M/s Punahchakran Private Limited v. Indotech Waste Solution & Ors.

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Upon allocation of the site to the successful project proponent, it would be upon such proponent to obtain the necessary approvals. Alternatively, an entrepreneur may also seek to establish a CBWTF on land procured by himself in accordance with the location criteria under the RG, 2016.

77. The use of the words “land procured” in the context of an entrepreneur in Clause 2(d) and “upon allocation of site” in the context of the SPCB/PCC/administration’s initiative in Clause 2(e), is of particular note. We are of the opinion that, fundamentally, these words do not convey a message different from that of the EIA, 2006. In other words, there is no conflict as such between the relevant provisions of the EIA, 2006 and the RG, 2016 respectively as highlighted in Aniruda Panwar (supra).

78. According to the RG, 2016, there are two ways through which the process of establishing a CBWTF can be commenced: One, by the SPCB/PCC/administration via Clauses 2(c) and 2(e) respectively, and two, by the entrepreneur via Clause 2(d).

79. Clause 2(d) only states broadly that land must be procured by the entrepreneur before establishing a CBWTF. It does not lay down specifically that (i) allotment must be complete before the Form 1 application can be made under the EIA, 2006, or (ii) mere identification is insufficient before the Form 1 application is made under the EIA, 2006, or (iii) legal possession must be obtained prior to the appraisal stage under the EIA, 2006.

80. Moving on, Clause 2(e) admittedly states that the project proponent must proceed with obtaining approvals under the EP Act after the site is allocated in its favour by the SPCB/PCC/administration. But this aspect must be interpreted in the context of the entire process that is envisaged under Clause 2 and not as laying down a rigid rule that allocation is a pre-condition for seeking other approval(s). When EoIs are sought from multiple persons for establishing a CBWTF, the RG, 2016 places a duty only upon the successful allocatee to commence the necessary approval process, and not everyone who responded to the EOIs. It is for this simple reason that the words “upon allocation” is used. Moreover, what is plainly clarified is that despite the land being allocated by the SPCB/PCC/administration, such allocatees must independently obtain the necessary approvals as per the EP Act and that this over-arching obligation cannot be

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dispensed with. This intent behind the Clause 2(e) must not be morphed or misconstrued as laying down a standard which requires successful allotment before an application under Form 1 is made for the EC.

81. We must not favour a hyper technical view of the words “land procured” in Clause 2(d) and “upon allocation of site” in Clause 2(e) of the RG, 2016 respectively, in a manner which is contrary to the meaning evinced by the EIA, 2006. Clause 6 of the EIA, 2006 and the O.M. dated 07.10.2014 communicate what is required from any project proponent while making the Form 1 application and at the appraisal stage, without any ambiguity. We do not see any reason, either in law or by way of technical necessity, why a stricter condition must be placed for a proponent seeking to establish CBWTF in comparison to proponents undertaking other activities/projects.

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

82. A project proponent seeking to set-up a CBWTF has to obtain previous consent(s) from the SPCB/PCC by virtue of Section 25 of the Water Act and Section 21 of the Air Act respectively. These previous consents are two in number i.e., the CTE and CTO respectively.

83. Section 25 of the Water Act lays down restrictions on new outlets and new discharges by stating that no person shall, without the previous consent of the SPCB, establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land. Section 26 covers those persons who were already operating an industry, operation or process discharging any sewage or trade effluent and brings them within the ambit of Section 25.

84. Section 21 of the Air Act states that no person shall establish or operate any industrial plant in an air pollution control area unless the previous consent of the SPCB has been obtained.

85. A cursory reading of the aforesaid provisions do not explicitly and separately mention the CTE and CTO respectively. Nevertheless, a two-stage regulatory process is followed by the CPCB/SPCB and PCC. The two stages at which the consents are to be obtained signify two distinct operational milestones vis-à-vis the project and require separate applications as well as verifications. Broadly, a CTE is

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required before the project/plant is built or set-up so that the layout, location, proposed air pollution and water pollution control systems etc., can be evaluated before the project takes further shape. A CTO, on the other hand, is required once construction is done and before the commercial operations begin. Its object is to verify that the actual infrastructure including the installed machinery, pollution control mechanisms etc., abide by what was previously approved.

86. Therefore, as the CTE is concerned, what we can gauge is that the project proponent must apply for it before establishing or taking steps to establish or setting up such industry/operation. What actions could potentially fall both within and outside the ambit of the expressions “establish” or “take any steps to establish” or “setting up” is difficult to conjure with certainty. But, undeniably, these expressions are of wide import because they can include actions ranging from finalising land, materials, infrastructure labour, obtaining parallel approvals etc. Therefore, when both Sections 25 of the Water Act and 21 of the Air Act mandate that a CTE has to be obtained before establishment or taking steps for such establishment, one cannot say, that only the act of procurement of land must predate the application for a CTE while the other acts which otherwise broadly constitute ‘establishment’ can be undertaken subsequent to the CTE being applied for and/or obtained. There is no contrary indicia supporting the view that land procurement or land allotment alone must occur prior to the CTE application. We have already held that Clause 2 of the RG, 2016 does not say otherwise. Meaning thereby that, successful land allotment cannot strictly be a pre- condition to obtaining a CTE.

87. This can further be substantiated through the order dated 20.09.2021 issued by the MoEF&CC which reads thus: “Whereas, prior Environmental Clearance is a statutory requirement for project/activities covered in the schedule of the EIA Notification 2006, issued under section 3 of the Environment (Protection) Act, 1986.

2. And whereas, obtaining the consents under Water (Prevention & Control of Pollution) Act, 1974 & Air (Prevention& Control of Pollution) Act, 1981 is mandatory for all industrial units in Red, Orange and Green categories.

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3. And whereas, the grant of EC and Consents are requirements under different statutes and are not inter- dependent and can be carried out as a parallel process.

4. And whereas, many a times it has been observed that while industrial units are in possession of valid ‘Consent to Establish’ (CTE)/ ‘Consent to Operate’ (CTO) issued by State Pollution Control Boards (SPCBs)/ UT Pollution Control Committees (UTPCC), however, they have not obtained the Environmental Clearance (EC), even though it was required as per provisions of EIA Notification 2006.

5. And whereas, it has been observed that this situation is arising because majority of the SPCBs/ UTPCCs are issuing CTE/CTO to projects without ascertaining the applicability of prior EC to projects/ activities, resulting in an avoidable situation of closure for even those industries also who seek to carry out their activities following due procedure.

6. Now therefore, in exercise of powers conferred by section 5 of the Environment (Protection) Act, 1986(29 of 1986), the Central Government, hereby directs that all SPCB/UTPCC shall: i. Ascertain the applicability of EIA Notification at the time of grant/renewal of CTE and stipulate appropriate condition for obtaining Environmental Clearance (EC), if applicable, before construction/ commencement of project/activity. ii. Ensure that the project proponent possesses a valid Prior EC in terms of the extant EIA Notification, if applicable, at the time of grant/renewal of CTO and no CTO shall be granted or renewed unless EC, if applicable, has been obtained

7. This is issued with the approval of the Competent Authority.” (Emphasis supplied)

88. The aforesaid order was made to address those situations wherein CTEs/CTOs were being issued to projects without ascertaining the

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applicability of the EIA, 2006 owing to the fact that the EC and the CTE/CTO process can be undertaken parallelly. As a direct consequence, several projects did not apply for EC and were being subjected to closure. Therefore, it was directed that the applicability of the EIA, 2006 be ascertained by the SPCB at the time of grant of CTE itself and that no CTO be granted unless prior EC was already obtained.

89. When the order dated 20.09.2021 is read holistically with what we have held in the previous sub-section i.e., that proof of land allotment only needs to be furnished during appraisal of the EC, what becomes clear is that although land allotment may be a precondition for obtaining the CTO (because prior EC has to be mandatorily obtained before the CTO), yet such a requirement may not restrict the making of an application for CTE or even the grant of CTE for that matter.

90. In view of all the aforesaid, we are afraid that we are in disagreement with the decision in Aniruda Panwar (supra) on the reasoning that, owing to Clause 2 of the RG, 2016, a project proponent seeking to establish a CBWTF must have successfully procured or gotten land allocated in his favour even before commencing the process of obtaining prior EC and/or CTE.

91. Whilst we differ in the interpretation it afforded, we must nevertheless clarify that the conclusion reached in Aniruda Panwar (supra) cannot be assailed for being wrong. As discussed above, identification of the prospective site(s) for the specific project/activity is the threshold for when an application for EC is made. Obtaining a credible document showing the status of land acquisition is the pre-requisite for when the EC is being appraised by the SEAC and SEIAA respectively. Prior to applying in Form 1, the appellant had approached the UPSIDA vide application dated 06.07.2021 for land allotment to establish a CBWTF and had therefore, identified prospective site(s) for the purpose for which the EC was being sought. So, up until this point, there was no issue. However, it failed to fulfil what was expected from it at the appraisal stage. In other words, at the time when the UP SEAC and UP SEIAA respectively, were appraising the appellant’s EC application for the grant of the first EC, i.e., on 16.06.2022 and 05.07.2022 respectively, the UPSIDA had rejected the appellant’s request for land allotment for setting up a CBWTF. Thereafter, it

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only re-issued an allotment letter in favour of the appellant for a different type of industry/facility. Meaning thereby that, there was no credible document indicating that a CBWTF could be established in the said land when the UP SEAC and the UP SEIAA appraised the EC application. Only after the first EC was granted did the appellant apply and obtain permission for change in land use. This could not have retrospectively legalised the grant of the first EC.

92. As far as the first CTE is concerned, although it could not have been faulted with for non-allotment of land prior to the date on which the CTE was applied for i.e. prior to 27.09.2021, yet the UPPCB was under an obligation to check whether the specifications of the land provided by the appellant in its application for CTE fulfilled the land requirements prescribed under Clause 7 of the RG, 2016. Since the land identified by the appellant was of a size less than one acre, the UPPCB must have directed the appellant to either identify additional prospective plots or apply for a relaxation in land requirement before granting the first CTE. Hence, for this reason, the first CTE was illegal and void.

93. Now, we must look into whether the second EC or second CTE could be said to have become vulnerable for any reason/ground discussed hereinabove. Considering that the appellant was not required to apply through a fresh Form 1 after the first EC and first CTE were set-aside by Aniruda Panwar (supra) (an aspect which will be dealt with in detail in the next sub-section), we only need to see whether land acquisition requirements were met at the appraisal stage. When the UP SEAC and UP SEIAA sat for appraisal on 20.11.2023 and 20.12.2023 respectively, the appellant obtained allotment of plots E-25 and E-26 respectively for establishing a CBWTF from the UPSIDA on 19.09.2022, and relaxation in land requirement of 1 acre was also allowed by the CPCB on 17.11.2023. The second CTE was also granted by the UPPCB on 20.12.2023 after land relaxation was already allowed by the CPCB. Therefore, the second EC and CTE stood the test of the land acquisition requirements at each stage of the process.

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

94. Mr. Misra would argue that when the first EC and first CTE was set- aside by Aniruda Panwar (supra) for the reasons stated therein,

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the first ToR was also implicitly set-aside. Therefore, the second EC and second CTE granted on the basis of such a defunct ToR cannot be said to be valid under law. On the other hand, Mr. Divan would state that the setting aside of the first EC and first CTE had no effect on the first ToR. Moreover, the ToR was also valid for a period of four years.

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

95. It cannot always as a mechanical rule be said that when the EC is set-aside, the ToR is also automatically rendered null and void for a project proponent who is desirous of obtaining a fresh EC. The answer depends on the grounds due to which the EC is vitiated and what was found to be illegal or defective in the four stage EC process. It also depends on how far back into the process the defect had crept in. For example, if the illegality arose from the appraisal stage alone i.e., due to non-application of mind by the SEAC/SEIAA, then there would be no use in relegating the project proponent back to the absolute beginning. But, say, the illegality arose from an incomplete or shoddy EIA report which did not abide by the prescribed ToR, then the project proponent would have to prepare a fresh EIA report. Here again, there wouldn’t be any need to disturb the ToR itself. However, say, the ToR itself was improperly issued because necessary details in the Form 1 application were false, incomplete or misleading, then the whole process would have to be recommenced afresh. As a matter of practice, the stage at which the process must be restarted is indicated with sufficient clarity in the order setting aside the EC. However, admittedly, the decision in Aniruda Panwar (supra) is not intelligible on this aspect.

96. Mr. Misra would submit that, once the first EC was set-aside, the entire process was required to be started afresh because the appellant had falsely claimed that plots E-25 and E-26 respectively, had been procured in their Form 1 application. According to him, this would amount to deliberate concealment and/or submission of misleading and false information material to the screening, scoping and appraisal stages under Clause 8(vi) of the EIA,2006, which tainted the whole process. He would also place reliance on the decision of this Court in Hanuman Laxman Aroskar (supra) to substantiate this argument.

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97. In Hanuman Laxman Aroskar (supra), the EC granted for development of the greenfield airport project in Goa was called into question for several flaws in the EIA process including the failure of the project proponent to disclose the name and identity of forests within an aerial distance of 15km of the project despite the fact that the Form 1 mandatorily required a clear disclosure of “areas which are important or sensitive for ecological reasons — wetlands, water sources or other water bodies, coastal zone, biospheres, mountains and forests”. Deprecating such practice, this Court observed that non-disclosure of vital information and suppression of material facts in Form 1 has a cascading effect on the entire EC process: (i) It would impair the ability of the EAC/ SEAC to recommend a rejection of the application for EC at the threshold under Clause 7 II.Stage(2)–Scoping(iii), (ii) affect the functioning of the EAC/SEAC in the preparation of the ToR, (ii) lead to a deficient EIA report, and (iii) influence the EAC/SEAC’s appraisal of the EC application, amongst others. Since Form 1 is the base upon which the whole process rests, it was cautioned that the depth and accuracy of information provided in Form 1 must not be compromised and the project proponent must be held to the highest duty of transparency and rectitude. If the project proponent did not abide by the same, then an EC already granted could also be cancelled on the basis of Clause 8(vi) of the EIA,2006. The relevant observations are thus: “61. Under the 2006 Notification, EC process is based on the information provided by the applicant in Form 1. That the information provided in Form 1 is crucial can be borne from the following circumstances: 61.1. EAC or SEAC, as the case may be, formulates comprehensive ToRs on the basis of the information furnished in Form 1 which addresses all possible environmental concerns. It is on the basis of ToR, that further studies and the EIA are carried out on the impact of the proposed project on the environment. 61.2. At the appraisal stage, the regulatory authority examines the documents submitted by the applicant “strictly with reference to ToR” and communicates any inadequacy to EAC or SEAC.

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61.3. Category B2 projects, which do not require scoping, are evaluated by SEAC on the basis of the information furnished by the applicant in Form 1 alone. 61.4. The appraisal of all projects or activities which are not required to undergo public consultation, or submit an EIA report, shall be carried out on the basis of the prescribed application Form 1 and Form 1-A as applicable. 61.5 An application for extension of the validity of EC for certain projects is to be made by submitting a revised Form 1 within the validity period.

62. The information provided in Form 1 serves as a base upon which the process stipulated under the 2006 Notification rests. An applicant is required to provide all material information stipulated in the form to enable the authorities to formulate comprehensive ToR and enable persons concerned to provide comments and representations at the public consultation stage. The depth of information sought in Form 1 is to enable the authorities to evaluate all possible impacts of the proposed project and provide the applicant an opportunity to address these concerns in the subsequent study. Missing or misleading information in Form 1 significantly impedes the functioning of the authorities and the process stipulated under the notification. For this reason, any application made or EC granted on the basis of a defective Form 1 is liable to be rejected immediately. Clause (vi) of Para 8 of the notification provides thus[…] 70.1. Form 1, which was filed by the project proponent, did not contain any disclosure of the name or identity of forests within an aerial distance of 15 km. Item 2 under the heading of “Environmental Sensitivity” requires a clear disclosure of “areas which are important or sensitive for ecological reasons — wetlands, water sources or other water bodies, coastal zone, biospheres, mountains and forests”.

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72. […] The project proponent is bound by the highest duty of transparency and rectitude in making the disclosures in Form 1.

73. There can be no manner of doubt that Form 1 is an important ingredient in the entire process envisaged under the 2006 Notification. Hence, clause (vi) of Para 8 of the 2006 Notification provides that deliberate concealment or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection and lead to the cancellation of a prior EC granted on that basis. The declaration which is required of the project proponent is to a similar effect.

80. […] There is an intrinsic link between the disclosures in Form 1 which constitute the basis for formulating ToR and between the ambit of the EIA report required by ToR and the final EIA report. ToR guide the preparation of the EIA report. A failure to disclose information in Form 1 impairs the functioning of EAC in the preparation of ToR and in consequence, leads to preparation of a deficient EIA report.” (Emphasis supplied)

98. Coming back to the facts of our case, our finding on the previous issue has already made clear that procurement or allotment of land was not a pre-requisite for making an application under Form 1. Therefore, there arises no question of deliberate concealment or non-disclosure which vitiated the first ToR. The respondent no. 1 has not pointed any other aspect which, in their opinion, was false or defective in the Form 1 application made on 11.08.2021 and which may have made the ToR itself invalid/void/insufficient in any manner.

99. Rather, what the appellant was actually guilty of in terms of Clause 8(vi) of the EIA,2006 was concealing the fact that UPSIDA had thereafter allotted the plot for a difference purpose i.e., for fabrication of industrial equipment. But this was a material concealment in connection with the appraisal stage of the EC process and had nothing to do with Form 1. The same comes across very clearly

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on a bare reading of the following observations in Aniruda Panwar (supra): “68. […] In the absence of such evidence Respondent No 7 must be held to have suppressed material facts from UPPCB and UPSEIAA UPPCB and UPSEIAA must also be held to have ignored material facts in this regard that as on 26.04.2022 when CTE was granted by UPPCB and on 13.07.2022 when EC was granted by UPSEIAA to Respondent No.7 for establishment of CBWTF, establishment of CBWTF was not permissible in plots No. E-25 and E-26 situated in Babrala Industrial Area which had been allotted by Respondent no. 6 UPSIDA to Respondent No 7 for setting up Industrial Fabrication Equipment (ETP/STP/WTP/C).

69. Concealment of material information by Respondent No 7 and impermissibility of land use for establishment of CBWTF at the time of grant of CTE and EC cannot be casually brushed aside […]” It was observed that “concealment of material information…at the time of grant of EC…cannot usually be brushed aside”.

100. Therefore, while the appellant’s actions were hit by Clause 8(vi) of the EIA, 2006 and affected the appraisal of the EC, such concealment did not render the first ToR invalid.

101. Moreover, a careful reading of Hanuman Laxman Aroskar (supra) also reveals that due attention must be paid to the nature of the non- disclosure or concealment in Form 1 as well. We say so because Hanuman Laxman Aroskar (supra) linked the significance of an accurate and complete Form 1 with its potential to enable the EAC/ SEAC to reject the application at the threshold and/or, affect the preparation of the ToR and/or, affect the ambit of the EIA report and/or, influence the appraisal of the application by the EAC/SEAC. Therefore, the information which is withheld or concealed in Form 1 must be such that it will push the fresh EC process off course, into error or astray, in some manner, small or big, unless the entire exercise is started from scratch. In other words, there must be some impact that such a false disclosure or non-disclosure in Form 1 would cause to the entirety of the EC process in order to direct the applicant to go back to the starting line. This is also precisely why

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Clause 8(vi) of the EIA, 2006 uses the words “information or data which is material to” the screening, scoping, appraisal or decision on the application, in the context of rejecting any application or cancelling the EC already granted. For ease of reference, Clause 8(vi) is reproduced thus: “Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an application or cancellation of a prior environmental clearance already granted, on such ground, shall be decided by the regulatory authority, after giving a personal hearing to the applicant, and following the principles of natural justice.” (Emphasis supplied)

102. When such material information has either been concealed or falsified, then both reason and logic demands that the same be remedied in the fresh EC which may be re-issued. Materiality has nothing to do with whether the lapse or error was minor or not. In matters concerning the environment, nothing must be casually deemed minor. However, all we wish to convey is that, before relegating the applicant way back to Form 1, there must be some benefit that accrues from remand to a specific stage. Some cogent reason must exist. Hence, along with assessing whether there was deliberate concealment and/or submission of false/misleading information or data, the material nature of the data/information and an assessment of which all stages could be said to have been affected must also be looked into, especially for deciding where the applicant has to resume from after its EC is set-aside. Whether the ToR could have become null/void directly depends on the stage from which this restart has to occur.

103. Considering that the appellant had successfully obtained a relaxation in the land requirement for a CBWTF from the CPCB instead of further pursuing the procurement of additional land from UPSIDA, it would be pointless to direct the appellant to re-apply through a fresh Form 1 application and obtain a fresh standard ToR. In opting to

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proceed with the land relaxation, even if demoted back to the Form 1 stage, the appellant would have to provide the exact same details on the Form 1 application, the fresh standard ToR would be identical and the fresh EIA report prepared in pursuance of it would also be no different. Hence, when the EC is set-aside in such cases, the applicant must not be required to mechanically restart the process, particularly when going to the starting line virtually adds nothing to the procedure and is purely redundant. We must be alive to the costs and delay that would accompany such a pointless restart.

104. On the contrary, if the appellant had been unsuccessful on the relaxation front and proceeded to procure plot E-27, then it would have had to apply through a fresh Form 1 application and a new ToR would have been indispensable. This is because, as we had indicated above, the EC process is site-specific and if the project or even a part of the project comes to be established on different land, then the EC would be invalidated. It naturally follows that if plot E-27 was sought to be included in the project site, then the first ToR which only mentioned plots E-25 and E-26 respectively would have created a mis-match. A fresh Form 1 application, followed by a fresh ToR and a EIA report which accounted for the additional land, would have been necessary. Anticipating this precise problem, the appellant rightly obtained a second ToR through a fresh Form 1 application which included plot E-27. However, once plot E-27 was out of the picture, the appellant applied to cancel the second ToR and proceeded with the first ToR whose validity was not affected by the decision in Aniruda Panwar (supra).

ii. Validity period of the ToR

105. Responding to the submission that the first ToR was rendered invalid, Mr. Divan also submitted that the first ToR remained valid for a period of four years from the date of its issuance. To substantiate the same, he would rely on two O.M’s issued by the MoEF&CC dated 29.08.2017 and 08.06.2022 respectively, which read thus: O.M dated 29.08.2017 “Subject: Terms of Reference for EIA/EMP studies for the projects/activities requiring Environmental Clearance under the ElA Notification, 2006 - Extension of validity period - regarding.

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In order to streamline the process and provide greater clarity in issuing Terms of Reference (ToRs) for undertaking EIA/EMP studies for the projects/activities requiring Environmental Clearance under the EIA Notification, 2006, the following decisions have been taken with immediate effect: (i) The validity of ToRs for projects/activities (except for River Valley and HEP Projects), for submission of EIA/ EMP reports shall be three years. (ii) The validity of ToRs for River Valley and HEP Projects, for submission of EIA/EMP report shall be four years. (iii) The above validity period can be extended by the concerned Regulatory Authority for a maximum period of one year without referring the proposal to the EAC/ SEAC concerned, provided an application is made by the applicant before expiry of the validity period, together with an updated Form-1 and proper justification and there is no change in terms and conditions of the ToRs. After the lapse of validity, such extension will need EAC/ SEAC consideration. (iv) Thus, an outer limit of validity of ToRs shall be 4 years for all the projects/activities and 5 years for River Valley and HEP Projects. (v) The ToRs will specifically mention the date of expiry of validity. (vi) Extension of validity of ToRs beyond the outer limit of four years for all projects/activities, and five years for River Valley and HEP projects, shall not be allowed/ considered by the Regulatory Authority. […] (ix) In case the proposal for Environmental Clearance along with EIA/EMP reports based on the ToRs prescribed, is not submitted within the validity period of ToRs, and/or not complying with the above conditions, the process shall be started de novo. The already collected baseline data may be re-used, provided it is not more

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than 3 years old and duly recommended by EAC/SEAC in their due diligence. (x) In case, any proposal for ToR is delisted for want of additional information within the time period, as stipulated by the Ministry, the same can be listed again after the requisite information is submitted.” (Emphasis supplied)

O.M. dated 08.06.2022 “Subject: Standardizing the validity of baseline data and public consultation reports for submission of proposal within the validity period of Terms of Reference (ToR) under the provisions of EIA Notification, 2006 – regarding. As per the provisions of EIA Notification, 2006, Terms of References (ToR) are being accorded to the various developmental projects listed in the schedule to the EIA Notification, 2006 except schedule 8(a) for undertaking EIA/EMP study. In this regard, Ministry issued Office Memorandum No. J-11013/41/2006-IA-II (I) (Part) dated 29th August 2017 stating that the validity period of ToR as three years for all the projects/activities and four years for River Valley and HEP Projects. This validity period could be further extended by a maximum period of one year, thereby making the outer limit for validity of ToR as four years for all projects/activities and five years for River Valley and HEP projects. […]

6. The aforesaid matter has been examined in the Ministry. In order to address this issue in a practical manner and to bring uniformity in handling such proposals, the following standard procedures shall be followed with immediate effect: […] (v). In case the proposal for EC along with EIA/EMP reports based on the ToRs prescribed is not submitted

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within the validity period of ToRs, and/or not complying with the above-mentioned criteria, the concerned Member Secretary shall not accept the proposal and process shall be initiated de novo by the PP.” (Emphasis supplied)

106. The aforesaid spell out that the validity of a ToR issued for a CBWTF would be 3+1 years. In the event the project proponent does not place its proposal for EC along with the EIA report and other necessary particulars, if any, before the SEIAA within the validity period of the prescribed ToR, only then the process would have to be started de novo. Here, de novo would mean right from the making of a Form 1 application for issuance of a fresh ToR.

107. The rationale behind tethering the ToR to a set time-limit was elucidated upon in the decision of this Court in Bengaluru Development Authority v. Sudhakar Hegde and Others reported in (2020) 15 SCC 63. It was stated that every ToR relies upon information furnished in the Form 1 application which, in turn, comprises of data on an “as is” basis. However, the environment is in a constant state of flux and therefore, after a point, the data forming the basis of the ToR would become outdated and the EIA study would pale into insignificance. For this reason, the MoEF&CC did not want to indefinitely continue the validity of a ToR. It was to account for such environmental dynamism that an outer limit was laid down. The relevant observations are thus: “48. Significantly, the process of obtaining an EC commences from the production of the information stipulated in Form 1/Form 1-A. Information submitted in Form 1 relies on data and information on an “as is” basis at the relevant time of submitting information. Material information regarding the particulars of the proposed project as well as the potential impact on the environment is sought to enable the EAC or the SEAC to prepare a comprehensive TOR on which basis the applicant proceeds to prepare the EIA report.[…]

49. MoEFCC stated that it was clearly undesirable to indefinitely continue a TOR. The environment is, by its very nature, dynamic. Soil quality, air characteristics and

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surrounding flora and fauna are among the characteristics of the environment which are constantly in a state of flux. A robust framework of environmental governance accounts for the dynamic nature of the environment. It is for this reason that project proponents are also required to ensure the submission of an Environmental Management Plan and compliance with the monitoring procedures envisaged under the 2006 Notification. An indefinite TOR defeats the very purpose which underlies the 2006 Notification for it may lead to situations where the state of the environment has changed drastically, yet the EIA process is carried out on the basis of outdated information.[…]”. (Emphasis supplied)

108. In light of all the aforesaid, the first ToR could not be said to have been invalidated when the first EC was set-aside by Aniruda Panwar (supra), especially when it remained unimpacted by the reasons due to which the first EC was quashed. It would be irrational for a ToR to be allowed the full extent of its validity period solely when the EC process is ongoing i.e., when the project proponent is yet to complete the EIA study or the public consultation or submit his EC proposal before the SEIAA. It is not the case of the respondent no. 1 that the baseline data was outdated or faulty. Therefore, viewed from all angles, the first ToR was still valid and the second EC could have been granted on the basis of the first ToR.

109. It also cannot be said that the very factum of issuance of the second ToR indicated that the first ToR could no longer be put to use. We have explained why the second ToR may have been necessary if an additional plot was sought to be acquired by the appellant. Based on subsequent factual developments, the appellant ensured that the same was duly withdrawn on 21.11.2023.

V. CONCLUSION

110. A conspectus of the aforesaid discussion is as follows: i. The RG, 2016 is mandatory in nature. It must be scrupulously followed by the relevant authorities and the project proponents alike during the process of obtaining/grant of permissions for

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the establishment of a CBWTF. Its non-publication in the Official Gazette could not be said to have affected its mandatory nature. The decision of this Court in B.K. Srinivasan (supra) had clarified that when a strict mode of publication has not been prescribed, either by the parent statute or the subordinate legislation, a reasonable mode of publication may be sufficient. Neither the EP Act nor the BMWM Rules prescribe a strict mode of publication for the RG, 2016. Therefore, publication in the Official Gazette, although the general rule, cannot be said to be a sine qua non. The publication of such technical guidelines on the official website of the CPCB was reasonably sufficient. ii. Moreover, the RG, 2016 lays down crucial standards which form the foundation for the grant of EC and CTE/CTO respectively to a CBWTF and are so deeply embedded in the existing authorisation mechanism. All project proponents are sufficiently made aware of its existence whilst commencing the process for obtaining different clearances. Therefore, it cannot be argued that they do not constitute enforceable standards for the grant as well as revocation of permissions. Any reliance on the ratio in Gulf Goans (supra) would, therefore, be misplaced. iii. As per Clause 7 of the RG, 2016, the land requirement of one acre prescribed for setting up a CBWTF may be relaxed upon the fulfilment of one of the two pre-conditions i.e., the land must be situated either within municipal limits with a population of more than 25 lakh or within a rural area. Additionally, consultation with the CPCB and the imposition of additional control measures is mandatory. The appellant’s CBWTF is located within Village Noorpur and is therefore, in a rural area. Relaxation was granted only after due consultation with the CPCB and the imposition of additional control measures which took into account the operational effectiveness of the CBWTF in a smaller area. Therefore, the grant of relaxation cannot be faulted. iv. Clause 6 of the EIA, 2006 states that an application in Form 1 can be made after the identification of prospective site(s). Therefore, land allotment cannot be said to be a pre-condition for the making of an application under Form 1.

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v. The O.M. dated 07.10.2014 issued by the MoEF&CC clarifies that, at the stage of appraisal of the EC i.e., at Stage IV, some credible document showing the intent of the land owner(s) to sell the land for the proposed project must be obtained in case the land is being acquired through private negotiations. In the context of the present case, such a credible document would either be a successful allotment in favour of the appellant for the establishment of a CBWTF or, if the allotment is not in vogue, then a provisional allotment/acknowledgment issued by the UPSIDA for the establishment of a CBWTF. vi. A perusal of the order dated 20.09.2021 issued by the MoEF&CC as well as Section 25 of the Water Act and Section 21 of the Air Act respectively, indicate that (a) the applicability of the EIA, 2006 and the necessity of obtaining prior EC must simply be ascertained/identified by the SPCB/PCC at the time of grant of CTE and, (b) prior EC must be obtained before a CTO can be granted by the SPCB/PCC. Therefore, when the chronology is rightly understood, a CTE can be issued before the issuance of a prior EC upon a mere assessment of the applicability of the EIA, 2006. In that case, when the identification of prospective site(s) is the land acquisition requirement for making a Form 1 application under the EIA, 2006, then successful land allotment for the CBWTF cannot be made a condition precedent, both for the making of an application for CTE and the grant of CTE respectively. Having said so, relaxation in land requirement, if any, in accordance with Clause 7 of the RG, 2016 must be granted by the SPCB/ PCC in consultation with the CPCB before they can issue a CTE for land admeasuring less than one acre. vii. Clause 2 of the RG, 2016 does not make land procurement or land allocation a strict pre-requisite for initiating the process of obtaining both the EC and CTE respectively. viii. The second EC and second CTE were both granted in favour of the appellant on 20.12.2023 after land was allotted to it by the UPSIDA on 19.09.2022 and after relaxation was granted by the CPCB on 17.11.2023. Therefore, as far as the fulfilment of land acquisition conditions are concerned, the second EC and second CTE was not vitiated.

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ix. The setting aside of the first EC by the decision of the Tribunal in Aniruda Panwar (supra) did not have the consequence of rendering the first ToR invalid. There was no deliberate concealment or non-disclosure of material information which affected the Form 1 application or the issuance of the first ToR. Therefore, the first ToR was intact. Considering that the first ToR was also valid for a period of four years, the grant of the second EC on the basis of the first ToR could not be said to be wrong.

111. In view of all the aforesaid, we have reached the conclusion that the NGT committed an egregious error in passing the impugned judgment quashing the second EC and second CTE respectively.

112. As a result, this appeal succeeds and is hereby, allowed. The impugned judgment and order passed by the NGT, Principal Bench, is hereby set-aside.

113. Pending applications, if any, shall also stand disposed of.

114. Registry shall forward one copy of this judgment to the National Green Tribunal, Principal Bench, New Delhi and the Principal Bench thereafter shall circulate the judgment to all the circuit benches of the Tribunal

Result of the case: Appeal allowed.