Environment – Issue as to allocation of quantities of raw petcoke (RPC) – Increased allocation to the appellant – Challenged by respondent, writ petition dismissed by Single Judge of High Court – Division Bench set aside the minutes of the meeting as well as the decision of the Central Government allocating pet-coke – Appellant inter alia contended that there was a change of criteria adopted in the Public Notice dtd.17.04.2020 issued by the GOI and contrary to the earlier requirement of certification of production capacity by the Unit, the said Public Notice required certification by the State Pollution Control Board – In this case, the Andhra Pradesh Pollution Control Board (APPCB) certified appellant’s production capacity as on 09.10.2018 to be 3,30,000 MT and as per the appellant that figure was correctly considered while making allocation of RPC in its favour and thus, the impugned judgment was in error and the judgment of the Single Judge was correct – Held: Division Bench correctly noted that the annual total limit of import of 1.4 Million Metric Tonnes was based on the total production capacity as on 09.10.2018 which had been fixed by Supreme court on the basis of the capacity disclosed by all the calciners – Barring the fact that a clarification was issued by the APPCB on 04.05.2020, there was no change in circumstance – The material document to be considered was the Consent to Operate (CTO), which for the relevant period (i.e. as on 09.10.2018) was 2,00,000 MT per annum for the appellant – Even according to it, the claim for enhancement was made later, and the CTO for the increased capacity was issued only on 26.12.2019 – Thus, the clarification of APPCB, that as on a particular date, the production capacity was 3,30,000 MTPA was of no consequence, because it was the CTO that was considered all along, in all previous meetings – Therefore, the findings and conclusions of the Division Bench cannot be faulted. Dismissing the appeals, the Court
HELD: 1.1 The order of this court had fixed the outer limit of import of RPC at 1.4 million tonnes per annum. This was based on the assessment by Environment Pollution Control Authority (EPCA) which evaluated the requirements of various industries and units, engaged in the production of diverse commodities and raw materials (such as steel, aluminium, cement, clinker and those of calciners). The EPCA took into consideration the availability of appropriate grade domestic pet-coke, the overall impact on the environment and climate, of such essentially polluting feed based on this detailed examination, reported to this court, that
1.4 MMT ought to be the cap for imported RPC. Concededly, the estimation with respect to the capacity and the utilization of imported RPC was based on the figures provided by the industry itself. The EPCA report clearly states that the total capacity was
1.17 million tonnes; in arriving at this figure the EPCA took note of the capacity based upon the Consent to Operate (CTO) issued by the concerned Pollution Control Board. In the case of Rain CII, the capacity recorded was 500,000 MTPA, and in the case of Sanvira 2,00,000 MTPA. The guidelines for regulation and monitoring of imported pet coke had been issued on 10th September 2018 by an office memorandum – through the MOEF, GOI. [Paras 18 and 20][149-E-G; 150-D-E]
1.2 The consent issued by the concerned SPCB or the PCC had to clearly state what was the capacity or quantity permitted for import by the concerned unit. In the present case, it is not disputed that the Consent to Operate (CTO) issued by APPCB in Sanvira’s favor recorded the total capacity at 2,00,000 TPA. If one sees the disputes in terms of these facts, what is clear is that the CTO mentions Sanvira’s capacity at 2,00,000 TPA. Sanvira’s position is that the CTO for an additional 1,30,000 TPA was granted on 29.11.2018 and that the application for such capacity was made on 29.10.2018. [Paras 21 and 22][151-D, F-G]
1.3 The APPCB issued the CTO for the quantity of 3,30,000 TPA only for 23.12.2019, the concerned Order APPCB/VSP/VSP/305/HO/CFO/2019. The consistent position of the GOI is that any capacity added by the procedures after the Order of this Court dated 09.10.2018 would not be taken into consideration while allocating the RPC. The minutes also recorded that Sanvira’s additional capacity was created after this court’s order dated 09.10.2018. From all these facts, it is evident that Sanvira kept on contending that its capacity was 3,30,000 MTPA. The minutes of the meeting dated 13.02.2020, also allude to the previous attempts by Sanvira, to have its capacity increased, as on 09.10.2018 in an effort to secure more allocation. All such contentions were rejected. In this background, the view expressed by the single judge, that the principle for allocation was changed somewhat in the public notice, dated 17.04.2020, is not tenable. Interestingly, even as on that day, i.e. 17.04.2020, there was no confirmation by the APPCB that Sanvira’s unit had the capacity it claimed (3,30,000 MT annually). The CTO for that capacity had been issued only on 26.12.2019. As on that day, there was nothing to show that the earlier CTO stood amended with effect from the date it was issued (i.e. 24.02.2017), or any date prior to 09.10.2018. In such background, Sanvira wrote to APPCB, on 21.04.2020 seeking a “clarification”. APPCB replied with refreshing alacrity on 04.05.2020. This letter virtually became the gateway for a review of the entire system of allocation. Clearly, the GOI had altered its position, within five weeks, because in the order dated 02.05.2020, in an application moved by Sanvira, in the pending writ petition, its position, through the statement of its counsel, was that there was no change in the allocation method, by the public notice of 17.04.2020. Despite the said statement, the Minutes of the meeting dated 03.06.2020, treated the letter of 04.05.2020 (by APPCB) as if Sanvira’s original capacity was 3,30,000 MTPA, ignoring the consistent position, whereby its claims to that effect were rejected about five times previously. [Paras 23-27][153-D-E; 154-B; 156-A-B, E; 157-E, H; 158-A]
1.4 The reasoning of the impugned judgment is that there was no distinction (contrary to the conclusion of the single judge) regarding the public notice dated 17.04.2020 -between the certificate in the first part and the consent to operate in the second part. The Division Bench noted, correctly that the annual total limit of import of 1.4 Million Metric Tonnes was based on the total production capacity as on 09.10.2018 which had been fixed by this court on the basis of the capacity disclosed by all the calciners. It was also observed that an SPCB could indicate the permissible limit of production of calcined petroleum coke. For Sanvira it was 2,00,000 MTPA; the consent to produce 3,30,000 MTPA of coke was given only after 29th November 2018. Therefore, it could not have been considered by the court. The certificate dated 04.05.2020 issued by the APPCB merely certified that the installed capacity of Sanvira, as on 09.10.2018, for manufacturing calcined petroleum coke, was 3,30,000 Metric Tonnes per annum in terms of the CTO. The total figure of 1.4 Million Metric Tonnes of RPC was based on the permissible capacity as on 09.10.2018. The Division Bench, therefore, concluded that if production capacity had increased, the proportionate share to be given was after clearance by this court. The view expressed by the impugned judgment is correct. Barring the fact that a clarification was issued on 04.05.2020, by the APPCB, there was no change in circumstance; the material document to be considered was the CTO, which for the relevant period (i.e. as on 09.10.2018) was 2,00,000 MT per annum, for Sanvira. Even according to it, the claim for enhancement was made later, and the CTO for the increased capacity was issued on 26.12.2019. In these circumstances, the clarification of APPCB, that as on a particular date, the production capacity was 3,30,000 MTPA was of no consequence, because it was the CTO that was considered all along, in all previous meetings. Therefore, the findings and conclusions of the Division Bench cannot be faulted. [Paras 28 and 29][158-E-H; 159-A-C]
M.C. Mehta v. Union of India [W.P. No 13029/1985] – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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