Delhi High Court
Rain Cii Carbon Vizag Ltd & Anr. vs Union Of India & Ors. on 15 January, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserved: 08.12.2020
Date of Decision : 15.01.2021
+ W.P.(C) 3709/2020
RAIN CII CARBON VIZAG LTD & ANR. ..... Petitioners
Through Mr.C.A.Sundaram and
Mr.SandeepSethi, Sr.
Advocates with Mr.JafarAlam,
Ms.ShivaniKhandekar,
Mr.ZafarInayat,
Ms.SamykyaMukku,
Mr.PranavButalia&Mr.Vinayak
Marwah, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr.Chetan Sharma, ASG with
Mr.Ripudaman Bhardwaj,
CGSC,Mr.AkshayyGadeok,
Mr.Sahaj Garg, Advs. for R-1
& 2.
Mr.K.V.Vishwanathan and
Mr.AmitSibal, Sr. Advocates
with Mr.Ashish Prasad,
Ms.Mukta Dutta,
Mr.AvinashTripathi,
Mr.AnkurKashyap&Mr.RohitR
ajershi, Advs. for R-3.
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 1
+ W.P.(C) 3773/2020& CM No.13505/2020 (Stay)
PETRO CARBON AND CHEMICALS PRIVATE LIMITED
..... Petitioner
Through Mr.NeerajKishanKaul, Sr. Adv.
with Mr.Dhananjaya Mishra,
Mr.Arnav Dash,
Mr.DivyanshuShrivastava&Mr.
AkashLamba, Advs.
versus
DIRECTORATE GENERAL OF FOREIGN TRADE & ORS.
..... Respondents
Through Mr.Chetan Sharma, ASG with
Mr.Ripudaman Bhardwaj,
CGSC,Mr.AkshayyGadeok,
Mr.Sahaj Garg, Advs. for R-1
& 2.
Mr.K.V.Vishwanathan and
Mr.AmitSibal, Sr. Advocates
with Mr.Ashish Prasad,
Ms.Mukta Dutta,
Mr.AvinashTripathi,
Mr.AnkurKashyap&Mr.RohitR
ajershi, Advs. for R-3.
+ W.P.(C) 3790/2020& CM No.13592/2020 (Stay)
INDIA CARBON LIMITED & ANR. ..... Petitioners
Through Mr.GauravKejriwal, Adv.
versus
UNION OF INDIA AND ORS ...... Respondents
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 2
Through Mr.Chetan Sharma, ASG with
Mr.Ripudaman Bhardwaj,
CGSC,Mr.AkshayyGadeok,
Mr.Sahaj Garg, Advs. for R-1
& 2.
Mr.K.V.Vishwanathan and
Mr.AmitSibal, Sr. Advocates
with Mr.Ashish Prasad,
Ms.Mukta Dutta,
Mr.AvinashTripathi,
Mr.AnkurKashyap&Mr.RohitR
ajershi, Advs. for R-3.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1. These petitions have been filed challenging the Minutes of
Meeting dated 03.06.2020 of the Directorate General of Foreign Trade
(DGFT) to the extent that it allocates additional Raw Petroleum Coke
(RPC) in favour of M/s Sanvira Industries for production capacity in
excess of 2,00,000 Metric Tonnes (MT).
2. These petitionshave a checkered history of orders passed by the
Supreme Court as also by this Court and therefore, at the outset, a
reference to these would be essential for understanding the underlying
disputes.
3. The Supreme Court by its order dated 26.07.2018 passed in
WP(C) 13029/1985, M.C. Mehta v. Union of India&Ors., directed
the implementation of the decision taken in paragraph 1.10 of the
Minutes of Meeting dated 18.07.2018 held between the Ministry of
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 3
Environment, Forest and Climate Change alongwith Officers of the
Ministry of Petroleum and Natural Gas and Environment Pollution
(Prevention and Control) Authority for NCR (EPCA) as also with the
DGFT, which stated as under:
―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
DGFT, which is also compliant with WTO norms. EPCA
stressed that this regulatory framework should be
immediately implemented and import of pet coke should be
permitted only in those industries where pet coke is used as
a feedstock or in the manufacturing process and not as a
fuel. These industries, which have been permitted to us pet
coke in NCR states and accepted by the Hon'ble Supreme
Court are the following: cement, lime kiln, calcium carbide
and gasification. Import should be allowed only for these
industries in the country, which will make the regime
compatible with WTO requirements. EPCA also said that it
would prefer an arrangement, which priortises the use of
domestic pet coke as against imported pet coke.‖
4. Pursuant thereto, the Ministry of Environment, Forest and
Climate Change issued an Office Memorandum dated 10.09.2018
laying down the Guidelines for Regulation and Monitoring of
Imported Petcoke in India inter-alia on the fulfillment of the following
conditions:
"1. Guidelines for Regulation and Monitoring of
Imported Petcoke in India: -
As per notification of Director General of Foreign Trade
(DGFT) dated 17.8.2018, Import of Petcoke foruse as fuel
is prohibited. However, import of Petcoke is allowed for
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 4
the following industries namely,cement, lime kiln, calcium
carbide and gasification for use as feedstock or in the
manufacturing processonly on actual user basis as per the
conditions stipulated below:
(1) Petcoke importing industries namely, cement, lime kiln,
calcium carbide and gasification shallobtain the consent of
and registration with the concerned State Pollution
Control Boards (SPCB)/Pollution Control Committees
(PCC).
(2) Consent issued by the concerned SPCB/ PCC shall
clearly specify the quantity permitted forimport and its use
on a per month and per annum basis.
(3) Only registered industrial units with valid consent from
SPCBs/PCCs as per clause (1) shall bepermitted to
directly import pet coke and consignment shall be in the
name of user industrial unitsfor 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 tothe 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 andthe said Boards/ Committees shall share this
data with the Central Pollution Control Board on
aquarterly basis. This data shall be published on the
Central Pollution Control Board website onreceipt from
the SPCB/ PCC.
These Guidelines shall come into force from the date of
publication ofOffice Memorandum by Ministry
ofEnvironment, Forest and Climate Change.‖
(Emphasis supplied)
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 5
5. Various applications were filed, including on behalf of the
petitioners and M/s Sanvira Industries before the Supreme Court
seeking certain clarifications. A report dated 06.10.2018 was filed
therein by the EPCA making the following recommendations for the
Calciner Industry:
―A.1.1 Calciners
This industry imports different grades of pet coke and then
upgrades thisproduce to produce calcined pet coke
through removal of moisture, volatilematter and by
changing the crystalline structure. The pet coke is used as
afeedstock in the manufacturing process and not as a fuel.
The calcined petcokeis sold to the Aluminum industry for
feedstock in smelting process.
These are 28 calciners in the country, of which 6 are port
based and entirelydependent on imported raw pet coke.
These 6 calciners, manufacture 72 percent of the calcined
pet coke produced in the country.
The 6 companies are as follows:
1. Rain CII Carbon, plant based in Vizag, Andhra
Pradesh
2. Sanvira Industries, plant based in Vizag, Andhra
Pradesh
3. Goa Carbon, with plants in Goa,Paradeep (Orissa)
and Bilaspur (Chattisgarh)
4. Kalinga CalcinersPvt Ltd, plant based in Paradeep
(Orissa)
5. India Carbon Ltd, plant based in Budge Budge, West
Bengal
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 6
6. Petro Carbon N Chemicals Pvt Ltd, plant in Haldia,
West Bengal
Theindustry cannot use domestic pet coke as that grade-
called anodegrade - is not readily available. The structure
of the pet coke in India is differenttherefore, import
becomes essential.
The industry also provided EPCA with details of the
quantity required by theindustry (see Annexure 1).
According to this estimation, the 6 industries, with
combined productioncapacity of 1.17 million tonnes
require 1.36 million tonnes of imported petcoke to produce
l million tonnes of calcined pet coke annually.
The industry has also informed EPCA that it meets S02,
NOx and particulateemission 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 usesit for feedstock and not for fuel. This
import is required as anode grade petcoke is not available
in sufficient quantities in the country.
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 7
xxx
6. The above recommendation was accepted by the Supreme Court
in its order dated 09.10.2018 passed in the abovementioned Writ
Petition, directing that the RPC can be used as a Feedstock for
producing Calcined PetCoke, however, the imported RPC for this
purpose cannot exceed 1.4 Million MT (MMT) per annum in total.
7. As is evident from the EPCA report reproduced hereinabove,
1.4 MMT had been mentioned by the EPCA as import requirement of
RPC. In the said calculation, the capacity of M/s Sanvira Industries
was taken as 2,00,000MT. It was also mentioned that expansion has
not been considered in the same. It was mentioned that ifcurrent
expansions are taken into account further 0.7 MMT of RPC import
would be required.
8. For making the allocation of the restricted quantity of RPC in
terms of the Supreme Court orders, the Ministry of Commerce and
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 8
Industry issued a Public Notice dated 26.11.2018 for making the
allocation for the period 2018-19 inter-alia requiring the following
documents to be submitted:
―(iii) All eligible entities desiring to avail quota as
mentioned above, may apply for import license in ANF 2M
to DGFT (Exim Facilitation Committee) UdyogBhavan,
New Delhi - 110011 with copy to concerned jurisdictional
Regional Authority of DGFT along with capacity of the
unit and a valid consent certificate from State Pollution
Control Board (SPCB)/ Pollution Control Committee
(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)
9. Pursuant thereto, the DGFT proceeded to make the allocation of
RPC. The petitioner(s), however, made representation against the said
allocation. The representation was also made by M/s Sanvira
Industries pointing out that their current production capacity was
3,30,000 MT which was not taken into account for making allocation.
The representations were disposed of by observing that the allocation
of RPC cannot be restricted only to the applicant before the Supreme
Court and all industries making RPC have to get an equal opportunity
to such allocation. The Committee further observed as under:
―6. The Committee examined the SPCB certificates of all
the nine applicants for RPCimports. On examination,
Committee observed that the SPCBs have adopted
varying conversionrates for calculating the requirement
of RPC for producing CPC, in their Consent to
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 9
Operate(CTO) certificates. The Committee also noted
that consumption requirement is not indicated inSPCB
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 (TonnesPer Day); to bring uniformity,
production capacity was arrived at by multiplying the
capacity with 350 days.‖
(Emphasis supplied)
10. Based thereon, the annual production capacity of M/s Sanvira
Industries on or before 01.10.2018 was taken as 2,00,000 MT and
allocation of RPC was made in its favour. Aggrieved of the same, M/s
Sanvira Industries filed an application before the Supreme Court
making the following prayers:
―(a) Direct the Directorate General of Foreign Trade
toconsider the Applicant's full production capacity
forthe purpose of allocation of Raw Petroleum
Cokeimport quota as certified by certificates granted
bythe Andhra Pradesh pollution control board;
(b) Direct the Directorate General of Foreign Trade
toallocate in favour of the Applicant 222,750 MT ofRaw
Petroleum Coke for the period April 2019 toSeptember
2019, 310,500 MT of Raw PetroleumCoke for the period
October 2019 to March 2020 andthereafter 621,000 MT
of Raw Petroleum Cokeannually on a continuous basis
out of the total 1.4Million MT of Raw Petroleum Coke
per annum aspermitted to be imported by this Hon'ble
Court videorder dated 09.10.2018 passed in Writ
Petition No.13029 of 195, titled M.C. Mehta vs Union of
India &Ors;
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 10
(c) Clarify that those calciners who have not so
farplaced their requirement of imported Raw
PetroleumCoke either before the EPCA or before this
Hon'bleCourt are not eligible for allocation of Raw
PetroleumCoke from the restricted Raw Petroleum Coke
importquota allowed to Calcined Pet Coke
manufacturingunits and issue appropriate directions to
theDirectorate General of Foreign Trade;
(d) Enhance the annual import limit on Raw
PetroleumCoke for Calcined Pet Coke manufacturing
unitsbeyond 1.4 million MT if deemed necessary
takinginto account allocation to the Applicant as per
prayer(a) and (b) above;
(e) Consider removing quantitative restriction on
theimport of Raw Petroleum Coke by the Calcined
PetCoke manufacturing units.‖
11. In the application, M/s Sanvira Industries inter-alia contended
that its project was to be implemented in three phases; Phase-I was
for production capacity of 2,00,000 MT for which the consent to
operatewas received by it from the Andhra Pradesh Pollution Control
Board (APPCB) on 22.04.2017. It was contended that under Phase-II,
thecapacity was expected to be expanded to 3,30,000 MT per annum
and was completed in October, 2018 for which the consent to operate
was obtained on 29.11.2018 from APPCB. In Phase-III, the capacity
was to be increased to 4,60,000 MT per annum and was expected tobe
completed by October/November, 2019. In the application, M/s
Sanvira Industries made the following submissions:
―15. As stated above, the Applicant had
obtainedEnvironmental Clearance way back in 2012 for
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 11
setting upa CPC manufacturing capacity of 460,000 MT.
WhilePhase I was complete in 2017, Phase II expansion
wasnearly complete when EPCA presented its Report No.
91and Phase III had been planned to follow soon
thereafter.Phase I and Phase II investments also
includedinvestments for scaling up of machinery and
equipmentfor Phase III expansion.
16. It is submitted that the additional requirement of
0.7million MT for imported RPC for expansions noted
byEPCA in its Report No. 91 took into account
theApplicant's expansions in Phase II as well as Phase
III.Due to such expansions and investment made by
theApplicant in FGD, the Applicant's debt burden
hasincreased and it would need to run its plants to
fullcapacity so as to be able to not only service its debts
butalso run its FGD facility.‖
12. The above application alongwith applications filed by the
petitioners herein were, however, dismissed by the Supreme Court
vide order dated 28.01.2019, observing as under:
―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 required to be passed
on these I.As. i.e. I.A. Nos.168847/2018, 1451/2019 &
1847/2019 [filed on behalf of Rain CII Carbon (Vizag)
Ltd.], I.A. No.164303 (filed on behalf of Saket Agarwal),
I.A. No.12291/2019 (filed on behalf of Sanvira Industries
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 12
Ltd.) and I.A. No.13210/2019 (filed on behalf of Goa
Carbon Ltd.). The same are hereby dismissed.‖
(Emphasis supplied)
13. The respondents thereafter issued a Public Notice dated
22.03.2019 for making allocation of RPC for the period 2019-20. The
condition of producing document with respect to the capacity of the
unit and the Consent Certificate from the concerned State Pollution
Control Board remained the same and is reproduced herein below:
―All eligible entities desiring to avail quota as mentioned
above, may apply for import license in ANF 2M to DGFT
alongwith capacity of the unit and a valid consent
certificate from SPCB/PCC in the name of the user
industrial units indicating the quantity permitted for
import and its usage on a monthly and yearly basis.‖
(Emphasis supplied)
14. In a Meeting held on 22.04.2019, the DGFT thereafter
proceeded to make allocation of the RPC quota. In the Minutes, with
respect to the submission of M/s Sanvira Industries for allocation of
RPC based on the additional capacity of 3,30,000 MT. The
Committee observed as under:
―5. M/s. Rain CII Carbon (Vizag) Ltd. has submitted
additional requirement of4,88,000 MT of RPC for its AP
SEZ Visakhapatnam Plant, which is yet to
beoperational. Similarly, M/s. Sanvira Ltd. has also
submitted its requirement formeeting the additional
capacity of 1,30,000 MT. In this regard, the
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 13
Committeenotedthat the request for additional
requirement of RawPet Coke by these two applicantshad
been set aside by the Hon'ble Supreme Court, vide
Order of the Supreme Courtdated 09.10.2018. The
Hon'ble Supreme Court in its order dated 28.1.2019
whiledisposing off the I.A. No.168847/2018, 1451/2019
& 1847/2019 (filed on behalf ofRain carbon); I.A.
No.12291 /2019(filed on behalf of Sanvira Ind. Ltd.) and
I.A.No.164303 (filed on behalf of SaketAgarval) and I.A.
No.13210/2019 (filed on behalfof Goa Carbon Ltd) had
pronounced that "the order passed by this Court is
clear.This Court has set the outer limit for import of raw
pet coke cannot exceed 1.4 MTper annum in total. In
view of the aforesaid, prayers made on the basis of
expansionetc. are totally misconceived and cannot be
entertained. No further orders arerequired to be passed
on these I.A.s. The same are hereby dismissed.‖
TheCommittee accordingly decided to reject the request
for additional quantity of RPCfor the additional
capacity added by applicants after the Hon'ble Supreme
Court'sorder 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.‖
15. M/s Sanvira Industries challenged the above denial before this
Court by way of WP(C) 4485/2019.
16. On 29.04.2019, M/s Sanvira Industries prayed for an
adjournment to enable it to seek necessary clarification from the
Supreme Court regarding the orders passed by it.
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 14
17. M/s Sanvira Industries thereafter filed an application, being I.A.
73242/2019, before the Supreme Court, however, the same was
dismissed by the Supreme Court vide order dated 08.07.2019,
observing that no clarification was required in the orders passed.
18. The Writ Petition filed by M/s Sanvira Industries was thereafter
disposed of by this Court vide its order dated 06.12.2019 observing as
under:
―7. I have considered the submissions made by the learned
counsels forthe 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
makingallocation of RPC. The Minutes, however, do not
show the consideration ofdocuments that have been
referred to hereinabove by the leaned seniorcounsel for the
petitioners, by the respondent no. 1 while making
suchallocation.
8. In light of the above facts, the respondent no. 1 is
directed to considerthe petition as a representation of the
petitioner and pass a speaking orderthereon, within a
period of four weeks from today. While taking
suchdecision, the respondent no. 1 shall also grant an
opportunity of hearing tothe petitioners.‖
19. The representation of M/s Sanvira Industries, was, however,
rejected by the respondents vide its order dated February, 2020
observing as under:
―6. In the Meeting held on 22.4.2019, both the
representations ofM/sSanvira Industries Ltd. was
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 15
considered by the Committee. The Committee observed
that the contention of M/sSanvira IndustriesLtd. that The
Hon'ble Supreme Court's order dated 28.01.20l9 merely
Slates that outer limit for import of RPC had already
been fixed and any prayer seeking enhancement of that
limit cannot beentertained and that the said order made
no observation, as to whether the enhanced production
capacity of the existing calciners were to be considered
or not is baseless. The Committee was of theview that
the prayer before be Hon'ble Supreme Court(as in Para
1) was "for to enhance/increase theimport limit of 1.4
Million MT of RPC by an additional amount of 488,000
MT per annum for manufacturing CPC at the
Applicant's SEZ Unit and accordingly direct the DGFT
and other authorities, including the Ministry of
Commerce to allocate his additional RPC 10 the
Applicant".To which the Hon'ble Supreme Court in its
order dated 28.1.2019 directed that "theorder passed
bythis 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
required to be passed on these I.As. The same are
hereby dismissed‖.M/s Rain CII (Vizag) Ltd. had
prayed before theHon'ble Supreme Court to enhance the
limit of 1.4 Million MT by a specific quantity of 4,88,000
MTwhich it has expanded through its SEZ unit.
Therefore, the orders of the Hon'ble Supreme Court
isclear neither the limit of 1.4 Million MT can be
enhanced nor the expansion of the capacity by
thecalciners can be entertained. The Committee,
therefore, did not approve M/s Sanvira
Industriesrepresentation who was seeking allocation for
its additional capacity of 1,30,000 MT.
7. The Committee while considering the submission of
M/s Sanvira Industries Ltd. was of theview that the
capacity of each applicant was decided on the basis
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 16
ofConsent to Operate certificateavailable with the firm
on the date of passing of Order dated 9.10.2018 by the
Hon'ble Supreme Courtin WP No. 13029 of 1985. The
firm was not having Consent to Operate on 09.10.2018
for their plantand accordingly it was not considered by
the Committee which decided the allocation of
petcokeamongst 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-aliaprayingto challenge
theMinutes of Meeting dated 22.4.2019 regarding
allocation of RPC. The saidapplication 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 theHon'ble Supreme Court, where the
Minutes of the Meeting dated 22.4.2019 has been
challenged bythe 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
additionalcapacity cannot be acceded to.
9. The Committee while considering the submission of
the M/s SanviraIndustries Ltd. was ofthe view that
i. The capacity of each applicant was decided on the
basis of consent to operate available withthe firm on
9.10.2018 i.e. the date on which the Hon'ble Supreme
Court passed the order. Thefirm was not having consent
to operate on 9.10.2018. Any other criteria for deciding
thecapacity will be a highly contentious issue and will
be fraught with endless interpretations.
ii. That the firm had challenged the Minutes of Meeting
dated 22.4.2019 regarding allocation of RPC in Hon'ble
Supreme Court and the application was disposed of by
the Hon'ble Supreme Court observing ―Our order is
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 17
Clear. No further clarification is
required.Thisapplication is disposed of."
20. M/s Sanvira Industrieschallenged the above decision/order
before this Court by way of WP(C) 1858/2020. This Court, vide its
order dated 18.02.2020, did not grant any interim relief to M/s Sanvira
Industries.
21. During the pendency of the above petition, the respondents,
thereafter proceeded to issue a Public Notice dated 17.04.2020 for
making allocation of RPC for the year 2020-21. Clause 2(iii) of the
same required the applicant to submit the following documents:
―xxx
Conditions and modalities of application for import of
Pet coke.
xxx
iii. All eligible entities desiring to avail quota as mentioned
above, may apply for import license as per procedure
mentioned in Trade Notice No. 49 dated 15th March, 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.‖
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 18
22. The respondents, thereafter in its Impugned Meeting held on
03.06.2020 proceeded to make allocation of RPC in favour of M/s
Sanvira Industries on basis of production capacity of 3,30,000 MT. In
the Minutes of Meeting it is inter-alia recorded as under:
―4. M/s Rain CII Carbon (Vizag) Ltd, SEZ Unit has
submitted an application forquantity of 4,88,000 MT of
RPC in addition to an application for the DTA unit. Itwas
noted that the CTO from Andhra Pradesh Pollution
Control Board had beenobtained vide their Consent Letter
dated 6.3.2020. The Committee noted that sincethe CTO
does not specify the installed capacity as on 9th October
2018, theCommittee accordingly decided to not consider
the request for allocation of quota.
xxx
6. The Committee examined the SPCB certificates of all the
applicants forRPC imports. On examination, Committee
observed that the SPCBs have adoptedvarying conversion
rates for calculating the requirement of RPC for
producingCPC. In their CTO certificates, the Committee
also noted that consumptionrequirement is not indicated in
SPCB certificates of all the firms. To bringuniformity, the
Committee decided to allocate RPC by adopting following
criteria:
i. The production capacity of the applicant is to be
calculated on annualbasis. Wherever, SPCB certificates
shows production figures inTPD, the annual production
capacity is to be arrived at by multiplyingthe capacity with
350 days (average operational days for the unit) tobring
uniformity.
ii. The production capacity for each applicant to be
converted toinput/raw material requirement by taking
industry average conversionrate i.e. 1:1.36 (as mentioned
in the EPCA report).
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 19
iii. The additional capacity added by the applicants after
the Hon'bleSupreme Court's order dated 9.10.2018 is not
taken intoconsideration;
iv. The quota be divided on a proportionate basis as per
the followingformula:-
Quota allocated = Total Quota available for allotment
multiplied by thedemand of applicant divided by the Total
demand for all applicants
v. In cases where requested quantity is lower than eligible
quantity, thesurplus on their heads are redistributed
among others proportionately.‖
23. It is the above allocation which is in challenge in the present
petition.
24. The learned senior counsels for the petitioner(s) submit that the
claim of additional RPC allocation made by M/s Sanvira Industries on
the basis of its alleged additional installed/production capacity of
3,30,000 MT had been rejected by the Supreme Court in its order
dated 28.01.2019 while dismissing its application. There was,
therefore, no basis for taking this alleged additional production
capacity into account while making the allocation of RPC in the
Impugned Minutes of Meeting. They further submit, that the
additional production capacity could not have been taken into account
without a valid Consent to Operate as on 09.10.2018,which is
admittedly the cut-off date taken by the Committee. They submit that
admittedly, the Consent to Operate for the additional capacity of
1,30,000 MT was granted to M/s Sanvira Industries by APPCB only
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 20
on 29.11.2018, that is beyond the cut-off date of 09.10.2018.
Therefore, this additional capacity could not have been taken into
account while making allocation of RPC quota in favour of M/s
Sanvira Industries. They submit that the decision is therefore,
perverse and completely irrational. They submit that the interpretation
placed by the Committee to the effect that the production capacity
being there as on 09.10.2018, the Consent to Operate could have been
obtainedon a later date, is completely perverse and contrary to the
earlier practice followed by the respondents itself.
25. On the other hand, the learned senior counsel for M/s Sanvira
Industries and the learned Additional Solicitor General appearing for
the DGFT submit that there wasa change of criteria adopted in the
Public Notice dated 17.04.2020 issued by the respondents. They
submit that as against the earlier requirement of production capacity
being certified by the Industrial Unit/applicant, by the Public Notice
dated 17.04.2020, the same was to be certified by the State Pollution
Control Board. In the present case, the APPCB certified the
production capacity of M/s Sanvira Industries as on 09.10.2018 to be
3,30,000 MT and therefore, the same has been rightly used for making
allocation of RPC in favour of M/s Sanvira Industries. They submit
that in absence of any challenge to the Public Notice dated 17.04.2020
and/or the Certificate issued by the APPCB certifying the production
capacity of M/s Sanvira Industries as 3,30,000 MT as on 09.10.2018,
the challenge laid by the petitioner(s) is unfounded and is liable to be
rejected. They further submit that the orders dated 28.01.2019 and
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 21
08.07.2019 of the Supreme Court relied upon by the petitioners merely
clarified that the overall import of RPC has to be confined to 1.4
MMT. The Supreme Court did not consider the claim of M/s Sanvira
Industries that as on 09.10.2018 its production capacity was in fact,
3.30 lakh MT.
26. I have considered the submissions made by the learned counsels
for the parties.
27. The first issue to consider is the effect of the three orders passed
by the Supreme Court. As noted herein above, it is the assertion of the
petitioners that the decision to consider the Production Capacity of
M/s Sanvira Industries as 3.30 lakh MT for purposes of allocation of
RPC is contrary to the orders of the Supreme Court. On the other
hand, the respondents assert that the Supreme Court had merely fixed
the limit of 1.4 million MT for import of RPC and did not decide upon
the installed capacity of various parties or their entitlement to the
RPC.
28. I am in agreement with the submissions made by the learned
ASG and the learned senior counsels for M/s Sanvira Industries. The
Supreme Court in its order dated 09.10.2018 merely allowed use of
RPC (domestic and imported) as a feedstock for producing calcinated
pet coke, making it clear that the imported RPC for this purpose
cannot exceed 1.4 MT per annum in total. The Supreme Court did not
decide on the Production Capacity of any industry nor their respective
entitlement to such imported RPC. This is also evident from the
Minutes of Meeting dated 27.12.2018 of the DGFT, which rejected the
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 22
representations of the petitioners-Rain CII Carbon and Petro Carbon,
as also of M/s Sanvira Industries to the effect that such allocation must
be confined only to the six applicants who had approached the
Supreme Court and consequentiallywhose installed capacity had been
taken into account by the EPCA in its report dated 06.10.2018. The
Committee observed as under:-
―5. ....It also noted that theHon'ble Supreme Court in
its order dated 9.10.2018 had nowhere specifically
indicated that thetotal import of 1.4 MT of RPC is to be
restricted to only the Petitioners in WP (Civil)
No.13029/ 1985. The Committee observed that all
industries making CPC have been given
equalopportunity, includingapplicants. In view of this,
Committee did not find any merit to notconsider the
three applicants that produce CPC, but had notapplied
before Supreme Court.‖
29. In fact, not only was the RPC allocated to industries whose
installed capacity had not been taken into account in the EPCA Report
dated 06.10.2018, but even for the petitioner-Rain CII Carbon,
Production Capacity was taken as 5.11 lakh MT as against 5 lakh MT
taken in the Report while determining the quantity of 1.4 million MT
for import of RPC.
30. On the issue as to whether on account of the orders dated
28.01.2019 or 08.07.2019 of the Supreme Court, M/s Sanvira
Industries' Production Capacity could not have been taken as 3.30
lakh MT, I again do not find any merit in the submissions made by the
learned senior counsels for the petitioners.
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 23
31. As noted herein above, the petitioner-Rain CII Carbon and
respondent no. 3 -M/s Sanvira Industries and some others had filed
applications before the Supreme Court seeking
clarification/modification of order dated 09.10.2018. The application
filed by M/s Sanvira Industries made the following prayers:-
―(a) Direct the Directorate General of Foreign Trade
toconsider the Applicant's full production capacity
forthe purpose of allocation of Raw Petroleum
Cokeimport quota as certified by certificates granted
bythe Andhra Pradesh pollution control board;
(b) Direct the Directorate General of Foreign Trade
toallocate in favour of the Applicant 222,750 MT ofRaw
Petroleum Coke for the period April 2019 toSeptember
2019, 310,500 MT of Raw PetroleumCoke for the period
October 2019 to March 2020 andthereafter 621,000 MT
of Raw Petroleum Cokeannually on a continuous basis
out of the total 1.4Million MT of Raw Petroleum Coke
per annum aspermitted to be imported by this Hon'ble
Court videorder dated 09.10.2018 passed in Writ
Petition No.13029 of 195, titled M.C. Mehta v. Union of
India &Ors;
(c) Clarify that those calciners who have not so far
placed their requirement of imported Raw Petroleum
Coke either before the EPCA or before this Hon'ble
Court are not eligible for allocation of Raw Petroleum
Coke from the restricted Raw Petroleum Coke import
quota allowed to Calcined Pet Coke 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
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 24
allocation to the Applicant as per prayer (a) and (b)
above;
(e) Consider removing quantitative restriction on
theimport of Raw Petroleum Coke by the Calcined
PetCoke manufacturing units.‖
(Emphasis supplied)
32. No doubt,M/s Sanvira Industries made averments and prayer
regarding additional allocation of imported RPC based on its
Production Capacity of 3.30 lakh MT, it also made a prayer for
enhancement of the limit of imported RPC itself. The Supreme Court
in its order dated 28.01.2019 considered only the prayer for
enhancement of the limit of imported RPC as this was the only
direction in its order dated 09.10.2018 as well, and dismissed the
applications observing as under:-
―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 required to be passed
on these I.As. i.e. I.A. Nos.168847/2018, 1451/2019 &
1847/2019 [filed on behalf of Rain CII Carbon (Vizag)
Ltd.], I.A. No.164303 (filed on behalf of Saket Agarwal),
I.A. No.12291/2019 (filed on behalf of Sanvira Industries
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 25
Ltd.) and I.A. No.13210/2019 (filed on behalf of Goa
Carbon Ltd.). The same are hereby dismissed.‖
(Emphasis supplied)
33. By the order dated 08.07.2019, the Supreme Court dismissed
the application of M/s Sanvira Industries, again holding that its order
requires no further clarification.
34. Therefore, in none of the orders, that is, order dated 09.10.2018,
28.01.2019 and/or 08.07.2019, did the Supreme Court consider the
claim of M/s Sanvira Industriesfor its Production Capacity as on
09.10.2018, as this was clearly a matter to be considered by DGFT
itself.
35. As far as the submission of the learned senior counsels for the
petitioners based on past practice of allocation and consideration of
Production Capacity of M/s Sanvira Industries as 2 lakh MT is
concerned, I again do not find any merit.
36. To consider this plea of the petitioners, the relevant conditions
of the three Public Notices dated 26.11.2018, 22.03.2019 and
17.04.2020 need to be considered. They are reproduced herein below:-
SN Public Notice Public Notice Public Notice
No.50/2015-20 No.81/2015-20 No.04/2015-2020
26.11.2018 22.03.2019 17.04.2020
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 26
1 All eligible All eligible All eligible
entities desiring entities entities desiring
to avail quota as desiring to to avail quota as
mentioned avail quota as mentioned above,
above, may mentioned may apply for
apply for import above, may import license as
license in ANF apply for per procedure
2M to DGFT import license mentioned in
along with in ANF 2M to Trade Notice
capacity of the DGFT along No.49 dated 15th
unitand a valid with capacity March, 2019
consent of the unitand along with State
certificate from a valid consent Pollution
SPCB/PCC in certificate from Control Board
the name of the SPCB/PCC in Certificate
user industrial the name of the indicating
units indicating user industrial capacity of the
the quantity units indicating unit as on
permitted for the quantity 09.10.2018 and
import and its permitted for alsovalid
usage on a import and its consentcertificate
monthly and usage on a from SPCB/PCC
yearly basis. monthly and in the name of
yearly basis. the user
industrial
unitsindicating
the quantity
permitted for
import and its
usage on a
monthly and
yearly basis.
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 27
37. A reading of the above Public Notices would show the marked
departure made in the Public Notice dated 17.04.2020. While in terms
of the Public Notices dated 26.11.2018 and 22.03.2019, the eligible
entities were to produce "capacity of the unit and a valid consent
certificate from SPCB/PCC", in terms of Public Notice dated
17.04.2020, the eligible entities were to produce "State Pollution
Control Board Certificate indicating capacity of the unit as on
09.10.2018 and also valid consent certificate from SPCB/PCC".
Therefore, while under the Public Notices dated 26.11.2018 and
22.03.2019, the applicant was to produce documents showing its
Production capacity, in the Public Notice dated 17.04.2020, only a
Certificate from the State Pollution Control Board indicating capacity
of the unit as on 09.10.2018 could suffice. No other document for
supporting claim of Production Capacity as on 09.10.2018 could have
been taken into account in terms of the Public Notice dated
17.04.2020.
38. In the Minutes of Meeting dated 27.12.2018, the Production
Capacity of the unit was taken only from the Consent to Operate
certificates issued by the SPCBs. In the Meeting held on 22.04.2019,
the Allocation Committee of the DGFT, in respect of claim of M/s
Sanvira Industries of Production Capacity as on 09.10.2018 being 3.30
lakh MT, in fact observed as under:-
―8. In case of M/s Sanvira Industries Ltd. also, the
Committee noted that theadditional capacity of 1,30,000
MT was created after the Hon'ble Supreme
Court'sOrder dated 9.10.2018 as per the official record.
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 28
Hence, the request for additionalquantity for the new
capacity was rejected by the Committee.‖
(Emphasis supplied)
39. The Committee, however, further observed as under:-
―5. M/s. Rain CII Carbon (Vizag) Ltd. has submitted
additional requirement of4,88,000 MT of RPC for its AP
SEZ Visakhapatnam Plant, which is yet to
beoperational. Similarly, M/s. Sanvira Ltd. has also
submitted its requirement formeeting the additional
capacity of 1,30,000 MT. In this regard, the
Committeenotedthat the request for additional
requirement of RawPet Coke by these two applicantshad
been set aside by the Hon'ble Supreme Court, vide
Order of the Supreme Courtdated 09.10.2018. The
Hon'ble Supreme Court in its order dated 28.1.2019
whiledisposing off the I.A. No.168847/2018, 1451/2019
& 1847/2019 (filed on behalf ofRain carbon); I.A.
No.12291/2019(filed on behalf of Sanvira Ind. Ltd.) and
I.A.No.164303 (filed on behalf of SaketAgarval) and
I.A.No.13210/2019 (filed on behalfof Goa Carbon Ltd)
had pronounced that "the order passed by this Court is
clear.This Court has set the outer limit for import of raw
pet coke cannot exceed 1.4 MTper annum in total. In
view of the aforesaid, prayers made on the basis of
expansionetc. are totally misconceived and cannot be
entertained. No further orders arerequired to be passed
on these I.A.s. The same are hereby dismissed.‖
TheCommittee accordingly decided to reject the request
for additional quantity of RPCfor the additional
capacity added by applicants after the Hon'ble Supreme
Court'sorder dated 9.10.2018.‖
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 29
40. A reading of the above would show that the Committee rejected
the plea of M/s Sanvira Industries on account of dismissal of its
application by the Supreme Court and more importantly, because it
found that "as per the official record" the additional capacity of 1.30
lakh MT had been created by M/s Sanvira Industries after the order
dated 09.10.2018 of the Supreme Court.
41. M/s Sanvira Industries had challenged the above finding before
this Court by way of a Writ Petition, being WP(C) 4485/2019. This
Court vide its order dated 06.12.2019, disposed of the said petition,
observing/directing as under:-
―7. I have considered the submissions made by the learned
counsels forthe 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
makingallocation 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 considerthe petition as a representation of the
petitioner and pass a speaking orderthereon, within a
period of four weeks from today. While taking
suchdecision, the respondent no. 1 shall also grant an
opportunity of hearing tothe petitioners.‖
(Emphasis supplied)
42. This Court was, therefore, of the view that while the orders of
the Supreme Court did not forbidM/s Sanvira Industries from showing
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 30
that its Production Capacity as on 09.10.2018 was 3.30 lakh MT, the
Committee in its Meeting/decision dated 22.04.2019 had not
considered the documents produced by M/s Sanvira Industries in
support of its claim.
43. In compliance with the above direction, the DGFT passed an
order dated February, 2020, again rejecting the claim of M/s Sanvira
Industries, observing as under:-
―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
basis of consent to operate available with the firm on
9.10.2018 i.e. the date on which the Hon'ble Supreme
Court passed the order. The firm was not having consent
to operate on 9.10.2018. Any other criteria for deciding
the capacity will be a highly contentious issue and will
be fraught with endless interpretations.
ii. That the firm had challenged the Minutes of Meeting
dated 22.4.2019 regarding allocation of RPC in Hon'ble
Supreme Court and the 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."
(Emphasis supplied)
44. A reading of the above would show that while the Committee
again placed reliance on the orders of the Supreme Court (in the
opinion of this Court wrongly so), it also clarified that the Production
Capacity had been determined on basis of "Consent to Operate" as
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 31
"any other criteria for deciding the capacity will be highly contentious
issue and will be fraught with endless interpretation."
45. The learned ASG has submitted that it was for this reason that
in the Public Notice dated 17.04.2020,the burden of determining the
Production Capacity of eligible entities as on 09.10.2018 was put on
the State Pollution Control Boards and with that intent, the eligible
entities were called upon to produce State Pollution Control Board
Certificates indicating production capacity of the respective units as
on 09.10.2018.
46. This being a deliberate departure from the earlier practice, the
reliance of the petitioners on the earlier practice and mode of
allocation as a challenge to the impugned allocation, cannot be
accepted.
47. As far as the submissions of the learned senior counsels for the
petitioners based on Section 21 of the Air (Prevention and Control)
Act, 1981 and Section 25 of the Water (Prevention and Control of
Pollution) Act, 1974 are concerned, I again find no merit in the same.
48. Section 21 of the Air Act, 1981 reads as under:
―21.Restrictions on use of certain industrial plants.--
(1) Subject to the provisions of this section, no person
shall, without the previous consent of the State Board,
establish or operate any industrial plant in an air
pollution control area:
Provided that a person operating any industrial plant in
any air pollution control area immediately before the
commencement of section 9 of the Air (Prevention and
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 32
Control of Pollution) Amendment Act, 1987, for which
no consent was necessary prior to such commencement,
may continue to do so for a period of three months from
such commencement or, if he has made an application
for such consent within the said period of three months,
till the disposal of such application.
(2) An application for consent of the State Board under
sub-section (1) shall be accompanied by such fees as
may be prescribed and shall be made in the prescribed
form and shall contain the particulars of the industrial
plant and such other particulars as may be prescribed:
Provided that where any person, immediately before the
declaration of any area as an air pollution control area,
operates in such area any industrial plant, such person
shall make the application under this sub-section within
such period (being not less than three months from the
date of such declaration) as may be prescribed and
where such person makes such application, he shall be
deemed to be operating such industrial plant with the
consent of the State Board until the consent applied for
has been refused.
(3) The State Board may make such inquiry as it may
deem fit in respect of the application for consent
referred to in sub-section (1) and in making any such
inquiry, shall follow such procedure as may be
prescribed.
(4) Within a period of four months after the receipt of
the application for consent referred to in sub-section
(1), the State Board shall, by order in writing, [and for
reasons to be recorded in the order, grant the consent
applied for subject to such conditions and for such
period as may be specified in the order, or refuse such
consent]:
[Provided that it shall be open to the State Board to
cancel such consent before the expiry of the period for
which it is granted or refuse further consent after such
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 33
expiry if the conditions subject to which such consent
has been granted are not fulfilled:
Provided further that before cancelling a consent or
refusing a further consent under the first provision, a
reasonable opportunity of being heard shall be given to
the person concerned.]
(5) Every person to whom consent has been granted by
the State Board under sub-section (4), shall comply with
the following conditions, namely:--
(i) the control equipment of such specifications as the
State Board may approve in this behalf shall be installed
and operated in the premises where the industry is
carried on or proposed to be carried on;
(ii) the existing control equipment, if any, shall be
altered or replaced in accordance with the directions of
the State Board;
(iii) the control equipment referred to in clause (i) or
clause (ii) shall be kept at all times in good running
condition;
(iv) chimney, wherever necessary, of such specifications
as the State Board may approve in this behalf shall be
erected or re-erected in such premises; and
(v) such other conditions as the State Board, may specify
in this behalf; and
(vi) the conditions referred to in clauses (i), (ii) and (iv)
shall be complied with within such period as the State
Board may specify in this behalf:
Provided that in the case of a person operating any
industrial plant in an air pollution control area
immediately before the date of declaration of such area
as an air pollution control area, the period so specified
shall not be less than six months:
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 34
Provided further that--
(a) after the installation of any control equipment in
accordance with the specifications under clause (i), or
(b) after the alteration or replacement of any control
equipment in accordance with the directions of the State
Board under clause (ii), or
(c) after the erection or re-erection of any chimney
under clause (iv),
no control equipment or chimney shall be altered or
replaced or, as the case may be, erected or re-erected
except with the previous approval of the State Board.
(6) If due to any technological improvement or
otherwise the State Board is of opinion that all or any of
the conditions referred to in sub-section (5) require or
requires variation (including the change of any control
equipment, either in whole or in part), the State Board
shall, after giving the person to whom consent has been
granted an opportunity of being heard, vary all or any
of such conditions and thereupon such person shall be
bound to comply with the conditions as so varied.
(7) Where a person to whom consent has been granted
by the State Board under sub-section (4) transfers his
interest in the industry to any other person, such consent
shall be deemed to have been granted to such other
person and he shall be bound to comply with all the
conditions subject to which it was granted as if the
consent was granted to him originally.‖
49. Section 25 of the Water Act, 1974 is to the similar effect and
reads as under:
―25.Restrictions on new outlets and new discharges.--
(1) Subject to the provisions of this section, no person
shall, without the previous consent of the State Board,--
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 35
(a) 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 (such discharge
being hereafter in this section referred to as discharge
of sewage); or
(b) bring into use any new or altered outlet for the
discharge of sewage; or
(c) begin to make any new discharge of sewage:
Provided that a person in the process of taking any steps
to establish any industry, operation or process
immediately before the commencement of the Water
(Prevention and Control of Pollution) Amendment Act,
1988 (53 of 1988), for which no consent was necessary
prior to such commencement, may continue to do so for
a period of three months from such commencement or, if
he has made an application for such consent, within the
said period of three months, till the disposal of such
application.
(2) An application for consent of the State Board under
sub-section (1) shall be made in such form, contain such
particulars and shall be accompanied by such fees as
may be prescribed.
(3) The State Board may make such inquiry as it may
deem fit in respect of the application for consent
referred to in sub-section (1) and in making any such
inquiry shall follow such procedure as may be
prescribed.
(4) The State Board may--
(a) grant its consent referred to in sub-section (1),
subject to such conditions as it may impose, being--
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 36
(i) in cases referred to in clauses (a) and (b) of sub-
section (1) of section 25, conditions as to the point of
discharge of sewage or as to the use of that outlet or any
other outlet for discharge of sewage;
(ii) in the case of a new discharge, conditions as to the
nature and composition, temperature, volume or rate of
discharge of the effluent from the land or premises from
which the discharge or new discharge is to be made;
and
(iii) that the consent will be valid only for such period as
may be specified in the order,
and any such conditions imposed shall be binding on
any person establishing or taking any steps to establish
any industry, operation or process, or treatment and
disposal system of extension or addition thereto, or
using the new or altered outlet, or discharging the
effluent from the land or premises aforesaid; or
(b) refuse such consent for reasons to be recorded in
writing.
(5) Where, without the consent of the State Board, any
industry, operation or process, or any treatment and
disposal system or any extension or addition thereto, is
established, or any steps for such establishment have
been taken or a new or altered outlet is brought into use
for the discharge of sewage or a new discharge of
sewage is made, the State Board may serve on the
person who has established or taken steps to establish
any industry, operation or process, or any treatment and
disposal system or any extension or addition thereto, or
using the outlet, or making the discharge, as the case
may be, a notice imposing any such conditions as it
might have imposed on an application for its consent in
respect of such establishment, such outlet or discharge.
(6) Every State Board shall maintain a register
containing particulars of the conditions imposed under
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 37
this section and so much of the register as relates to any
outlet, or to any effluent, from any land or premises
shall be open to inspection at all reasonable hours by
any person interested in, or affected by such outlet, land
or premises, as the case may be, or by any person
authorised by him in this behalf and the conditions so
contained in such register shall be conclusive proof that
the consent was granted subject to such conditions.
(7) The consent referred to in sub-section (1) shall,
unless given or refused earlier, be deemed to have been
given unconditionally on the expiry of a period of four
months of the making of an application in this behalf
complete in all respects to the State Board.
(8) For the purposes of this section and sections 27 and
30,--
(a) the expression ―new or altered outlet‖ means any
outlet which is wholly or partly constructed on or after
the commencement of this Act or which (whether so
constructed or not) is substantially altered after such
commencement;
(b) the expression ―new discharge‖ means a discharge
which is not, as respects to nature and composition,
temperature, volume, and rate of discharge of the
effluent substantially a continuation of a discharge
made within the preceding twelve months (whether by
the same or a different outlet), so however that a
discharge which is in other respects a continuation of
previous discharge made as aforesaid shall not be
deemed to be a new discharge by reason of any
reduction of the temperature or volume or rate of
discharge of the effluent as compared with the previous
discharge.‖
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 38
50. A reading of the above provisions would clearly show that the
Consent to Operate from the State Pollution Control Board is required
for establishing or operating any industrial plant or operation. As
noted hereinabove, DGFT in its Public Notice(s) has required the
eligible entity to produce valid Consent to Operate in support of their
application for allocation of RPC. While, by the Public Notices dated
26.11.2018 and 22.03.2019, the Consent to Operate was taken as the
sole document showing the production capacity of the unitas also the
allocation to which it is entitled, a departure was made in the Public
Notice dated 17.04.2020 inasmuch as now apart from a Consent to
Operate, the industrial unit was also to provide a certificate of its
production capacity as on 09.10.2018 issued by the relevant State
Pollution Control Board. M/s Sanvira Industries had produced both the
documents, that is, a certificate showing the production capacity as on
09.10.2018 issued by the APPCB as also the Consent to Operate.
51. The submission of the petitioners that the Consent to Operate
must also be as of 09.10.2018 does not flow from a reading of the
Public Notice dated 17.04.2020. While for the production capacity,
the notice clearly requires the certificate of the State Pollution Control
Board to certify the same as on 09.10.2018, the requirement of
Consent to Operate does not have this cutoff date mentioned.
52. The submission of the learned senior counsels for the petitioners
that certificate mentioned in the first part to the condition of the Public
Notice dated 17.04.2020 is the Consent to Operate, also cannot also be
accepted. Clearly, the Public Notice dated 17.04.2020 makes a
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 39
distinction between a certificate in the first part and the Consent to
Operate in the second part. If both, the certificate and the Consent to
Operate, were the same document, clearly there would have been no
necessity of making a separate mention of the certificate and the
Consent to Operate in the two parts of the same Clause of the Public
Notice. The Public Notice has to be read in a reasonable manner,
excluding any superfluity.
53. As rightly contended by the learned Additional Solicitor
General and the learned senior counsel for M/s Sanvira Industries, in
the present petitions, no challenge to the Public Notice dated
17.04.2020 is made by the petitioners. In absence of such a challenge,
it is not for this Court to adjudicate on whether a certificate issued by
the APPCB certifying the production capacity of M/s Sanvira
Industries in absence of the Consent to Operate as on 09.10.2018
would suffice for making allocation of RPC in its favour.
54. The reliance of the petitioners on the assertion made by M/s
Sanvira Industries in its application before the Supreme Court
regarding setting up of additional production capacity also cannot be
of any assistance to the petitioners in the present petitions. In this
regard, it is to be noted that the validity of the certificate issued by the
APPCB certifying the production capacity of M/s Sanvira Industries
as on 09.10.2018 is not in challenge before this Court. In fact, the
application being CM No.18125/2020 was filed in WP(C) 3709/2020
by the DGFT seeking implementation of APPCB in the present
petition. This application was, however, opposed by the petitioners
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 40
contending therein, that in absence of a challenge to the certificate
issued by the APPCB, APPCB could not be added as party respondent
in the present petition. This Court taking note of the said submission,
dismissed the application vide its order dated 10.08.2020, observing as
under:
―7. The petitioners being dominuslitis,are entitled to
implead whom they consider to be necessary and proper
party in the petition. The effect of non-impleadment of
the party would be considered by this Court at the time
of the final adjudication of this petition. The opposition
of the petitioners to such impleadment application
would always be at the prejudice of the petitioners
themselves. At the present stage, it is suffice to note that
the learned senior counsel for the petitioners has
asserted that in this petition, no challenge shall be made
to the Certificate dated 04.05.2020 issued by the APPCB
in any manner.‖
55. The learned senior counsels for the petitioners inspite of the
above order, during the course of the hearing, have made submissions
regarding the validity and effect of the certificate issued by the
APPCB in favour of M/s Sanvira Industries by contending that the
Environment Engineer is not authorized by APPCB to act on its behalf
to certify production capacity of an industrial unit. They submit that it
is only the CTO Committee of the Head Office of APPCB that has the
power to do so. However, as noted hereinabove, in absence of
challenge to the certificate issued by the APPCB and refusal of the
petitioners to implead APPCB as a party respondent in the present
petition, it would not be appropriate for this Court to opine on such
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 41
submission. The petitioners have taken a chance and they now cannot
obtain an order in absence of the relevant party, that is, APPCB based
on the above submission.
56. The learned senior counsels for the petitioners have further
submitted that the Impugned Minutes do not reflect application of
minds and do not give any reason for allocation of RPC in favour of
M/s Sanvira Industries. Though, they may be correct in their
submission as far as the Minutes of Meeting are concerned, the
learned Additional Solicitor General has produced the office file
containing deliberation of the Committee in the decision making
process. The same duly reflect that reliance has been placed by the
Committee on the certificate issued by the APPCB in favour of M/s
Sanvira Industries for making allocation. It cannot, therefore, be said
that there is no application of mind by the Committee and no reasons
recorded while making such allocation in favour of M/s Sanvira
Industries.
57. In view of the above, I find no merit in the present petitions.
The same are dismissed. There shall be no order as to cost.
NAVIN CHAWLA, J
January 15, 2021/Arya
WP(C) No.3709/2020, 3773/2020 & 3790/2020 Page 42
