M/S. SANVIRA INDUSTRIES versus RAIN CII CARBON (VIZAG) LTD. & ORS.

Citation: [2023] 10 S.C.R. 133 · Decided: 03-07-2023 · Supreme Court of India · Bench: S. RAVINDRA BHAT · Disposal: Dismissed

Judgment (excerpt)

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M/S. SANVIRA INDUSTRIES
v.
RAIN CII CARBON (VIZAG) LTD. & ORS.
(Civil Appeal No(s). 3834-3838 of 2023)
JULY 03, 2023
[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
Environment – Issue as to allocation of quantities of raw pet-
coke (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.
[2023] 10 S.C.R. 133 : 2023 INSC 586
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SUPREME COURT REPORTS
[2023] 10 S.C.R.
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
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any capacity added by the procedures after the Order o

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