1. Introduction
This decision clarifies the regulatory framework governing the establishment of Common Bio-medical Waste Treatment Facilities (“CBWTFs”). The dispute arose after the National Green Tribunal (“NGT”) set aside the Environmental Clearance (“EC”) and Consent to Establish (“CTE”) granted to M/s Punahchakran Private Limited for a facility on plots E-25 and E-26 in the UPSIDC Industrial Area, Babrala, District Sambhal, Uttar Pradesh.
The appellant initially applied for the plots to establish a CBWTF, but the allotment was rejected. The plots were subsequently allotted for an industrial equipment fabrication unit, and permission to change their use to a CBWTF was granted only later. The first EC and CTE were consequently invalidated in Aniruda Panwar and Anr. v. Ministry of Environment, Forests and Climate Change and Ors.
After obtaining land-use approval and relaxation from the ordinary one-acre requirement, the appellant secured a second EC and CTE on 20 December 2023. Indotech Waste Solution, another bio-medical waste operator, challenged those approvals. The NGT again quashed them, principally holding that the land relaxation was unavailable and had been granted without proper application of mind.
The Supreme Court was required to decide:
- whether the Revised Guidelines for Common Bio-Medical Waste Treatment and Disposal Facilities, 2016 (“RG, 2016”) are legally binding despite not being gazetted;
- whether relaxation from the one-acre land requirement was permissible;
- what degree of interest in land is required at the Form 1, EC appraisal and CTE stages; and
- whether the second EC could validly rest on the first Terms of Reference (“ToR”).
3. Analysis
3.1 Mandatory character of the RG, 2016
The Court traced the RG, 2016 to Sections 6, 8 and 25 of the Environment (Protection) Act, 1986 and the Bio-Medical Waste Management Rules, 2016. Rules 3, 5, 14 and 17 expressly contemplate compliance with guidelines issued by the Central Government or CPCB. Schedule III also requires the CPCB to formulate criteria for establishing CBWTFs.
The guidelines were therefore not informal administrative advice. They formed an integral part of the statutory authorisation mechanism governing the establishment, operation and monitoring of CBWTFs.
Publication without gazettal
The Court developed a nuanced rule on publication. Publication in the Official Gazette remains the ordinary method, but it is not invariably indispensable. Where neither the parent statute nor subordinate legislation prescribes a particular mode, another reasonable and reliable form of publication may suffice.
Since the RG, 2016 are technical standards addressed to identifiable regulators and project proponents, their publication on the CPCB’s official website gave sufficient notice. They were also deeply embedded in the EC, CTE and CTO processes. Their non-publication in the Gazette therefore did not deprive them of binding force.
3.2 Lawfulness of the land relaxation
Clause 7 ordinarily requires a CBWTF to be established on not less than one acre. The word “preferably” does not make the standard optional; it mainly permits the one-acre area to comprise adjacent plots. Relaxation below one acre, but never below 0.5 acre, is available only where:
- the facility is within municipal limits having a population exceeding 25 lakh; or
- the facility is situated in a rural area.
Consultation with the CPCB and additional control measures are also mandatory.
The NGT treated the site as falling within Babrala Nagar Panchayat, whose population was below 25 lakh. The Supreme Court relied on the District Magistrate’s report, revenue records and the relevant Gazette notification to find that the industrial area was located in Village Noorpur, within Noorpur Gram Panchayat and approximately 2.6 kilometres from the boundary of Babrala Nagar Panchayat.
The rural-area condition was therefore fulfilled. The CPCB had additionally required zero liquid discharge, enhanced stack and emission safeguards, odour-control measures, online continuous emissions monitoring and an initially restricted incinerator capacity. These safeguards demonstrated consideration of operational effectiveness in the smaller 0.89-acre site.
Although the UPPCB had inaccurately described the earlier approvals as “null and void but not illegal”, the mistake did not materially influence the CPCB’s decision. Consideration of the appellant’s investment also did not establish malice in law when the statutory preconditions and environmental safeguards had independently been satisfied.
3.3 Stage-specific requirements concerning land
Form 1 stage
Clause 6 of the EIA Notification, 2006 requires only the “identification of prospective site(s)” before filing Form 1. A completed allotment, conveyance or lease is unnecessary. The appellant’s applications to UPSIDA for plots E-25 and E-26 as a CBWTF site were sufficient identification.
EC appraisal stage
The standard becomes stricter at Stage IV appraisal. Under the Ministry’s Office Memorandum dated 7 October 2014, a credible document must show the status of land acquisition and demonstrate that the site is genuinely available for the proposed project.
In this case, that document could have been a successful allotment, provisional allotment or acknowledgement from UPSIDA specifically permitting establishment of a CBWTF. An allotment for an industrial fabrication unit was insufficient.
CTE and CTO stages
Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 create a system of prior consent. The EC and consent processes arise under different statutes and may proceed in parallel.
A CTE can accordingly be sought and granted before the EC, provided the pollution control authority identifies the need for EC. A CTO, however, cannot be issued unless the required EC has already been obtained. Successful land allotment is not itself a precondition to a CTE, though any necessary relaxation from the land-area requirement must precede its grant.
Application to the two sets of approvals
The first EC remained invalid because, at appraisal, no credible document permitted the land to be used for a CBWTF. The subsequent change of use could not retrospectively cure that defect. The first CTE was also invalid because the site was below one acre and no relaxation had then been obtained.
The second approvals were different. By their issuance on 20 December 2023, the appellant had obtained both permission to use the plots for a CBWTF and CPCB-approved relaxation from the one-acre standard. The defects affecting the first approvals had therefore been cured.
3.4 Continued validity of the first ToR
The Court rejected the proposition that quashing an EC automatically destroys every earlier stage of the process. The appropriate point of recommencement depends on where the illegality arose:
- a defect confined to appraisal ordinarily requires reconsideration from appraisal;
- a defective EIA report may require a fresh report under the existing ToR; and
- false or materially incomplete information in Form 1 may require the entire process to begin again.
The appellant had not concealed information material to the initial identification of the site or issuance of the first ToR. Its concealment concerned the subsequent allotment of the land for a different industrial purpose, which affected appraisal. Consequently, the first ToR survived.
The Court also held that remand must serve a practical purpose. Once the appellant abandoned the attempt to acquire plot E-27 and secured relaxation for plots E-25 and E-26, a new Form 1, standard ToR and EIA report would have been substantially identical. Requiring a complete restart would merely impose cost and delay without improving environmental scrutiny.
Under the applicable Office Memoranda, a ToR for this category has an initial validity of three years, extendable by one year. The first ToR was still within its permissible period, and there was no allegation that its baseline data had become obsolete.
4. Precedents Cited
This case held that non-statutory executive guidelines could not be enforced prejudicially unless they had acquired the force of law through a clear mandate, identifiable purpose, authentication and adequate publication. The Supreme Court distinguished it because the RG, 2016 have express statutory roots in the Bio-Medical Waste Management Rules, 2016. The decision cannot be used mechanically to invalidate every guideline not published in the Gazette.
B.K. Srinivasan and Others v. State of Karnataka and Others
This was the central publication precedent. It recognises three situations: where the parent statute prescribes publication, that method must be followed; where subordinate legislation prescribes a reasonable method, that method may suffice; and where both are silent, publication through the Gazette or another reasonable mode is necessary. The Court applied the third category and held publication on the CPCB website reasonable.
These decisions establish that failure formally to express executive action in the President’s name under Article 77 does not automatically make it void. It merely removes the constitutional presumption of authenticity; competence may still be proved independently. They supported the validity of the CPCB guidelines.
Authorities requiring Gazette publication
Pankaj Jain Agencies v. Union of India and others, I.T.C. Bhadrachalam Paperboards and Another v. Mandal Revenue Officer, A.P. and Others, Union of India and Others v. Ganesh Das Bhojraj, Nabha Power Limited and Another v. Punjab State Power Corporation and Another, Sammbhu Nath Jha v. Kedar Prasad Sinha and Others, State of Kerala and Others v. P.J. Joseph and VIRAJ IMPEX PVT. LTD. v. UNION OF INDIA and Another were distinguished because the governing statutes expressly prescribed publication in the Official Gazette.
Harla v. State of Rajasthan, Rajendra Agricultural University v. Ashok Kumar Prasad and Others and Ramakrishna Vivekananda Mission v. State Of W.B. and Others concerned failures to publish statutes or rules themselves, rather than technical guidelines issued within an already published statutory framework. Narayana Reddy v. State of A.P. was noted through the discussion in B.K. Srinivasan and Others v. State of Karnataka and Others as illustrating that alternative publication may suffice for instruments affecting a confined class or locality.
This decision emphasised that Form 1 is the foundation of the EC process and that concealment of information material to screening, scoping or appraisal can vitiate the entire clearance. The Court accepted that principle but held it inapplicable to the first ToR here. The relevant defect arose at appraisal, not in the initial site identification. The judgment further clarified that materiality and the procedural stage affected must determine how far the process should be remitted.
This authority explained why a ToR must have finite validity: environmental conditions and baseline data change over time. It supported the three-year period, extendable by one year, while also confirming that a still-current ToR need not be discarded without a substantive reason.
Indian Railway Construction Co. Ltd. v. Ajay Kumar and State of NCT of Delhi v. Sanjeev
These cases were relied on by Indotech Waste Solution for judicial review of discretionary administrative action. The Supreme Court did not dispute those principles but found no basis for intervention because the CPCB and UPPCB had satisfied Clause 7, imposed environmental safeguards and acted within their statutory authority.
Aniruda Panwar and Anr. v. Ministry of Environment, Forests and Climate Change and Ors.
The Supreme Court disagreed with the NGT’s broad proposition that land must already have been procured before the EC or CTE process begins. Nevertheless, it accepted the ultimate invalidation of the first approvals on narrower grounds: the first EC lacked credible land documentation at appraisal, and the first CTE was granted for a sub-one-acre site without prior relaxation.