The court held that the allocation of RPC to M/s Sanvira Industries was valid because the Supreme Court orders did not forbid M/s Sanvira Industries from showing that its Production Capacity as on 09.10.2018 was 3.30 lakh MT, the Public Notice dated 17.04.2020 required the eligible entities to produce State Pollution Control Board Certificates indicating production capacity of the respective units as on 09.10.2018, and 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.

JUDGMENT

Navin Chawla, J. - 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 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 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)

5. Various ap