GAURAV GARG v. UNION OF INDIA

O.A. No. 774/2022 Gaurav Garg Vs. Union of India & Ors.

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1. Whether the Uttar Pradesh Pollution Control Board (UPPCB) can allow a Common Bio-Medical Waste Treatment Facility (CBWTF) to operate in violation of Ministry of Environment, Forest and Climate Change, Government of India (MoEF&CC) Notification dated 17.04.2015, MoEF&CC Order dated 20.09.2021 and the Central Pollution Control Board (CPCB) Guidelines for Common Bio Medical Waste Treatment and Disposal Facilities dated 21.12.2016 (CBWTF Guidelines 2016)?

2. Whether UPPCB has the power to Grant or Renew the Consent to Operate a CBWTF in violation of Order dated 20.09.2021 issued by MoEF&CC?

3. Whether the Meerut Development Authority (MDA) can allow a CBWTF to carry out its Operation in Non-Conforming Area/Non Industrial Area?

Objections/Challenges by the Applicant to the operation of CBWTF run by the Project Proponent

2. Briefly stated, the case of the Applicant as enumerated in the application is that Respondent No. 8 has established its CBWTF in District Meerut, Uttar Pradesh. In accordance with Uttar Pradesh Urban Planning and Development Act, 1973, Respondent No. 6 MDA prepared Master Plan 2021 for Meerut. As per the above said Master Plan, the land on which the Subharti Medical College is established is not an Industrial land. However, instead of following the law of land Respondent No. 8 in connivance with the officers of MDA not only established its CBWTF within the Medical College Campus but also started operation of the same. UPPCB, instead of respecting the Notification dated 17.04.2015 issued by Respondent No. 1 and the CBWTF Guidelines issued by Respondent No. 2, not only allowed Respondent No. 8 to carry out operation of the CBWTF but also never directed Respondent No. 8 to obtain

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Environmental Clearance (EC) and as such violated the Law of the land. UPPCB vide its Letter dated 10.01.2019 issued consent to operate to Respondent No. 8 but did not deliberately, willfully and intentionally mention about compliance with the MoEF&CC Notification dated 17.04.2015. Vide its Order dated 20.09.2021, Respondent No. 1 directed all the State Pollution Control Boards including the UPPCB to make it mandatory for CBWTF to obtain EC and directed all the State Pollution Control Boards including the UPPCB to not to renew the Consent to Operate unless the CBWTF obtained the EC as provided under EIA Notification. Respondent No. 8 by way of carrying on operation of its CBWTF in Non-Conforming Area and without obtaining EC as directed by UPPCB has not only violated the various provisions of Environment (Protection) Act, 1986 and the rules made thereunder but has also caused irreparable damage to the environment. By allowing Respondent No. 8 to operate a Red Category Industry in Non- Industrial Area/Non-Conforming Area, MDA has acted in violation of Bio Medical Waste Management Rules, 2016 (BMWM Rules 2016) and Revised CPCB Guidelines 2016.

3. So far as the question of limitation is concerned, the Applicant has submitted that cause of action in the present application is continuous/recurring one and as per the judgment in Original Application No. 327 of 2015 titled as Doaba Paryavaran Samiti Vs. Union of India and others the present application is within Limitation.

4. The applicant has accordingly prayed for the grant of the following reliefs:-

"a. Direct the UPPCB to seal the Common Bio Medical Waste Treatment Facility of Respondent No. 8 as the same is operating without EC and as such is in violation of Environment (Protection) Act-1986, Bio Medical Waste Management Rules- 2016, MoEF&CC Guidelines dated 17/04/2015 and CPCB Guidelines.

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b. Direct District Magistrate-Meerut to stay the operation of Common Bio Medical Waste Treatment Facility of Respondent No. 8 as the same is operating in NON INDUSTRIAL AREA / NON CONFORMING AREA and as such is in violation of Environment (Protection) Act-1986, Bio Medical Waste Management Rules-2016, MoEF&CC Guidelines dated 17/04/2015, MoEF Order dated 20/09/2021 and CPCB Guidelines.

c. Direct Respondent No. 1 to entertain its power as prescribed under Section 05 of the Environment (Protection) Act-1986 and as such issue an Order to stop the supply of electricity, water and other services provided to the Common Bio Medical Waste Treatment Facility of Respondent No. 8.

d. Direct the Central Pollution Control Board to inspect the BIL MEDICAL WASTE DISPOSAL FACILITY to calculate the ENVIRONMENTAL DAMAGE done by Respondent No. 6. e. Impose exemplary environmental compensation against the Respondent No. 8 under the polluter pays principle as provided under Section 20 of the National Green Tribunal Act-2010. f. Pass any such other or further order as this Hon'ble Tribunal may deems fit and proper in the facts and circumstances of the present case."

5. Vide order dated 21.10.2022, notices were ordered to be issued to the respondents. As per office report, notices were duly served on the respondents. None appeared for Respondents No. 3 and 7 despite due service. Therefore, Respondents No. 3 and 7 were proceeded against ex-parte. Reply/response has been filed by Respondent No. 2 vide email dated 25.11.2022; by Respondents No. 4 and 5 vide email dated 16.02.2023; by Respondent No. 6 vide email dated 02.02.2023 and by Respondent No. 8 vide email dated

30.01.2023.

Response on behalf of Respondent No. 2

6. In its reply Respondent No. 2-CPCB has submitted that the CBWTF operator is required to obtain 'EC (EC)' from the State Environment Impact Assessment Authority (SEIAA) or MoEF&CC, as the case may be, before any construction work, or preparation of land by the project management in accordance with amendment to the EIA Notification 2006 published vide

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MoEF&CC Notification No. S.O. 1142 (E) dated 17.04.2015. As per the BMWM Rules 2016 State Pollution Control Boards/Pollution Control Committees are the Prescribed Authority in respect of States/Union Territories to ensure effective implementation of the BMWM Rules 2016. With regard to operation of CBWTF by Respondent No. 8 inside the premises of hospital, the facts may be verified by UPPCB in line with BMWM Rules 2016 as well as Revised CPCB CBWTF Guidelines 2016.

Response on behalf of Respondents No.4 and 5

7. In their response Respondents No. 4 and 5 have submitted that the Respondent No. 8 was in operation before Notification No. S.O. 1142 (E) dated 17.04.2015 was issued by MOEF&CC. The Respondent no. 8 has upgraded the existing incinerators to achieve the standards for retention time of 2 second of resident time for the purpose of emitting the gases without any increase in the capacity of the incinerators i.e. 300kg/hr. UPPCB has sought opinion from MOEF&CC vide letter dated 06.01.2021 as to whether EC is required or not and the same is still pending with MOEF&CC. Application dated 01.10.2022 of the Respondent No. 8 for renewal of the consolidated consent to operate under the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act) and the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) was rejected by UPPCB vide its letter no. 166365/UPPCB/Meerut/2022 dated 25.12.2022. After issuing show cause notice to the respondent no. 8, UPPCB has imposed Environmental Compensation of Rs. 10,80,000/- vide its letter dated 15.02.2023. The respondent no. 8 closed CBWTF by his own due to non- availability of mandatory consent. For the alternative arrangement for collection and treatment of the Bio-medical Waste the Project Proponent is sending Bio-medical waste to M/s Envirad Medicare Pvt. Ltd., Bareilly and M/s Synergy Waste Management Pvt. Ltd., Barabanki for disposal.

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Reply on behalf of the Respondent No. 6

8. In its reply the respondent No. 6 has submitted that in the year 2009, the Subharati KKB Charitable Trust decided to open a university named Swami Vivekanand Subharti University ("SBSU"). The SBSU was established in the Institutional Area. The Subharati KKB Charitable Trust approached the Respondent No. 6 on various occasions for approval of maps for extension of the SBSU and opening new facilities and institutions. After scrutiny the layout plans were sanctioned. While granting aforesaid sanctions, the Respondent No. 6 verified all the clearances including but not limited to clearance from UPPCB under the Bio-Medical Waste (Management and Handling) Rules, 1998 (BMWH Rules 1998). The Respondent No. 8 is also running CBWTF since 2002 within the premises of SBSU. The CBWTF was established before enactment of the BMWM Rules, 2016. The BMWH Rules 1998 applied to establishment of the CBWTF. The Respondent No. 6 was not the Prescribed Authority for establishment of CBWTF. The Respondent No. 6 acted as per the provisions of the BMWH Rules 1998. No such land specification as claimed was prescribed under the The BMWH Rules 1998. The Respondent No. 8 had taken CTO in the year 2002 and subsequently from time to time from UPPCB.

Reply on behalf of Respondent No. 8-Synergy Waste Management Pvt. Ltd.

9. In its reply the Respondent No.8 has submitted that in the year 2002, all the Hospitals with 50 bedded and above capacity in the country were asked to install a Bio-Medical Waste Treatment Plant within their compound. But since operating a Bio-Medical Waste treatment plant was expensive and space consuming, therefore, hospitals decided to give their waste to the CBWTFs which was easier to them in terms of infrastructural costs and compliances. Respondent No. 8 set up the CBWTF in the year 2002 on the land taken on lease from the Subharti Medical College as per provisions of the BMWH Rules 1998 prevalent at that time. Since 2002, the Respondent No.8 has been

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complying with all the statutory requirements issued by the UPPCB, CPCB and /or MOEF&CC. The CBWTF was established by fulfilling all legal and valid requirements as required at that point of time on the land taken on lease from the adjoining hospital as per norms and guidelines. The CBWTF obtained authorization from UPPCB under the BMWH Rules 1998/BMWM Rules 2016 from time to time, as mentioned here-under:

The Respondent No. 8 obtained Consent to Operate from UPPCB under the

provisions of the Water (Prevention & Control of Pollution) Act, 1974 and

the Air (Prevention & Control of Pollution) Act, 1981 which was extended

from time to time as mentioned hereunder:-

Consent Issued Under the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981

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As a panic reaction to filing of the present application, the UPPCB rejected

the application for renewal of Consent under the Air Act and the Water Act

after 31.12.2022 without any valid reason and without affording an

opportunity of hearing despite the fact that the same was being renewed from

time to time as stated above. The Respondent No. 8 is providing services to

5,668 numbers of government as well as private hospitals/clinics/maternities/

veterinaries/ pathology centers from the CBWTF and livelihood of number of

workers/employees is connected with the same.

10. The Respondent No. 8 has denied the requirement of seeking of EC from SEIAA and submitted that the mandate for the environment clearance came into picture firstly in the year 2015 when by Notification dated 17.04.2015 after Entry 7 in the Schedule, Entry 7 (da) was inserted providing that all projects of Bio-Medical Waste Treatment Facilities require prior EC. The plant in question was being run by the Respondent No.8 by fulfilling all the norms and guidelines. No further upgradation has been done which requires Environment Clearance as per 2015 amendment. MOEF&CC Notification dated 17.04.2015 is not applicable to existing units as held by this Tribunal in its judgment dated 10.05.2017 passed in Original Application No. 169 of 2016 titled as D. Swamy vs. The Karnataka State Pollution Control Board & Ors which squarely covers the issue raised in the present application. MoEF&CC Order dated 20.09.2021 is in respect of those units which required Environment Clearance as per EIA Notification 2006, but were permitted to be established by the SPCBs by issuing CTE/CTO in ignorance of requirement of

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EC. Even MoEF&CC order dated 20.09.2021 does not postulate retrospective effect of EIA Notification dated 2006 and/or Notification dated 17.04.2015. The provisions of the Revised CPCB CBWTF Guidelines 2016 also cannot be said to have retrospective effect on the CBWTFs already established. The Respondent No.8, vide its letter dated 17.11.2022 and reminder letter dated 24.11.2022, sought clarification from UPSEIAA regarding requirement of obtaining EC for CBWTF existing prior to 17.4.2015 which was considered by UPSEIAA in its meeting dated 02.01.2023.

11. The Respondent No.8 has further submitted that as per the Revised CPCB CBWTF Guidelines 2016, it is not mandatory to set-up CBWTF in designated industrial area only. The CBWTF falls under the essential services which can be operated from the present site. Similar types of CBWTFs are operational all over the country and the details of similar facilities being run are given as under:-

Information of Common Bio-medical Waste Treatment Facilities run in Medical College/Hospital Campus

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12. The respondent No. 8 has also challenged credentials and bona fides of the Applicant and submitted that the applicant is guilty of suppression of material facts and has not approached this Tribunal with clean hands and antecedents. In O.A. No. 165 of 2022 titled as Vinod Khanna Vs State of U.P., which was disposed of vide order dated 5.4.2022, similar allegations were made against the Respondent No.8 and this Tribunal issued general directions to the State and called for the report and after having gone through the report of Oversight Committee headed by Justice SVS Rathore in O.A. No. 180/2021 in Mukul Kumar Vs State of U.P. & Ors., this Tribunal has already issued directions for compliance by the Competent Authority. Therefore the present original application is liable to be dismissed on this score only. No cause of action has arisen in favour of the Applicant and against the respondent No.8 as there is neither any privity of contract nor any public interest is involved. It is not in the interest of principles of natural justice and reasonableness to entertain interested litigation which has been filed in collusion with and at the behest of interested parties. The opponents of the Respondent No.8 are bent

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upon destroying its business since long time and on several occasions such frivolous attempts have been made by instituting false complaints and cases at their behest. The jurisdiction of this Tribunal cannot be allowed to be misused by interested litigants for their ulterior motives.

13. The Respondent No. 8 has submitted that the Project Proponent's Unit having been established prior to 17.04.2015 does not require EC as per the Notification dated 17.04.2015 but still the Respondent No. 8 is ready and willing to take the same from UPSEIAA as per rules.

Rejoinder filed by the Applicant

14. The Applicant filed rejoinder vide email dated 21.02.2023. The Applicant has submitted that the MDA vide its Board meeting dated 13.03.1996 allotted the land in question to Subharti K.K.B. Charitable Trust for Medical Institution purpose only and the MDA never permitted the Subharthi K.K.B. to further sublet the land to Respondent No. 8 for the purpose of the CBWTF. The Respondent No 08 has changed its Incinerator thrice i.e. in the year 2010 (50kg/hour to 100 Kg/hour), 2013 (100kg/hour to 300 kg/hour) and 2018 (Old Incinerator of 300 Kg/hour removed by New Incinerator of 300 kg/hour). The Respondent No. 8 was duty bound to take EC from UPSEIAA and NOC from UPPCB as per notification dated 17.04.2015 and Clarification letter dated 27.10.2017. The Director of Respondent No. 8 himself admitted before this Tribunal that his unit is collecting and sending the Bio Medical Waste to its Bareilly plant (M/s Envirad Medicare Pvt. Ltd.) and Barabanki (M/s Synergy Waste Management Private Limited). The UPPCB affidavit also states that the Respondent No. 8 is transporting all the collected Bio Medical Waste to its plant situated in District Barabanki, Uttar Pradesh. The Respondent No. 8 was treating the Bio Medical Waste from Saharanpur, Muzzafarnagar, Bijnore, Baghpat etc. and the distance from Meerut to Barabanki is around 550 Km.

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Such collection, transportation and treatment of Bio Medical Waste by Respondent No. 8 is violative of the environmental norms/rules.

15. The applicant has further submitted that on the complaint of an environmental activist, one of the Expert Member of CPCB also stated that as far as the issue regarding establishment of CBWTF inside the Medical Campus is concerned the same is serious matter. Relevant part of email of Expert Member of CPCB has been reproduced which is extracted herein below:-

"This is serious matter. From infection control perspective and from the perspective of Air Pollution Control, one of our Australian Expert who had come to help us in stream lining Bio Medical Waste Management commented it is like putting up a factory in Hospital. Now in this COVID Era this has become even more hazardous. I am sure CPCB will take cognizance of this Matter."

16. The applicant has further submitted that recently this Tribunal constituted a Committee under the Chairmanship of Retd. Hon'ble Justice Sh. D.P. Singh which visited and inspected the CBWTF situated in District Barabanki operated by Respondent No 08 and found various illegalities in treating the Bio Medical Waste by Respondent No. 8 for which Environmental Compensation of Rs. 2 Crores was imposed on Respondent No. 8 but Respondent No. 8 without depositing the said Environmental Compensation of Rs. 2 Crores is illegally and unlawfully carrying on the operation of its CBWTF situated in District Bababanki, Uttar Pradesh. Vide its letter dated 13.02.2023, Special Secretary, Government of Uttar Pradesh has also intimated the Member Secretary UPPCB not to grant CTO without recovery of environmental compensation of Rs. 2 Crores. The applicant has accordingly prayed this tribunal to (a) direct Respondent No. 8 to deposit Rs 2 Crores of Environmental Compensation as imposed by Court Constituted Committee headed by Hon'ble Justice D. P. Singh (b) Direct Respondent No. 8 not to collect and treat the Bio Medical Waste in absence of EC and Consent to Operate and (c) Direct the UPPCB to direct the nearest CBWTF situated within

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50 Km to treat Bio Medical Waste of Respondent No. 8 as an Alternate Arrangement.

17. We have heard learned Counsel for the parties and gone through the relevant record carefully.

Credentials and Locus Standi of the Applicant

18. At the very outset learned Counsel for the Respondent No. 8 has challenged the credentials and bona fides of the Applicant and argued that the Applicant is not even a resident of Meerut City and not being a resident of the locality is not personally affected in any manner by operation of the CBWTF and has no locus standi and cause of action as there is neither any privity of contract nor any public interest is involved and it is not in the interest of principles of natural justice and reasonableness to entertain interested litigation filed in collusion with and at the behest of interested parties. The opponents of the Respondent No.8 are bent upon destroying its business since long time and on several occasions such frivolous attempts have been made by instituting false complaints and cases at their behest. Fabulous and private interests should not be allowed to be masquerade as genuine claims and this Tribunal must be cautious when examining locus standi and must look into the bona-fides of the party in terms of recent judgment of the Hon'ble Supreme Court of India in Esteem Properties Private Limited versus Chetan Kembley (2022 SCC Online SC 246). The jurisdiction of this Tribunal may not be allowed to be misused by interested litigants for their ulterior motives and the application may be dismissed on this ground.

19. On the other hand, learned Counsel for the Applicant has argued that the Applicant has raised substantial questions relating to environment while pointing out serious violations of the MOEF&CC Notification dated 17.04.2015 and order dated 20.09.2022 and Revised CPCB CBWTF Guidelines 2016 in

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Public Interest and the application is maintainable in view of settled law governing Public Interest Litigation.

20. Even though the argument that the Applicant is not a resident of Meerut City and not being a person residing in the vicinity of the CBWTF cannot be said to be personally affected in any manner, by operation of the CBWTF seems to be valid, but this Tribunal cannot lose sight of the fact that right to life includes within its sweep right to clean and healthy environment which cannot be denied and has to be protected and implemented in the fullest measure by all the instrumentalities of the State and the Project Proponents. The Applicant has raised substantial questions relating to environment while pleading serious violations of the MOEF&CC Notification dated 17.04.2015 and MOEF&CC order dated 20.09.2022 and CBWTF Guidelines 2016 in Public Interest and the application is maintainable in view of settled law governing Public Interest Litigation and enforcement of fundamental rights. Even otherwise, it is now well settled that this Tribunal can take cognizance of questions relating to environment arising out of implementation of the enactments specified in Schedule I to the National Green Tribunal Act, 2010 suo motu as held by Hon'ble Supreme Court in Municipal Corporation of Greater Mumbai v. Ankita Sinha (2021) SCC Online SC 897: Law Finder Doc Id # 1890858: 2021 AIR (Supreme Court) 5147) and can adjudicate upon the questions involved in the present case.

Questions related to environment which arise in the case for adjudication

21. In the present case the applicant has pleaded that the CBWTF in question is being run in Non-confirming/Non-industrial area which is not permissible and that the CBWTF in question is not entitled to operate as it requires EC from UPSEIAA which has not been obtained. In view thereof the following substantial questions relating to environment arise in the present case for adjudication:

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1. Whether the CBWTF is located in Non-Conforming Area /Non Industrial Area and is not entitled to carry out its Operations in the same in view of the CBWTF Guidelines 2016.

2. Whether the CBWTF requires EC in view of MoEF&CC Notification dated 17.04.2015 and is not entitled to Grant or Renewal of the Consent to Operate from the UPPCB in view of MoEF&CC Order dated 20.09.2021 and the CBWTF Guidelines

2016.

Question No.1 Whether CBWTF in question is located in Non- Conforming Area /Non Industrial Area and is not entitled to carry out its Operations in the same in view of the Revised CPCB CBWTF Guidelines 2016.

22. Mr. Gaurav Kumar Bansal, learned Counsel for the Applicant has argued that as per Column 3 of Schedule III of the BMWM Rules 2016, it is the duty of the CPCB to (a) prepare Guidelines on Bio Medical Waste Management as well as to (b) Lay down criteria for establishing Bio Medical Waste Treatment Facilities in the Country. The CPCB issued Revised CCBWTF Guidelines 2016. Rule 5 of the BMWM Rules 2016 provides that it is the duty of the Operator of CBWTF to take all necessary steps to act in accordance with the rules and Guidelines issued by the Central Government or, as the case may be, the CPCB from time to time. Rule 6 of the BMWM Rules-2016 mandates the authorities mentioned in column 2 of Schedule III to perform the duties as specified in Column 3 thereof in accordance with the provisions of the said Rules. Due to the likely impacts that may be caused to the patients undergoing treatment, operation of the captive treatment equipment within the health care facilities (HCFs) is not favoured by the CPCB which has categorized CBWTF as Red Category Industry and mandated location thereof in Industrial Area or at place reasonably far away from notified residential area with buffer zone distance or as integral part of the Hazardous Waste Treatment Storage

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and Disposal Facility (TSDF). The BMWM Rules 2016 restrict the Occupier from setting up captive BWTF and mandate the Occupier to ensure treatment and disposal of generated bio-medical waste through a CBWTF, located within a distance of 75 KM. The MDA allotted 55 acres land to Subharti KKB Charitable Trust, Meerut for setting up Medical College and operation of CBWTF on land taken on lease from the same is violative of permissible land use. As per the Revised CBWTF Guidelines 2016 it is the duty of the project proponent to act in accordance with the law related to Land Use. In the present case, the CBWTF is carrying on its operation inside the Hospital premises which is not permissible. By allowing the Respondent No. 8 to run CBWTF in Non- Industrial Area , the MDA is not only violating its own Master Plan but is also acting in contravention of the provisions of the BMWM Rules 2016 as well as the Revised CBWTF Guidelines 2016.

23. Learned Counsel for the Applicant has accordingly argued that the reliefs as prayed for including closure of the CBWTF may be granted.

24. On the other hand, Ms. Praveena Gautam and Mr. Aman Sharma, learned Counsel for Respondent No. 1 and Mr. Mohit Singhal, learned Counsel for the Respondent No. 2 have submitted that Respondent No.5 UPPCB being the Prescribed Authority under the BMWM Rules, 2016 has to verify the facts and take action.

25. Mr. Pradeep Misra, learned Counsel for the Respondents No. 4 and 5 has submitted that due to not obtaining of EC by the CBWTF, the UPPCB has refused consent to operate and CBWTF has closed its operations.

26. Mr. Rachit Mittal, learned Counsel for Respondent No. 6 has argued that CBWTF in question was established in 2002 under the BMWMH Rules, 1998 much before enactment of the BMWM Rules, 2016 and issuance of CBWTF Guidelines 2016. The Respondent No. 6 acted as per the provisions of the

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BMWMH Rules, 1998. No such land specification/location criteria, as now claimed to be applicable, was prescribed under the BMWMH Rules, 1998. The Respondent No.6 has not violated the Master Plan or the CBWTF Guidelines 2016 by allowing the CBWTF in question to operate in the Medical College Campus.

27. Mr. Ajay Bansal and Mr. Gaurav Yadav, learned Counsel for the Respondents No.8 have argued that the CBWTF run by the Respondent No. 8 was established in 2002 under the BMWMH Rules, 1998. No such land specification/location criteria, as now claimed to be applicable, was prescribed under the BMWMH Rules, 1998. The Respondent No. 8 acted as per the provisions of BMWMH Rules, 1998. The location criteria under the BMWM Rules, 2016 and CBWTF Guidelines 2016 is not applicable to the CBWTF run by the Respondent No. 8.

28. Mr. Ajay Bansal and Mr. Gaurav Yadav, learned Counsel for the Respondents No.8 have argued in the alternative that after categorization of CBWTF as Red Category Industry, CPCB has clarified that the same falls under the Non Industrial Operations and essential services. As per CBWTF Guidelines 2016, it is not absolute mandatory to set-up such facility in designated industrial area only. The CBWTF can be operated from the present site. Similar types of CBWTF are operational all over the country and CBWTF is legally permissible to be established in medical colleges/hospitals as per the CBWTF Guidelines 2016.

29. Mr. Ajay Bansal and Mr. Gaurav Yadav, learned Counsel for the Respondents No. 6 and 8 have accordingly argued that the CBWTF is not operating in violation of any location criteria applicable to it and the application may be dismissed with costs.

30. In the present case CBWTF was established in 2002 under the BMWMH

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Rules, 1998 much before enactment of the BMWM Rules, 2016 and issuance of CBWTF Guidelines, 2016. The Respondents No. 5, 6 and 8 acted as per the provisions of BMWMH Rules, 1998. No such land specification/location criteria as now claimed to be applicable was prescribed under the BMWM Rules, 1998. The CPCB issued the revised CBWTF Guidelines on 21.12.2016 for Common Bio-Medical Wastes Treatment and Disposal Facility. Guideline No.5 in the CBWTF Guidelines 2016 embodies the location criteria for CBWTF and the same reads as under:

"6) Location criteria

In the context of these guidelines, buffer zone represents a separation distance between the source of pollution in CBWTF and the receptor - following the principle that the degree of impact reduces with increased distance. The following parameters may be considered for ascertaining buffer distance on case-to-case basis:

(i) potential for spread of infection from wastes stored in the premises.

(ii) applicable standards for pollution control and the relative efficiency of the existing incinerators and emission control systems,

(iii) potential of fugitive dust emission from incinerators,

(iv) potential for discharge of wastewater

(v) the potential for odour production,

(vi) the potential for noise pollution,

(vii) the risk posed to human health and safety due to exposure to emissions from incinerator,

(viii) the risk of fire and

(ix) Significance of the residual impacts such as bottom ash and fly ash.

As far as possible, the CBWTF shall be located near to its area of operation in order to minimize the transportation distance in waste collection, thus enhancing its operational flexibility as well as for ensuring compliance to the time limit for treatment and disposal of bio- medical waste as stipulated under the BMWM Rules (i.e., within 48 hours). Also, the location of the CBWTF should be in conformity to the CRZ Norms and other provisions notified under the Environment (Protection) Act, 1986. The location shall be decided in consultation with the State Pollution Control Board (SPCB)/ Pollution Control Committee (PCC). The location criteria for development of a CBWTF are as follows:

(a) A CBWTF shall preferably be developed in a notified industrial area without any requirement of buffer zone (or)

(b) A CBWTF can be located at a place reasonably far away from notified residential and sensitive areas and should have a buffer distance of preferably 500 m so that it shall have minimal impact on these areas. In case of non-availability of such a land, the buffer zone distance from the notified residential area may be reduced to less than 500 m by SPCB/PCC without referring the matter to CPCB by prescribing additional control

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measures such as (i) adoption of best available technologies (BAT) by the proponent of CBWTF; (ii) prescribing stringent standards for operation of the CBWTF by the SPCB/PCC; (iii) adoption of zero liquid discharge by the CBWTF and (iv) in case of any complaints from the public, then CBWTF should prove that the facility is not causing any adverse impact on environment and habitation in the vicinity. If SPCB/PCC is not in a position to resolve the issue relating to buffer zone while selecting the site for CBWTFs, in such a case, SPCBs/PCCs may refer the matter to CPCB.

(c) The CBWTF can also be developed as an integral part of the Hazardous Waste Treatment Storage and Disposal Facility

(TSDF) subject to obtaining of necessary approvals from the authorities concerned including 'EC' as per Environmental Impact Assessment 2006 and further amendments notified under the Environment (Protection) Act, 1986, provided there is no CBWTF exist within 150 KM distance from the existing TSDF."

(Emphasis added)

31. Guideline No. 4 of the CBWTF Guidelines 2016, which specifies applicability of the guidelines, reads as under:

"4) Applicability of these guidelines These guidelines are applicable to all the upcoming or new CBWTFs. In case of the existing CBWTFs, these guidelines shall be applicable in case

(a) the existing CBWTFs desires to expand or enhance the existing treatment capacity (or)

(b) the existing CBWTFs desires to modernize the existing treatment equipment with the new equipment with enhancement in the existing treatment capacity."

32. Since the CBWTF run by the Respondent No. 8 was set up in the year 2002, the location Criteria laid down in Guideline No. 6 of the CBWTF Guidelines 2016 is not applicable to the same in view of the applicability criteria embodied in Guideline No. 4 of the CBWTF Guidelines 2016 and the CBWTF run by the Respondent No. 8 cannot be said to be violative of the environmental norms on the ground of applicability thereof.

33. Even otherwise, though CBWTF is categorized by the CPCB as Red Category Industry but the CPCB has issued letter dated 30.04.2020 clarifying that CBWTF may be considered as Non-Industrial Operations (Activities/ Facilities/ Infrastructure/ Services). For facility of reference the same is reproduced as under:

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"SUB: DIRECTIONS UNDER SECTION 18(1)(b) OF TIIE WATER (PREVENTION & CONTROL OF POLLUTION) ACT, 1974 und THE AIR (PREVENTION & CONTROL OF POLLUTION) ACT, 1981 REGARDING HARMONTZATION or CLASSIFICATION OF INDUSTRIAL SECTORS

INTO RED. ORANGE, GREEN AND WHITE CATEGORY.

x x x x x

NOW THEREFORE, in view of the above and exercising the powers conferred to Chairman, Central Pollution Control Board under Section 18(1)(b) of the Water (Prevention & Control of Pollution) Act, 1974, and 18(1)(b) of the Air (Prevention & Control of Pollution) Act, 1981, all the SPCBs/PCCs are directed to:

i. Adopt the categorization finalized by CPCB for following sectors· a. Scrapping Centres (for End of Life of Vehicles and other scraps such as plant and machineries, structural material, railway coaches and wagons etc.).

b. Used Cooking Oil (UCO) collection centers.

c. Compressed/Refined Bio-Gas Production from Bio- degradable Wastes.

d. Railway Stations.

ii. Consider the sectors given at Annexure-II under Non- Industrial Operations (Activities/Facilities/ Infrastructure / Services).

The SPCBs/PCCs shall acknowledge the receipt of directions and submit the action taken report (ATR) in compliance of these directions to CPCB within 15 days from the receipt of directions."

Emphasis supplied

34. The relevant part of Annexure-II attached with the abovesaid letter reads as under:-

"List of Non-Industrial Operations (Activities/Facilities/Infrastructure/Services) x x x x x

6 - Common treatment - i. All such facilities are and disposal facilities classified as Red but (CETP, TSDF, special category projects CBMWTF, effluent as these are parts of conveyance project, pollution control facilities. incinerator, MSW ii. In case of CETP, the sanitary land fill site) categorization will depend

Note: Solvent/acid upon the category of recovery plant and E- member industries being waste recycling are served.

considered as

industrial operations. "

35. No doubt, Guideline 6 (a) of the CBWTF Guidelines 2016 prefers location

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and development of a CBWTF in a notified industrial area without any requirement of buffer zone but there is no absolute bar to establishment of CBWTF in non-industrial Area and CBWTF can be established under Guideline 6 (b) of the CBWTF Guidelines 2016 in non-industrial area at a place reasonably far away from notified residential and sensitive areas with a buffer distance of preferably 500 meters and in case of non-availability of such a land the buffer zone distance from the notified residential area is allowed to be reduced to less than 500 meters subject to fulfilment of the conditions laid down therein. It may also be observed here that by considering the likely impacts that may be caused by operation of the captive bio medical waste treatment facility within the health care facilities (HCFs) to the patients undergoing treatment therein, the BMWM Rules 2016 restrict the Occupier from setting up captive bio medical waste treatment facility and require the Occupier to ensure treatment and disposal of generated bio-medical waste through a CBWTF but the BMWM Rules 2016 and the CBWTF Guidelines 2016 do not absolutely bar establishment and operation of captive CBWTF or CBWTF in the Hospital Campus. This conclusion also emerges from Guideline 2(f) of the CBWTF Guidelines 2016 which lays down that in the absence of expression of interest by any proponent, then SPCB/PCC shall insist health care facilities to form association and to develop its own CBWTF in line with these guidelines or to have captive treatment facilities for ensuring treatment and disposal of generated bio-medical waste as stipulated under the BMWM Rules, 2016.

36. In the present case the CBWTF was admittedly located in Institution Area when established in the year 2002. There is no denial that residential colonies have come up in the vicinity of the Institution area subsequently as pleaded by the Respondent No. 8. There is no averment that the CBWTF is not having buffer zone distance of 500 meters from notified residential area. Therefore,

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location of the CBWTF run by respondent No. 8 cannot be said to be violative of the prescribed location criteria and operation thereof cannot be said to be violative of environmental norms on that ground.

37. In any case it may be observed that in the present case there is no cogent material on record to show that the CBWTF is causing any adverse impact on environment and habitation in the vicinity. In the event of there being cogent material showing that the facility is causing adverse impact on environment and habitation in the vicinity by environmental pollution beyond prescribed limits, UPPCB, being the prescribed statutory Authority under the BMWM Rules 2016, shall be at liberty to pass appropriate remedial orders including order of closure or imposition of environmental compensation in accordance with law.

Question No.2 Whether the CBWTF requires EC in view of MoEF&CC Notification dated 17.04.2015 and is not entitled to Grant or Renewal of the Consent to Operate from the UPPCB in view of MoEF&CC Order dated 20.09.2021 and the CBWTF Guidelines 2016.

38. Mr. Gaurav Kumar Bansal, learned Counsel for the applicant has argued that in the present case, the UPPCB has not only ignored the MoEF Notification dated 17.04.2015 but has also willfully, deliberately and intentionally ignored MOEF&CC Order dated 20.09.2021 issued by Respondent No. 1 and has provided wrongful gain to the CBWTF by allowing it to operate its activities without EC in violation of the MoEF&CC Notification dated 17.04.2015, MoEF Order dated 20.09.2022, the BMWM Rules 2016 and the CBWTF Guidelines

2016.

39. On the other hand, Ms. Praveena Gautam and Mr. Aman Sharma, learned Counsel for Respondent No. 1 and Mr. Mohit Singhal, learned Counsel for the Respondent No. 2 have submitted that Respondent No.5 UPPCB being the

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Prescribed Authority under the BMWM Rules 2016 has to verify the facts and take action.

40. Mr. Pardeep Mishra, learned Counsel for respondents No. 4 and 5 has argued that the CBWTF run by the Respondent No. 8 was in operation before MOEF&CC Notification dated 17.04.2015 which did not apply to existing units but the Respondent no. 8 has upgraded the existing incinerators to achieve the standards for retention time of 2 second of resident time for the purpose of emitting the gases without any increase in the capacity of the incinerators. UPPCB has sought opinion from MOEF&CC vide letter dated 06.01.2021 as to whether EC is required or not and the same is still pending with MOEF&CC. UPPCB rejected application dated 01.10.2022 of the Respondent No.8 for renewal of the consolidated consent to operate vide its letter dated 25.12.2022 and imposed Environmental Compensation of Rs. 10,80,000/- vide its letter dated 15.02.2023. The respondent no. 8 closed CBWTF himself due to non- availability of mandatory consent and the application has become infructuous.

41. Mr. Ajay Bansal and Mr. Gaurav Yadav, learned Counsel for the Respondents No.8 have argued that the CBWTF run by the Respondent No. 8 was in operation before MOEF&CC Notification dated 17.04.2015 which did not apply to existing units as has been held by this Tribunal in its judgment dated 10.05.2017 passed in Original Application No. 169 of 2016 titled as D. Swamy vs. The Karnataka State Pollution Control Board & Ors

which squarely covers the issue raised in the present application. The Respondent No. 8 has not done any such upgradation of incinerator which requires EC. The CBWTF in question was being run by the Respondent No.8 by complying with all the environmental norms and guidelines. MOEF&CC Order dated 20.09.2021 applies to those units which required EC as per EIA Notification of 2006 but were permitted to be established by the SPCB/PCC by issuing CTE/CTO in ignorance of the requirement of EC. Even MoEF&CC order

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dated 20.09.2021 does not postulate retrospective effect of EIA Notification 2006 as amended vide Notification dated 17.04.2015 and the CBWTF Guidelines 2016 relied upon by the learned Counsel for the Applicant do not have retrospective effect on the CBWTF already established. The CBWTF run by the Respondent No. 8 having been established prior to 17.04.2015 did not require EC as per the Notification dated 17.04.2015. As a panic reaction to filing of the present proceedings, the UPPCB rejected the application for renewal of Consent under the Air Act 1981 and the Water Act 1974 after 31.12.2022 without any valid reason and without affording opportunity of being heard despite the fact that the same was being renewed earlier from time to time. Therefore, the Application being devoid of any merit may be dismissed with costs and the UPPCB may be directed to renew consent to operate.

42. Mr. Ajay Bansal and Mr. Gaurav Yadav, learned Counsel for the Respondents No.8 have argued in the alternative that the Respondent No.8 is providing services to 5,668 numbers of government as well as private hospitals/ clinics/maternities/veterinaries/pathology centers and livelihood to large number of workers/employees. In case of this Tribunal holding that there is any such requirement of obtaining EC, the Respondent No. 8 is ready and willing to take the same from SEIAA as per rules.

43. The Government of India made the BMWMH Rules 1998 published vide Notification number S.O. 630 (E) dated 20.07.1998 for providing a regulatory frame work for management of bio-medical waste generated in the country. The Government of India reviewed the existing rules and made the BMWM Rules 2016 to implement the rules more effectively and to improve the collection, segregation, processing, treatment and disposal of the bio-medical wastes in an environmentally sound manner thereby, reducing the bio- medical waste generation and its impact on the environment.

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44. The MOEF&CC through its notification dated 14.09.2006 made it mandatory to obtain Prior EC prior to establishment or expansion of any such project or activity which is listed in the schedule of notification. Objective of the process is to impose certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impacts. The EC has to be taken from Central Government in the MOEF&CC for matters falling under Category `A' in the Schedule and at State level, the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity. The SEIAA is required to base its decision on the recommendations of a State level Expert Appraisal Committee (SEAC). The SEIAA and SEAC have been constituted by the MOEF&CC in UP vide notification bearing no. S.O 3338(E) dated 16.10.2017 and subsequently reconstituted through notification bearing no. S.O. 2276(E) dated 11.06.2021. Para 2 of the notification dated 14.09.2006 reads as under:

"2. Requirements of prior EC (EC):- The following projects or activities shall require prior EC from the concerned regulatory authority, which. shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:

(i) All new projects or activities listed in the Schedule to this notification;

(ii)Expansion and modernization of existing projects or activities

listed in the Schedule to this notification with addition of capacity

beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;

(iii)Any change in product-mix in an existing manufacturing unit included in Schedule beyond the specified range."

45. The MoEF&CC amended the Notification dated 14.09.2006 in view of the Judgment dated 28^thNovember 2013 passed by the National Green Tribunal,

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Principal Bench, New Delhi in Appeal No. 63 of 2012. By the amendment Entry 7(da) was inserted after Entry 7(d) in the Schedule. Entry 7(da) provided that Common Bio-Medical Waste Treatment Facilities would be required to obtain EC from the MOEF&CC. The said notification reads as under:

"S.O.1142(E).-In exercise of the powers conferred by sub section (I) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986) read with sub-rule(4) of rule 5 of the Environment (Protection) Act, 1986, the Central Government hereby makes the following further amendments to the notification of the Government of India, in the Ministry of Environment and Forests number S.O. 1533(E), dated the 14^th September, 2006 after dispensed with the requirement of notice under clause(a) of sub-rule(3) of the said rule 5 in public interest, namely:-

In the said notification, in the Schedule, after item 7(d) and the entries relating thereto, the following item and entries shall be inserted, namely:-

46. The CPCB issued Revised Guidelines for Common Bio-Medical Wastes Treatment and Disposal Facility on 21.12.2016. Guideline 5 of the CBWTF Guidelines 2016 also reiterates the legal requirements for commissioning or operation of a CBWTF which reads as under:

"5) Environmental laws applicable for commissioning or operation of a CBWTF

Operation of a CBWTF leads to air emissions as well as waste water generation as in case of an industrial operation. Most common sources of waste water generation in CBWTFs are vehicle washing, floor washing, and scrubbed liquid effluent from air pollution control systems attached with the incinerator/plasma pyrolysis. Incineration as well as DG Set is the general source of air emissions.

5.1 Any other approvals (such as Land Use /Change in Land Use as applicable) required from the concerned authorities under various laws have to be complied with by the proponent of the CBWTF prior to development of a CBWTF.

5.2 Consents under The Water Act and The Air Act as well as Authorization under the BMWM Rules, 2016

The project proponent of the CBWTF is required to obtain 'Consent to Establishment' under Rule 25 of the The Water Act and under Rule 21 of the The Air Act, from the respective prescribed authority i.e. SPCB/PCC. Upon installation of the requisite equipment, the CBWTF Operator is also required to obtain authorization under BMWM Rules, 2016 co-terminus with consent to operate under Water (Prevention and Control of Pollution) Act, 1976 & The Air Act from the respective

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SPCB/PCC prior to commencement of the CBWTF.

5.3 EC under EIA Notification 2006

Ministry of Environment, Forest & Climate Change (MoEF & CC), notified amendment to the EIA Notification 2006 and published vide MoEF & CC Notification of S.O. 1142 (E) dated April 17, 2015. According to this notification, the 'bio-medical waste treatment facility' is categorized under the Item 7 (da) in the schedule, requiring 'EC' from the State Environment Impact Assessment Authority (SEIAA). Therefore, the CBWTF operator is also required to obtain 'EC (EC)' from the respective SEIAA or Ministry of Environment, Forest& Climate Change (MoEF& CC), as the case may be, before any construction work, or preparation of land by the projects management, which include the following:

a) All new projects or activities pertaining to the bio-medical waste treatment facility; and

b) Expansion and modernization with additional treatment capacity of existing bio-medical waste treatment facility (excluding augmentation of incineration facility for compliance to the residence time as well as Dioxins and Furans without enhancing the existing treatment capacity).

c) Any expansion or modification in the treatment capacity or relocation of the existing CBWTF (requires compliance to the relevant provisions notified under the Environment (Protection) Act, 1986 by the MoEF & CC."

47. Further, MOEF&CC vide its Order dated 20.09.2021 issued under Section 5 of the Environment Protection Act, 1986 directed UPPCB as well as other PCBs/PCCs to ensure that all the CBWTFs possess valid EC and not to grant or renew CTO till EC has been obtained.

48. It may be observed here that the Respondent No.8 sought clarification from UPSEIAA regarding necessity of obtaining EC for CBWTF existing prior to 17.4.2015 vide its letter dated 17.11.2022 and reminder letter dated 24.11.2022 which was considered by UPSEIAA in its meeting dated 02.01.2023. The minutes of the meeting of UPSEIAA held on 2.1.2023 considered the representation at Item no. 2 and observed as under:

2. Letter of Mr. Neeraj Agarwal dated 24.11.2022 and 17.11.2022 regarding clarification to obtain EC for CBWTF existing before

17.4.2015.

"SEIAA gone through the letter of Sh. Neeraj Aggarwal Director Synergy waste Management Private Limited regarding the above subject in which they have informed that existing CBWTF facility is in operation since 2002. MoEFCC vide its amendment S.O. 1142(E) dated 17.4.2015 made further amendment to the notification of the GoI no. S.O. 1533 (E)

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dated 14.9.2006 inserting biomedical waste treatment facility as 7(da). Hence. SEIAA opined that the project proponent should proceed as per EIA notification, 2006, (as amended)."

49. In Original Application No. 169 of 2016 (SZ) titled as D. Swamy vs. The Karnataka State Pollution Control Board and Others, M/s GIPS Biotech applied for consent to establish a CBWTF. Consent to establish was granted on 24.11. 2012. Vide notification dated 17.04.2015 the MOEFCC amended EIA Notification 2006 by inserting entry providing that Environment Clearance under EIA Notification 2006 is required for establishing of a common biomedical waste treatment facility. Application was filed under Section 14 of the National Green Tribunal Act 2010 seeking directions for closure of the CBWTF run by M/s GIPS Biotech on account of non-compliance of the provisions of EIA Notification, 2006 as amended. Hon'ble Southern Zone Bench of this Tribunal in its order dated 10.05.2017 dealt with the question as to whether Notification dated 17.04.2015 issued by MOEF&CC has retrospective effect and held that said Notification does not have retrospective effect and is not applicable to existing units. For proper understanding of the view taken in that case, relevant paras of the order are reproduced as under:

"21. The main question to be settled is therefore whether the amendment to EIA Notification, 2006 dated 17.04.2015 is retrospective in nature or is only prospective.

22. Environment Clearance Regulations, 2006 (in short 'Regulations 2006') was published in the Gazette of India dated 14th September, 2006. That Notification was promulgated in supersession of the earlier Notification issued in S.O.60(E), dated 27th January, 1994. Both Notifications were issued exercising the powers under Section 3 of the Environment (Protection) Act, 1986. It is not in dispute that the Regulations, 2006 is not having any retrospective effect. The said Regulations, 2006 provide as follows:

" Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986, read with clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 and in supersession of the Notification Number S.O.60(E), dated the 27th January, 1994, except in respect of things done or omitted to be done before such supersession, the Central Government hereby directs that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in

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process and or technology shall be undertaken in any part of India only after the prior EC from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Government under sub-section (3) of Section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification. "

The identical provision in 1994 Notification was considered by the Hon'ble Supreme Court in Narmada Bachao Andolan vs. Union of India (2000 (10) SCC, 664) and held as follows:

"This notification is clearly prospective and inter alia prohibits the undertaking of a new project listed in Schedule I without prior EC of the Central Government in accordance with the procedure now specified. In the present case clearance was given by the Central Government in 1987 and at that time no procedure was prescribed by any statute, rule or regulation. The procedure now provided in 1994 for getting prior clearance cannot apply retrospectively to the project whose construction commenced nearly eight years prior thereto."

Paragraph 2 of the EIA Notification, 2006 provides the requirement of prior EC (EC). It reads as follows:

"2. Requirements of prior EC (EC):- The following projects or activities shall require prior EC from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category 'A' in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:

(i) All new projects or activities listed in the Schedule to this notification;

(ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;

(iii) Any change in product-mix in an existing manufacturing unit included in Schedule beyond the specified range."

23. It is thus clear that prior EC is required for all new projects or activities listed in the Schedule to the notification, expansion and modernization of existing projects or activities listed in the Schedule to the notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule after expansion or modernization and also for any change in product-mix in an existing manufacturing unit included in Schedule beyond the specified limits.

24. Schedule to the Notification provides the list of projects or activities requiring prior EC. Setting up of Bio-Medical Waste Treatment Facility (in short 'BMWTF') as such was not included in the list of projects or activities shown in the Schedule. Entry 7 of the Schedule comprises the project of Airports under (a), All ship breaking yards including ship breaking units under (b), Industrial estates/ parks/

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complexes/ areas, Export Processing Zones (EPZs), Special Economic Zones (SEZs), Biotech Parks, Leather Complexes under (c), Common hazardous waste treatment, storage and disposal facilities (TSDFs) under (d), Ports, harbours, break waters, dredging under (e), Highways under (f), Aerial ropeways under (g), Common Effluent Treatment Plants (CETPs) under (h) and Common Municipal Solid Waste Management Facility (CMSWMF) under (i). By Notification S.O.1142 (E) dated 17.04.2015 in Entry 7 of the Schedule, Entry 7(da) was inserted providing that all projects of Bio-Medical Waste Treatment Facilities require prior EC under Paragraph 2 of Regulations 2006. The Notification reads as follows:

"MINISTRY OF ENVIRONMENT AND FORESTS NOTIFICATION New Delhi, the 17^th April, 2015

S.O.1142 (E):- In exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986) read with sub-rule (4) of rule 5 of the Environment (Protection) Rules, 1986, the Central Government hereby makes the following further amendments to the notification of the Government of India, in the Ministry of Environment and Forests number S.O.1533(E), dated the 14th September, 2006 after dispensed with the requirement of notice under clause (a) of sub-rule (3) of the said rule 5 in public interest, namely:-

In the said notification, in the Schedule, after item 7(d) and the entries relating thereto, the following item and entries shall be inserted, namely:-

(F. No. 3-9/2014-IA.III)

MANOJ KUMAR SINGH, Jt. Secy."

25. All laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity, if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect has to be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Therefore, the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. The Hon'ble Supreme Court in M/s. Punjab Tin Supply Co., Vs. Central Government (AIR 1984 SC 87) considered the question and held that if the language is clear and unambiguous, effect will have to be given to the provision in question in accordance with its tenor. If the language is not clear then the Court has to decide whether in the light of the surrounding circumstances retrospective effect should be given to it or not.

26. The Notification S.O.1142(E) which was quoted above, does not show that retrospective operation was intended. There is nothing in the Notification to assume that retrospective operation is implied. First of all, Paragraph 2 of the Regulations, 2006 contemplates prior EC, before establishing the unit or industry which require EC. What is

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provided under Paragraph 2 is that prior EC is required for all new projects or activities listed in the Schedule to the notification from the Central Government in the Ministry of Environment and Forests or at the State level the State Environment Impact Assessment Authority (SEIAA) as the case may be, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity. Therefore, by amending the Regulations, 2006, inserting a new project within the ambit of the EIA Notification, 2006 requiring prior EC which was not required earlier when the project was established, it can never be provided that prior EC is required for such project, before preparation of land or before any construction work is started. If retrospective operation is to be given for all such projects, established prior to the date of the amendment of the Schedule to EIA Notification, 2006 requiring prior EC, it would open the Pandora's box, as projects which have been established long back prior to the date of amendment would also require to take prior EC, which itself is impossible as it was established earlier. Paragraph 2 of the EIA Notification, 2006 specifically provides that EC is to be taken prior to the starting of any construction work or preparation of land by the project management, except for securing the land. Therefore, we have no hesitation to hold that the EIA Notification, S.O.1142(E) dated 17.04.2015 has no retrospective effect and would operate only prospectively from 17.04.2015. Therefore, we cannot agree with the contention of the learned counsel appearing for the applicant that as entry 7(da) was inserted in the Regulations, 2006, by Notification dated 17.04.2015, respondent No.3 is bound to obtain prior EC, even if he has established the project prior to 17.04.2015.

27. Learned counsel appearing for the applicant argued that dehors of the insertion of entry 7(da) in the EIA Notification, 2006, dated 17.04.2015, the Principal Bench of the Tribunal in Haat Supreme Wastech Private Ltd., and others Vs. State of Haryana and others (Appeal No.63 of 2012, dated 28.11.2013) considered the question whether CBWTF require prior EC and already found that establishment of CBWTF would come under Entry 7(d) of the Notification and hence require prior EC and therefore, respondent No.3 cannot contend that prior EC is not necessary for establishment of the bio-medical waste treatment plant. Learned counsel also argued that at least from the date of Judgment in the said case dated 28.11.2013, it is to be taken that establishment of CBWTF would come under Entry 7(d) and even if Entry 7(da) is not there, prior EC for such project is required and therefore as respondent No.3 did not obtain prior EC, it is to be held that respondent No.3 is bound to close the unit and seek EC before starting its operation.

28. True, in Haat Supreme Wastech Private Ltd (supra), the Five Member Bench of the Tribunal considered the question "Whether or not the Bio-Medical Waste Treatment Plants require EC in terms of the EC Regulations, 2006". Finding that the establishment of Bio-Medical Waste Treatment Plants are not specifically included in any of the entries in the Schedule to the EIA Notification, 2006, the Tribunal considered the question whether it would attract any other entry of the Regulation. Based on the legislative intent, object of that and rules and the purpose sought to be achieved, it was held that all regulatory regimes whether relating to municipal solid waste, hazardous waste or bio- medical waste, owe their allegiance to the substantive provisions and the object of the Environment (Protection) Act, 1986. It was

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therefore held that liberal construction would help in giving a purposeful meaning and interpretation to the provisions of the Act and the Rules for attainment of the basic object. Finding that Bio- Medical Waste undisputedly is a hazardous waste, it was held that to serve the object and purpose of the Environment (Protection) Act, 1986 and the Rules framed thereunder, a liberal interpretation to the relevant provision particularly Entry 7(d) to include bio-medical waste is to be given and held that it would require prior EC. It was held that the entry is wide enough and is intended to cover the CBWTF, and such an approach, even otherwise, would be in consonance with the legislative intent and scheme of the Act of 1986. It was therefore held that the CBWTF would require to obtain prior EC in terms of Entry of 7(d) of the Notification, 2006. The argument of the learned counsel appearing for the applicant is that even if there was no amendment to EIA Notification, 2006, as the establishment of CBWTF requires prior EC under the Entry 7(d) of the Schedule to the Notification of 2006, respondent No.3 cannot contend that prior EC is not required for the project.

29. Though this argument is attractive, we find that in the application filed under Section 14 of the National Green Tribunal Act, 2010 the applicant has not taken such a ground at all. In the application the applicant has no case that establishment of the CBWTF requires prior EC under Entry 7(d) of EIA Notification, 2006. On the other hand, the very application is filed based only on the amendment dated 17.04.2015 in the EIA Notification, 2006 where Entry 7(da) was inserted requiring prior EC for establishment of Bio-Medical Waste Treatment Facility. In such circumstances, when the case of the applicant is only that respondent No.3 is bound to take prior EC, as the project for establishment of Bio-Medical Waste Treatment Facility Plant would come under Entry 7(da), we hold that the question whether dehors of amendment dated 17.04.2015 prior EC is required for the project is not to be decided in the application in view of the pleadings. Moreover, when entry 7(da) is inserted in the Schedule providing the requirement of prior EC for Bio-Medical Waste Treatment Projects, Entry 7(d) no more applies to a Bio-Medical Waste Treatment Project. When there is a specific entry to cover a particular type of industry or activity, only that Entry in the Schedule will apply. If based on the decision of the Principal Bench in Haat Supreme Wastech Private Ltd (supra) that prior EC is required for all projects is to be implemented for all projects of CBWTF that came into existence subsequent to 14.09.2006, the date of commencement of the EC Notification, 2006, even Shree Consultants common facility for Bio-Medical Waste Treatment and Disposal, the appellant in appeal Nos.46 & 47 of 2013, that challenged the order of Consent to establish granted to Respondent No.3 before the Tribunal, may also require prior EC. As the object and intent of EIA Notification 2006, is to require prior EC for all new projects or activities listed in the Schedule to the Notification, expansion or modernization of existing projects or activities listed in the Schedule or any change in product-mix in an existing manufacturing units included in the Schedule, we cannot hold that prior EC is required for all those projects which came into existence after 14.09.2006 and prior to 17.04.2015.41."

50. It may be observed here that Civil Appeal No. 3132 of 2018 D. Swamy Vs. Karnataka State Pollution Control Board & Others.

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(2022 LiveLaw (SC) 791: LawFinder Doc ID# 2038527) filed before Hon'ble Supreme Court under Section 22 of the National Green Tribunal Act 2010 against order dated 10.05.2017 passed by the Southern Zone Bench of this Tribunal Original Application No. 169 of 2016 (SZ) titled as D. Swamy vs. The Karnataka State Pollution Control Board and Others. Hon'ble Supreme Court did not go into the question as to whether Notification dated 17.04.2015 issued by MOEF&CC has retrospective effect and is applicable to existing units or not and did not expressly affirm or overrule the view taken by the Southern Zone Bench of this Tribunal and dismissed the appeal holding that issues raised/involved in the appeal are squarely covered by the judgments of Hon'ble Supreme Court in Electrosteel Steels Limited Vs. Union of India,

(2021) SCC Online SC 1247 and Pahwa Plastics Pvt. Ltd. & Anr. Vs. Dastak NGO and Others, (2022) SCC Online SC 362. While dismissing the appeal Hon'ble Supreme Court observed as under:

"In our considered view, the NGT rightly found that when the Bio-Medical Waste Treatment facility of the Appellant was being operated with the requisite consent to operate, it could not be closed on the ground of want of prior EC. The issues raised/involved in this appeal are squarely covered by the judgment of this Court in Electrosteel Steels Limited (supra) and Pahwa Plastics Pvt. Ltd. (supra). This Court cannot lose sight of the fact that the operation of a Bio-Medical Waste Treatment Facility is in the interest of prevention of environmental pollution. The closure of the facility only on the ground of want of prior EC would be against public interest. There are no grounds to interfere with the judgment and order of the NGT in appeal as rightly argued by KSPCB and the Respondent No.3. The appeal is barred by delay. In any case, the appeal does not raise any substantial question of law. The appeal is therefore dismissed."

51. So far as the question as to whether Notification dated 17.04.2015 issued by MOEF&CC has retrospective effect and is applicable to existing units or not is concerned, we do not find any cogent material and valid reasons to disagree with the view taken by Hon'ble Southern Zone Bench of this Tribunal that said Notification does not have retrospective effect and is not applicable to existing

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units which is also acknowledged by MOEF&CC, CPCB and UPPCB to be the legal position governing the field.

52. In the present case CBMWTF was not required to obtain EC from SEIAA immediately on issuance of Notification dated 17.04.2015 in view of acknowledgement of the above referred legal position that the same did not have retrospective effect and did not apply to existing CBWTFs and existing CBWTFs required EC in case of Expansion and modernization of existing projects or activities listed in the Schedule to the EIA Notification 2006 with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization; and Any change in product-mix in an existing manufacturing unit included in the said Schedule beyond the specified range as mentioned in EIA Notification 2006 and Expansion and modernization with additional treatment capacity and/or expansion or modification in the treatment capacity or relocation of the existing CBWTF as mentioned in Guideline 5.3 of the CBWTF Guidelines 2016. It needs to be noted that augmentation of incineration facility for compliance to the residence time as well as Dioxins and Furans without enhancing the existing treatment capacity was specifically mentioned in Guideline 5.3 of the CBWTF Guidelines 2016 to be excluded thereby clarifying that the same does not require EC.

53. It may be observed here that Rule 5 of the BMWM Rules 2016 enlists the duties of the operator of a common bio-medical waste treatment and disposal facility and clause (q) thereof imposes duty to augment the incinerators. The same reads as under:

"5) Duties of the operator of a common bio-medical waste treatment and disposal facility.- It shall be the duty of every operator to-

x x x x

(q) upgrade existing incinerators to achieve the standards for retention time in secondary chamber and Dioxin and Furans within two years

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from the date of this notification."

54. Guideline 3 of the CBWTF Guidelines 2016 lays down duties of the operator of a CBWTF which includes the duty to complete augmentation of the existing incineration facility and duty to make alternative arrangement in case of closure of CBWTF. The same reads as under:

"3) Duties of the operator of a common bio-medical waste treatment and disposal facility

The duties of the operator of a common bio-medical waste treatment and disposal facility (CBWTF) as enunciated under Rule 5 of the Bio- medical Waste Management Rules, 2016 shall be ensured and complied with. Also, all the existing CBWTFs shall also complete augmentation of the existing incineration facility so as to comply w.r.to the residence time as well as emission norms including for Dioxins and Furans prescribed under BMWM Rules, 2016 within two years from the date of notification of the BMWM Rules, 2016 (i.e., prior to 27.03.2018). ……….."

55. In the present case Respondent No. 8 is stated to have changed its Incinerator number of times. The Applicant has submitted that the Respondent No.8 changed incinerators as mentioned in the following table:

56. This factual position also emerges from show cause notices dated 09.04.2019 and 09.08.2019 issued by UPPCB to the Respondent No. 8. In its letter dated 18.08.2018, the Respondent No. 8 had mentioned that the unit shall upgrade its existing incinerator with the new incinerator of same capacity i.e. 300 kg per hour so as to comply with the provisions of the BMWM Rules 2016 and that the work of upgradation shall be completed by 31.10.2018. Even though in its reply the Respondent No. 8 has denied replacement of the

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incinerators but the claim is falsified by the fact that the Respondent No. 8 did not send any reply to the Respondent No. 4 denying the replacement of the incinerators as mentioned above implying admission of the above stated factual position.

57. The applicant has relied on letter dated 27.10.2017 sent by the MOEF&CC With reference to CPCB letter no F.No.B-31011/BWM(50)/ 2017WMD-I/629 dated 20.10.2017 clarifying the legal position regarding the queries mentioned therein and the relevant part thereof is reproduced as under:-

"x x x x Subject: Amendment to the EIA notification, 2006 issues by MOEFCC vide S.O. No. 1142(E), dated 17.04.2015-regarding. x x x x

The clarification to the queries that whether EC is required in the following cases; may please be seen as below:

1. CBMWTF desires to replaces the existing incinerator and install new incinerator of same capacity.

Clarification: EC will be required, as there might be configuration changes that might impact the performance efficiency of the incinerator.

2. After installing new incinerator, the old incinerator is kept as standby and operated only in case there is any breakdown. Clarification: Since capacity is increasing on installation of new incinerator, hence, EC is required.

3. CBMWTF increases its capacity only for disinfection by autoclaving/microwaving (but not incinerator); Clarification: EC in this case can be applied under Clause 7(ii) of EIA Notification, 2006.

4. CBMWTF desires to enhance the existing capacity while up-grading the facility to comply with the stringent norms stipulated under BMWM Rules, 2016.

Clarification: EC is required, however, application under Clause 7(ii) may be acceptable."

58. Since the Respondent No. 8 replaced its old incinerator 300 kg/hour with new and advanced incinerator of the same capacity300 kg/hour in the year 2018, case of the Respondent No.8 seems to fall under clarification to query No.1 leading to the conclusion that the Respondent No.8 is bound to take the EC under EIA Notification 2006 as amended vide notification dated 17.04.2015.

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59. The Regional Officer, UPPCB issued letter dated 09.04.2019 to Respondent No. 8 on the basis of clarification letter dated 27.10.2017 stating that because the said CBWTF has changed its old Incinerator by way of installing a new incinerator, the Unit is bound to take EC. Again on 09.08.2019 the Chief Environmental Officer, Circle 3, UPPCB issued a Show Cause Notice dated 09.08.2019 as to why not Respondent No. 8 be prosecuted for not taking the EC. However, subsequently UPPCB has sought opinion from MOEF&CC vide letter dated 06.01.2021 as to whether EC is required by the Respondent No.8 or not and the s

60. We find that letter dated 27.10.2017 has ignored the terms of EIA Notification 2006 which by itself stipulates that the same applies to (i) All new projects or activities listed in the Schedule; (ii) Expansion and modernization of existing projects or activities listed in the Schedule with addition of capacity or

(iii) Any change in product-mix in an existing manufacturing unit included in Schedule beyond the specified range and also the fact that Rule 5 (q) of the BMWM Rules 2016 and Guideline 3 of the CBWTF Guidelines 2016 do not, while mandating upgradation/augmentation of incinerator, lay down any requirement of EC for such upgradation/augmentation (without change in capacity). The clarification to query No.1 that replacement of the existing incinerator by installation of new incinerator of the same capacity requires EC on the ground that there might be configuration changes also seems to be vague. There are reasonable grounds seriously challenging legality of clarification letter qua query No.1 but the legality of the same has not been challenged before us by the Respondent No. 8 or anyone else and it will not be appropriate to go into the question of legality thereof without contest by pleadings and opportunity of being heard to all concerned including MOEF&CC in this regard.

61. It may also be observed here that in the present case the Respondent No.

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8 has not applied for and obtained EC from UPSEIAA and UPPCB initially issued show cause notices dated 09.04.2019 and 09.08.2019 but subsequently made reference vide letter dated 06.01.2021 to MOEF&CC as to whether EC is required by the Respondent No.8 or not. Even though UPPCB rejected application dated 01.10.2022 of the Respondent No.8 for renewal of consents under the Water Act 1974 and Air Act 1981 vide letter dated 25.12.2022 but UPPCB did not order closure of the CBWTF. The Respondent No.8 is stated to have closed its operations due to rejection of its application for renewal of the consents under the Water Act 1974 and Air Act 1981 by UPPCB as mentioned above. However, it is noteworthy that UPPCB issued authorization under BMWM Rules 2016 to the CBWTF which is valid upto 31.12.2024 whereas it granted consents to operate under the Water Act 1974 and Air Act 1981 which were valid upto 31.12.2022 rejected application dated 01.10.2022 of the Respondent No.8 for renewal of consents under the Water Act 1974 and Air Act 1981 vide letter dated 25.12.2022 without revoking authorization under BMWM Rules 2016 and making alternative arrangement for Bio-medical Waste Management. Questions as to legality of rejection by UPPCB vide letter dated 25.12.2022 of Application dated 01.10.2022 of the respondent No. 8 for renewal of the consents under the Water Act 1974 and the Air Act 1981 to operate beyond 31.12.2022 and liability of the CBWTF to closure arise in the present case.

62. Guideline 5.2 of the CBWTF Guidelines 2016 postulates that authorization under BMWM Rules 2016 must be co-terminus with consents to operate under the Water Act 1974 and the Air Act 1981. The same reads as under:

5) Environmental laws applicable for commissioning or operation of a

CBWTF

x x x x

5.2 Consents under The Water Act and The Air Act as well as

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Authorization under the BMWM Rules, 2016 The project proponent of the CBWTF is required to obtain 'Consent to Establishment' under Rule 25 of the The Water Act and under Rule 21 of the The Air Act, from the respective prescribed authority i.e. SPCB/PCC. Upon installation of the requisite equipment, the CBWTF Operator is also required to obtain authorization under BMWM Rules, 2016 co-terminus with consent to operate under Water (Prevention and Control of Pollution) Act, 1976 & The Air Act from the respective SPCB/PCC prior to commencement of the CBWTF." (Emphasis added)

63. Guideline 3 of the CBWTF Guidelines 2016 lays down duties of the operator of a common bio-medical waste treatment and disposal facility which includes the duty to make alternative arrangement in case of closure of CBWTF. The same reads as under:

3) Duties of the operator of a common bio-medical waste treatment and disposal facility

The duties of the operator of a common bio-medical waste treatment and disposal facility (CBWTF) as enunciated under Rule 5 of the Bio- medical Waste Management Rules, 2016 shall be ensured and complied with. Also, all the existing CBWTFs shall also complete augmentation of the existing incineration facility so as to comply w.r.to the residence time as well as emission norms including for Dioxins and Furans prescribed under BMWM Rules, 2016 within two years from the date of notification of the BMWM Rules, 2016 (i.e., prior to 27.03.2018). In addition to the above, to ensure proper management of bio-medical waste in the respective coverage area, as a mitigation measure, especially in the event of

(a) a temporary break down (not more than a week) of a CBWTF especially for rectification of the refractory lining of the incineration chambers or change of requisite APCD due to failure; and

(b) Closure of a CBWTF for violation of the provisions of the BMWM Rules or any other reason.

Prior to commencement of a new CBWTF as well as all the existing CBWTF Operators are required to submit action plan, to the respective SPCB/PCC, for imposing suitable condition while granting authorisation under the BMWM Rules, 2016. The action plan should also include:

(a) a MoU made with the nearest CBWTF located within the respective State/UT, as alternate arrangement. In case, if there is no CBWTF located nearby then such CBWTF should have to install stand by treatment equipment (equal to the existing treatment capacity as per consents granted by the SPCB/PCC), and

(b) decontamination plan of the CBWTF for execution of such plan prior to closure of a CBWTF."

Guideline 2(g) of the Revised Guidelines for Common Bio-Medical Wastes Treatment and Disposal Facility mandatorily requires making of alternative arrangements in the eventuality of closure of CBWTF. The same reads as under:

2) Criteria for development of a new Common Bio-medical Waste Treatment and Disposal Facility for a locality or region.

x x x x

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g) In case of any regulatory action including closure of any existing CBWTF is inevitable, the respective SPCB/PCC may take action under the BMWM Rules including for making alternate arrangement to ensure safe disposal of the bio-medical waste generated from the member health care facilities of such default CBWTF through CBWTF located nearby.

x x x x

64. In the present case authorization under BMWM Rules 2016, which was valid upto 31.12.2024, was not made co-terminus with consents to operate under the Water Act 1974 and the Air Act 1981 which were valid upto 31.12.2022 and in view of authorization under BMWM Rules 2016 being valid upto 31.12.2024 renewal of consents under the Water Act 1974 and the Air Act 1981 could not be refused during the validity period of Authorization under BMWM Rules 2016 without revoking the same and making alternative arrangement for Bio-Medical Waste Management as mentioned above.

65. In the present case the applicant, while complaining that no order of closure has been passed by UPPCB against the Respondent No. 8 despite the fact that the Respondent No. 8 has not obtained EC from UPSEIAA, has prayed for directing closure of the CBWTF but It may be observed here that CBWTF run by the Respondent No. 8 is providing services to 5,668 numbers of government as well as private hospitals/clinics/maternities/veterinaries/ pathology centers and livelihood to number of workers/employees. The Respondent No. 8 has submitted that in case this Tribunal holds that the Respondent No. 8 is required to obtain EC from UPSEIAA, the Respondent No.8 is ready and willing to take the same from UPSEIAA as per rules. We are of the considered view that the facts and circumstances of the case do not warrant issuance of any order against the respondent No.8 for closure of CBWTF on the ground of its failure to obtain EC from UPSEIAA earlier as the question of grant of EC to the Respondent No. 8 ex-post facto by UPSEIAA is required to be considered and any such closure at this stage will be against public interest. The issues regarding requirement of EC and closure of CBWTF involved in the

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present application are squarely covered by the judgment of Hon'ble Supreme Court in Electrosteel Steels Limited (supra) and Pahwa Plastics Pvt. Ltd.

(supra) and D. Swamy (supra).

66. In its judgment in Civil Appeal No. 3132 0f 2018 titled as D. Swamy Versus Karnataka State Pollution Control Board And Ors.

reported Hon'ble Supreme Court observed as under:

"40.As held by this Court in Electrosteel Steels Limited (supra) ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of a Notification under the EP Act cannot be declined with pedantic rigidity, oblivious of the consequences of stopping the operation of mines, running factories and plants.

41. The EP Act does not prohibit ex post facto EC. Grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms."

xxxxxx

46. There can be no doubt that the need to comply with the requirement to obtain EC is non-negotiable. A unit can be set up or allowed to expand subject to compliance of the requisite environmental norms. EC is granted on condition of the suitability of the site to set up the unit, from the environmental angle, and also existence of necessary infrastructural facilities and equipment for compliance of environmental norms. To protect future generations and to ensure sustainable development, it is imperative that pollution laws be strictly enforced. Under no circumstances can industries, which pollute, be allowed to operate unchecked and degrade the environment.

47. Ex post facto EC should ordinarily not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. In a given case, the deviant industry may be penalised by an imposition of heavy penalty on the principle of 'polluter pays' and the cost of restoration of environment may be recovered from it.

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48. It is reiterated that the EP Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible. As observed by this Court in Electrosteel Steels Limited (supra), this Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the units and dependent on the units for their survival.

49. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations."

67. In these facts and circumstances of the case the application is disposed of with the directions to the Respondent No.8 to apply for EC within one month from the date of receipt of a copy of this order and (iii) to the UPPCB to allow the Respondent No.8 to run the CBWTF for at least three months till filing of the application and consideration of the same for grant of EC expost facto, subject to extension in case of delay in disposal of the application for grant of

EC.

68. The Questions raised by the applicant and enlisted by this Tribunal in the present order are answered in terms of the above discussion.

69. In view of peculiar facts and circumstances of the case the parties are left to bear their own costs.

70. In case of any further delay in disposal of the application for grant of EC the Respondent No. 8-Project Proponent may apply to UPPCB for extension of the validity period of consents to operate and may also move this Tribunal by appropriate proceedings for such extension.

71. The Applicant shall also be at liberty to move this Tribunal by appropriate proceedings in case of violation of the BMWM Rules 2016, the CBWTF Guidelines 2016 EC/Consent Conditions and environmental norms.

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72. A copy of this order be supplied to the applicant and respondents by email for information/compliance.

Arun Kumar Tyagi, JM

Dr. Afroz Ahmad, EM

March 02, 2023

AVT

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