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Judgment
Since common question of law and facts are involved in both these applications, they were heard together and are being decided by a common order.
The issue involved in these two cases relate to operation of Calcined Petroleum Coke Plant (CPC in short) adhering to the Environmental Impact Assessment Notification, 2006 (EIA), 2006 read with the clarificatory alleged Government order dated 25th February, 2013 holding that Calcined Petroleum Coke Plant would come under schedule 4(b) being at par with Coke Oven Plant listed in EIA Notification, 2006 which will require mandatory environmental clearance from competent authority. The factual matrix of the Original application No. 06/2015/EZ in terms of the affidavit filed is narrated herein below.
O.A. No. 06/2015/EZ
The applicant of this OA is the Chairperson of a state level NGO called 'State Progressive Women's Forum' with its head quarters at Bhubaneswar, Odisha. The said NGO is engaged in social activities in Odisha including that of women welfare. While working in Angul town of Odisha she observed houses near a Calcined Petroleum Coke (CPC) Plant covered with layers of carbon dust and found people living in the vicinity of industry suffering from lung related diseases. Her further research and enquiry on the said industrial unit made her convinced about the noncompliance of environmental norms by the industry. Therefore, she has approached this Tribunal praying for a direction to close the Calcined Petroleum Coke Plant of the Respondent No. 5,M/s Amritesh Industries Pvt. Ltd. which has undertaken construction/operation/expansion/modernization of their unit without obtaining prior Environmental Clearance in terms of Environmental Impact Assessment Notification 2006 (EIA 2006) issued by the Ministry of Environment and Forests and Climate Change (MOEF&CC), Govt. of India.
The applicant has averred that industry located at Hakimpada in district Angul of Odisha of the Respondent No. 5 has a combined production capacity of 40,000 MT per annum and as the Calcined Petroleum Coke Industries fall under entry 4(b) of the EIA 2006, it requires mandatory prior Environmental Clearance before operation/ construction/expansion/ modernization when the production capacity is 25,000 MT per annum or more.
The applicant has referred an order dated 20.03.2013 of the Principal Bench of the National Green Tribunal in Application No. 14 of 2013 which reads as under:
"It is commonly conceded case and in fact remains undisputed by any of the parties appearing before us including the Project Proponent that the Project Proponent is covered under 4b of the EIA Notification 2006 being a Coke Oven Plant. It has been so stated in the Office Memorandum issued by the Ministry of Environment and Forests dated 25th February, 2013.
The obvious result thereof would be that the Project Proponent called upon to take the Environmental Clearance from the Ministry of Environment and Forests. But shall seek clearance from the State Level Impact Assessment Authority (SEIAA), in accordance with law. There is a serious contention raised before us as to whether the Project Proponent has started its activity and what is the stage of such activity of production. Be that as it may.
Without prejudiced to the rights and contentions of the parties before us. In view of the above, we would prefer not to pass any prohibitory and injunctive orders at this stage. But would direct the Project Proponent to obtain Environmental Clearance from State Level Impact Assessment Authority (SEIAA) at the earliest.
The application thereof shall be moved within one week from today and the same shall be considered and permission granted or refused, as the case may be, within eight weeks from the date of receipt of the application. Within the period specified for consideration and disposal in accordance with law and needless to Notice that Authority should act strictly in the provision of the Notification".
The applicant further submits that the Respondent No. 5, formerly named as M/S Zenith Carbon Pvt. Ltd, obtained the Consent to Establish from the State Pollution Control Board on 21.01.2008 and was granted Consent to Operate on 24.04.2012. Her further allegation relates to inaction of the State Pollution Control Board in spite of non-compliances by the Project Proponent of consent conditions stipulated in the consent order. A show cause notice was issued by the State PCB for revocation of consent order on 03.11.14 for noncompliance of consent conditions and the consent order was revoked on 18.11.2014. The applicant would further submit that the State Pollution Control Board never mentioned about the violation of EIA Notification 2006 in their revocation of consent order although the said unit is a listed industry in the schedule of EIA Notification 2006.
The applicant has also referred to an order of the Principal Bench dated 26.02.2014 in OA No. 14/2013 which reads as follows:
" It is undisputed before us that Respondent No. 7 admittedly established without obtaining the Environmental Clearance, though, with the consent of the State Pollution Control Board. We direct SEIAA to also consider as to what compensation the Project Proponent should be directed to pay for having established the Unit without obtaining prior Environmental Clearance and what stringent conditions should be imposed for future purposes. The payment of compensation so determined shall be a condition precedent to grant of Environmental Clearance.
We direct the Secretary, Environment, State of Orissa to fix responsibilities of the Officers of the Pollution Control Board who granted consent to operate, without obtaining the prior Environmental Clearance and take appropriate action against them.
In view of the above, nothing survives in this Application and accordingly, the Application No. 14 of 2013 is disposed of with no Orders as to cost".
It is the specific case of the applicant that such projects are covered under EIA Notification of 2006 and particularly under the Entry 4(b) of the Schedule to the said Notification.
In reply to these, the Respondent No. 1, the MOEF&CC has referred to the Office Memorandum No. 11013/37/2011-IA-II-(I) dated 25 th February, 2013 where it has been decided that the Calcined Petroleum Coke Unit should be covered under schedule 4(b) i.e. Coke Oven Plant of the EIA Notification, 2006.The ld.counsel further submits that M/s Amritesh Industries Pvt Ltd, at Industrial Estate, Hakimpada, Angul is operating a plant for the production of Calcined Petroleum Coke (CPC) of capacity 30,000 MT/Annum and Electrode Carbon paste of capacity 10,000 MT/Annum. Since the capacity of the plant lies between 25,000 to 250,000 tonnes/annum, the projects is a 'B' category project and the project proponent was liable to submit the application to the State level Environmental Impact Assessment Authority for obtaining Environmental Clearance. The Ministry has categorically stated in paragraph 6 of their affidavit that as per the schedule to the EIA Notification 2006, the coke oven plants are listed at project or activity 4(b). The plants with capacities ≥2,50,000 tonnes/annum are to be appraised at the central level and plants with capacities <2,50,000 & ≥25,000 tonnes/annum are to be appraised at the state level."
The Odisha State Pollution Control Board in their affidavit of opposition has described the units of the industry in details which is as follows. It is Calcined Petroleum Coke Industry having one Rotary Kiln of 20,000 MTPA capacity and two Vertical Shaft Kilns (VSK) of 5,000 MTPA capacity each and one Electro- Carbon Paste Unit of 10,000 MTPA. The raw petroleum coke is the raw material which is calcined in Rotary Kiln and VSK to produce Calcined Petroleum Coke. The Rotary Kiln and one of VSK are operational where as another VSK has been shutdown since long. The consent to operate was granted under provision u/s 25/26 of The Water Act 1974 and u/s 21 of the Air Act, 1981 for production of Calcined Petroleum Coke of 30,000 MTPA and Electrode Carbon Paste of 10,000 MTPA.
Due to non-compliance of consent conditions closure order was issued only to stop operation of the Rotary Kiln of 20,000 MTPA capacity where as one VSK of 5,000 MTPA was allowed to operate. Subsequently the State Pollution Control Board after inspection found the Unit as compliant to consent conditions but as the matter was pending with this Tribunal, PCB didn't grant permission to operate the Rotary Kiln of 20,000 MTPA capacity. After hearing the parties from both the side and having convinced that the Unit has complied to the consent condition as submitted by the State PCB, we directed the PCB on 29.07.2015 to allow the operation of the Unit of the Project Proponent limiting the total production to 20,000 MTPA only during the pendency of the application before this Tribunal.
On the issue of obtaining prior Environmental Clearance the Pollution Control Board would humbly submit that the Unit of Respondent No. 5 is an old Calcined Petroleum Coke (CPC) Plant with an original capacity of 20,000 MTPA which was expanded to 30,000 MTPA of CPC and 10,000 MTPA of Carbon Paste much before the issuance of Office Memorandum dated 25.03.2013 by MOEF&CC.
On the issue of applicability of EIA Notification, 2006, both the State Pollution Control Board as well as the Department of Forest and Environment, Govt. of Odisha are noncommittal and have opined in their affidavit that it is the exclusive domain of MOEF&CC who is the appropriate authority to clarify the applicability of the EIA Notification, 2006 to Respondent No.5.
The Project Proponent, the Respondent No. 5 in the reply affidavit takes further stand that although the EIA Notification 2006 was notified in the year 2006, Calcined Petroleum Coke Units were not listed in the schedule till the Ministry of Environment and Forest issued an Office Memorandum dated 25.03.2013 deciding to consider Calcined Petroleum Coke Units under 4(b) i.e. Coke Oven Plant of the EIA Notification, 2006. Thus, the said Office Memorandum dated 25th February 2013 made it apparent for the first time that the EIA Notification 2006 would apply to Calcined Petroleum Coke Unit of Respondent No. 5. They would further submit that the said Office Memorandum does not mention the Electro Carbon Paste Unit under the schedule. Therefore, the Paste Unit is out of the ambit of EIA Notification, 2006.
The Project Proponent have categorically averred in their reply affidavit that when they applied for modification and extension to consent to operate as well the date when such consent to operate was granted till 31st March, 2016, the Ministry of Environment & Forests had still not decided about the categorization of Calcined Petroleum Coke Units vis-a-vis the industries in the schedule of EIA Notification of 2006. Therefore, they would submit that the question of applicability of the conditions of the said notification vis-a-vis of item No. 4(b) did not arise as the provision of EIA Notification stipulates for prior Environmental Clearance for new projects or for expansion/modernization resulting in enhancement of capacity at any time after the said notification was made applicable from 25.02.2013. The Project Proponent have further submitted that they are operating with a capacity of 24,000 MTPA CPC from 2013 which has been informed to the State PCB for amendment of their consent order.
To appreciate the issue involved in this case relating to applicability of the government office memorandum dated 25.02.2013, the functional activity of the Coke Oven Plant and the meaning of the word calcination is required to be considered. Here the issue is relating to calcination of the petroleum coke in a plant. What is petroleum coke? A crude petroleum oil is a complex mixture of hydro carbon and is processed in a oil refinery unit. The composition of the said coke petroleum is normally called as pet coke in its commercial terms and composition of pet coke as follows:-
"Petcoke Composition Petcoke is composed primarily of carbon. The specific chemical composition of petecoke depends on the composition of the petroleum feedstock used in refining. Petcoke impurities (i.e. the non-chemical carbonaceous substances) include some residual hydrocarbons left over from processing (referred to as volatiles), as well as elemental forms of nitrogen, sulphur, nickel, vanadium, and other heavy metals. These impurities exist as a hardened residuum captured within coke's carbon matrix. Table 1 provides an observed range of petcoke properties for green and calcined petcoke.
Table 1. Petcoke Elemental Composition
By Weight Percent
Composition
Green
Calcined
Carbon
89.58-91.80
98.40
Hydrogen
3.71-5.04
0.14
Oxygen
1.30-2.14
0.02
Nitrogen
0.95-1.20
0.22
Sulphur
1.29-3.42
1.20
Ash (including heavy Such as nickel and vanadium)
0.19-0.35
0.35
Carbon-Hydrogen Ratio
18:1-24:1
910:1"
What is the meaning of the word calcination? Calcination is a process to remove the moisture in a volatile matter by increasing the density of the coke as well as physical strength and electrical conductivity of the material.
Calcined petroleum coke is the best material for making carbon anodes for smelting of alumina to aluminium. Petroleum coke is usually calcined in a gas fired rotary kiln or rotary hearth at high temperatures, around 1200 to 1450 0C to remove moisture.
Calcined Petroleum Coke is manufactured from raw material coke (RPC) by the process known as high temperature pyrolysis. Calcination of Calcined Petroleum Coke is essentially a high temperature treatment in which the carbon to hydrogen ratio of RPC is increased from 20 to 1000 and above. Calcination is achieved by complete demoisturisation and dehydrogenation of RPC under controlled conditions. During the process molecular rearrangement takes place making the CPC electrically conductive, an essential property required for Aluminium smelting. Raw petroleum coke needs to be calcined in order to meet the requirements for producing graphite electrode used in steel smelting or Anode Paste used to aluminium and magnesium. The calcination temperature will usually be about 13000C. This is done to get rid of the volatility, which will help to reduce the content of hydrogen and increase the graphitization degree of petroleum coke products so as to enhance the strength of high temperature and heat resistance and to improve conductivity of graphite electrode. Calcined petroleum coke is an important commodity linking the oil refinery and metallurgical/chemical industries. It is used for aluminium industry to manufacture anodes for the aluminium potlines. It is also used in the steel industry to manufacture carbon and graphite electrodes and as carbon raiser and in the chemical industry as a feedstock for the production of Titanium Dioxide by the modern chloride process route.
Coke Oven: Coke is a solid carbonaceous material produced by destructive distillation of low ash and preferably low sulphur bituminous coal. Coal is baked or distilled in ovens at controlled temperature of about 12000C and coke is produced as a combustible residue consisting of residual ash and fixed carbon and in the process, the impurities present in coal, such as volatile matters (tars, oil and grease, etc.) are driven off. It is considered that levels of 26-29% of volatile matter (VM) in the coal are good for coking purposes. The process of distillation or baking at controlled temperature does not allow burning of carbon present in coal.
The legality, validity and justifiability of office memorandum No. 11013/37/2011-1A-II(I) dated 25th February, 2013 is not the subject matter of challenge by the respondent project proponent. On the other hand, in their reply by the project proponent, Respondent No.5 viz. Amritesh Industries Private Limited under paragraph (k) admitted applicability of the said government order by their conduct requesting the State Pollution Control Board to amend the consent to operate order identifying the capacity to the extent of 24,000 M.T per annum which is below the regulatory zone relating to operation of plant as per EIA Notification, 2006 and the clarificatory government order whereby Calcined Petroleum Coke Plant was brought within ambit of the environmental regulation similar to the Coke oven plant. Said paragraph K reads as such:-
"(k) Now, when the Ministry of Environment and Forests published its decision to include Calcined Petroleum Coke Units within the ambit of Item No. 4(b) of the Schedule to the EIA notification on 25th February, 2013, the provisions of the said notification and schedule became applicable to the Calcined Petroleum Coke Unit set up at the plant of the respondent No. 5. The said notification suggested that prior environmental clearance is required - if there was a proposed new plant or expansion or modernization of an existing plant beyond the threshold limit mentioned in the notification. Since the effective date of application of the notification vis-a-vis Calcined Petroleum Coke Unit of the respondent No.5 is 25th February, 2013, when the aforesaid decision of the Ministry of Environment and Forest was notified, and since neither of the pre-conditions for obtaining environmental clearance were attracted in the case of the respondent No.5's plant, the question of the respondent No.5 obtaining such clearance did not arise. It is reiterated that neither the respondent No.5 opened any new plant nor did it go for expansion or modernisation resulting in enhancement of capacity at any point of time after the said notification was made applicable to its plant by the aforesaid decision of the Ministry. On the contrary, the capacity of the respondent No.5, in fact, decreased. The same happens when one of the two vertical shaft kiln (VSK-1) having a capacity of 5000 M.T. per annum became incurably defective and defunct. This happened sometimes in March, 2013. The respondent No. 5 informed the State Pollution Control Board, Orissa and also sent information to the District Industries Centre of the Government of Orissa requesting for amendment of the capacity to produce of the respondent No.5, as present in their records. The Pollution Control Board authorities and the District Industries Centre, Government of Orissa advised the respondent No. 5 to make a formal application which it did. The District Industries Centre (DIC), Government of Orissa by its letter bearing No. 421 dated 14th February, 2014 forwarded appropriate documents showing the amendment reflecting the reduction of the respondent No.5's installed capacity from 30,000 MT to 24,000 M.T. with effect from 26th December, 2013. Hence, since the year 2013 the respondent No.5 has an installed capacity of 24,000 M.T. and as such does not require to obtain an Environment Clearance since the capacity is below the threshold limit provided in the 2006 EIA Notification.
In this connection a copy of the clarification letter dated 25th February, 2013 issued by the Ministry of Environment and Forest, the letter bearing No.421 dated 14th February, 2014 issued by the District Industries Centre (DIC), Government of Orissa reflecting the recording of the reduction of installed capacity from 30,000 M.T. to 24,000 M.T. with all its enclosures and a tabular chart reflecting the actual quantity of production of Calcined Petroleum Coke by the respondent No.5 are annexed hereto and marked as Annexure "C", "D" and "E" respectively."
As the question of vires of the said Government order dated 25th February, 2013 is not under challenge, we are not entering into that area to adjudicate the vires of the said government order and its applicability issue to the Calcined Petroleum Coke Plant. The real issue as reflected in the pleadings of the parties viz. the application, affidavit-in- opposition, reply and from the submission of the ld. counsel appearing for the project proponent is that the project proponent is agreeable to comply with the EIA Notification, 2006 read with the government order of 25th February, 2013 prospectively for operating their unit.
The government order/memo dated 25th February, 2013 now is discussed in legal angle.
The EIA Notification, 2006 is a subordinate legislation in exercise of the power under sub section (i) and clause (v) of sub section 2 of section 3 of the Environment(Protection) Act, 1986 read with clause (d) of sub rule (3) of Rule 5 of Environment(Protection) Rules, 1986. Under the said EIA Notification Act, 2006, schedule 4(b) identified the coke oven plant only and schedule 5(b) (e) relates to Petroleum Base Processing unit prescribing restriction parameter for operation of the unit above certain capacity without having environmental clearance from the competent authority. Section 3 sub section 2 of clause (v) of the said Act reads as such:-
"(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards."
Rule 5 of the Environment(Protection) Rules, 1986 reads as such:-
"5. Prohibitions and restrictions on the location of industries and the carrying on processes and operations in different areas
(1) The Central government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas-
(i) Standards for quality of environment in its various aspects laid down for an area.
(ii) The maximum allowable limits of concentration of various environmental pollutants (including noise) [or an area.
(iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted.
(iv) The topographic and climatic features of an area.
(v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved.
(vi) Environmentally compatible land use.
(vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted.
(viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972 or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international confcrcnce1 association or other body.
(ix) Proximity to human settlements.
(x) Any other factor as may be considered by the Central Government to De relevant to the protection of the environment in an area.
(2) While prohibiting or restricting the location of industries and carrying on of processes and operations in an area, the Central Government shall follow the procedure hereinafter laid down.
(3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the locations of an industry or the carrying on of processes and operations in an area, it may by notification in the Official Gazette and in such other manner as the Central government may deem necessary from time to time, give notice of its intention to do so.
(b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the locations of the industries and carrying on of process or operations in that area.
(c) Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette.
(d) The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette consider all the objections received against such notification and may 10 [within one hundred and 11 [eighty] days from such day of publication] impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area."
In terms of the aforesaid rule read with the Act it is crystal clear that under Rule 5 sub rule 4 the competent authority viz. Central Government is empowered for public interest to dispense with the requirements of the notice under clause (a) sub rule 3. In view of the use of non-obstante clause by using the word 'notwithstanding', the Central Government is legally entitled to dispense with the requirement of notice.
So far as issuance of the government order dated 25th February, 2013 whereby and where under the calcined petroleum coke was brought at par with the unit of coke oven plant and so far as the environmental clearance issue is concerned, it appears that having regard to the recommendations of Expert Appraisal Committee (EAC in short) the Ministry accepted the same and thereafter it got approval of the competent authority regarding inclusion of the calcined petroleum coke plant within the category of 4(b) in terms of the EIA Notification, 2006 at par with the coke oven plant considering the similarity and functional activity of the calcined petroleum coke plant alike with coke oven plant. No issue has been raised on that point about the functional activity and the pollution norms etc. contending that Calcined Petroleum Coke Plant is not similar to the coke oven plant in it operational parameters and that point has not been agitated before us. Accordingly we are not entering into that issue to test the justifiability of the government order approved by the competent authority.
22 . Ld. Counsel appearing for the Project proponent however submitted orally to this effect that since 4(b) of the Environmental Impact Assessment Notification, 2006 was not amended in terms of the Rule 5 of the Environment (Protection) Rules, 1986 by publishing the same in the gazette inviting objections and thereafter finalization of the issue, it has no applicability. As no challenge has been made we are not entering into that area. The Project proponent practically has admitted applicability of that with prospective effect. Hence that point is kept open for decision as and when the said issue will come before us for adjudication.
By office memorandum dated 25th February, 2013 issued by the Ministry of Environment and Forests, it was decided to consider the calcined petroleum coke plant under clause 4 (b) of schedule with coke oven plant in terms of the EIA Notification, 2006. The office memorandum is reproduced as under:-
"Office Memorandum
Sub: Consideration of projects regarding Calcined Petroleum Coke units for environmental clearance under EIA Notification, 2006-Clarification regarding.
It is observed that under the EIA Notification 2006, Calcined Petroleum Coke Units are being considered under two different activities i.e. 5 (e) i.e. Petrochemical based Processing and 4 (b) i.e. Coke Oven Plants by the various States and this Ministry.
2.0 In order to avoid ambiguity and to maintain uniformity, the matter was referred to the Expert Appraisal Committee (Industry) for clarification. The Committee has recommended that Calcined Petroleum Coke Unit should be covered under schedule 4 (b) i.e. coke oven plant of the EIA Notification, 2006 because of the following reasons:
a. Petroleum coke is a product of petroleum and not a petrochemical.
b. Coke is a pure Carbon (98%) but not a chemical. In coke calcination, volatile and moisture are taken out from the petroleum coke.
c. Process regarding the manufacture of Calcined Petroleum Coke as is more similar to Coke Oven Plants than manufacturing of Petrochemicals. No cracking is involved in the process.
3.0 This Ministry on the basis of recommendation of the EAC has decided to consider Calcined Petroleum Coke Units under 4 (b) (i.e. Coke Oven Plant) of the EIA Notification, 2006.
4.0 This issues with the approval of the Competent Authority."
Hence it appears that a government order was issued with the approval of the competent authority clarifying the nature of calined petroleum coke plant at par with the coke oven plant. The government order dated 25th February 2013 accordingly is binding to the respective Pollution Control Boards of the respective States and practically Odisha State Pollution Control Board has accepted the same as binding upon them in a matter adjudicated by the Principal Bench of National Green Tribunal. The relevant portion of the order of the Principal Bench reads as such:-
" It is commonly conceded case and in fact remains undisputed by any of the parties appearing before us including the Project Proponent that the Project Proponent is covered under 4b of the EIA Notification 2006 being a Coke Oven Plant. It has been so stated in the Office Memorandum issued by the 0Ministry of Environment and Forests dated 25th February, 2013.
The obvious result thereof would be that the Project Proponent called upon to take the Environmental Clearance from the Ministry of Environment and Forests. But shall seek clearance from the State Level Impact Assessment Authority (SEIAA), in accordance with law. There is a serious contention raised before us as to whether the Project Proponent has started its activity and what is the stage of such activity of production. Be that as it may.
Without prejudiced to the rights and contentions of the parties before us. In view of the above, we would prefer not to pass any prohibitory and injunctive orders at this stage. But would direct the Project Proponent to obtain Environmental Clearance from State Level Impact Assessment Authority (SEIAA) at the earliest.
The application thereof shall be moved within one week from today and the same shall be considered and permission granted or refused, as the case may be, within eight weeks from the date of receipt of the application. Within the period specified for consideration and disposal in accordance with law and needless to Notice that Authority should act strictly in the provision of the Notification."
There are so many cases on the principle that even if any rule is not notified as per law, a draft rule could be implemented by the authority concerned for effective adjudication of any issue. This point was discussed under service jurisprudence in the case of Nitinbhai Saevatilal Shah and Anr. Vs. Manubhai Manjibhai Panchal and Anr., 2011(9) SCC 638. It is the view of the Apex Court passed in the case of Abraham Jacob and Ors. Vs. Union of India, 1998(4) SCC 65 that draft rule can be followed to meet the urgent situation.
In the instant case it appears from the pleadings that said government order was approved by the competent authority which is being the office memorandum dated 25th February, 2013 classifying the calcined petroleum coke plant at par with coke oven plant and thereby bringing it under clause 4(b) of the schedule of EIA Notification, 2006.
Previously there was a confusion about the inclusion of the calcined petroleum coke plant. There was diverse actions on the part of the different State Pollution Control Boards. Some considered categorization under petroleum base processing under clause 5(e) and some other under coke oven plant under clause 4(b) of the EIA Notification, 2006. Hence the Calcined Petroleum Coke plant was being considered either under category 4(b) or category 5(e) from the very beginning and subsequently it was clarified by approval of the competent authority. The decision of the competent authority as already discussed is binding upon the State PCB even if it is an executive instruction in its nature and not in stricto sensu a statutory regulation amending the Environmental Impact Assessment Notification, 2006 (EIA 2006).
Reliance is placed to the judgment relating to the applicability of the Executive/administrative instruction/order upon other authorities to the cases K.P. Varghese Vs. Income Tax Officer, Ernakulam & Anr. reported in 1981 (4) SCC 173 a judgment of two Judges Bench wherein the view of Navnitlal C. Javeri Vs. K.K. Sen, AIR 1965 SC 1375 corresponding to (1965) 56 ITR 198, a judgment of five Judges Bench was relied upon. Subsequently the Apex Court has relied upon the same view in the case of C.B. Gautam Vs. Union of India reported in (1993) 199 ITR 530, a judgment of the Constitution Bench. The aforesaid judgments of Varghese(supra), Navnitlal (supra) and C.B. Gautam (supra) further relied upon by a three Judges Bench of Apex Court in the case of UCO Bank Vs. Commissioner of Income Tax, W.B., reported in 1999(4) SCC 599. In both the cases the issue involved was the instruction by a statutory authority under Section 119 of the Income Tax Act and its binding effect. It was held that even if direction under Section 119 of the Income Tax Act is deviated from the provisions of the statute, yet it to be binding to the officers of Income Tax Department. In general, court adopted the principle that the statutory authority when empowered to pass any direction under the statute same is binding upon the department and the other authorities which is under the control of the earlier authority. In the instant case, competent authority viz. the Central Government has approved the clarification as made by the government instruction/memo dated 25.02.2013 hence the same has binding effect to deal with the cases of operation and establishment of the calcined petroleum coke plant by the respective State PCB of different states. Hence the Odisha PCB accordingly was bound to comply with that clarificatory direction of the competent authority but without doing such the Odisha PCB enhanced the unit's productivity capacity of calcined petroleum coke plant to the extent of 30,000 M.T. per annum without Environmental clearance. The action of the Odisha State Pollution Control Board viz. Respondent No.2 is impugned action in the original application No. 06/2015/EZ contending inter alia that the Odisha State PCB though passed the order of closure of the unit of the project proponent but in the grounds of such closure no mention was made about the said government direction dated 25.02.2013.
In course of arguments without challenging the said Government direction dated 25.02.2013, ld. counsel for the project proponent has urged that compliance of Article 77 of the Constitution of India which requires every executive action of the government to be expressed to have been taken in the name of the President and a notification thereafter, has not been followed. It is his further submission that as such it has no applicability.
It is true that following the constitutional provision of Article 77 the said government direction was not authenticated by the President of India and it was not notified in the gazette. Clause 2 of Article 77 of the Constitution of India insulate executive action of the government formally taken in the name of the President from challenge. In the instant case no challenge has been made. However, on perusal of Section 5 as quoted above of the Environment (Protection) Act, 1986 which starts with a non-obstante clause using the word 'notwithstanding' the Central Government in exercise of its power and performance besides functions under the said Act may issue direction in writing to any person, officer or authority and they are bound to comply with the said direction. In our view, the said government order, direction dated 25.2.2013 is the outcome of exercise of power under Section 5 and the said office memorandum was notified in the website. The issue that even if any government instruction/direction/executive instruction as the case may be, is not expressed in the name of the President in terms of Article 77 whether would render the said executive action of the central government as void or invalid was considered by the Apex Court in the case of Air India Cabin Crew Association Vs. Yeshaswinee Merchant & Ors. reported in 2003(6) SCC 277 wherein in paragraph 72 the Apex Court considered the issue and held that in absence of that executive action of the central government even if is not formally expressed to have been taken in the name of the President, Article 77 does not provide that the same would, therefore, be rendered invalid. The view of the Apex Court subsequently was dealt with and considered in the case of Golf Goans Hotels Company Ltd. & Anr. Vs. Union of India and Ors., reported in 2014(10) SCC 673 in paragraph 19 of the said judgment wherein the Apex Court held that the decision in Air India Cabin Crew Association(supra) was due to the fact that impugned direction containing the government letter not expressed in the name of the President was in exercise of the statutory provision under Section 34 of the Air Corporation Act, 1953. In the instant case the government direction dated 25.2.2013 was issued by the comptent authority's approval in exercise of the power under Section 5 of the Environmental (Protection) Act, 1986 which provides ample power to the Central Government to issue direction and as such it is binding upon the authority viz. State PCB as already discussed. Even if its repetition till we hold that the project proponent cannot take the plea that the said government direction which was published in the website of the MoEF & CC is not applicable in view of the simple reason that no challenge has been made by proper pleadings in the opposition that same is not the law of the land due to the breach of the constitutional provision of Article 77 of the Constitution of India on the ground of non-authentication of the documents in the name of the President of India.
30 . The Central Government being the competent authority is entitled to pass necessary order/direction under Section 5 of the Environment (Protection) Act, 1986 by dispensing with notice for public interest under sub rule (4) of said Acts. The clarificatory order by way of office memorandum issued with the approval of the competent authority could be considered for the sake of applicability upon PCB under environmental jurisprudence. It is made clear that Govt. instruction dated 25th February, 2013 will be applicable prospectively and not retrospectively as statute has not empowered them to give effect of any order retrospectively.
In view of the discussions as stated above keeping the point of vires of the said government order open as it is not the case of the project proponent challenging the same and having regard to the submissions and the pleadings of the project proponent, who approached Odisha State Pollution Control Board to reduce capacity of unit below 25,000 MT for operation of the calcined petroleum coke plant on modification of the earlier consent to operate decision, we are allowing the project proponent to operate the unit in terms of the modified consent to operate decision issued by the Odisha State Pollution Control Board making the operational capacity below 25,000 MT per annum of calcined petroleum coke plant. The Odisha State PCB is directed to act accordingly to modify the consent to operate decision and allow the operation of the unit of the project proponent and will inspect the unit time to time to check up whether the project proponent has increased the operational capacity above the said level. If it is found that project proponent has increased the operational capacity above 25,000 MT and under such situation appropriate steps to be taken for closure of the unit till environmental clearance is granted as per law.
Having regard to the said findings and observations the application viz. O.A. 06/2015/EZ stands allowed to that extent. The application along with connected M.A. is thus allowed to that extent and disposed of accordingly. No order is passed as to costs.
O.A. 40/2014/EZ
The applicant of this OA is a resident of the locality where M/S India Carbon Ltd., the industry of the Respondent No. 4, a Calcined Petroleum Coke Unit, is in operation since 15.11.1962 in village Noonmati under Guwahati Subdivision of Assam. It is the allegation of the applicant that he is an affected person and suffering for years due to continuous air pollution emitted by the Unit of Respondent No. 4. It is his further submission that the Calcined Petroleum Coke industries have been brought under the purview of EIA 2006 with its entry in 4(b) of the schedule and hence it requires Environmental Clearance as per Clause 2(ii) of the aforesaid Notification for any expansion and/or modernization along with capacity enhancement. He has also referred to the Office Memorandum No. J-11013/37/2011-1A.II(I) dated 25. 02.2013 issued by the MOEF&CC, Govt. of India.
In the pleading made in the application it is contended by the applicant that the industry of Respondent No. 4 was modernized and there was increased production capacity by 18.18% and they started commercial production in enhanced capacity from 17.10.2008 without having any Environmental Clearance as required by the EIA Notification 2006 and continuing with their illegal operation for the last seven years. Therefore he has filed this application for closure of the unit in the absence of EC under EIA Notification 2006.
In the reply affidavit the Project Proponent i.e. respondent No. 4, would submit that their Calcined Petroleum Coke Plant is in operation since the year 1962 with an original capacity of 60,000 MTPA with an existing manufacturing capacity of 46,800 MTPA. The plant was modernised in 2008 by introducing new and more efficient machinery and even after modernization the production capacity remained at 46,552.43 MTPA which is much below the sanctioned manufacturing capacity. It is their contention that after the issuance of Office Memorandum dated 25.02.2013 by MOEF&CC, making it mandatory for the Calcined Petroleum Coke Unit with a production capacity of 25,000 MTPA or more for obtaining prior Environmental Clearance from the regulatory authority, the plant has neither modernized the unit nor enhanced the capacity. Therefore, at this stage they do not require to obtain prior Environmental Clearance to run their Unit.
In the counter affidavit filed by the Respondent No. 2, the Assam Pollution Control Board, they would submit that the Unit in question was granted Consent to Operate for a maximum installed capacity of 60,000 MTPA during 2004-2005 and 2005-2006 much before the issuance of EIA Notification 2006.
The reply affidavit filed by MOEF&CC, the Respondent No. 1 is similar to the affidavit filed in O.A. No. 06/2015/EZ.
Therefore we are of view that the nature of allegations by the respective applicants is similar and centres around violation of the provision of the EIA Notification 2016 in view of the Office Memorandum dated 25.02.2013 issued by MoEF&CC deciding to cover CPC Units in the schedule of EIA Notification 2006.
As per our discussion and observation in O.A. No. 06/2015/EZ since the project proponent's unit is existing with operational capacity of 60,000 MTA prior to O.M. dated 25.02.2013, it is not applicable for seeking E.C. at this present moment, hence the application along with connected M.A. stands dismissed. No order is passed as to costs.