D. Swamy vs Karnataka State Pollution Control Board And Ors

M/s. GIPS Biotech, respondent No.3 applied for Consent to establish a Common Bio-Medical Waste Treatment Facility in Survey No.82 and 38/2, Gujjegowdanapura Village, Mysore Taluk and District on 25.02.2012 under the Water (Prevention & Control of Pollution) Act 1974 and Air (Prevention & Control of Pollution) Act, 1981. Consent to establish were granted on 24.11.2012. The said Consent orders were challenged before the Karnataka State Environment Appellate Authority in Appeal Nos.48 and 49 of 2012. On 20.04.2013 the appeals were dismissed. Aggrieved by the dismissal, Appeal Nos.46 and 47 of 2013 were filed before the Tribunal on 29.04.2013. Those appeals were dismissed on 14.07.2014. Meanwhile, vide Notification dated 17.04.2015, the Ministry of Environment Forests and Climate Change (in short 'MoEF & CC') amended EIA Notification, 2006 by inserting entry 7(da) after entry 7(d) of the Schedule to the Notification providing that Environmental Clearance (EC) under EIA Notification, 2006 is required for establishment of a Common Bio-Medical Waste Treatment Facility (in short 'CBWTF').

On the application filed by respondent No.3, Consent to operate under the Water (Prevention & Control of Pollution) Act 1974 and Air (Prevention & Control of Pollution) Act, 1981 were granted on 11.02.2016. The applicant challenged the orders before the Karnataka State Environment Appellate Authority in Appeal No.3 of 2016 on 10.03.2016. The Consent to operate granted on 11.02.2016 was valid for a period upto 30.06.2016.

Though the applicant sought an interim order from the Appellate Authority, it was not granted. The applicant thereafter sought permission to withdraw the appeal and consequently Appeal No.3 of 2016 challenging the order granting Consent was dismissed by the Appellate Authority.

This application was then filed under Section 14 of the National Green Tribunal Act, 2010 seeking the following reliefs:

"To direct closure of the Common Bio-Medical Waste Treatment Facility run by respondent No.3 at Survey No.82 & 38/2 Gujjegowdanapura Village Jayapura Hobli, Mysore Taluk & District including disconnection of electricity on account of non-compliance of the provisions of EIA Notification, 2006 as amended on 30.04.2015 including Item 7(da) to the Schedule therein and also for non-compliance of the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 and pass such further or other orders."

The case of the applicant is that on enquiry he came to understand that by an order of Consent to establish dated 24.11.2012, respondent No.3 was permitted to establish a CBWTF, subject to complying with all regulations in force. The Central Pollution Control Board (in short 'CPCB') under delegated authority from the MoEF&CC issued directions from time to time to all State Pollution Control Boards in matters relating to Environment.In February 2014, the CPCB issued revised guidelines to be followed by all State Pollution Control Boards and the Project Proponents at the time of establishment of CBWTF. It is contended that as per the orders of the Principal Bench of the Tribunal in Appeal No.63 of 2012 dated 28.11.2013, revised guidelines were issued by the CPCB in February 2014 including a clear condition that Environmental Clearance for CBWTF is mandatory. The Government of India issued an Amendment to EIA Notification 2006 vide Notification dated 30.04.2015 inserting entry 7(da) after entry 7(d), providing that CBWTF shall be required to obtain prior EC. On 03.07.2015 the Karnataka State Pollution Control Board (in short 'KSPCB') issued a circular bearing No. PCB/BMW/GEN-F-10/2015/932 to inform all Environmental Officers concerned to take note of the said amendment prescribing requirement of EC for establishing CBWTF.

The State Level Environment Impact Assessment Authority, Karnataka (in short 'SEIAA') by proceedings dated 01.12.2015 issued directions under Section 5 of the Environment (Protection) Act, 1986 to issue consent to establish for all such projects attracting EIA Notification 2006 subsequent to the amendment, only after submitting prior EC. By proceedings dated 01.12.2015 respondent No.2 the Senior Environmental Officer of KSPCB advised all officers to scrupulously observe the directions issued by the SEIAA, Karnataka regarding production of copy of prior EC, in order to process an application for establishment of CBWTF. Respondent No. 3 without following the guidelines and amended Notification and without insisting for prior EC, granted a combined consent order both under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 on 11.02.2016. The applicant and other residents of the village made representations to the KSPCB informing that respondent No.3 does not satisfy the distance criteria and other Environmental Safety Norms as prescribed by the CPCB. But without addressing this aspect the Consent was granted. The Consent was valid from 11.02.2016 to 30.06.2016. Though Applicant challenged the order before the Appellate Authority, the matter was protected and ultimately became infructuous as the period of consent lapsed and the applicant was advised to withdraw the appeal and file an application before the Tribunal. Hence, the application. The applicant sought reliefs on the ground that respondent No.3 is operating the CBWTF without any Consent under Rule 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Rule 21 of the Air (Prevention and Control of Pollution) Act, 1981. The unit does not have any authorisation issued under Rule 8 of the Bio-Medical Waste (Management and Handling) Rules 1998. Respondent No. 3 has not obtained any prior EC as provided under entry 7(da) of the Schedule to EIA Notification, 2006 as amended by Notification dated 30.04.2015. The Consent granted to respondent No.3 in violation of the EIA Notification, expired on 30.06.2016 and respondent No.3 has no authority or permission to operate the unit. It is therefore contended that respondent No.3 be directed to obtain EC, before operating the unit and necessary directions are to be issued.

Respondent Nos. 1 and 2 in their joint reply contended that respondent No. 3 obtained Consent to establish, and Consent to operate under the Water (Prevention and Control of Pollution) Act,1974 and Air (Prevention and Control of Pollution) Act, 1981 and also authorisation under Bio-Medical (Management and Handling) Rules 1998 which are valid upto 30.06.2016. It is also contended that under EIA Notification, 2006, prior EC is required only for establishing any new project or activities listed in the schedule, or for Expansion or modernization of existing projects or activities listed in the schedule. Respondent No.3 is not establishing a new project or expansion / modification of the existing project or activity after 30.04.2015 and therefore the amended notification has no application to the facts of the case. The KSPCB issued Consent to operate on 11.02.2016. As per the conditions imposed in the order of Consent to operate, the industry submitted an application for renewal of Consent and authorization before the expiry of the period originally granted. By order dated 17.08.2016, the Tribunal directed the KSPCB to consider the application for Consent submitted by respondent No.3 and pass orders. Respondent No.3 applied for authorization under Bio-Medical Waste (Management & Handling) Rules, 2016 before the expiry of the validity of authorization. As per the EIA Notification, 2006, when the Consent to establish was granted by the KSPCB on 24.11.2012, there was no requirement of prior EC and subsequent amendment to the notification will not apply to the industry which has been established earlier. The revised guidelines published by CPCB in February 2014 also will not be applicable as the unit was already established prior to the issuance of the said guidelines. It is therefore contended that the granting of Consent to operate and its renewal were all perfectly legal.

Respondent No.3 in their reply contended that the appeals filed challenging the Consent granted to establish before the Karnataka State Environment Appellate Authority were dismissed on 20.04.2013 and the said orders were challenged before the Tribunal in Appeal Nos. 46 and 47 of 2013 and they were dismissed on 14.07.2014. The Consent order granted for establishment of the CBWTF was upheld by the Tribunal on 14.07.2014 and the said order attained finality.

Respondent No.3 further stated that because of the vested interest of the established operators, who caused hurdles in the establishment of the unit, Respondent No.3 could not obtain Consent to Operate as the investment, plant and machinery would lay idle. The applicant challenged the order of Consent to Operate, in Appeal No. 3 of 2016. The Karnataka State Environment Appellate Authority did not grant any order of stay. The applicant thereafter filed the present application by cleverly drafting the application and withdrew the appeal, to avoid its dismissal on merit. The Appeal No. 3 of 2016 filed by the applicant was thus dismissed as withdrawn. The Consent to establish was granted to respondent No.3 on 24.11.2012. That attained finality by dismissal of Appeal Nos. 46 and 47 of 2013 on 14.07.2014. The amendment to EIA Notification 2006, by Notification dated 17.04.2015, inserting entry '7(da)' in the schedule, providing requirement of prior EC, came into force after the establishment of the CBWTF. The said Notification is not retrospective in operation but only prospective. The application is therefore only to be dismissed.

Respondent No.5, Ministry of Environment Forests and Climate Change (MoEF & CC) filed a reply contending that the Ministry has notified the Bio-Medical Waste (Management & Handling) Rules 1998, which was subsequently revised, under Section 6, 8 and 25 of the Environment (Protection) Act, 1986 and notified the revised Bio-Medical Waste (Management & Handling) Rules, 2016 on 28th March 2016. These Rules are uniformly applicable to all over the country. The objective is to ensure that such waste is handled without any adverse effect to human health and environment. Rule 8 of Bio-Medical Waste (Management & Handling) Rules, 2016 provides procedure to be followed for the treatment and disposal of bio-medical waste. The bio-medical waste shall be treated and disposed of in accordance with Schedule I and in compliance with the standards under Schedule II. It is indicated in the Rules that no occupier shall establish on-site treatment and disposal facility, if service of common biomedical waste treatment facility is available at a distance of 75 km. Every occupier or operator handling biomedical waste, irrespective of the quantity shall make an application in Form II, to the prescribed authority namely State Pollution Control Board as far as the States are concerned, and the Pollution Control Committee in respect of Union Territories. On receipt of the application for grant of authorization the prescribed authority has to make such enquiry as it deems fit and if it is satisfied, shall issue authorization or renewal of authorization. The EIA Notification 2006 provides that all new projects or activities listed in the Schedule to the Notification as well as expansion and modernisation of existing projects or any change in product-mix in an existing manufacturing unit included in Schedule, require prior EC. By Notification dated 17.04.2015, requirement of prior EC was provided for establishing CBWTF.

Respondent Nos. 4 and 6 did not file any reply.

The argument of the learned counsel appearing for the applicant is that the Principal Bench, New Delhi in Appeal No.63 of 2012, dated 28.11.2013 held that Bio-Medical Waste Treatment Facility is hazardous within the meaning of Entry 7(d) to the Schedule of EIA notification 2006 and therefore every such facility is required to obtain EC from the date of the Judgement dated 28.11.2013. It is also argued that in any case the amended EIA Notification 2006 dated 17.04.2015 makes it mandatory to require prior EC and the said amendment was only a clarification. Therefore, 17.04.2015 cannot be taken as a starting point for the requirement of obtaining EC. Learned counsel argued that even during the hearing of Appeal Nos. 46 and 47 of 2013 before the Tribunal, the guidelines issued by CPCB during February 2014 was produced, which contain reference to the Judgement dated 28.11.2013. Respondent No.3 was thus fully aware of the requirement of prior EC and approached the KSPCB only in March 2015 to obtain Consent to establish, without producing EC. It is also argued that Respondent No.3 has not completed installation of the equipment prior to 17.04.2015 and therefore it is clear that when the amendment to EIA Notification 2006 came into operation on 17.04.2015, the unit of the respondent No.3 was not an existing unit and therefore in any event the requirement of obtaining prior EC is mandatory. Learned counsel argued that as the Tribunal in Himmat Singh Shekhawat, (OA No. 123 of 2014 dated 13.01.2015) case directed closure of the mining operations going on without prior EC, and respondent No.3 is not entitled to operate the unit without the mandatory requirement of prior EC and therefore direction is to be issued to close the unit.

Learned counsel also argued that an existing unit would mean, a unit operating with Consent to Operate and not a unit having only a Consent to establish. The application for Consent to Operate itself was resubmitted by respondent No.3 only on 19.01.2016 and as the requirement of prior EC was there from 17.04.2015, the Consent granted to operate the unit without prior EC is not valid and respondent No.3 is to be directed to close down the unit.

Learned counsel appearing for respondent No.3 argued that respondent No.3 obtained the orders of Consent for establishing the unit as early as on 24.11.2012 and that Consent was challenged before the Appellate Authority in Appeal Nos. 48 and 49 of 2012 and got an order of stay and after its dismissal by the Appellate Authority on 20.04.2013, the Appeal Nos. 46 and 47 of 2013 were filed before the Tribunal and those appeals were dismissed only on 14.07.2014. Learned counsel argued that the rival plants, who were operating bio medical waste treatment facility are the appellants in Appeal nos. 48 and 49 of 2012 and when their attempt to prevent respondent No.3 from establishing the unit did not succeed on dismissal of the appeals, the present application was filed. Learned counsel argued that the delay in establishing the unit after obtaining Consent to establish was because of the appeals filed challenging the order of Consent and the order of stay granted by the Appellate Authority. Respondent No.3 could therefore establish the unit only after 14.07.2014, the date of dismissal of appeal Nos.46 and 47 of 2013.

Learned counsel argued that before the amendment to EIA Notification 2006 which came into effect on 17.04.2015 requiring prior EC for establishing Bio Medical Waste Treatment Facility, the unit was already established. The argument of the learned counsel is that EIA Notification 2006 requires prior EC for establishing all new projects or expanding or modernizing of existing project or activities or for any change in product-mix in an existing manufacturing units, which are included in the Schedule to the EIA Notification 2006 and not prior EC for an existing CBWTF. The argument of the learned counsel is that as the unit was established prior to 17.04.2015, the amendment to EIA Notification 2006 dated 17.04.2015 is not applicable to the unit of respondent No.3. Learned counsel also argued that EIA Notification 2006, prior to the amendment, does not provide that EC is required for operating the unit and instead the requirement of prior EC is only is for establishing new units and hence the application is only to be dismissed.

The following points arise for consideration:

Whether prior EC is required for establishing the Common Bio- Medical Waste Treatment Facility?

Whether respondent No.3 is required to obtain prior EC, as the Consent to establish was granted to respondent No.3 on 24.11.2012 and EIA Notification 2006 as the amended Notification S.O.1142(E) inserting Item 7(da) in the Schedule, came into force only on 17.04.2015?

Points 1 and 2:

The facts are not disputed. The Bio Medical Waste (Management & Handling) Rules 1998 came into force on 20.07.1998. The EIA Notification 2006 came into force on 14.09.2006. Respondent No.3 was granted Consent to establish the disputed CBWTF on 24.11.2012. When the said Consent to establish was granted, the Schedule to EIA Notification 2006 does not specifically provide prior EC to establish a CBWTF. Shree Consultants Common Facility for Bio- Medical Waste Treatment and Disposal, Mysore claiming to be interested in establishing a Common Bio-Medical Waste Treatment Disposal Facility at the place, challenged the order of Consent to establish, before the Karnataka State Appellate Authority in Appeal Nos. 48 and 49 of 2012. On admitting the appeals, an order of stay of operation for Consent to establish was granted. The appeals were later dismissed on 20.04.2013. Appeal Nos.46 and 47 of 2013 challenging those orders were filed before the Tribunal and those appeals were also dismissed by the Tribunal on 14.7.2014. It was also observed by the Tribunal that there exists an imminent and acute need for establishing more CBWTF units and the KSPCB was right in granting Consent to respondent No.3, to establish a CBWTF.

In a similar case Appeal No.63 of 2012 was filed before the Principal Bench challenging an order of Consent granted for operation of the CBWTF, contending that prior EC is required for establishing CBWTF. By Judgement dated 28.11.2013, the Tribunal held that Bio-Medical Waste Treatment plants are required to obtain prior EC in terms of entry 7(d) of EIA Notification 2006. Having recorded the above finding, while keeping the applications pending, all the respondents (Project Proponents) were directed to obtain EC in terms of site location, potential environmental impacts and proposed environmental safeguards from MoEF&CC in accordance with law. The MoEF&CC was directed to dispose of such applications expeditiously, if the applications are filed.

While so, the MoEF&CC by Notification in S.O.1142 (E) dated 17.04.2015, amended Schedule to the EIA Notification 2006. Entry 7(da) was inserted after entry 7(d) which provides for prior EC for establishing all projects of CBWTF. The KSPCB granted Consent to operate the CBWTF to respondent No.3 on 11.02.2016. That order of Consent was challenged by the appellant before the Karnataka State Environment Appellate Authority on 10.03.2016 in Appeal No.3 of 2016. The said Consent was valid for the period from 11.02.2016 to 30.06.2016. The applicant could not get an interim order of stay. Apprehending that the appeal itself would become infructuous, after the expiry of the term for Consent, the present application was instituted after withdrawing the appeal before the Appellate Authority. Even though, the Consent to establish was obtained on 24.11.2012, due to the operation of stay in Appeal Nos.48 and 49 of 2013 and subsequently the appeals before the Tribunal, respondent No.3 could not establish the unit till 14.07.2014.

According to respondent No.3, after the dismissal of the Appeal Nos.46 and 47 of 2013, respondent No.3 received orders for procuring machineries and after establishing the facility, submitted the application for Consent to operate, which was granted on 11.02.2016. Before the expiry of the period of Consent, application was filed by respondent No.3 and Consent was renewed on 17.08.2016.

In view of the Notification issued in S.O.1142 (E) dated 17.04.2015, inserting entry 7(da) in the Schedule to the EIA Notification 2006, it cannot be disputed that prior EC is required to establish any project of CBWTF with effect from 17.04.2015. The argument of the learned counsel appearing for the applicant is that as the Consent to operate was granted only on 11.02.2016, after coming into force of the amendment to EIA Notification, 2006 which provide for prior EC, Consent to operate could not have been granted, as respondent No.3 did not obtain prior EC for establishing the unit, and hence the unit is to be closed.

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.

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 process and or technology shall be undertaken in any part of India only after the prior environmental clearance 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 environmental clearance 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 Environmental Clearance (EC). It reads as follows:

" 2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental clearance 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. "

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.

Schedule to the Notification provides the list of projects or activities requiring prior Environmental Clearance. 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/ 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 17th April, 2015 S.O.1142 (E):- In exerise 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 notie under clause (a) of sub-rule (3) of the said rule 5 in public interest, namely:-

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

(1)

(2)

(3)

(4)

(5)

"7(da)

Bio-Medical Waste Treatment Facilities

All projects

MANOJ KUMAR SINGH, Jt. Secy."

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.

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 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.

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.

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 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.

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.

Then the question is whether the CBWTF of Respondent No.3 was established prior to 17.04.2015 and if not whether EC is mandatory. The argument of the learned counsel appearing for the applicant is that the CBWTF would stand established only on obtaining a Consent to establish, then completing the construction and installing the machinery and equiipment, complying with all the requirements and then obtain Consent to operate under Rule 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Rule 21 of the Air (Prevention and Control of Pollution) Act, 1981. The argument of the learned counsel is that though Respondent No.3 obtained a Consent to establish the unit on 24.11.2012, the Consent to operate was granted for the first time only on 11.02.2016 i.e., subsequent to 17.04.2015 after the coming into effect of the amendment and therefore Consent granted to operate without EC is not valid. Though the Consent to operate granted on 11.02.2016 was only for a period of six months, it is not disputed that subsequently the order of Consent was renewed and at present there is a valid Consent to operate enabling Respondent No.3 to continue to operate the plant. The argument of the learned Counsel appearing for the applicant is that though an application for Consent to operate was submitted before the KSPCB before 17.04.2015, it was returned by the KSPCB and was represented only on 19.01.2016 and therefore as it is subsequent to 17.04.2015, Consent to operate should not have been granted without prior EC.

Learned Counsel appearing for Respondent No.3 would argue that Respondent No.3 could not proceed with the establishment of the CBWTF, as the rival plants challenged the order of Consent to establish first before the Karnataka State Appellate Authority and thereafter before the Tribunal and once the appeals were dismissed by the Tribunal on 14.07.2014, steps were taken to establish and the entire establishment of the facility was completed before 17.04.2015 and in fact an application for Consent to operate was filed on 04.03.2015 before EIA Notification 2006 was amended by S.O 1142(E) dated 17.04.2015 and therefore there is no merit in the contentions of the learned counsel appearing for the applicant.

Before proceeding further certain undisputed facts are to be borne in mind. Respondent No.3 filed an application for establishing the CBWTF on 25.02.2012. Consent to establish was granted on 24.11.2012. The said order of Consent was challenged before Karnataka State Appellate Authority in Appeal Nos. 48 & 49 of 2012. An order of stay of operation of the Consent was granted. Those appeals were dismissed on 20.04.2013. The orders of the Karnataka State Appellate Authority were challenged before the Tribunal in Appeal Nos. 46 & 47 of 2013. They were dismissed only on 14.07.2014. Therefore, even though Consent to establish was granted on 25.02.2012, as they were challenged before the Karnataka State Appellate Authority as well as before the Tribunal, the question was finally resolved in favour of Respondent No.3 only on 14.07.2014. The KSPCB, pursuant to the directions, made available copies of the file relating to the renewal of Consent to operate granted to Respondent No.3, which contain the copy of application for Consent to establish, the order of Consent to establish, the application submitted for Consent to operate, the report of the inspection and the order for granting renewal of Consent. From the records it is clear that Respondent No.3 after establishing the plant, submitted the application dated 04.03.2015 for grant of Consent to operate the facility under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. True, the applications were returned and resubmitted only on 18.01.2016 and thereafter by order dated 11.02.2016 Consent to operate was granted in favour of Respondent No.3. The Consent to operate granted on 11.02.2016 was later renewed as is clear from the copies of the order made available by the KSPCB. The renewal orders of Consent granted to Respondent No.3 under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 are appealable orders but those orders are not challenged in appeals.

From the materials placed before the Tribunal, it is clear that the appellant in Appeal Nos. 46 & 47 of 2013 challenged the order of Consent to establish granted to Respondent No.3 on 24.11.2012, and got an order of stay and thus prevented Respondent No.3 from establishing the Common Bio-Medical Waste Treatment Facility. Therefore Respondent No.3 cannot be found fault for not completing the process of establishment before 14.07.2014, when the appeals were finally disposed by the Tribunal. The relevant documents filed by the KSPCB establish that after 14.07.2014, Respondent No.3 has completed the establishment and even applied for Consent to operate on 04.03.2015. Therefore, though it was returned and resubmitted by Respondent No.3 only on 18.01.2016, it is clear that Respondent No.3 had completed the establishment of the unit before 04.03.2015, one month prior to the date of coming into force of the amendment dated 17.04.2015 to the EIA Notification, 2006. Moreover, what is provided under Para 2 of Regulations, 2006 is to obtain prior EC before establishment and not before the Consent to operate. Consent to establish and Consent to operate are two different concepts. The Consent to establish has to be obtained by the Project Proponent, before proceeding with the construction or establishment of the project. Once the project is established, complying with the conditions if any in the order of Consent to establish, the Project Proponent has to apply for Consent to operate. The Consent to operate has to be granted satisfying that the Project Proponent has established the project in accordance with the conditions of the order of Consent to establish and is satisfied with the Pollution Control Measures having been adequately taken. When Para 2 of the Regulations 2006, clearly mandates prior EC, before establishing and even before carrying on with the construction work of the project, it cannot be contended that EC is mandatory before getting the Consent to operate. The purpose of obtaining prior EC is to avoid any potential negative impact of the project on environment and it is based on Environment Impact Assessment undertaken at the planning stage of the project itself for selecting environmentally compatible sites, process technologies and required environmental safeguards. Once the project is already established, no such exercise can be undertaken. Therefore, the EIA Notification, 2006 provides prior EC, not post EC. True, if prior EC is a prerequisite to establish the industry/unit/project, no Consent to operate could be granted before the Project Proponent satisfies that requisite EC has already been granted in his favour. If that be so, we cannot agree with the submission of the learned counsel appearing for the applicant that the Consent to operate granted in favour of Respondent No.3 by the KSPCB on 11.02.2016 for the period upto 30.06.2016 or its subsequent renewal on 17.08.2016 for the period upto 30.06.2021, are invalid.

The fact that the Respondent No.3 was having a valid consent to establish granted on 24.11.2012, a Consent to operate which is valid upto 30.06.2016 and was also having a valid authorisation under Bio-Medical Waste (Management and Handling) Rules, 2016 is not disputed. The fact that they were subsequently renewed and in such circumstances, we hold that the applicant in the application has only contended that Respondent No.3 has not obtained prior EC, as the project of CBWTF was included under Entry 7(da) and not on the basis that prior EC is necessary under Entry 7(d) as originally stood before the amendment dated 17.04.2015 and at present there is valid Consent under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, and also authorization under Bio-Medical Waste (Management & Handling) Rules, 2016 is not disputed as the amendment under S.O. 1142(E) Notification dated 17.04.2015 is only prospective and not retrospective, the Common Bio-Medical Waste Treatment Facility run by Respondent No.3 cannot be directed to be closed for want of EC. As Respondent No.3 is having a valid Consent to operate under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 and also the authorisation under the Bio-Medical Waste (Management and Handling) Rules 2016, we find no merit in the application. The application is dismissed with no order as to costs.