Does non-publication in the Official Gazette make statutory guidelines directory rather than mandatory?

Paragraph 50In the present litigation, we are concerned with a situation fitting within the third type i.e., when there is silence both in the parent statute and the rules as regards what mode of publication must be followed. As a general rule, even in such scenarios, publication must ideally be made in the Official Gazette. After all, it is the customarily recognised official channel of the government. But, of course, the natural corollary to any general rule is the possibility of it having one or more exceptions. B.K. Srinivasan (supra) too referred to such outliers when it clearly stated that “some other reasonable mode of publication” may also be acceptable apart from publication in the Official Gazette. It is tacit that to take benefit of this exception, the court must be satisfied that such an alternate mode or manner of publication was indeed reasonable.

Paragraph 54Now, turning to our facts; neither the EP Act nor the BMWM Rules prescribe a strict mode of publication for the RG, 2016. Undeniably, we would fall under the third-type of scenario as per the decision in B.K. Srinivasan (supra). Therefore, publication in the Official Gazette, although the general rule, cannot be said to be a sine qua non. We are of the view that publication of such technical guidelines i.e. the RG, 2016, on the official website of the CPCB was reasonably sufficient. Moreover, the RG, 2016 lays down crucial standards which form the foundation for the grant of EC and CTE/CTO respectively to a CBWTF. They are so deeply embedded in the authorisation mechanism and 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. Consequently, falling back on the ratio in Gulf Goans (supra) would be of no help. B. Permissibility of the grant of relaxation in land requirement

Paragraph 110A 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 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. 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. 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.