “the prescribed manner”. The

prescribed manner for the purposes of sub-sections (1) and (2)

of Section 9 is that prescribed by Rule 32. Rule 32 we have seen

prescribes making a copy of the Plan available for inspection,

publishing a notice in Form II in the Official Gazette and in one

or more newspapers and displaying a notice in Form II at the

office of Planning Authority and at other specified places. It is

true that Rule 33 speaks of publication of approved Outline

Development Plan and Regulations in the Official Gazette,

suggestive of a requirement that the Outline Development Plan

Civil Appeal No. 7367 of 2024 Page 37 of 78

and Regulations should bodily be incorporated in the Official

Gazette. But if the entire scheme of the Act and the rules is

considered as an integral whole it becomes obvious that what

Section 13(4) contemplates besides permanently displaying the

Plan and the particulars in the offices of Director and Planning

Authority and keeping available a copy for the inspection of the

public at the office of Planning Authority is a public notice to

the general public that the Plan and Regulations are

permanently displayed and are available for inspection by the

public. Such public notice is required to be given by a

publication in the Official Gazette. This is how it was

understood by the authorities and everyone else concerned and

this is how it was done in the present case. This appears to be a

reasonable and a rational interpretation on Section 13(4) and

Rule 33 in the setting and the scheme. We are of the view that

there was compliance with the requirements of Section 13(4)

and Rule 33. We have earlier mentioned that Section 13(1)

requires the provisional Outline Development Plan and

particulars to be published by notification in the Official

Gazette, with a view to invite comments from the public. What

was published in the present case under Section 13(1) was also

a notice in Form II and not the whole of the Plan and

particulars. Such publication evoked considerable public

response. As many as 600 representations from individuals and

institutions were received. That is why we said that everyone

concerned, that is, the Government, the Director, the Planning

Authority and the public, individual and institution alike,

thought that publication of a notice in the Gazette inviting the

attention of the public to the display and the availability for

inspection of the Plan and particulars was all that was

contemplated by the provisions providing for publication. We

do not think that there is any reason or justification for us to

adopt an interpretation which departs from common

understanding of the Act and the Rules.”

(Emphasis supplied)

Civil Appeal No. 7367 of 2024 Page 38 of 78

49. There was also an omnibus curative clause in the parent Act in B.K.

Srinivasan (supra) which protected a publication defect when

sufficient knowledge of the requirements in the plan and regulation

existed with the violating individual. While the presence of this

clause added another layer of reasoning, it did not materially affect

the conclusion already arrived at. What we are trying to convey is

that even when the publication of something in the Official Gazette

is required by the plain words of the subordinate legislation (rules),

there is some scope, albeit narrow, for the interpretation that its non-

publication in the Gazette was not detrimental to its legality or

binding nature based on an examination of whether the prescribed

mode was reasonable or not.

50. In the present litigation, we are concerned with a situation fitting

within the third type i.e., when there is silence both in the parent

statute and the rules as regards what mode of publication must be

followed. As a general rule, even in such scenarios, publication must

ideally be made in the Official Gazette. After all, it is the customarily

recognised official channel of the government. But, of course, the

natural corollary to any general rule is the possibility of it having one

or more exceptions. B.K. Srinivasan (supra) too referred to such

outliers when it clearly stated that “some other reasonable mode of

publication” may also be acceptable apart from publication in the

Official Gazette. It is tacit that to take benefit of this exception, the

court must be satisfied that such an alternate mode or manner of

publication was indeed reasonable.

Civil Appeal No. 7367 of 2024 Page 39 of 78

51. At this juncture, we must point out that Gulf Goans (supra) itself laid

down the requirement of publication in the Official Gazette as a pre-

requisite by placing reliance upon B.K. Srinivasan (supra). However,

in the larger background of the facts in Gulf Goans (supra), this Court

did not find it necessary to delve further into whether the mode of

publication undertaken was reasonable or not.

52. A handful of decisions of this Court have held that publication in the

Official Gazette is required. However, on a closer examination, all of

them can be differentiated. In Pankaj Jain Agencies v. Union of India

and others reported in (1994) 5 SCC 198, I.T.C. Bhadrachalam

Paperboards and Another v. Mandal Revenue Officer, A.P. and

Others reported in (1996) 6 SCC 634, Union of India and Others v.

Ganesh Das Bhojraj reported in (2000) 9 SCC 461 and Nabha Power

Limited and Another v. Punjab State Power Corporation and

Another reported in (2025) 5 SCC 353 respectively, the exemption

order/notification was required to be published in the Official

Gazette by the parent statute itself. Such was the case in Sammbhu

Nath Jha v. Kedar Prasad Sinha and Others reported (1972) 1 SCC

573 as well where the notification of appointment of the Commission

of Inquiry needed to be published in the Official Gazette by the

statute. In State of Kerala and Others v. P.J. Joseph reported in (1957)

3 SCC 638, the alleged statutory order varying an existing rule was,

again, required to be published in the Official Gazette under the

relevant provisions of the statute. The most recent decision in Viraj

Impex Pvt. Ltd. v. Union of India and Another reported in 2026 SCC

Civil Appeal No. 7367 of 2024 Page 40 of 78

OnLine 101 also related to an order which was expressly required to

be published in the Official Gazette by the statute and it was

observed that “The Legislature in its wisdom, has not left the mode of

promulgation to executive discretion”. All the aforesaid are instances

where this Court has given effect to a clear stipulation in the parent

Act which prescribed a set mode of publication or in other words,

cases which fell under the first type set out in B.K. Srinivasan (supra).

53. Harla v. State of Rajasthan reported in 1951 SCC OnLine SC 54 was

concerned with a situation wherein the Jaipur Opium Act, 1924 i.e.,

offence creating parent statute itself had not been promulgated and

published appropriately. Similarly, in Rajendra Agricultural

University v. Ashok Kumar Prasad and Others reported in (2010) 1

SCC 730, the issue was with regard to the non-publication of the

statute in the Official Gazette. In Ramakrishna Vivekananda Mission

v. State of W.B. and Others reported in (2005) 9 SCC 53, it was the

special rules i.e., a subordinate legislation, which was required to be

previously published according to the statute and in ascertaining the

import of the words ‘previously published’, recourse was taken to

the Bengal General Clauses Act, 1899 which mandated publication in

the Official Gazette. These set of decisions deal with the Act or the

Rules themselves not being published in the Official Gazette and

therefore, again, have little to do with the specific question we are

faced with.

Civil Appeal No. 7367 of 2024 Page 41 of 78

54. Now, turning to our facts; neither the EP Act nor the BMWM Rules

prescribe a strict mode of publication for the RG, 2016. Undeniably,

we would fall under the third-type of scenario as per the decision in

B.K. Srinivasan (supra). Therefore, publication in the Official Gazette,

although the general rule, cannot be said to be a sine qua non. We are

of the view that 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. Consequently, falling back on the ratio in Gulf Goans

(supra) would be of no help.

B. Permissibility of the grant of relaxation in land requirement

55. The RG, 2016 under Clause 7 provides for the “Land Requirement” of

a CBWTF and reads thus:

“7) Land requirement

Sufficient land shall be allocated to the CBWTF to provide all

requisite systems which include dedicated space for storage of

waste (both treated and untreated), waste treatment equipment,

vehicle washing bay, vehicle parking space, ETP, incineration

Civil Appeal No. 7367 of 2024 Page 42 of 78

ash storage provision, administrative room, space for DG Set

etc.,.

(a) Preferably, a CBWTF shall be set up on a plot size of not less

than one acre in all the areas. However, a CBWTF can be

developed in adjacent plots but cannot be set up in two or more

different plots located in different areas. Separate plots can be

permitted only for vehicle parking if located in the close vicinity

of the proposed CBWTFs or the existing CBWTFs.

(b) In case of upcoming or new CBWTFs (both in municipal

limits with population more than 25 lakhs or in rural areas),

the land area requirement may be relaxed (but in any case not

less than 0.5 acre) by the SPCB/PCC, with additional control

measures such as zero liquid discharge, increase in stack height,

stringent emission norms, odour control measures or any other

measures felt necessary by the prescribed authority on case-to-

case basis, only in consultation with CPCB.”

(Emphasis supplied)

56. Clause 7 begins with a short prelude explaining that sufficient land

shall be allocated to the CBWTF so that all requisite systems will have

adequate space. It goes on to state that a CBWTF shall preferably be

set up on a plot size of not less than one acre in all areas. The use of

the word “preferably” here must not be read to mean that the one acre

standard is not compulsory. Instead, the word is used to signify that

a single plot need not admeasure one acre and that multiple but

adjacent plots can be combined to fulfil this requirement. While

different plots which are separate cannot be used for the CBWTF as

a general rule, a deviation from this may be allowed if the separate

plot is in the close vicinity and is solely for the purpose of vehicle

parking. That the one-acre requirement is a strict rule is further

Civil Appeal No. 7367 of 2024 Page 43 of 78

substantiated by the fact that land area relaxation may be allowed in

certain cases i.e., for upcoming or new CBWTFs which are either in

municipal limits with a population of more than 25 lakh or in rural

areas. However, such relaxation cannot exceed 0.5 acre under any

circumstance. The State Pollution Control Board (“SPCB”) or the

Union Territory Pollution Control Committee (“PCC”) would be the

authority which would decide whether relaxation could be granted

or not. In all eligible cases, relaxation would be accompanied with

additional control measures including inter-alia zero liquid

discharge, increase in stack height, stringent emission norms, odour

control measures or any other measures considered necessary and

the matter shall be consulted with the CPCB.

57. It could, therefore, be said that the grant of relaxation has a pre-

condition and is also subject to certain mandatory accompanying

conditions. The pre-condition relates to the location of the proposed

site(s) i.e., it must be within municipal limits having more than 25

lakh population or within rural limits. The accompanying conditions

are that: (i) consultation with the CPCB is mandatory and, (ii)

additional control measures must be imposed.

58. It is this issue pertaining to Clause 7 of the RG, 2016 which weighed

heavily with the impugned decision and it reached the conclusion

that the pre-condition was not fulfilled in the instant case. There was

some confusion as regards whether the UPSIDC Industrial Area was

situated within Nagar Panchayat limits or rural limits, and if it was

Civil Appeal No. 7367 of 2024 Page 44 of 78

situated in the former whether the population of the Nagar

Panchayat was more than 25 lakh or not.

59. The impugned decision upon finding that the industrial area was

located within the Babrala Nagar Panchayat, proceeded to observe

that its population was not even one lakh as per the 2011 census.

Therefore, it was sure that Clause 7 was outrightly inapplicable and

the authorities including the CPCB and the UP SEIAA respectively,

had misdirected themselves in exercising their powers for the grant

of relaxation.

60. This Court vide order dated 15.07.2024 directed that a report be

furnished by the District Magistrate, Sambhal regarding the location

of the CBWTF established by the appellant and the population of the

Babrala Nagar Panchayat. We have been apprised that the UPSIDC

Industrial Area has been formed in village Noorpur, Pargana

Asadpur, Tehsil Gunnaur, District Sambhal. It is not situated within

the limits of the Babrala Nagar Panchayat but falls within the

Noorpur Gram Panchayat. In fact, the distance of the said industrial

area from the border of the Babrala Nagar Panchayat is about 2.6 km.

Several other authorities including the Executive Officer of the

Babrala Nagar Panchayat, the Tehsildar at Gunnaur and the Regional

Manager, UPSIDA, all confirm that the plots fall within rural limits.

61. Moreover, in exercise of the powers under Section 2(d) of the UP

Industrial Area Act, a Gazette notification was issued by the State of

Uttar Pradesh declaring the areas mentioned in the Schedule

Civil Appeal No. 7367 of 2024 Page 45 of 78

annexed thereto as Industrial Development Areas. Sl. No. 78 of the

Schedule pertains to the Industrial Area that we are concerned with

and it is declared to be located at Village Noorpur. Therefore, it

cannot be argued that plot nos. E-25 and E-26 respectively situated

within the limits of a rural area did not fulfil the precondition under

Clause 7(b) of the RG, 2016.

62. Aniruda Panwar (supra) emphasized that setting up a CBWTF on

land admeasuring one acre was the rule and relaxation of this land

requirement was the exception. Relaxation must not be granted as a

matter of right and in a casual manner. On this, we are in agreement.

However, in the present case, relaxation was granted after due

consultation with the CPCB and the prescription of additional

control measures which took into account the operational

effectiveness of the appellant’s plant in a smaller area. Therefore, the

fact that the investment already made by the appellant was also a

factor which was considered by the UPPCB and the CPCB

respectively, would not be sufficient to indicate that there was malice

in law. Similarly, while we agree that the representation made by the

UPPCB vide letter dated 16.10.2023 to the CPCB was wrong in stating

that the first EC and first CTE respectively were only null and void

and not illegal, this does not seem to have affected the actual grant of

relaxation by the CPCB in any manner. The mandate under Clause 7

of the RG, 2016 was strictly followed and the CPCB has not acted in

ignorance of the law. It is not the respondent no. 1’s case that the

Civil Appeal No. 7367 of 2024 Page 46 of 78

additional control measures which ultimately came to be imposed

were not sufficient or adequate in some way.

63. In view of the aforesaid, on the issue of relaxation in land

requirement, the second EC or the second CTE could not have been

quashed by the impugned decision.

C. 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.

64. The answer to this issue hinges on a careful reading of Clause 6 of the

EIA, 2006, Clause 2 of the RG, 2016, Section 25 of the Water Act and

Section 21 of the Air Act respectively along with some O.M.’s/orders

issued by the MoEF&CC.

i. Clause 6 of the EIA, 2006 read with the O.M. dated 07.10.2014

65. Clause 6 of the EIA, 2006 deals with the application to be made for

obtaining a prior EC. It reads thus:

“An application seeking prior environmental clearance in all

cases shall be made in the prescribed Form 1 annexed herewith

and Supplementary Form 1A, if applicable, as given in

Appendix II, after the identification of prospective site(s) for the

project and/or activities to which the application relates, before

commencing any construction activity, or preparation of land,

at the site by the applicant. The applicant shall furnish, along

with the application, a copy of the pre-feasibility project report

except that, in case of construction projects or activities (item 8

of the Schedule) in addition to Form 1 and the Supplementary

Civil Appeal No. 7367 of 2024 Page 47 of 78

Form 1A, a copy of the conceptual plan shall be provided,

instead of the pre-feasibility report.”

(Emphasis supplied)

66. Basically, it states that the application for prior EC must be made in

the prescribed Form 1/supplementary Form 1A after the identification

of prospective site(s) but before commencing any construction activity

or preparing the land. It also indicates that such identification must

be for the specific project or purpose for which the EC is sought and

this is brought forth by the expression “to which the application relates”.

Therefore, land which is identified as a prospective site for a different

purpose, cannot pass the muster of Clause 6 when the EC is being

sought for establishing some other project/facility.

67. The submission of Mr. Divan is that the words “identification of

prospective site(s)” clearly indicate that a successful allotment of land

for the purpose of establishing of a CBWTF in the appellant’s favour

was not necessitated by the EIA, 2016. He would state that it may be

sufficient if the project proponent has simply identified the land

concerned. In our opinion, while his submission would be right for

when the Form 1 application is made, the threshold would shift when

the EC process progresses to the appraisal stage i.e., Stage 4.

68. The O.M. dated 07.10.2014 issued by the MoEF&CC would shed

some further light. It states that an EC is always site-specific, meaning

that if the project comes to be set-up in a land different than that for

which EC was given, then such EC would automatically become

Civil Appeal No. 7367 of 2024 Page 48 of 78

invalid. The O.M. also adds that full acquisition of land may not be a

pre-requisite for considering an EC application. However, there must

be some credible document showing the status of land acquisition

with respect to the project site when the case is brought before the

concerned EAC/SEAC for appraisal. The relevant portions of the

said O.M. are reproduced thus:

2. The matter has been examined in the Ministry. The EC

granted for a project or activity under the EIA Notification

2006, as amended, is site specific. While full acquisition of land

may not be a pre-requisite for the consideration of the case for

EC, there should be some credible document to show the status

of land acquisition w.r.t. project site when the case is brought

before the concerned EAC/SEAC for appraisal. It has been

accordingly decided that the following documents relating to

acquisition of land w.r.t the project site may be considered as

adequate by EACs/SEACs at the time of appraisal of the case for

EC.

[…]

(ii) In case the land is being acquired through private

negotiations with the land owners, credible document showing

intent of the land owners to sell the land for the proposed project.

3. It may, however, be noted that the EC granted for a project

on the basis of aforesaid documents shall become invalid in case

the actual land for the project site turns out to be different from

the land considered at the time of appraisal of project and

mentioned in the EC.”

(Emphasis supplied)

69. If noticed closely, it states that some credible document showing the

intent of the land owners to sell the land for the proposed project

Civil Appeal No. 7367 of 2024 Page 49 of 78

would be sufficient at the appraisal stage. 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.

70. This brings us to our first take-away i.e., 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.

71. How can a Form 1 applicant then satisfy that it has identified

prospective site(s) or that some site is under consideration for the

purpose for which EC is sought? While we are not inclined to lay

down a general standard, we can say without doubt that, in the

present case, the applications dated 06.07.2021 made to the UPSIDA

Civil Appeal No. 7367 of 2024 Page 50 of 78

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.

72. The second take-away is that, when the stage of appraisal arrives, a

credible document becomes crucial. What could be this credible

document in the context of the present matter? Undoubtedly, it

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.

73. 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.

74. Let us see if the RG, 2016 says anything different. The Tribunal in

Aniruda Panwar (supra) was of the opinion that it did.

ii. Clause 2 of the RG, 2016

75. Clause 2 of the RG, 2016 lays down the criteria for the development

of a new CBWTF. Amongst other things, it states thus:

“c) SPCB/PCC shall identify the coverage area, which require

additional treatment facility and bring it to the notice of the

concerned department in the business allocation of land

assignment in the respective State Government or UT

Administration. The department in the business allocation of

land assignment shall be responsible for providing suitable site

Civil Appeal No. 7367 of 2024 Page 51 of 78

in the identified coverage area for setting up of a CBWTF, in

consultation with the prescribed authority (i.e., SPCB/PCC),

other stakeholders and in accordance with these guidelines

issued by CPCB from time to time.

d) Alternately, a CBWTF may also be allowed to be established

on a land procured by an entrepreneur in accordance with the

location criteria suggested under these guidelines.

e) The SPCB/PCC or concerned department in the business

allocation of land assignment in the respective State

Government or UT Administration may seek expression of

interest from the proponents for development of new CBWTF

(s) in the identified coverage area. Upon allocation of site to the

proponent, the proponent is required to take necessary

approvals as required under the Environment (Protection)

Act, 1986 for development of the new CBWTF in accordance

with these guidelines.”

76. According to the above, in the normal course of things, it would be

the SPCB or the PCC which shall identify the requirement of new

CBWTFs in each coverage area. The department entrusted with the

business allocation of land assignment in the State/UT

administration would then provide suitable sites. Thereafter,

expressions of interest (“EoIs”) may be sought for the establishment

of a CBWTF. Upon allocation of the site to the successful project

proponent, it would be upon such proponent to obtain the necessary

approvals. Alternatively, an entrepreneur may also seek to establish

a CBWTF on land procured by himself in accordance with the

location criteria under the RG, 2016.

77. The use of the words “land procured” in the context of an entrepreneur

in Clause 2(d) and “upon allocation of site” in the context of the

Civil Appeal No. 7367 of 2024 Page 52 of 78

SPCB/PCC/administration’s initiative in Clause 2(e), is of particular

note. We are of the opinion that, fundamentally, these words do not

convey a message different from that of the EIA, 2006. In other words,

there is no conflict as such between the relevant provisions of the

EIA, 2006 and the RG, 2016 respectively as highlighted in Aniruda

Panwar (supra).

78. According to the RG, 2016, there are two ways through which the

process of establishing a CBWTF can be commenced: One, by the

SPCB/PCC/administration via Clauses 2(c) and 2(e) respectively,

and two, by the entrepreneur via Clause 2(d).

79. Clause 2(d) only states broadly that land must be procured by the

entrepreneur before establishing a CBWTF. It does not lay down

specifically that (i) allotment must be complete before the Form 1

application can be made under the EIA, 2006, or (ii) mere

identification is insufficient before the Form 1 application is made

under the EIA, 2006, or (iii) legal possession must be obtained prior

to the appraisal stage under the EIA, 2006.

80. Moving on, Clause 2(e) admittedly states that the project proponent

must proceed with obtaining approvals under the EP Act after the

site is allocated in its favour by the SPCB/PCC/administration. But

this aspect must be interpreted in the context of the entire process

that is envisaged under Clause 2 and not as laying down a rigid rule

that allocation is a pre-condition for seeking other approval(s). When

EoIs are sought from multiple persons for establishing a CBWTF, the

Civil Appeal No. 7367 of 2024 Page 53 of 78

RG, 2016 places a duty only upon the successful allocatee to

commence the necessary approval process, and not everyone who

responded to the EOIs. It is for this simple reason that the words

“upon allocation” is used. Moreover, what is plainly clarified is that

despite the land being allocated by the SPCB/PCC/administration,

such allocatees must independently obtain the necessary approvals

as per the EP Act and that this over-arching obligation cannot be

dispensed with. This intent behind the Clause 2(e) must not be

morphed or misconstrued as laying down a standard which requires

successful allotment before an application under Form 1 is made for

the EC.

81. We must not favour 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, 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. We do not see any 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.

iii. Applying for a CTE under the Water Act and Air Act respectively.

82. A project proponent seeking to set-up a CBWTF has to obtain

previous consent(s) from the SPCB/PCC by virtue of Section 25 of

Civil Appeal No. 7367 of 2024 Page 54 of 78

the Water Act and Section 21 of the Air Act respectively. These

previous consents are two in number i.e., the CTE and CTO

respectively.

83. Section 25 of the Water Act lays down restrictions on new outlets and

new discharges by stating that no person shall, without the previous

consent of the SPCB, establish or take any steps to establish any

industry, operation or process, or any treatment and disposal system

or any extension or addition thereto, which is likely to discharge

sewage or trade effluent into a stream or well or sewer or on land.

Section 26 covers those persons who were already operating an

industry, operation or process discharging any sewage or trade

effluent and brings them within the ambit of Section 25.

84. Section 21 of the Air Act states that no person shall establish or

operate any industrial plant in an air pollution control area unless the

previous consent of the SPCB has been obtained.

85. A cursory reading of the aforesaid provisions do not explicitly and

separately mention the CTE and CTO respectively. Nevertheless, a

two-stage regulatory process is followed by the CPCB/SPCB and

PCC. The two stages at which the consents are to be obtained signify

two distinct operational milestones vis-à-vis the project and require

separate applications as well as verifications. Broadly, a CTE is

required before the project/plant is built or set-up so that the layout,

location, proposed air pollution and water pollution control systems

etc., can be evaluated before the project takes further shape. A CTO,

Civil Appeal No. 7367 of 2024 Page 55 of 78

on the other hand, is required once construction is done and before

the commercial operations begin. Its object is to verify that the actual

infrastructure including the installed machinery, pollution control

mechanisms etc., abide by what was previously approved.

86. Therefore, as the CTE is concerned, what we can gauge is that the

project proponent must apply for it before establishing or taking steps

to establish or setting up such industry/operation. What actions

could potentially fall both within and outside the ambit of the

expressions “establish” or “take any steps to establish” or “setting up” is

difficult to conjure with certainty. But, undeniably, these expressions

are of wide import because they can include actions ranging from

finalising land, materials, infrastructure labour, obtaining parallel

approvals etc. Therefore, when both Sections 25 of the Water Act and

21 of the Air Act mandate that a CTE has to be obtained before

establishment or taking steps for such establishment, one cannot say,

that only the act of procurement of land must predate the application

for a CTE while the other acts which otherwise broadly constitute

‘establishment’ can be undertaken subsequent to the CTE being

applied for and/or obtained. There is no contrary indicia supporting

the view that land procurement or land allotment alone must occur

prior to the CTE application. We have already held that Clause 2 of

the RG, 2016 does not say otherwise. Meaning thereby that,

successful land allotment cannot strictly be a pre-condition to

obtaining a CTE.

Civil Appeal No. 7367 of 2024 Page 56 of 78

87. This can further be substantiated through the order dated 20.09.2021

issued by the MoEF&CC which reads thus:

“Whereas, prior Environmental Clearance is a statutory

requirement for project/activities covered in the schedule of the

EIA Notification 2006, issued under section 3 of the

Environment (Protection) Act, 1986.

2. And whereas, obtaining the consents under Water

(Prevention & Control of Pollution) Act, 1974 & Air

(Prevention& Control of Pollution) Act, 1981 is mandatory for

all industrial units in Red, Orange and Green categories.

3. And whereas, the grant of EC and Consents are requirements

under different statutes and are not inter-dependent and can be

carried out as a parallel process.

4. And whereas, many a times it has been observed that while

industrial units are in possession of valid 'Consent to Establish'

(CTE)/ 'Consent to Operate' (CTO) issued by State Pollution

Control Boards (SPCBs)/ UT Pollution Control Committees

(UTPCC), however, they have not obtained the Environmental

Clearance (EC), even though it was required as per provisions

of EIA Notification 2006.

5. And whereas, it has been observed that this situation is

arising because majority of the SPCBs/ UTPCCs are issuing

CTE/CTO to projects without ascertaining the applicability of

prior EC to projects/ activities, resulting in an avoidable

situation of closure for even those industries also who seek to

carry out their activities following due procedure.

6. Now therefore, in exercise of powers conferred by section 5 of

the Environment (Protection) Act, 1986(29 of 1986), the

Central Government, hereby directs that all SPCB/UTPCC

shall:

i. Ascertain the applicability of EIA Notification at the time

of grant/renewal of CTE and stipulate appropriate condition

for obtaining Environmental Clearance (EC), if applicable,

before construction/commencement of project/activity.

Civil Appeal No. 7367 of 2024 Page 57 of 78

ii. Ensure that the project proponent possesses a valid Prior

EC in terms of the extant EIA Notification, if applicable, at

the time of grant/renewal of CTO and no CTO shall be

granted or renewed unless EC, if applicable, has been

obtained

7. This is issued with the approval of the Competent Authority.”

(Emphasis supplied)

88. The aforesaid order was made to address those situations wherein

CTEs/CTOs were being issued to projects without ascertaining the

applicability of the EIA, 2006 owing to the fact that the EC and the

CTE/CTO process can be undertaken parallelly. As a direct

consequence, several projects did not apply for EC and were being

subjected to closure. Therefore, it was directed that the applicability

of the EIA, 2006 be ascertained by the SPCB at the time of grant of

CTE itself and that no CTO be granted unless prior EC was already

obtained.

89. When the order dated 20.09.2021 is read holistically with what we

have held in the previous sub-section i.e., that proof of land allotment

only needs to be furnished during appraisal of the EC, what becomes

clear is that although land allotment may be a precondition for

obtaining the CTO (because prior EC has to be mandatorily obtained

before the CTO), yet such a requirement may not restrict the making

of an application for CTE or even the grant of CTE for that matter.

90. In view of all the aforesaid, we are afraid that we are in disagreement

with the decision in Aniruda Panwar (supra) on the reasoning that,

owing to Clause 2 of the RG, 2016, a project proponent seeking to

Civil Appeal No. 7367 of 2024 Page 58 of 78

establish a CBWTF must have successfully procured or gotten land

allocated in his favour even before commencing the process of

obtaining prior EC and/or CTE.

91. Whilst we differ in the interpretation it afforded, we must

nevertheless clarify that the conclusion reached in Aniruda Panwar

(supra) cannot be assailed for being wrong. As discussed above,

identification of the prospective site(s) for the specific

project/activity is the threshold for when an application for EC is

made. Obtaining a credible document showing the status of land

acquisition is the pre-requisite for when the EC is being appraised by

the SEAC and SEIAA respectively. Prior to applying in Form 1, the

appellant had approached the UPSIDA vide application dated

06.07.2021 for land allotment to establish a CBWTF and had

therefore, identified prospective site(s) for the purpose for which the

EC was being sought. So, up until this point, there was no issue.

However, it failed to fulfil what was expected from it at the appraisal

stage. In other words, at the time when the UP SEAC and UP SEIAA

respectively, were appraising the appellant’s EC application for the

grant of the first EC, i.e., on 16.06.2022 and 05.07.2022 respectively,

the UPSIDA had rejected the appellant’s request for land allotment

for setting up a CBWTF. Thereafter, it only re-issued an allotment

letter in favour of the appellant for a different type of

industry/facility. Meaning thereby that, there was no credible

document indicating that a CBWTF could be established in the said

land when the UP SEAC and the UP SEIAA appraised the EC

Civil Appeal No. 7367 of 2024 Page 59 of 78

application. Only after the first EC was granted did the appellant

apply and obtain permission for change in land use. This could not

have retrospectively legalised the grant of the first EC.

92. As far as the first CTE is concerned, although it could not have been

faulted with for non-allotment of land prior to the date on which the

CTE was applied for i.e. prior to 27.09.2021, yet the UPPCB was under

an obligation to check whether the specifications of the land provided

by the appellant in its application for CTE fulfilled the land

requirements prescribed under Clause 7 of the RG, 2016. Since the

land identified by the appellant was of a size less than one acre, the

UPPCB must have directed the appellant to either identify additional

prospective plots or apply for a relaxation in land requirement before

granting the first CTE. Hence, for this reason, the first CTE was illegal

and void.

93. Now, we must look into whether the second EC or second CTE could

be said to have become vulnerable for any reason/ground discussed

hereinabove. Considering that the appellant was not required to

apply through a fresh Form 1 after the first EC and first CTE were

set-aside by Aniruda Panwar (supra) (an aspect which will be dealt

with in detail in the next sub-section), we only need to see whether

land acquisition requirements were met at the appraisal stage. When

the UP SEAC and UP SEIAA sat for appraisal on 20.11.2023 and

20.12.2023 respectively, the appellant obtained allotment of plots E-

25 and E-26 respectively for establishing a CBWTF from the UPSIDA

Civil Appeal No. 7367 of 2024 Page 60 of 78

on 19.09.2022, and relaxation in land requirement of 1 acre was also

allowed by the CPCB on 17.11.2023. The second CTE was also

granted by the UPPCB on 20.12.2023 after land relaxation was

already allowed by the CPCB. Therefore, the second EC and CTE

stood the test of the land acquisition requirements at each stage of the

process.

D. The grant of the second EC on the basis of the first ToR

94. Mr. Misra would argue that when the first EC and first CTE was set-

aside by Aniruda Panwar (supra) for the reasons stated therein, the

first ToR was also implicitly set-aside. Therefore, the second EC and

second CTE granted on the basis of such a defunct ToR cannot be said

to be valid under law. On the other hand, Mr. Divan would state that

the setting aside of the first EC and first CTE had no effect on the first

ToR. Moreover, the ToR was also valid for a period of four years.

i. Whether the decision in Aniruda Panwar could be said to have set-aside

the first ToR

95. It cannot always as a mechanical rule be said that when the EC is set-

aside, the ToR is also automatically rendered null and void for a

project proponent who is desirous of obtaining a fresh EC. The

answer depends on the grounds due to which the EC is vitiated and

what was found to be illegal or defective in the four stage EC process.

It also depends on how far back into the process the defect had crept

in. For example, if the illegality arose from the appraisal stage alone

i.e., due to non-application of mind by the SEAC/SEIAA, then there

Civil Appeal No. 7367 of 2024 Page 61 of 78

would be no use in relegating the project proponent back to the

absolute beginning. But, say, the illegality arose from an incomplete

or shoddy EIA report which did not abide by the prescribed ToR,

then the project proponent would have to prepare a fresh EIA report.

Here again, there wouldn’t be any need to disturb the ToR itself.

However, say, the ToR itself was improperly issued because

necessary details in the Form 1 application were false, incomplete or

misleading, then the whole process would have to be recommenced

afresh. As a matter of practice, the stage at which the process must be

restarted is indicated with sufficient clarity in the order setting aside

the EC. However, admittedly, the decision in Aniruda Panwar

(supra) is not intelligible on this aspect.

96. Mr. Misra would submit that, once the first EC was set-aside, the

entire process was required to be started afresh because the appellant

had falsely claimed that plots E-25 and E-26 respectively, had been

procured in their Form 1 application. According to him, this would

amount to deliberate concealment and/or submission of misleading

and false information material to the screening, scoping and

appraisal stages under Clause 8(vi) of the EIA,2006, which tainted the

whole process. He would also place reliance on the decision of this

Court in Hanuman Laxman Aroskar (supra) to substantiate this

argument.

97. In Hanuman Laxman Aroskar (supra), the EC granted for

development of the greenfield airport project in Goa was called into

Civil Appeal No. 7367 of 2024 Page 62 of 78

question for several flaws in the EIA process including the failure of

the project proponent to disclose the name and identity of forests

within an aerial distance of 15km of the project despite the fact that

the Form 1 mandatorily required a clear disclosure of “areas which are

important or sensitive for ecological reasons — wetlands, water sources or

other water bodies, coastal zone, biospheres, mountains and forests”.

Deprecating such practice, this Court observed that non-disclosure

of vital information and suppression of material facts in Form 1 has

a cascading effect on the entire EC process: (i) It would impair the

ability of the EAC/SEAC to recommend a rejection of the application

for EC at the threshold under Clause 7 II.Stage(2)–Scoping(iii), (ii)

affect the functioning of the EAC/SEAC in the preparation of the

ToR, (ii) lead to a deficient EIA report, and (iii) influence the

EAC/SEAC’s appraisal of the EC application, amongst others. Since

Form 1 is the base upon which the whole process rests, it was

cautioned that the depth and accuracy of information provided in

Form 1 must not be compromised and the project proponent must be

held to the highest duty of transparency and rectitude. If the project

proponent did not abide by the same, then an EC already granted

could also be cancelled on the basis of Clause 8(vi) of the EIA,2006.

The relevant observations are thus:

“61. Under the 2006 Notification, EC process is based on the

information provided by the applicant in Form 1. That the

information provided in Form 1 is crucial can be borne from the

following circumstances:

Civil Appeal No. 7367 of 2024 Page 63 of 78

61.1. EAC or SEAC, as the case may be, formulates

comprehensive ToRs on the basis of the information furnished

in Form 1 which addresses all possible environmental concerns.

It is on the basis of ToR, that further studies and the EIA are

carried out on the impact of the proposed project on the

environment.

61.2. At the appraisal stage, the regulatory authority examines

the documents submitted by the applicant “strictly with

reference to ToR” and communicates any inadequacy to EAC

or SEAC.

61.3. Category B2 projects, which do not require scoping, are

evaluated by SEAC on the basis of the information furnished by

the applicant in Form 1 alone.

61.4. The appraisal of all projects or activities which are not

required to undergo public consultation, or submit an EIA

report, shall be carried out on the basis of the prescribed

application Form 1 and Form 1-A as applicable.

61.5. An application for extension of the validity of EC for

certain projects is to be made by submitting a revised Form 1

within the validity period.

62. The information provided in Form 1 serves as a base upon

which the process stipulated under the 2006 Notification rests.

An applicant is required to provide all material information

stipulated in the form to enable the authorities to formulate

comprehensive ToR and enable persons concerned to provide

comments and representations at the public consultation stage.

The depth of information sought in Form 1 is to enable the

authorities to evaluate all possible impacts of the proposed

project and provide the applicant an opportunity to address

these concerns in the subsequent study. Missing or misleading

information in Form 1 significantly impedes the functioning of

the authorities and the process stipulated under the notification.

For this reason, any application made or EC granted on the basis

Civil Appeal No. 7367 of 2024 Page 64 of 78

of a defective Form 1 is liable to be rejected immediately. Clause

(vi) of Para 8 of the notification provides thus[…]

70.1. Form 1, which was filed by the project proponent, did not

contain any disclosure of the name or identity of forests within

an aerial distance of 15 km. Item 2 under the heading of

“Environmental Sensitivity” requires a clear disclosure of

“areas which are important or sensitive for ecological reasons

— wetlands, water sources or other water bodies, coastal zone,

biospheres, mountains and forests”.

72. […] The project proponent is bound by the highest duty of

transparency and rectitude in making the disclosures in Form

1.

73. There can be no manner of doubt that Form 1 is an

important ingredient in the entire process envisaged under the

2006 Notification. Hence, clause (vi) of Para 8 of the 2006

Notification provides that deliberate concealment or submission

of false or misleading information or data which is material to

screening or scoping or appraisal or decision on the application

shall make the application liable for rejection and lead to the

cancellation of a prior EC granted on that basis. The declaration

which is required of the project proponent is to a similar effect.

80. […] There is an intrinsic link between the disclosures in

Form 1 which constitute the basis for formulating ToR and

between the ambit of the EIA report required by ToR and the

final EIA report. ToR guide the preparation of the EIA report.

A failure to disclose information in Form 1 impairs the

functioning of EAC in the preparation of ToR and in

consequence, leads to preparation of a deficient EIA report.”

(Emphasis supplied)

98. Coming back to the facts of our case, our finding on the previous

issue has already made clear that procurement or allotment of land

was not a pre-requisite for making an application under Form 1.

Civil Appeal No. 7367 of 2024 Page 65 of 78

Therefore, there arises no question of deliberate concealment or non-

disclosure which vitiated the first ToR. The respondent no. 1 has not

pointed any other aspect which, in their opinion, was false or

defective in the Form 1 application made on 11.08.2021 and which

may have made the ToR itself invalid/void/insufficient in any

manner.

99. Rather, what the appellant was actually guilty of in terms of Clause

8(vi) of the EIA,2006 was concealing the fact that UPSIDA had

thereafter allotted the plot for a difference purpose i.e., for fabrication

of industrial equipment. But this was a material concealment in

connection with the appraisal stage of the EC process and had nothing

to do with Form 1. The same comes across very clearly on a bare

reading of the following observations in Aniruda Panwar (supra):

“68. […] In the absence of such evidence Respondent No 7 must

be held to have suppressed material facts from UPPCB and

UPSEIAA UPPCB and UPSEIAA must also be held to have

ignored material facts in this regard that as on 26.04.2022 when

CTE was granted by UPPCB and on 13.07.2022 when EC was

granted by UPSEIAA to Respondent No.7 for establishment of

CBWTF, establishment of CBWTF was not permissible in plots

No. E-25 and E-26 situated in Babrala Industrial Area which

had been allotted by Respondent no. 6 UPSIDA to Respondent

No 7 for setting up Industrial Fabrication Equipment

(ETP/STP/WTP/C).

69. Concealment of material information by Respondent No 7

and impermissibility of land use for establishment of CBWTF

at the time of grant of CTE and EC cannot be casually brushed

aside […]”

Civil Appeal No. 7367 of 2024 Page 66 of 78

100. It was observed that “concealment of material information…at the time of

grant of EC…cannot usually be brushed aside”. Therefore, while the

appellant’s actions were hit by Clause 8(vi) of the EIA, 2006 and

affected the appraisal of the EC, such concealment did not render the

first ToR invalid.

101. Moreover, a careful reading of Hanuman Laxman Aroskar (supra)

also reveals that due attention must be paid to the nature of the non-

disclosure or concealment in Form 1 as well. We say so because

Hanuman Laxman Aroskar (supra) linked the significance of an

accurate and complete Form 1 with its potential to enable the

EAC/SEAC to reject the application at the threshold and/or, affect the

preparation of the ToR and/or, affect the ambit of the EIA report

and/or, influence the appraisal of the application by the EAC/SEAC.

Therefore, the information which is withheld or concealed in Form 1

must be such that it will push the fresh EC process off course, into

error or astray, in some manner, small or big, unless the entire

exercise is started from scratch. In other words, there must be some

impact that such a false disclosure or non-disclosure in Form 1 would

cause to the entirety of the EC process in order to direct the applicant

to go back to the starting line. This is also precisely why Clause 8(vi)

of the EIA, 2006 uses the words “information or data which is material

to” the screening, scoping, appraisal or decision on the application,

in the context of rejecting any application or cancelling the EC

already granted. For ease of reference, Clause 8(vi) is reproduced

thus:

Civil Appeal No. 7367 of 2024 Page 67 of 78

“Deliberate concealment and/or submission of false or

misleading information or data which is material to screening

or scoping or appraisal or decision on the application shall make

the application liable for rejection, and cancellation of prior

environmental clearance granted on that basis. Rejection of an

application or cancellation of a prior environmental clearance

already granted, on such ground, shall be decided by the

regulatory authority, after giving a personal hearing to the

applicant, and following the principles of natural justice.”

(Emphasis supplied)

102. When such material information has either been concealed or

falsified, then both reason and logic demands that the same be

remedied in the fresh EC which may be re-issued. Materiality has

nothing to do with whether the lapse or error was minor or not. In

matters concerning the environment, nothing must be casually

deemed minor. However, all we wish to convey is that, before

relegating the applicant way back to Form 1, there must be some

benefit that accrues from remand to a specific stage. Some cogent

reason must exist. Hence, along with assessing whether there was

deliberate concealment and/or submission of false/misleading

information or data, the material nature of the data/information and

an assessment of which all stages could be said to have been affected

must also be looked into, especially for deciding where the applicant

has to resume from after its EC is set-aside. Whether the ToR could

have become null/void directly depends on the stage from which

this restart has to occur.

Civil Appeal No. 7367 of 2024 Page 68 of 78

103. Considering that the appellant had successfully obtained a relaxation

in the land requirement for a CBWTF from the CPCB instead of

further pursuing the procurement of additional land from UPSIDA,

it would be pointless to direct the appellant to re-apply through a

fresh Form 1 application and obtain a fresh standard ToR. In opting

to proceed with the land relaxation, even if demoted back to the Form

1 stage, the appellant would have to provide the exact same details

on the Form 1 application, the fresh standard ToR would be identical

and the fresh EIA report prepared in pursuance of it would also be

no different. Hence, when the EC is set-aside in such cases, the

applicant must not be required to mechanically restart the process,

particularly when going to the starting line virtually adds nothing to

the procedure and is purely redundant. We must be alive to the costs

and delay that would accompany such a pointless restart.

104. On the contrary, if the appellant had been unsuccessful on the

relaxation front and proceeded to procure plot E-27, then it would

have had to apply through a fresh Form 1 application and a new ToR

would have been indispensable. This is because, as we had indicated

above, the EC process is site-specific and if the project or even a part

of the project comes to be established on different land, then the EC

would be invalidated. It naturally follows that if plot E-27 was sought

to be included in the project site, then the first ToR which only

mentioned plots E-25 and E-26 respectively would have created a

mis-match. A fresh Form 1 application, followed by a fresh ToR and

a EIA report which accounted for the additional land, would have

Civil Appeal No. 7367 of 2024 Page 69 of 78

been necessary. Anticipating this precise problem, the appellant

rightly obtained a second ToR through a fresh Form 1 application

which included plot E-27. However, once plot E-27 was out of the

picture, the appellant applied to cancel the second ToR and

proceeded with the first ToR whose validity was not affected by the

decision in Aniruda Panwar (supra).

ii. Validity period of the ToR

105. Responding to the submission that the first ToR was rendered

invalid, Mr. Divan also submitted that the first ToR remained valid

for a period of four years from the date of its issuance. To substantiate

the same, he would rely on two O.M’s issued by the MoEF&CC dated

29.08.2017 and 08.06.2022 respectively, which read thus:

O.M dated 29.08.2017

“Subject: Terms of Reference for EIA/EMP studies for the

projects/activities requiring Environmental Clearance

under the ElA Notification, 2006 - Extension of validity

period - regarding.

In order to streamline the process and provide greater clarity in

issuing Terms of Reference (ToRs) for undertaking EIA/EMP

studies for the projects/activities requiring Environmental

Clearance under the EIA Notification, 2006, the following

decisions have been taken with immediate effect:

(i) The validity of ToRs for projects/activities (except for River

Valley and HEP Projects), for submission of EIA/EMP reports

shall be three years.

(ii) The validity of ToRs for River Valley and HEP Projects, for

submission of EIA/EMP report shall be four years.

Civil Appeal No. 7367 of 2024 Page 70 of 78

(iii) The above validity period can be extended by the concerned

Regulatory Authority for a maximum period of one year

without referring the proposal to the EAC/SEAC concerned,

provided an application is made by the applicant before expiry

of the validity period, together with an updated Form-1 and

proper justification and there is no change in terms and

conditions of the ToRs. After the lapse of validity, such

extension will need EAC/SEAC consideration.

(iv) Thus, an outer limit of validity of ToRs shall be 4 years for

all the projects/activities and 5 years for River Valley and HEP

Projects.

(v) The ToRs will specifically mention the date of expiry of

validity.

(vi) Extension of validity of ToRs beyond the outer limit of four

years for all projects/activities, and five years for River Valley

and HEP projects, shall not be allowed/considered by the

Regulatory Authority.

[…]

(ix) In case the proposal for Environmental Clearance along

with EIA/EMP reports based on the ToRs prescribed, is not

submitted within the validity period of ToRs, and/or not

complying with the above conditions, the process shall be started

de novo. The already collected baseline data may be re-used,

provided it is not more than 3 years old and duly recommended

by EAC/SEAC in their due diligence.

(x) In case, any proposal for ToR is delisted for want of

additional information within the time period, as stipulated by

the Ministry, the same can be listed again after the requisite

information is submitted.”

(Emphasis supplied)

O.M. dated 08.06.2022

“Subject: Standardizing the validity of baseline data and

public consultation reports for submission of proposal

within the validity period of Terms of Reference (ToR)

Civil Appeal No. 7367 of 2024 Page 71 of 78

under the provisions of EIA Notification, 2006 –

regarding.

As per the provisions of EIA Notification, 2006, Terms of

References (ToR) are being accorded to the various

developmental projects listed in the schedule to the EIA

Notification, 2006 except schedule 8(a) for undertaking

EIA/EMP study. In this regard, Ministry issued Office

Memorandum No. J-11013/41/2006-IA-II (I) (Part) dated 29th

August 2017 stating that the validity period of ToR as three

years for all the projects/activities and four years for River

Valley and HEP Projects. This validity period could be further

extended by a maximum period of one year, thereby making the

outer limit for validity of ToR as four years for all

projects/activities and five years for River Valley and HEP

projects.

[…]

6. The aforesaid matter has been examined in the Ministry. In

order to address this issue in a practical manner and to bring

uniformity in handling such proposals, the following standard

procedures shall be followed with immediate effect:

[…]

(v). In case the proposal for EC along with EIA/EMP reports

based on the ToRs prescribed is not submitted within the

validity period of ToRs, and/or not complying with the above-

mentioned criteria, the concerned Member Secretary shall not

accept the proposal and process shall be initiated de novo by the

PP.”

(Emphasis supplied)

106. The aforesaid spell out that the validity of a ToR issued for a CBWTF

would be 3+1 years. In the event the project proponent does not place

its proposal for EC along with the EIA report and other necessary

particulars, if any, before the SEIAA within the validity period of the

prescribed ToR, only then the process would have to be started de

Civil Appeal No. 7367 of 2024 Page 72 of 78

novo. Here, de novo would mean right from the making of a Form 1

application for issuance of a fresh ToR.

107. The rationale behind tethering the ToR to a set time-limit was

elucidated upon in the decision of this Court in Bengaluru

Development Authority v. Sudhakar Hegde and Others reported in

(2020) 15 SCC 63. It was stated that every ToR relies upon

information furnished in the Form 1 application which, in turn,

comprises of data on an “as is” basis. However, the environment is in

a constant state of flux and therefore, after a point, the data forming

the basis of the ToR would become outdated and the EIA study

would pale into insignificance. For this reason, the MoEF&CC did

not want to indefinitely continue the validity of a ToR. It was to

account for such environmental dynamism that an outer limit was

laid down. The relevant observations are thus:

“48. Significantly, the process of obtaining an EC commences

from the production of the information stipulated in Form

1/Form 1-A. Information submitted in Form 1 relies on data

and information on an “as is” basis at the relevant time of

submitting information. Material information regarding the

particulars of the proposed project as well as the potential

impact on the environment is sought to enable the EAC or the

SEAC to prepare a comprehensive TOR on which basis the

applicant proceeds to prepare the EIA report.[…]

49. MoEFCC stated that it was clearly undesirable to

indefinitely continue a TOR. The environment is, by its very

nature, dynamic. Soil quality, air characteristics and

surrounding flora and fauna are among the characteristics of

the environment which are constantly in a state of flux. A

Civil Appeal No. 7367 of 2024 Page 73 of 78

robust framework of environmental governance accounts for the

dynamic nature of the environment. It is for this reason that

project proponents are also required to ensure the submission of

an Environmental Management Plan and compliance with the

monitoring procedures envisaged under the 2006 Notification.

An indefinite TOR defeats the very purpose which underlies the

2006 Notification for it may lead to situations where the state of

the environment has changed drastically, yet the EIA process is

carried out on the basis of outdated information.[…]”.

(Emphasis supplied)

108. In light of all the aforesaid, the first ToR could not be said to have

been invalidated when the first EC was set-aside by Aniruda Panwar

(supra), especially when it remained unimpacted by the reasons due

to which the first EC was quashed. It would be irrational for a ToR to

be allowed the full extent of its validity period solely when the EC

process is ongoing i.e., when the project proponent is yet to complete

the EIA study or the public consultation or submit his EC proposal

before the SEIAA. It is not the case of the respondent no. 1 that the

baseline data was outdated or faulty. Therefore, viewed from all

angles, the first ToR was still valid and the second EC could have

been granted on the basis of the first ToR.

109. It also cannot be said that the very factum of issuance of the second

ToR indicated that the first ToR could no longer be put to use. We

have explained why the second ToR may have been necessary if an

additional plot was sought to be acquired by the appellant. Based on

subsequent factual developments, the appellant ensured that the

same was duly withdrawn on 21.11.2023.

Civil Appeal No. 7367 of 2024 Page 74 of 78

V. CONCLUSION

110. A conspectus of the aforesaid discussion is as follows:

i. 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 (supra) 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.

ii. 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

Civil Appeal No. 7367 of 2024 Page 75 of 78

well as revocation of permissions. Any reliance on the ratio in

Gulf Goans (supra) would, therefore, be misplaced.

iii. 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. The 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.

iv. Clause 6 of the EIA, 2006 states that an application in Form 1 can

be made after the identification of prospective site(s). Therefore, land

allotment cannot be said to be a pre-condition for the making of

an application under Form 1.

v. The O.M. dated 07.10.2014 issued by the MoEF&CC clarifies

that, at the stage of appraisal of the EC i.e., at Stage IV, some

credible document showing the intent of the land owner(s) to

sell the land for the proposed project must be obtained in case

the land is being acquired through private negotiations. In the

Civil Appeal No. 7367 of 2024 Page 76 of 78

context of the present case, such a credible document would

either be a successful allotment in favour of the appellant for the

establishment of a CBWTF or, if the allotment is not in vogue,

then a provisional allotment/acknowledgment issued by the

UPSIDA for the establishment of a CBWTF.

vi. A perusal of the order dated 20.09.2021 issued by the MoEF&CC

as well as Section 25 of the Water Act and Section 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 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.

Civil Appeal No. 7367 of 2024 Page 77 of 78

vii. 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.

viii. The second EC and second CTE were both granted in favour of

the appellant on 20.12.2023 after land was allotted to it by the

UPSIDA on 19.09.2022 and after relaxation was granted by the

CPCB on 17.11.2023. Therefore, as far as the fulfilment of land

acquisition conditions are concerned, the second EC and second

CTE was not vitiated.

ix. The setting aside of the first EC by the decision of the Tribunal

in Aniruda Panwar (supra) 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.

111. In view of all the aforesaid, we have reached the conclusion that the

NGT committed an egregious error in passing the impugned

judgment quashing the second EC and second CTE respectively.

112. As a result, this appeal succeeds and is hereby, allowed. The

impugned judgment and order passed by the NGT, Principal Bench,

is hereby set-aside.

Civil Appeal No. 7367 of 2024 Page 78 of 78

113. Pending applications, if any, shall also stand disposed of.

114. Registry shall forward one copy of this judgment to the National Green

Tribunal, Principal Bench, New Delhi and the Principal Bench

thereafter shall circulate the judgment to all the circuit benches of the

Tribunal

… ................................. J.

(J.B. PARDIWALA)

New Delhi.

7

th September, 2026.

… ................................. J.

(MANOJ MISRA)