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TMI Blog2023 (1) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... asad, Ms. Mukta Dutta, Mr. Abhishek Shivpuri, Mr. Vinay Tripahi, Mr. Vinemra Kopariha, Advocates for Sanvira Mr. T V S Raghavendra Sreyas, Ms.Gayatri Gulati, Mr. Siddharth Vasudev, Advocates for R-4 Mr. Shubhranshu Padhi, Mr. Vishal Bansal, Advocates for R-5 JUDGMENT 1. At the outset, it is imperative to set out the description of each of these matters. LPA Nos. 25/2021, 70/2021 and 71/2021 have been filed by the Appellants challenging the common Judgment dated 15.01.2021 passed by the learned Single Judge, disposing W.P.(C) Nos. 3709/2020, 3773/2020 and 3773/2020, respectively. 2. W.P.(C) 5749/2021 has been filed by the Petitioners challenging the Minutes of Meeting dated 10.05.2021, Public Notices dated 31.03.2021 and 17.04.2020 issued by the DGFT as well as Letter dated 04.05.2020 issued by Andhra Pradesh Pollution Control Board (hereafter, "APPCB"). 3. W.P.(C) 6258/2022 has been filed by the Petitioners challenging the Minutes of Meeting dated 09.03.2022, Public Notice dated 10.02.2022 issued by the DGFT as well as Letter and Report dated 08.10.2020 and 03.10.2018 issued by APPCB. 4. On account of the similarity in the present matters, we deem it apposite to take up LPA 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing CPC up to a quantity of 2,00,000 MTPA. The Consent to Operate (hereafter, "CTO") was granted in terms of Sections 25 of the Water (Prevention and Control of Pollution) Act, 1974 read with Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 and Rule 6 of the Hazardous & Other Wastes (Management and Transboundary Movement) Rules, 2016, which mandates an industrial unit discharging effluents and emissions to seek a CTO from the concerned State Pollution Control Board (hereafter, "SPCB"), (in this case the APPCB). b. On 18.07.2018, it was resolved in a meeting held between the Ministry of Environment, Forest and Climate Change (MoEFCC), Ministry of Petroleum and Natural Gas, officers of the Environment Pollution (Prevention and Control) Authority for NCR (hereafter, "EPCA") and Respondent No. 2, that import of pet coke ought to be restricted only to industries using the same as feedstock or as part of their manufacturing process and not as fuel. Para 1.10 of the MOM dated 18.07.2018 is reproduced hereunder: - "1.10 EPCA stated that based on extensive discussion between MoEFCC, MoPNG and DGFT, a regime for regulating import of pet coke had been suggested by DGF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame of user industrial units for their own use only. (4) Import of pet coke for the purpose of trading shall not be permitted. (5) Authorised importers of Petcoke shall furnish opening and closing stock of imported Petcoke to the concerned SPCB/ PCC on a quarterly basis. (6) The SPCBs/ PCCs shall develop an electronic record system for uploading of consents, registration and record of use of imported Petcoke by industrial units, as mentioned above and the said Boards/ Committees shall share this data with the Central Pollution Control Board on a quarterly basis. This data shall be published on the Central Pollution Control Board website on receipt from the SPCB/ PCC. These Guidelines shall come into force from the date of publication of Office Memorandum by Ministry of Environment, Forest and Climate Change." As per the afore stated guidelines, the Appellant and Respondent No. 3 were bound to obtain consent and registration issued by the concerned SPCB / Pollution Control Committee (PCC) and it was only such entities which were permitted to import RPC. e. On 12.09.2018, Respondent No. 3 wrote to the EPCA inter-alia intimating it about the production capacity of the vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate emission standards, as stipulated by CPCB. A.1.2 EPCA Recommendation on Calciner Industry The calciner industry should be allowed to import pet coke as its industry uses it for feedstock and not for fuel. This import is required as anode grade petcoke is not available in sufficient quantities in the country." xxx g. On 09.10.2018, the Hon'ble Supreme Court, taking cognizance of the EPCA Report, passed an Order directing that the import of RPC shall not exceed 1.4 MMTPA in terms of the EPCA Report and the same could be used as feedstock for producing CPC. It is pertinent to mention here that the figure of 104MMTPA was arrived at taking into account the production capacity of the caliners given by the caliners themselves. The report dated 06.10.2018 became the basis of the Order dated 09.10.2018 of the Apex Court. h. Pursuant to the Order dated 09.10.2018, a notification was issued by the Directorate General of Foreign Trade ("DGFT") bearing No. 42/2015-20 amending the Foreign Trade Policy in relation to import of RPC. The said amendment allowed the import of RPC for cement, lime kiln, calcium carbide, gasification and graphite industries for use as a feed stock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umption requirement is not indicated in SPCB certificates of all industries. For the sake of uniformity, the Committee decided to consider the allocation of RPC in proportion to the production capacities of the applicants as indicated in SPCB certificates. As in some of the SPCB certificates, production capacity of CPC was indicated in TPD (Tonnes Per Day); to bring uniformity, production capacity was arrived at by multiplying the capacity with 350 days." j. Soon thereafter, Respondent No. 3, being aggrieved by such calculation, filed an Application before the Hon'ble Supreme Court, being I.A. No. 12291 of 2019 in the PIL Proceedings, wherein Respondent No. 3 placed on record the following: - "6. Thereafter the Applicant set out to set up the project in three phases as detailed below: (I) Phase I: In the Phase I of the proje4, the Applicant set up a manufacturing unit at a cost of Rs. 320 crores with capacity to produce 200,000 MTPA CPC. The Applicant received Consent to Operate ("CTO") for this unit from the APPCB on 22.04.2017 vide Consent Order No. APPCB / VSP / VSP / 305 /HO/ CFO/2017 and commenced commercial operations. The Applicant currently employs 190 people and prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for total production capacity of 330,000 MTPA of CPC before the deadline for applications. (v) The Applicant duly applied for allocation of import quota of RPC vide its application to DGFT dated6.12.2018 and requested for allocation of 183,746MT of RPC for 2H2018-19 based on its current certified production capacity of 330,000 MTPA and permitted import and usage. (vi) Against such application, the Application was granted a meagre allotment of 99548 MT of RPC for the period ending on 31.03.2019. From a perusal of the Minutes of Meeting held on 12.12.18 at the DGFT, it appeared that inter-alia, the following were considered at the time of allotment of RPC from the import limit fixed by this Hon'ble Court for calciners: (a) Nine applications for import of RPC were received by 07.12.2018; (b) The available quantity would be divided proportionately in relation to the production capacity of the applicants; (c) While the production capacity of applicants who had filed applications before this Hon'ble Court was taken from the record placed before this Hon'ble Court, for the other three applicants, their Pollution Certificates were considered; and (d) The principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar, emerging from the above background may kindly be noted: (i) This Hon'ble Court was pleased to permit the use and import of RPC by CPC manufacturing units after noting the views expressed by the CPCB as regards inter-alia, need for treatment of S02emission by calciners in FGD system, and observing that the same had also been considered and accepted by both, the MoEF & CC as well as the EPCA. That the permission to import RPC was given pursuant to CPCB's views is clear from the following extract of order dated 9.10.2018 passed by this Hon'ble Court: "The views expressed by the CPCB have been considered by the Ministry of Environment, Forest and Climate Change which is in agreement with the CPCB. It is stated by /earned amicus curiae that the views expressed by the CPCB are also acceptable to EPCA. Consequently, raw pet coke (domestic and imported) can be used as a feedstock for producing calcined pet coke." (ii) Under Office Memorandum dated 10.09.2018issued by the MoEF & CC applicants would be entitled to import of RPC on the basis of certification by SPCB/PCC as regards the quantity permitted for import and its use on a per month and per annum basis. No c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing units and issue appropriate directions to the Directorate General of Foreign Trade; (d) Enhance the annual import limit on Raw Petroleum Coke for Calcined Pet Coke manufacturing units beyond 1.4 million MT if deemed necessary taking into account allocation to the Applicant as per prayer(a) and (b) above; (e) Consider removing quantitative restriction on the import of Raw Petroleum Coke by the Calcined Pet Coke manufacturing units." k. On 28.01.2019, the Hon'ble Supreme Court dismissed I.A. No. 12291 of 2019 in the PIL Proceedings, stating that the Order dated 09.10.2018 passed by it is clear, and that the outer limit for import of RPC cannot exceed 1.4 MT per annum in total. The relevant portion of the Order is reproduced hereunder: - "Heard learned counsel for the parties. I.A. Nos.168838 and 164302 of 2018 (Applications for impleadment) are rejected. The order dated 09.10.2018 passed by this Court is clear. This Court has set the outer limit for import of raw pet coke cannot exceed 1.4 MT per annum in total. In view of the aforesaid, prayers made on the basis of expansion etc. are totally misconceived and cannot be entertained. No further orders are r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xceed 1.4 MT per annum in total. In view of the aforesaid, prayers made on the basis of expansion etc. are totally misconceived and cannot be entertained. No further orders are required to be passed on these I.A.s. The same are hereby dismissed."The Committee accordingly decided to reject the request for additional quantity of RPC for the additional capacity added by applicants after the Hon'ble Supreme Court's order dated 9.10.2018. xxxx 7. In case of M/s Sanvira industries Ltd. also, the Committee noted that the additional capacity of 1,30,000 MT was created after the Hon'ble Supreme Court's Order dated 9.10.2018 as per the official record. Hence, the request for additional quantity for the new capacity was rejected by the Committee." (emphasis supplied) m. In April, 2019 itself, Respondent No. 3impugned the MoM dated 22.04.2019 before this Court by way of WP(C)4485/2019 wherein an adjournment had been sought in the ground that a clarification was required from the Hon'ble Supreme Court in the matter. The relevant portion of I.A. No.73242/2019 reads as under:- "(xiii) It is most humbly submitted that the issue that a total production capacity of 330,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions made by the learned counsels for the parties. A perusal of the Impugned Minutes of Meeting dated 22.04.2019of the respondent no. 1, also clearly shows that the installed capacity as on09.10.2018 has to be considered by the respondent no. 1 for making allocation of RPC. The Minutes, however, do not show the consideration of documents that have been referred to hereinabove by the leaned senior counsel for the petitioners, by the respondent no.1 while making such allocation. 8. In light of the above facts, the respondent no. 1 is directed to consider the petition as a representation of the petitioner and pass a speaking order thereon, within a period of four weeks from today. While taking such decision, the respondent no. 1 shall also grant an opportunity of hearing to the petitioners." p. In February 2020, the Respondents rejected the representation made pursuant to the Order of this Court in W.P.(C) No. 4485/2019. While doing so, the Respondents inter alia observed that by virtue of the Order of the Supreme Court dated 28.01.2019 neither the limit of 1.4 million MT can be enhanced nor the expansion of the capacity by the calciners can be entertained and allocati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85. The firm was not having Consent to Operate on 09.10.2018 for their plant and accordingly it was not considered by the Committee which decided the allocation of pet coke amongst all eligible applicants. 8. M/s Sanvira Industries Ltd. after filing the W.P. (C) 4485/2019 & CM No. 31904/2019before the Delhi High Court, filed 1A No.73242/2019, before the Hon'ble Supreme Court inter-alia praying to challenge the Minutes of Meeting dated 22.4.2019 regarding allocation of RPC. The said application was disposed of by the Hon'ble Supreme Court observing* "Our order is clear. No further clarification is required. This application is disposed of." In view of the above directions of the Hon'ble Supreme Court, where the Minutes of the Meeting dated 22.4.2019 has been challenged by the calciners earlier, the Hon'ble Supreme Court has reiterated that no further clarification is required. Therefore, the EFC decided that the request of petitioner for allocation of RPC for its additional capacity cannot be acceded to. 9. The Committee while considering the submission of the M/s Sanvira Industries Ltd. was of the view that i. The capacity of each applicant was decided on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 along with State Pollution Control Board Certificate (SPCB)/Pollution Control Committee (PCC) indicating capacity of the unit as on 9.10.2018 (Hon'ble Supreme Court Order in Writ Petition No. 13029/1985) and also valid consent certificate from SPCB/ PCC, in the name of user industrial units indicating the quantity permitted for import and its usage on a monthly and yearly basis." (emphasis supplied) s. This Court, vide its Order dated 02.05.2020, rejected the application seeking directions filed by Respondent No. 3 in W.P.(C) 1858/2020, observing as follows: - "9. But in agitating this issue qua the Public Notice dated 17.04.2018, it is in effect seeking a variation of this condition relating to the production capacity, as on 09.10.2018, so that when a decision is taken in the future for allocation of 1.4 LMT of imported RPC, the higher capacity is considered, to its benefit. Clearly, such a relief cannot be claimed by means of an application in a writ petition which is challenging a decision already taken in February, 2020. Moreover, this could open a pandora's box as others may have similar wish lists or grievances qua the conditions and modalities. Further, any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n into consideration; iv. The quota be divided on a proportionate basis as per the following formula:- Quota allocated = Total Quota available for allotment multiplied by the demand of applicant divided by the Total demand for all applicants v. In cases where requested quantity is lower than eligible quantity, the surplus on their heads are redistributed among others proportionately." u. The Appellant challenged the said allocation by way of W.P.(C) No. 3709 of 2020 before the Ld. Single Judge. On 15.01.2021, the ld. Single Judge passed the Impugned Order dismissing the petition, and upholding the allocation primarily on the grounds that the Supreme Court's Order of 09.10.2018 merely set an outer limit of 1.4 MMTPA and did not direct on the inter-se distribution of the imported RPC among the various calciners and accordingly, the policy brought about by the Third Public Notice altered the arrangement of inter-se distribution. Relevant excerpts of the judgment are reproduced hereunder. 3. Mr. P. Chidambaram, ld. Senior Counsel, contends that the Impugned Order and the MoM dated 03.06.2020 are blatantly erroneous for disregarding and ignoring the framework and court orders pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate from the SPCB, as required by the Third Public Notice, allocation cannot be increased since the CTO exists only to the extent of 2,00,000 MTPA. 6. He has further submitted that the Ld. Single Judge has erred in inferring that the Orders of the Hon'ble Supreme Court in the PIL Proceedings do not constitute a bar on DGFT to allocate additional to RPC to Respondent No. 3 since it does not restrict DGFT from allocating RPC to any new entrants in the calciner industry. Such an interpretation is untenable in his opinion as it alters the basis of the Supreme Court Order of 09.10.2018 which, the Supreme Court itself has refused to interfere with on two occasions. 7. Per contra, Mr. Amit Sibal, ld. Senior Counsel appearing on behalf of Respondent No. 3 submits, at the outset, that the capacity of Respondent No. 3 as on 09.10.2018 was 330000 MTPA and the same has been certified by APPCBL, which is an expert body. It has been argued that in terms of the criteria for allocation laid down in the public notices of 17.04.2020 and 31.03.2021, Respondent No. 3 was required to possess, (i) the certificate of the SPCB certifying capacity of the unit as on 09.10.2018 and (ii) a valid CT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic notice dated 17.04.2020 and states that the said notice makes a distinction between certificate in the first part and the consent to operate in the second part and if both, the certificate and the consent to operate, were the same document, clearly there would not have been any necessity to make a separate mention of the certificate and the consent to operate in two parts of the same clause of the public notice. 11. Learned ASG has supported the minutes of meeting dated 03.06.2020. He states that the Apex Court was not concerned with the policy of allocation. He has adopted the arguments of Mr. Sibal in stating that the Apex Court was dealing with the issue of pollution and not with the issue of inter se allotment of raw petroleum coke amongst the various calciners. He further stated that the decision of the Committee that the production capacity which had been determined on the basis of the certificate of the State Pollution Control Board indicating the capacity of the unit as on 09.10.2018 is a valid criteria and the burden of determining the production capacity of the eligible entities as on 09.10.2018 was put on the State Pollution Control Boards and it was for that reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognizing and allowing operation of the unit at the capacity of 3,30,000 MT was only granted vide the APPCB's order dated 29.11.2018. The said CTO Order is, therefore, after the Judgment of the Apex Court passed on 09.10.2018 wherein the Apex Court had accepted the recommendations of the EPCA for permission of 1.4 Million Metric Tonnes per annum. The finding of the learned Single Judge that the Apex Court has only capped the total imports and had not taken any decision on the internal distribution of raw pet coke cannot be accepted. 17. As stated earlier, the distribution was based on the total capacity as on 09.10.2018, and, therefore, any change in the increase in the capacity will ultimately have the effect of altering the total import which the Apex Court has not permitted to increase despite repeated attempts on the part of the Appellant and Respondent No.3. 18. At this juncture, it is apposite to highlight that Respondent No. 3 had placed the complete facts pertaining to its grievance before the Hon'ble Supreme Court in I.A. No.12291/2019 in filed in the PIL Proceedings, the relevant portion of which has been quoted above. The said application was rejected by the Apex Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the total 1.4 Million Metric Tonne as permitted by the Apex Court. The Appellant attempted to move the DGFT for the increase in their quota based on the increase in their production capacity which was rejected by the DGFT by Order dated 22.04.2019 on the ground that any change in the quota would be violative of the order of the Apex Court. The relevant portion of the order has been quoted above. 22. The Appellant moved the Apex Court by filing I.A. No.73242/2019 seeking clarification of the order dated 09.10.2018, which was rejected vide Order dated 08.07.2019 on the grounds that order dated 10.08.2018 does not require any clarification. This shows that the second attempt by the Appellant to get an order from the Apex Court to acknowledge that their production capacity has increased and thereby their share in the import should be increased also stood rejected. It is pertinent to mention here that the said order of the DGFT has also been challenged before this Court by filing W.P.(C) 4485/2019 and this Court by its order dated 06.12.2019 had directed that the writ petition be treated as a representation and directed the DGFT to pass orders. The said direction was complied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 09.10.2018, that is the date on which the Apex Court passed the order, every calciner had given its capacity. The total capacity of all the calciners put together came to 11,72,750 Metric Tonnes and the production and the total import that was necessary for the calciners to continue producing pet coke from raw pet coke was assessed as 1.4 Million Metric Tonnes as stated earlier. It is reiterated that the same was completely based on the production capacity. On 09.10.2018, the recognition to Respondent No.3 to increase its capacity from 2 Lakh Metric Tonnes to 3.30 Lakh Metric Tonnes had not been placed, rather the consent to operate dated 22.04.2017 restricted Respondent No.3 to produce only 2 Lakh Metric Tonnes of pet coke. The consent to operate for the additional capacity of 1,30,000 MT was granted only on the basis of an agenda item placed before the Andhra Pradesh Pollution Control Board on 29.11.2018. Although Respondent No.3 can produce 3.30 Lakh Metric Tonnes, it does not automatically lead to an inference that they are entitled to an increase in their share of the total import permissible by the orders of the Apex Court dated 09.10.2018. 29. The Apex Court as stated e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etroleum coke, was 3.3 Million Metric Tonnes per annum and is obviously immaterial. Even though the public notice dated 17.04.2020 is not under challenge but this Court cannot be a party to any interpretation that will have the effect of upsetting the rationale of the Apex Court in fixing 1.4 Million Metric Tonnes of raw petroleum coke which, as stated earlier, was based on the permissible capacity as on 09.10.2018. 31. In case, now, the production capacity has increased and its proportionate share has been increased, the DGFT has to bring this fact to the knowledge of the Apex Court and only the Apex Court can alter the figures. The learned Single Judge has, therefore, erred in coming to a conclusion that inter se allocation could have been changed by the DGFT more so because the DGFT has in its previous Minutes of Meetings rejected the claim of various applicants including Respondent No.3 for increasing their share of allocation as per their production capacities. Even though the capacity may have been increased by the order dated 29.11.2018, the permission to produce more than 2 Lakh Metric Tonne was not there on 09.10.2018, which is evident from the order dated 22.04.2017, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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