1. The Present Appeal has been filed against the letter No. 1530/SEIAA/2018 dated 12.10.2018, granting prior environment clearance in favour of Respondent M/s. India Waste Management Pvt. Ltd. at 30 MIG Quarters Bhadbhada Road, T.T. Nagar, Bhopal-462003 for establishment of Common Bio-Medical Waste Treatment Facility.

2. The appellants submits that, the project proponent has been granted EC without taking multiple serious environmental factors into consideration such as:

a. The impugned EC is issued against the intent and procedure prescribed in EIA Notification 2006, and its subsequent amendments.

b. The impugned EC is against CPCB Guidelines for installation of Common Bio-Medical Waste Treatment Facility.

c. The impugned EC is based on false and fabricated data submitted by the Project Proponent.

d. The public hearing has been deliberately avoided, against the EIA Notification, 2006; OM dated 16.05.2014 and OM dated 10.12.2014 issued by MoEF, Govt. of India by knowing the fact that, the project is proposed in the close proximity human habitation of village Khalarkalan, school and religious structures.

e. The, Consent to Establish of the project were granted earlier than procedure of EC initiated. Hence the term prior Environmental Clearance is vitiated.

3. The respondent incinerator has been established in close proximity of residential area and nearby school without assessing the environmental impact on school going children and inhabitants. The project proponent has concealed vital information and managed to get the impugned EC regarding close proximity of human habitation and severe impacts due to the activities.

4. Major pollutants are found medical waste incinerator such as Dioxins, furans, organic compounds such as benzene, carbon tetrachloride, chlorophenols, toluene, xylenes, polycyclic aerometric hydrocarbons, vinyl chloride, heavy metals such as Cd, Cr, Cu, Pb, Mg, Ni, etc Acid gases such as HF1, SO2, NO2 along with pathogens and particulates matters which emissions have serious repercussion and adverse effects on health of workers as well residents nearby. Pollutants from incinerators are of bio accumulate, bio magnify, and are capable of being transported greater distance threatening public health and ecosystem. The PP has skipped the impacts on human environment whereby, even Committee has failed to appreciate the adverse impacts and its mitigating measures therefore, the impugned EC is unscientifically issued deserve dismissal.

5. On the basis of the application, the applicant has prayed for the relief to pass an order thereby quashing the impugned EC letter no. 1530/SEIAA/2018 dated 12.10.2018 in favour of Respondent M/s. India Waste Management Pvt. Ltd. at 30 MIG MLA Quarters Bhadbhada Road, T.T. Nagar, Bhopal (MP)-462003.

6. The replies have been submitted by all the respondents and rejoinders to the affidavits have also been placed on record. By filing the reply, respondent no. 1-State Environment Impact Assessment Authority (SEIAA) through its Chairman has submitted that:

“3. The contents of this para vehemently denied the prior environmental clearance issued by SEIAA is according to the prevailing regulations and guidelines issued from time to time by the MoEF & CC as the SEIAA is a creation of MoEF & CC and purely works as per the mandate of MoEF & CC The Applicant has placed his heavy reliance on the guidelines of CPCB issued for the installation of Common Bio Medical Waste Treatment Facility whereas the Applicant has suppressed the important factum of the matter that the CPCB which is the authorized authority to issue citing and installation guidelines for setting up Common Bio Medical Waste Treatment Facility had infact, inspected the subjective site and on the basis of the observation and inspection finding report dated 06/03/2017 the EC dated 12/10/2018 was granted in the favour of the Project Proponent.

Further it is clarified that the Mandideep Industrial Area is situated at the distance of 23 KM from Bhopal which is falling within the territory of District Raisen. The Mandideep Industrial Area was established on or about 14/12/1981 on an earlier date before the issuance of EIA notification dated 14/09/2006. The Copy of Department Circular No. F-/A/81/11/A dated 14/12/1981 is marked and filed herewith as ANNEXURE-R1/1.

The SEIAAs as per the EIA notification dated 14/09/2006 shall base its decision on the recommendation of the State or the State Level Expert Appraisal Committee (In Short SEAC1 which shall screen, scope, appraise project or activities as per the applicable category respectively. In this matter under reply the Madhya Pradesh State Pollution Control Board had already issued the consent to establish dated 26/03/2016 in the favour of the Project Proponent and the Respondent No. 1 as per the mandate of MoEF &CC and the EIA notification dated 14/09/2006 amended upto date has issued the EC dated 12/10/2018 which is under challenge in this present appeal therefore in absence of challenging the valid consent to establish issued by MPPCB the appeal is not maintainable in the eyes of law therefore deserves to be dismissed on this count alone.

4. That the State Level Expert Appraisal Committee (In Short SEAC) while dealing with the issue by way of screening, scoping, appraisal of the project has given its recommendations in favour of setting/establishing the proposed project at the subjective site and the Appellants have failed to provide any concrete material to counter the observations and finding of State Level Expert Appraisal Committee.”

13. The CPCB had submitted its inspection report dated 06/03/2017 in furtherance of order dated 16/02/2017 passed by the Hon'ble Tribunal therefore the inspection report was prepared under the directions passed by the Honble Tribunal and the findings of the inspection report were not challenged by way of filing objections by the parties in such circumstances the inspection report has attained the status of admitted facts and now the principle of estoppel would come into play and the Appellants are not in the legal position to contradict the findings of the inspection report. As far as the close proximity of human habitation is concerned a detailed reply is already given and the contents pertaining to the close proximity of human habitation is repetition of earlier paragraphs therefore do not warrant any further reply from the answering respondent.

14. The establishment of Additional CBWTF is an environmental friendly activity which provides more options to the users for scientific disposal of the Bio Medical Waste generated in the particular area/locality. Further the guidelines issued by CPCB are not notified therefore in view of the Judgment rendered by the Hon'ble Apex Court reported as (2014) 10 SCC 673 Gulf Goans Company Limited v. Union of India) has held that where the alleged environmental guidelines were not Gazzetted held same were not enforceable the relevant paragraphs of the Judgment are quoted below:—

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. In Harla v. State of Rajasthan [AIR 1951 SC 467 : 1952 Cri LJ 541 while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observed: (AIR p. 468, para 8)

“8. … Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what it is, or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more, is abhorrent to civilized man.”

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. In law, the said guidelines and their binding effect would be no more than what was expressed by this Court in State of Uttaranchal v. Sunil Kumar Vaish [(2011) 8 SCC 670 : (2011) 4 SCC (Civ) 325 : (2011) 3 SCC (Cri) 542 : (2011) 2 SCC (L&S) 410] in the following paragraph of the report: (SCC p. 678, paras 23-24)

“23. It is settled law that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case maybe [Article 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in the manner specified in the rules made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.

24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, can such noting be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.”

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 followed in the present case insofar as the promulgation of the guidelines is concerned.

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.Af. 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. The decision in Air India Cabin Crew Assn. v. Yeshaswinee Merchant [(2003) 6 SCC 277, p. 311, pans 72 : 2003 SCC (L&S) 8401, 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.”

7. The respondent no. 7 has filed the separate reply and stated that the present appeal is barred by limitation as provided under Section 16 of the National Green Tribunal, Act, 2010. The order dated 12.10.2018 has been assailed in the present appeal which has been filed on 12.11.2018 and it is alleged that it is after the mandatory period of limitation of 30 days.

8. It is further submitted that the appellant got the appeal on board and such a stage when in pursuance of the Environmental Clearance dated 12.10.2018 almost about 90 per cent of the work of project is completed incurring investment of crores of rupees. Since, the project of answering respondent is located in Mandideep Industrial Area, which has been established as such before 1980, thus, as per the EIA Notification, 2016 and its subsequent clarification, public consultation is not required for the project being located in an industrial area. It is further argued that the application for consent to establish has been considered in the light of MPPCB's office order dated 26.03.2016. Thus, there has been no illegality in the same moreover, the consent to establish is not under challenge in the present appeal.

9. It is further argued that the terms of reference were issued to the PP on 25.02.2017, wherein the PP was also present in the meeting. Thereafter, a detailed EIA study was conducted for three months from March 2017 to May 2017 and finally thereafter the said EIA report was submitted on 19.06.2017, on the point of study of gap analysis, it is submitted that:

27. A detailed study viz. gap analysis was conducted in compliance of clause 2(a) & 2(b) of the CBWTF guidelines 2016, wherein it has been found that in Bhopal and Sehore District more than 22,000 beds are existing, as well as the proposed additional bed strength of 4,300 is to be established in Bhopal and Vidisha District. In Government Hamidia Hospital, Bhopal additional bed strength of 2000 is under way, additional bed strength of 1000 beds is under way at All India Institute of Medical Science, Bhopal, additional bed strength of 1000 beds is also under way at upcoming Government Medical College, Vidisha and additional bed strength of 300 beds is under way at 27. KNK Hospital, Bhopal.

The existing bed strength at government and private hospitals in Betul, Harda, Hoshangabad and Raisen District is 9,380 beds. Similarly, bed strength of 1750 Is also to be covered by the proposed CBWTF as captive incinerators are under closure throughout the country and a captive incinerator at Peoples Medical College and Hospital, Karond, Bhopal, which is about to be closed.

It is most important to submit that as per Rule 2 of the Bio Medical Waste Management Rules, 2016, the said rules shall apply to all hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories, blood banks, ayush hospitals, clinical establishment, research or educational institutions, health camps, medical or surgical camps, vaccination camps, blood donation camps, first aid rooms of schools, forensic laboratories and research labs. Thus, in the light of the enlargement of the scope of the bio medical waste management rules, the calculation of bed strength is to be done accordingly given the scope of new rules. Hence, as per the calculation of equivalent bed strength for bio medical waste generated from veterinary institutions, animal houses, pathological laboratories, blood banks, ayush hospitals, clinical establishment, research or educational institutions, health camps, medical or surgical camps, vaccination camps, blood donation camps, first aid rooms of schools, forensic laboratories and research labs, the bed strength for the same came to 8500 beds.

29. That, the area of operation of M/s. Environment Protection Corporation, Sehore is only Bhopal, as provided by them in their consent to establish. The area of operation of the project of the answering respondent is not just Bhopal, but is also Vidisha, Sehore, Raisen, Betul, Harda, Hoshangabad, Khandwa, as there is no other incineration facility from Raisen to the south border of Madhya Pradesh - Maharashtra. Thus, in the light of the fact that in the range of 150 kms towards south side there is no other incineration facility and the incineration facility of the answering respondent being situated on the southern-most part, the territorial limit for counting of beds for the facility ofthe answering respondent increases from 75 kms to 150 kms. There is infact a gap study also conducted for coming 5 years, as per which government medical facilities of more than 5000 beds are immediately coming up in Bhopal and Raisen itself.

10. Reply submitted by respondent no. 1 or respondent no. 6 are approximately similar in nature. We have also gone to the rejoinder to the reply and heard the arguments of the parties.

11. Learned counsel for respondent no. 07 had submitted that appeal was filed to some delay and that the appellant had moved several adjournments and awaited till the period when 90% of the project is completed and a heavy investment was done. These objections are not material as of now since we have heard on merit and it would be better to proceed to decide the appeal on merit.

12. Learned counsel for the appellant had submitted that the issue of proximity of the plant with human settlement had not been considered and in reply thereof, it has been argued on behalf of the respondent that in light of the complaint on the above issue, an inspection was carried out by the Pollution Control Board wherein it has been found that no construction activity has been started on the site which is surrounded by industrial plots on all sides and no residential area or school is found adjacent to the said plot. The State Pollution Control Board has submitted that CBWTF facility can be established in industrial area. The Central Pollution Control Board in its inspection report has given a conclusion that the proposed CBWTF facility project is located in notified in Mandideep industrial area which was developed in the years between 1970-1980 in which industries of all categories are existing.

13. It is further argued that SEIAA vide its resolution in the meeting has clarified that the distance of habitation from the project site is not relevant as the project is situated within the industrial area Mandideep, District Raisen which has been established and is notified industrial area. The gap analysis was also examined in accordance with the guidelines wherein it has found that the Bhopal and Sehore District have more that 22,000 beds as well as the proposed bed strength of 4300 is to be established in Bhopal and Vidisha District. In Government Hamidia Hospital, Bhopal additional bed strength of 2000 is underway, additional bed strength of 1000 bed is underway at All India Institute of Medical Sciences, Bhopal, additional bed strength of 1000 bed is also underway at upcoming government medical college, Vidisha and additional bed strength of 300 beds is underway at K.N.K. Hospital, Bhopal. Similarly, existing bed strength at government and private hospitals in Betul, Harda and Hosangabad and District Raisen District has been considered and examined and after the study of the gap analysis, due permission was sanctioned in accordance with the study.

14. It was argued on behalf of the respondent that calculating the strength of bed which is more than 45000, it is not even just sufficient for 4 incinerator but also require opening of 5 incinerator Clause 7(b) of CBWTF Guidelines, 2016 as argued, provides that CBWTF is allowed to operate even 10,000 beds are not available in 75 K.M. radial distance and it may cater to the health care units situated outside 75 K.M. radius provided there is no other CBWTF in the adjoining 75 K.M. radial distance.

15. The learned counsel appearing for the SEIAA has submitted that CPCB had submitted its inspection report in light of the order passed by the Tribunal. Therefore, the inspection report which was prepared under the direction passed by this Tribunal and if the inspection report was not challenged by way of filing the objection, it is now admitted facts and the law of principle of estoppel would come into play and the appellants are not in a position to contradict the finding of the inspection report.

16. Considering above all aspects, reply, objection and rejoinder to the reply, we are of the view that the appeal is devoid of any merit and have no substance and therefore deserves to be dismissed.

17. Accordingly, the appeal is dismissed, no order as to costs.