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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
W.P. 18386(W) of 2009
CAN 1571 of 2010
M/s. ASO Cement Ltd. & Anr.
Vs.
West Bengal Power Development Corporation & Ors.
For the petitioner : Mr. Sakti Nath Mukherjee
Mr. Kalimuddin Mondal
Mr. Sankar Biswas
For the respondent nos. 1 to 4 : Mr. Anindya Kumar Mitra
Mr. Ranjoy De
Mr. Basabjit Banerjee
For the respondent no. 6 : Mr. Siddhartha Mitra
Mr. D. Gomes
Mr. S. Dutta
Judgement on : 25.11.2016
Ashis Kumar Chakraborty, J.
The petitioner no. 1 is a company incorporated under the Companies Act, 1956 and the petitioner no. 2 is its Managing Director. The grievance of the petitioners in this writ petition arises out of the process of sale of dry fly ash by the West Bengal Power Development Corporation Ltd. from its thermal power stations.
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The facts which are relevant for the purpose of adjudication of the present writ petition are that in the year 1995, the petitioners set up its cement plant at Village- Gopali, P.O. Kharagpur, District-Midnapore (West), in the State of West Bengal (hereinafter referred to as "the said factory") and started manufacturing portland slag cement. Since the year 2001-2002, they changed the manufacturing process and started to manufacture portland pozzalona cement for which dry fly ash is one of the essential raw materials. The respondent no. 1 has various thermal power station within the State of West Bengal, one of which is Kolaghat Thermal Power Station, at Kolaghat (hereinafter referred to as "KTPS"), in the district of Midnapore (West). In the process of generation of electrical energy in any thermal power station, dry fly ash is the by-product which cannot be utilised by the thermal plants for any purpose. At the same time, dry fly ash creates environmental hazards. Like, any other thermal power station, the respondent no. 1 is free to sell the fly ash generated in the process of generation of electrical energy at KTPS stored in the silos. The petitioners claimed that they require regular supply of fly ash at their said cement factory, situated within 60-65 kilometers from KTPS. On January 31, 2003 the then Chairman of the West Bengal Industrial Development Corporation Ltd. requested the then Minister of Power, Government of West Bengal, so that the respondent no. 1 enters into an agreement with the petitioner no. 1 for uninterrupted supply of fly ash from KTPS to the petitioner no. 1 for expanding their project of manufacturing cement. However, on January 28, 2005 the respondent no. 1 issued a notice inviting tenders for procuring fly ash from the silos of KTPS and its other three thermal power stations at Bakreswar, Bandel and Santaldih. In response to the said notice inviting tenders dated January 28, 2005 the petitioner no. 1 submitted its tender to the respondent no. 1 to obtain supply of fly ash from the said KTPS at the rate of Rs. 12/- per M.T., but the same was rejected. 3
On December 16/19, 2005 the respondent no. 1 issued the letters of intent to the successful bidders for procuring fly ash from its aforementioned thermal power stations, including KTPS for a period of two years with effect from January 01, 2006 with the provision for one year extension thereafter, subject to satisfactory performance. By a letter dated January 30, 2006 the respondent no. 1 informed the petitioner no. 1 to obtain return of the earnest money deposited along with its tender. Thereafter, the petitioners filed the first writ petition, being W.P. 4694(W) of 2006 before this Court praying for, inter alia, setting aside of the rejection of their tender and a writ of mandamus commanding the respondent no. 1 to make a long term arrangement for uninterrupted regular supply of fly ash at the rate of Rs. 12/- per M.T. During the hearing of the present writ petition, the petitioners produced a copy of the said first writ petition W.P. 4694(W) of 2006, without all the annexures thereto before this Court. On June 13, 2006 when the said writ petition was taken up for hearing, a learned Single Judge observed that the learned Senior Advocate representing the respondent no. 1 should take instruction as to whether his clients are agreeable to give 5000 M.T. of fly ash to the petitioner no. 1. By a letter dated June 15, 2006 the respondent no. 1 informed its advocate on record that 5000 M.T. fly ash may be supplied to the petitioner no. 1, per month from KTPS subject to monthly production of 1,20,000 M.T. fly ash at KTPS and whether the petitioner no. 1 would pay the administrative charges of fly ash at the rate of Rs. 12/- per M.T. or not may kindly be decided by the Court. On June 16, 2006 when the said writ petition was taken up for hearing, the petitioner no. 1 agreed to the said terms suggested by the respondent no. 1. So far as the price of fly ash is concerned, the petitioner no. 1 offered to pay Rs. 12/- per M.T., which was its offer in the tender submitted in response to the said notice inviting tenders dated January 28, 2005 and the same was accepted by the respondent no. 1. By order dated June 16, 2006 the learned Single Judge disposed of the said first writ petition, W.P. 4694(W) of 2006 on 4 the basis of the suggestions given by the respondent no. 1 in the said letter dated June 15, 2006 and the rate applicable was fixed at Rs. 12/- per M.T. Thus, in terms of the said order dated June 16, 2006 the petitioner no. 1 was continuing to receive supply of 5000 M.T. of fly ash per month from KTPS, at the rate of Rs. 12/- per M.T.
On June 28, 2006 the respondent no. 1 entered into an agreement with the private respondent no. 6 in this writ petition (then known as Madras Cements Ltd.) for supply of 30,000 M.T. of fly ash, per month from KTPS to its cement factory in the district Howrah for the period from July 01, 2008 to June 30, 2027, initially at the rate of Rs. 10/- per M.T., with an enhancement of Rs. 5/- on every five years. On October 01, 2007 the respondent no. 1 also entered into an agreement with the private respondent no. 7 in this petition for supply of 15,000 M.T. of fly ash, per month from KTPS to its factory in the district Howrah, initially at the rate of Rs. 20/- per M.T. with an enhancement of Rs. 5/- on every five years.
According to the petitioners, in October, 2008 the petitioner no. 1 tied up with M/s. Ramco Industries Ltd. to manufacture cement at the factory of the latter at Kalaikunda for which its monthly requirement of fly ash increased from 5000 M.T. to 9000 M.T. and in order to continue with its operation the petitioner no. 1 had to purchase the additional quantity of fly ash from open market.
On January 27, 2009 the respondent no. 1 issued another notice inviting tenders for procuring fly ash from the silos of KTPS and its other thermal power stations. By a letter dated February 23, 2009 the petitioners requested the respondent no. 1 to grant permanent linkage of 9000 M.T. of fly ash, per month instead of requiring them to participate in the tender process. The respondent no. 1, however, by its letter dated February 25, 2009 informed the petitioner no. 1 of its inability to accept the request for permanent linkage for 9000 M.T. of fly ash, per month and that 5 the petitioner no. 1 has to participate in the tender process as per the notice inviting tenders dated January 27, 2009. Thereafter, the petitioner no. 1 submitted its tender to obtain supply of fly ash from the said KTPS. However, on March 05, 2009 the petitioners filed the second writ petition, being W.P. 4418(W) of 2009 before this Court praying for, inter alia, a writ of mandamus commanding the respondent no. 1 to make a long-term agreement with itself for uninterrupted supply of 9000 M.T. fly ash per month, on the terms as were granted to the private respondent nos. 6 and 7. The petitioners also prayed for, setting aside of the notice inviting tenders dated January 27, 2009 and the said letter dated February 25, 2009 issued by the respondent no. 1. On March 05, 2009 when the said second writ petition was taken up for hearing, a learned Single Judge of this Court passed an order directing that the respondent no. 1 may finalise the tender, but it shall not award the contract in favour of any party without the leave of this Court. However, none of the parties who had submitted their tenders in response to the said notice inviting tenders dated January 27, 2009 qualified the tender terms and the respondent no. 1 cancelled the said notice inviting tenders. After obtaining leave of this Court, the respondent no. 1 issued a fresh notice inviting tenders dated August 04, 2009 for procuring fly ash from the silos of its thermal power station, including KTPS. The petitioners alleged that they were not aware of the issuance of the said notice inviting tenders dated August 04, 2009 and they could not purchase the tender documents. They filed the third writ petition, being W.P. 15745(W) of 2009 before this Court, praying for a writ of mandamus commanding the respondent no. 1 to issue the tender documents and enhance the monthly supply of fly ash to itself from 5000 M.T. to 9000 M.T., by way of permanent linkage on the terms of conditions as were granted to the private respondent nos. 6 and 7. In the said third writ petition, the petitioners also prayed for quashing of the notice inviting tenders dated August 04, 2009 and the said letter dated February 25, 2009 issued by the respondent no. 1. 6
On September 04, 2009, the said third writ petition, W.P. 15745(W) of 2009 was taken up for hearing and a learned Single Judge of this Court passed an order directing that without prejudice to the rights and contentions of the parties, the respondent no. 1 will make available the tender documents to the petitioners by September 07, 2009 and the petitioner no. 1 will be entitled to participate in the tender process. The respondent no. 1 issued the tender documents to the petitioners and the petitioner no. 1 participated in the tender process without prejudice. Although, in the said notice inviting tenders dated August 04, 2009 the respondent no. 1 had fixed the base price for supply of fly ash at the rate of Rs. 56/- per M.T., but the petitioner no. 1 submitted its tender for supply of 4000 M.T. of fly ash, per month at the rate of Rs. 12/- per M.T. In its tender, the petitioner no. 1 also mentioned that its offer for 4000 M.T. of fly ash is over and above the current monthly supply of 5000 M.T. as per the said order dated June 16, 2006 passed in the writ petition, W.P. 4694(W) of 2006.
On September 25, 2009 the respondent no. 1 issued a circular addressed to the petitioner no. 1 and some other parties that since the tender process has not been completed by May 31, 2009 as a stop-gap measure, the supply of fly ash to them will be continued till October 31, 2009. The respondent no. 1 also issued a separate letter dated June 25, 2009 informing the petitioner no. 1 that purely as a stop gap arrangement, supply of fly ash shall be continued to it till October 31, 2009. After receipt of the said circular and the said letter both dated September 25, 2009, the petitioners filed the present writ petition praying for, inter alia, writ of mandamus to direct the respondent no. 1 to rescind the said circular and the letter both dated September 25, 2009 and to direct the respondent no. 1 to continue with the existing supply of 5000 M.T. of fly ash, per month to the petitioner no. 1. The petitioners further prayed for, a writ of mandamus to direct the respondents to supply additional quantity of 4000 M.T. dry fly ash, per month to the petitioner no. 1 and a 7 declaration that the petitioner no. 1 entitled to procure fly ash from KTPS on permanent basis, month by month.
On October 30, 2009 when the present writ petition was taken up for hearing by the learned Single Judge of this Court it was submitted on behalf of the respondent no. 1 that the period of supply of fly ash to the petitioner no. 1 has been extended till November 30, 2009 and no interim order was passed in favour of the petitioners. The order dated October 30, 2009 recorded the submission made on behalf of the respondent no. 1 that it cannot make profit on sale of fly ash and, as such, the learned Single Judge observed that there is hardly any rationale for fly ash to be made available to the traders for them to make hefty margins thereon without considering the case of cement manufacturers having units close to the power station of the respondent no. 1. In the said order it was further recorded that a submission was made on behalf of the respondent no. 1 that a policy in such regard may be formulated by it. On November 26, 2009 a learned Single Judge of this Court passed an order directing that pending disposal of the writ petition, the respondent no. 1 is restrained from discontinuing the existing supply of 5000 M.T. fly ash, per month to the petitioner no. 1.
By a letter dated December 10, 2009 the respondent no. 1 informed the petitioner no. 1 that the tender dated August 04, 2009 has been cancelled by its competent authority and the petitioner no. 1 was requested to take back the earnest money deposited by it. On December 22/23, 2009 the respondent no. 1 issued a letter to the petitioner no. 1 that a meeting will be convened with all interested cement manufactures on December 29, 2009 to have direct interaction and finalise the issue for supplying of dry fly ash to different agencies for a long term tie up. The meeting was held on December 29, 2009, but no decision was taken by the respondent no. 1 to enter into any long term tie up with any cement manufacturer for supplying fly ash.
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On January 28, 2010 the respondent no. 1 issued a fresh notice inviting tenders for procuring fly ash from its thermal power station, including KTPS. In the said notice inviting tenders the respondent no. 1 fixed the base price at Rs. 110/- per M.T. The petitioner no. 1 submitted its tender to obtain supply of additional quantity of 5000 M.T. of dry fly ash from KTPS at the quoted rate of 110/- per M.T., but it was an unsuccessful tenderer.
From the facts recorded above, it is clear that the said notice inviting tenderss dated January 27, 2009 and August 04, 2009 issued by the respondent no. 1 stood cancelled and the petitioner no. 1 participated in the said tender dated January 28, 2010.
Some of the other tenderers filed a writ petition, being W.P. 2651 (W) of 2010, against the respondent no. 1, before this Court alleging ambiguity in the meaning of clause 48 of the special conditions of supply relating to the said tender dated January 28, 2010 which reads as follows:
"48. Evaluation Criterion of Bids.
Price discovery and Quantity for allocation:
Bids at Base Price and above will be the successful bids and quantity will be allocated to them based on the available quantity."
In the above writ petition, by an order dated February 11, 2010 a learned Single Judge of this Court granted liberty to the respondent no. 1 to receive the tenders, but restrained it from issuing any work order in favour of the successful bidders for a limited period. On February 18, 2010 the above writ petition, W.P. 2651(W) of 2010 was taken up for final hearing and after considering the aforementioned clause 48 of the special conditions of supply, a learned Single Judge of this Court held that those offering bids at the base price and above were rightly treated by the respondent no. 1 as successful bidders in terms of clause 48 and the writ petitioners who had quoted a rate of Rs. 151/- M.T. in respect of the entire quantity of fly ash available during the year at KTPS, which is much higher than the rates quoted by any other bidder and if the entire quantity 9 offered for disposal by way of sale is procured by the petitioners at the rate quoted, the corporation would be in a position to extract maximum revenue. The learned Single Judge further held that it is not in dispute that the respondent no. 1, being an Article 12 authority is the guardian of the finances of the State and, therefore, is entitled to look for the best offer. By the said order dated February 18, 2010 the said writ petition, W.P. 2651(W) of 2010 was disposed of by grating liberty to the respondent no. 1 to proceed in accordance with law for the purpose of finalisation of the contract with those who have outbid the others by quoting rates that would maximise its financial interest. It was further directed that if any highest bidder in respect of any of the thermal power station has not bid for the entire quantity, the residue may be made available to the next higher bidder. As mentioned earlier, the petitioner no. 1 was the unsuccessful tenderer in the said tender. The petitioners, however, did not approach this Court with any grievance against the respondent no. 1 for rejecting its tender.
On February 25, 2010 the respondent no. 1filed an application, being CAN 1571 of 2010 in the present writ petition. In the said application the respondent no. 1 alleged that as per the said order dated June 16, 2006 passed by a learned Single Judge of this Court in the first writ petition, the petitioner no. 1 was supplied 5000 M.T. of fly ash, per month, the period of the said tender dated January 28, 2005 was extended from time to time, till February 28, 2010 on the ground of cancellation of the aforementioned tenders dated January 27, 2009 and August 04, 2009 and with the expiry of February 28, 2010 there is no scope for the petitioner no. 1 to be further entitled for supply of 5000 M.T. of fly ash per month. The respondent no. 1 further alleged that unless and until the said order dated November 26, 2009 restraining itself from discontinuing supply of 5000 M.T. of fly ash per month pending disposal of the writ petition is modified, an allegation of violation of the order of injunction passed by this Court might be levelled against it and in paragraph 19 of the 10 application the respondent no. 1 prayed for modification of the order dated November 26, 2009. However, in the prayer portion of the said application the respondent no. 1 prayed for modification of the orders dated June 16, 2006 and November 26, 2009.
On March 20, 2015 when both the writ petition and the application filed by respondent no. 1, being CAN 1571 of 2010 were taken up for hearing a learned Single Judge of this Court observed that the respondent no. 1, as a State or instrumentality of State cannot forego the opportunity to generate revenue by supplying fly ash and it may be desirable that fly ash generated at thermal power stations may be disposed of by auction or by conducting a transparent tender process for a fixed duration. By the order dated March 20, 2015 the learned Single Judge further observed that it is necessary to look into the circumstances in which respondent no. 1 entered into the said agreements with the private respondent nos. 6 and 7 and directed the respondent no. 1 to disclose the said agreements by way of a supplementary affidavit. The respondent no. 1 filed a supplementary affidavit and disclosed the copies of the said agreements entered into by itself with the private respondent nos. 6 and 7, respectively. The petitioner no. 1 filed an affidavit-in- opposition to the said supplementary affidavit and the respondent no. 1 also filed its affidavit-in- reply. In the said affidavit-in-reply the respondent no. 1 disclosed its comprehensive fly ash disposal and utilisation policy approved by its Board of Directors in the meeting held on May 11, 2015 the details whereof will be discussed hereinafter. The respondent no. 1 further disclosed a copy of the application dated April 25, 2012 submitted by the petitioner no. 1 to the West Bengal Pollution Control Board for obtaining consent under Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981. In the said application the petitioner no. 1 stated that it consumes 2450 M.T. of fly ash, per month at its said factory as the raw material to manufacture cement. 11
From the above facts it is evident that the present writ petition is the fourth writ petition filed by the petitioners against the respondent no. 1 claiming supply of fly ash from KTPS. In this writ petition, the petitioners claimed that the petitioner no. 1 company is not only entitled to receive the existing supply of 5000 M.T. fly ash from the respondent no. 1 as per the said order dated June 16, 2006 it is further entitled to receive supply of additional quantity of 4000 M.T. of dry fly ash, per month from the respondent no. 1. The petitioners' claim for the supply of additional quantity of 4000 M.T. of dry fly ash per month was based on the statements made in the writ petition that in 2008, the petitioner no. 1 had tied up Ramco Industries Limited to run the factory of the latter at Kharagpur. However, during the course of argument of the writ petition it was submitted on behalf of the petitioners that the said tie up petitioner no. 1 with the said Ramco Industries Limited has since ceased to exist and, as such, the petitioners are not pressing the prayer in the writ petition for supply of additional quantity of 4000 M.T. of fly ash, per month. Thus, the scope of the disputes between the petitioners and the respondent no. 1, in this writ petition is restricted to the claim of the petitioners for obtaining supply of 5000 M.T. of fly ash, per month from KTPS as per the said order dated June 16, 2006 passed in the first writ petition, W.P. 4694(W) of 2006.
In support of their claims in the present writ petition various contentions were raised on behalf of the petitioners. Mr. Sakti Nath Mukherjee, learned Senior Advocate appearing in support of the writ petition submitted that in order to manufacture the portland pozzalana cement at its said factory, situated within 60 (sixty) kilometers from KTPS the petitioner no. 1 requires regular supply of fly ash. He submitted the requirement of continuous supply of dry fly ash for running the said cement factory of the petitioner no. 1 is beyond anyone's doubt. In this regard, he referred to the aforementioned letter dated January 31, 2003 issued by the then Chairman of the West Bengal Industrial Development Corporation Limited requesting the then Minister of Power, Government of 12 West Bengal. It was submitted that in spite of being aware of the requirement of the petitioner no. 1 for continuous supply of fly ash from KTPS to run its cement factory the respondent no. 1, instead of entering into an agreement with the petitioner no. 1 for continuous supply of fly ash to the said factory, issued the said notice inviting tenders dated January 28, 2005 for disposal of dry fly ash from its various thermal power station within the State of West Bengal including KTPS. According to Mr. Mukherjee, the petitioner no. 1 had no option but to submit its tender together with the required amount of earnest money to the respondent no. 1. The respondent no. 1, however, illegally rejected the said tender submitted by the petitioner no. 1 and declared the traders exporting dry fly ash were to be the successful tenderers. Thus, being aggrieved with the illegal rejection of the said tender of the petitioner no. 1, the petitioner no. 1 filed the first writ petition, being W.P. No. 4694(W) of 2006 before this Court. It was contended that when the said writ petition was taken up for final hearing on June 13, 2006 the respondent no. 1 could not substantiate any valid reason for rejecting the said tender submitted by the petitioner no. 1 and, as such, the learned Single Judge of this Court observed that the learned Senior Advocate representing the respondent no. 1 in the writ petition should take instruction as to whether the his client was agreeable to give 5000 M.T. of fly ash to the writ petitioners.
According to Mr. Mukherjee, from the said order dated June 16, 2006 it is evident that during the course of hearing of the first writ petition the petitioner no. 1 accepted the offer of the respondent no. 1 to supply 5000 M.T. of fly ash per month, from KTPS and the respondent no. 1 accepted the offer of the petitioner no. 1 to purchase 5000 M.T. of fly ash per month, at a price of Rs. 12/- M.T. and on the basis thereof by the order dated June 16, 2006, the learned Single Judge disposed of the said writ petition. It was vehemently urged that the said order dated June 16, 2006 was passed without any reference to the tender submitted by the petitioner no. 1, in response to the 13 notice inviting tenders dated January 28, 2005 and the said order recorded an agreement between the parties having all the attributes of what is called a "Memorandum of Understanding". In support of such contention, reliance was placed on the following passage from of the Indian Contract Act, 1872 by Pollock and Mulla (14th Edition) under the heading "Formation of Contract".
"The interpretation clause indicates that an agreement can be reached by the process of offer and acceptance. It has been held that every transaction, to be recognized as a contract, must in its ultimate analysis, resolve itself into a proposal and its absolute and unqualified acceptance.
This analysis of the process may not always be appropriate in a number of situations. Conveyances drafted by a legal advisor are signed simultaneously by both the parties. Parties may contract through the same broker representing both the parties, who brings them to agree on the same terms. Persons entering competitions, or seeking membership of associations, contract not only with the organizer or association, but also with one another. In such cases, it is difficult to say who has made the offer, and who has accepted the same. In commercial transactions, particularly complex ones, contracts are often concluded after prolonged negotiations in which the sequence of offer and acceptance cannot be identified. The correspondence must then be considered as a whole, along with the conduct of the parties to see whether the parties have reached an agreement.
Such analysis has been viewed as out of date. Courts will hold that there is a contract, even though it is difficult or impossible to analyse the transaction in terms of offer and acceptance. In order to decide whether there is an absolute and unqualified agreement between the parties, the entire negotiation and correspondence should be considered. Binding promise can be inferred from the circumstances of a case."
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It was urged that after the said order dated June 16, 2006 was passed in the first writ petition, while the petitioner was obtaining supply of 5000 M.T. of fly ash from the respondent no. 1, due to aforementioned tie up entered into with M/s. Ramco Industries Limited in the year 2008 there was an additional requirement of the petitioner no. 1 to obtain monthly supply of 4000 M.T. of dry fly ash. It was contended that although the respondent no. 1 had an obligation to grant a permanent linkage for monthly supply of 9000M.T. of fly ash to the petitioner no. 1, but in view of the letter dated February 25, 2009 issued by the respondent no. 1 rejecting the petitioners' request for permanent linkage and requiring the petitioner no. 1 to participate in the tender process as per the said notice inviting tenders dated January 27, 2009 the petitioner no. 1 was once again compelled to submit its tender in terms of the said notice inviting tenders. It was pointed out that the petitioners, however, in their third writ petition being W.P. 4418(W) of 2009 challenged the said notice inviting tenders dated January 27, 2009.
Mr. Mukherjee submitted that when the petitioner no. 1 filed the third writ petition, being W.P. 15745(W) of 2009 before this Court challenging, inter alia, the notice inviting tenders dated August 04, 2009 by the order dated September 04, 2009 a learned Single Judge of this Court allowed the petitioners to participate in the tender process in terms of the said notice inviting tenders dated August 04, 2009 without prejudice to the rights and contentions of the parties. Mr. Mukherjee submitted that the petitioner no. 1 and the private respondent nos. 6 and 7 are all manufacturers of cement and all of them are similarly placed. He contended that when the respondent no. 1, an authority within Article 12 of the Constitution of India has been supplying dry fly ash from KTPS to the private respondent nos. 6 and 7 on the basis of the said agreements dated June 28, 2006 and October 01, 2007, respectively without requiring them to participate in any tender process the refusal of the respondent no. 1 to supply fly ash to the petitioner no. 1 on 15 permanent basis, on the same terms and conditions applicable to the respondent nos. 6 and 7 is violative of the right of equality of the petitioners under Article 14 of the Constitution of India. He also submitted that when the private respondent nos. 6 and 7 are obtaining continuous supply of fly ash on the basis of the said agreements dated June 28, 2006 and October 01, 2007, respectively the respondent no. 1 cannot refuse to supply 5000 M.T. of dry fly ash, per month to the petitioner no. 1 from KTPS on the terms and conditions recorded in the said order June 16, 2006 passed by this Court in the said first writ petition, W.P.. 4694(W) of 2006. It was vehemently urged that it is well settled law that while conferring benefit or largess or giving contracts, the respondent no. 1, being an authority of the State under Article 12 of the Constitution of India cannot act arbitrarily at its sweet will, but in the present case, while continuing to supply huge quantity of fly ash to the private respondent nos. 6 and 7 under their said respective agreements dated June 28, 2016 and October 01, 2007 the impugned actions of the respondent threatening to stop the supply 5000 M.T. of fly ash, per month to the petitioner no. 1 are all arbitrary, resulting in violation of the fundamental right of the petitioners under Article 14 of the Constitution. In support of such contention, Mr. Mukherjee relied on the decisions of the Supreme Court in the case of Ramana vs. International Airport Authority of India reported in AIR 1979 SC 1628. It was pointed out that in the case of Maru Ram vs. Union of India, the Constitution Bench of the Supreme Court approved the decision in the case of Ramana Shetty (supra). In this regard, the learned counsel for the petitioners also relied on the following passage from Indian Constitutional Law by M.P. Jain (Sixth Edition; at page 1690) revised by Justice Rumal Pal and Sri Samaraditya Pal.
"The State or its instrumentalities should not discharge their functions so as to aspire to earn a huge profit at the cost of those who are fully dependent upon it for supply of a monopoly item. They could however be permitted to make a reasonable profit. In Ashoka 16 Smokeless the Supreme Court was considering the challenge under Articles 14 and 19 as to the validity of price fixation by the coal companies in the public sector by the method of e- auction through the internet. The Court referring to the constitutional and statutory obligations of the Central Government as well as the coal companies observed that since they were exercising monopolistic power, it was their duty to distribute coal equitably and at a fair price. Although they are not expected to suffer losses but at the same time must make an essential commodity avainable at a fair price. The Court considered the advantages as well as the disadvantages of e-Auction and indicated certain factors to be taken into consideration."
According to the petitioners, the respondent no. 1 is well aware of the need of the cement manufacturers for continuous supply of dry fly ash and, as such, on December 29, 2009 it held a meeting with all interested cement manufacturer to finalise the issue for supplying fly ash to them for a long term tie up, the said meeting was attended by the petitioner no. 2, but thereafter, the respondent no. 1 did nothing further to finalize the said issue. It was further submitted that in exercise of powers conferred under Section 3(2) of the Environment (Protection) Act, 1986 read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986 on November 03, 2009 the Central Government issued a notification, modifying the earlier notification dated September 14,1999 restricting the extraction of top soil for manufacturing bricks and requiring every construction agency engaged in the construction of buildings, within a radius of 100 kilometers from a coal or lignite based thermal power plant, to use only fly ash based products for construction, such as cement or concrete, fly ash bricks or blocks or tiles etc. According to Mr. Mukherjee, in view of the said amending notification dated November 03, 2009 the petitioner no. 1 as a cement manufacturer has a preferential right to obtain continuous supply of dry fly ash from the respondent no. 1, over 17 the traders who export fly ash for substantial profit and the petitioner no. 1 cannot be required to obtain delivery of fly ash by participating in the tenders floated by the respondent no. 1 from time to time and by paying higher price, after competing with the traders. It was vehemently urged that when the said amending notification dated September 14, 1999 having statutory force requires the petitioner no. 1 to manufacture cement by using fly ash as the raw material the policy decision adopted by the Board of Directors in their meeting held on May 11, 2015 providing for sale of fly ash even to a cement manufacturer only through the process of tender is arbitrary and violative of Article 14 of the Constitution.
It was next contended that the said policy framed by the Board of Directors of the respondent no. 1 in their said meeting held on May 11, 2015 providing for sale of fly ash from its thermal power station only through tender, without discontinuing the supply of fly ash to the private respondent nos. 6 and 7 under their said agreements dated June 28, 2006 and October 01, 2007, respectively is arbitrary and violative of Article 14 of the Constitution. According to Mr. Mukherjee, since the policy decision adopted by the Board of Directors of the respondent no. 1 is violative of Article 14 of the Constitution, the respondent no. 1 cannot stop the supply of 5000 M.T. of fly ash, per month to the petitioner no. 1 or require the petitioner no. 1 to obtain supply of fly ash by participating in the tenders floated by it. He argued that it is well settled that when a policy decision of the Government or its instrumentalities is arbitrary and violative of Article 14 of the Constitution, the same is liable to set aside by Court. In this regard, reliance was placed on the decisions of the Supreme Court in the cases of Ashoka Smokeless Coal India (P) Ltd. & Ors. vs. Union of India reported in (2007) 2 SCC 640, Union of India & Ors. vs. Dinesh Engineering Corporation & Anr. reported in (2001) 8 SCC 491 and Raja Shri Shivrai Pratishthan vs. State of Maharashtra & Ors. reported in (2008) 10 SCC 799.
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It was further contended by Mr. Mukherjee that the respondent no. 1 is aware of the need of the cement manufacturers to obtain continuous supply of fly ash as the one of the main ingredients and its obligation to supply the required quantity of fly ash to the respective cement manufacturers without making any profit. In this regard, he referred to the order dated October 30, 2009 passed by a learned Single Judge of this Court in this writ petition, recording the submission made on behalf of the respondent no. 1 that it does not intend to make any profit by sale of fly ash. According him, in view of the said submission made on behalf of the respondent no. 1, by the said order dated October 30, 2009 the learned Single Judge observed there is hardly any rationale for fly ash to be made available at a cheap price to the traders for them to make hefty margins thereon without considering the case of the cement manufacturers who have their units close to the power stations of the respondent no. 1. It was submitted that on October 30, 2009, in view of the above observation made by the learned Single Judge no question was raised by the respondent no. 1 challenging the maintainability of the present writ petition and to avoid an interim order, the respondent no. 1 held out an assurance before the Court to continue the existing supply of 5000 M.T. of fly ash, per month to the petitioner no. 1. However, since the assurance held out by the respondent no. 1 to continue with the existing supply of fly ash to the petitioner was valid till November 30, 2009, by the order dated November 26, 2009 a learned Single Judge restrained the respondent no. 1 from discontinuing the existing supply of 5000 M.T. fly ash, per month to the petitioner no. 1 till the disposal of the writ petition. Laying emphasis on paragraph 6.4 of the said policy decision dated May 11, 2015 of the respondent no. 1 it was further argued that since the respondent no. 1 has decided to continue with the supply of fly ash to the manufacturing units under the existing MOUs there cannot be any justifiable reason for the respondent no. 1 to raise any objection to the continuance of the arrangement of the supply of 5000 M.T. of fly ash, per month to 19 the petitioner no. 1 under the said order dated June 16, 2006. Relying on a chart disclosed in an affidavit affirmed on behalf of the petitioners on June 21, 2016, the petitioners contended that on account of business of manufacturing cement they are paying huge amount of revenue on account of the Excise Duty, VAT, Electricity Cost and, as such, the respondent no. 1 has an obligation to maintain the supply of 5000 M.T. fly ash to them per month.
It was submitted on behalf of the petitioners that during pendency of the present writ petition on January 20, 2010 the respondent no. 1 issued the said fresh notice inviting tenders dated January 28, 2010 to procure supply of fly ash from KTPS for a period of five years and the petitioner no. 1 participated in the said tender and submitted its offer to obtain supply of additional quantity of 5000 M.T. of fly ash per month at the rate of Rs. 110/- per M.T., but the respondent no. 1 rejected the said bid of the petitioner no. 1. It was argued that while the present writ petition remained pending, Marshall Corporation, one of the traders exporting fly ash to Bangladesh, collusively filed the writ application, being W.P. 2651(W) of 2010 before this Court alleging ambiguity in clause 48 of the Special Conditions of Supply to the said Notice inviting tenders dated January 28, 2010. It was also contended that the said writ petition was collusive, the cement manufacturers including the writ petitioner were not made parties and the Court was not informed of either the said existing agreements dated June 28, 2006 and October 01, 2007 between the respondent no. 1 and the private respondent nos. 6 and 7 in this writ petition, respectively or the said order dated June 16, 2006 passed by a learned Single Judge in the said first writ petition. Therefore, according to the petitioners, the said order dated February 20, 2010 passed in W.P. No. 2651(W) of 2010 has no bearing on the relief claimed by them in the present writ petition.
However, Mr. Anindya Kumar Mitra, learned Senior Advocate appearing for the respondent no. 1 contended that the present writ petition filed by the petitioner is not at all 20 maintainable. According to him, it is not the case of the petitioners that they changed the technique of manufacturing cement from portland stag cement to portland pozzalana cement (PPC) on the basis of any assurance of the respondent no. 1 to supply of dry fly ash from KTPS. Relying on the decision of the Supreme Court in the case of State of Orissa vs. Harinarayan Jaiswal & Ors. reported in AIR 1972 SC 1816, he contended that it is well settled law that no person has any fundamental right to carry on business in the properties of Government and the respondent no. 1 has the right to sell fly ash from its thermal power station, including KTPS through tender to earn higher revenue or to get the best possible price. It was urged that in the present case, the dealings of the respondent no. 1 in fly ash are purely of private character and the same do not involve discharge of any public duty and, therefore, the present writ petition on behalf of the petitioners is not maintainable. In this regard, reliance was placed on the decision of the Supreme Court in the case of Joshi Technologies International Inc. vs. Union of India & Ors. reported in (2015) 7 SCC 728.
Mr. Mitra further submitted that in this writ petition, the petitioners are now claiming to obtain supply of 5000 M.T. of fly ash, per month from the respondent no. 1 without disclosing any documentary evidence substantiating the monthly production of cement at their factory. He strenuously contended that the petitioners have not approached this Court with clean hands and they have failed to prove that the petitioner no. 1 is the manufacturer of cement or it is selling cement in its own brand name. It was vehemently urged that the petitioners have not disclosed any excise return or sales tax return or any other document for the period from the year 2009, till the hearing of the writ petition, to substantiate their claim for monthly supply of 5000 M.T. of fly ash, as a cement manufacturer. He contended that mere disclosure of the Sales Tax Registration Certificate dated September 14, 1995, Commercial Tax Certificate dated March 14, 2005, Certificate issued by the Pollution Control Board, letter dated September 16, 2009 issued by 21 Employees State Insurance Corporation and the registration document issued by the Bureau of Indian standards etc. do not substantiate claim of the petitioner no. 1 to obtain supply of fly ash from KTPS or any other thermal power station of the respondent no.1 as a manufacturer of cement. He urged that from the order dated June 16, 2006 passed in the said first writ petition it is clear that in deference to the desire expressed by the learned Single Judge of this Court, when sufficient quantity of fly ash was available at KTPS without ascertaining the actual requirement of the petitioner no. 1 as a manufacturer of cement, the respondent no. 1 expressed its ability to supply 5000 M.T. of fly ash to the petitioner no. 1 at the rate quoted in its tender submitted in response to the said notice inviting tenders dated January 28, 2005. Therefore, according to him, the supply of 5000 M.T. of fly ash per month by the respondent no. 1 on the basis of the said order dated June 16, 2006 does not substantiate that the petitioner no. 1 manufactures cement or the monthly requirement of fly ash on its own account or otherwise was 5000 M.T. It was submitted that even it be accepted for the sake of argument, that the petitioner no. 1 manufactures cement at its said factory, even then in the application dated April 25, 2012 filed to the West Bengal Pollution Control Board, the petitioner no. 1 itself has stated that it uses 2450 M.T. of dry fly ash, per month at its said factory. Therefore, the petitioners having obtained the said order dated June 16, 2006 passed by the learned Single Judge of this Court, on the basis of misrepresentation of facts cannot maintain any claim to continue to receive supply of fly ash from the respondent no. 1. It was strongly contended that in view of the aforesaid statement made by the petitioner no. 1 in its application to the West Bengal Pollution Control Board it is clear that in any event, the petitioner no. 1 is trading in fly ash supplied by the respondent no. 1 and it does not consume the fly ash obtained from KTPS for manufacturing cement. According to Mr. Mitra, when the petitioners have withheld the primary documents to substantiate its monthly production and annual turnover from 22 the alleged business as cement manufacturer and the relevant documents relating to payment sales tax, excise duty and other ancillary duties and in view of the aforesaid statement by them in the application filed before the Pollution Control Board an adverse inference should be drawn against the petitioner no. 1. He vehemently urged that on this ground alone this writ petition is liable to be rejected.
Mr. Mitra further argued that in any event, the case sought to be made out by the petitioners that based on the said order dated June 16, 2016, the petitioner no. 1 is entitled to receive 5000M.T. of fly ash per month at the rate of Rs. 12/- per M.T. for perpetuity has no merit and the same cannot be entertained by this Court. He submitted that it was nowhere recorded in the said order that the respondent no. 1 shall supply 5000 M.T. of fly ash to the petitioner no. 1 per month at the rate of Rs. 12/- per month for perpetuity. According to him, undisputedly on January 28, 2005 the respondent no. 1 issued the notice inviting tenders for procurement of fly ash, inter alia, from KTPS for a specific period of time from the date of the letter of award and the petitioner no. 1, claiming to be a manufacturer of cement, participated in the said tender to obtain supply of 5000 M.T. of fly ash from KTPS at Rs. 12/- per M.T. He submitted that the said tender of the petitioner no. 1 was rejected, the letters of intent was issued to the successful tenders on December 16/19, 2005 and only thereafter, in February, 2006 the petitioners filed the said first writ petition, being W.P. No. 4694(W) of 2006, challenging the rejection of their tender. It was strongly contended that the said order dated June 16, 2006 was passed by the learned Single Judge in context of the said notice inviting tenders dated January 28, 2005 and by no means the said order could be construed to contain any direction upon the respondent no. 1 to supply 5000 M.T. of fly ash, per month to the petitioner no. 1 at the rate of Rs. 12/- per M.T. for perpetuity. Mr Mitra urged that had the said order dated June 16, 2006 contained even an implied direction upon the respondent no. 1 to 23 continue monthly supply of 5000 M.T. of dry fly ash at Rs. 12/- per M.T. then with the issuance of the said communications both dated September 25, 2009 by the respondent no. 1 informing the petitioner no. 1 that the supply of 5000 M.T. of dry fly ash would be stopped with the expiry of October 30, 2009, the petitioners would have applied for contempt of Court before the learned Single Judge, who is still available, for violation of the said order by the officer(s) of the respondent no. 1.
Mr. Mitra pointed out that the respondent no. 1 had issued the notice inviting tenders dated August 04, 2009 for procuring fly ash from its various thermal power station fixing the base price for fly ash of KTPS at Rs. 56/- per M.T., but from the documents disclosed in this writ petition it is evident that the petitioner no. 1 submitted its tender for 4000 M.T. of dry fly ash, per month from KTPS at the rate of Rs. 12/- per month. Therefore, according to him, it is evident that the petitioners motivatedly filed the said third writ petition, being W.P. 15745(W) of 2009 and obtained the order dated September 04, 2009 with no intention to submit any effective tender, but to create some evidence for future litigation. Since the petitioner no. 1 submitted the said tender quoting its rate, far below the base price there was no scope for consideration of the same and in any event, since the tenders submitted by the other tenderers were also not valid, the respondent no. 1 issued the fresh notice inviting tenders dated January 20, 2010 for procuring supply of fly ash, inter alia, from KTPS fixing the base price at Rs. 110/-, per M.T. Once again, the petitioner no. 1 submitted its tender, but as the rate quoted by the petitioner no. 1, was much lower than the rate quoted by other tenderers, its tender was rejected by the respondent no. 1 and the petitioners accepted the same without raising any grievance.
It was suggested on behalf of the respondent no. 1 that the issuance of the said notice inviting tenders dated January 20, 2010 participation of the same by the respondent no. 1 and the 24 rejection of the same were suppressed by the petitioners from this Court and it was the respondent no. 1 who in its application, CAN 1571 of 2010, filed on February 23, 2010 disclosed the same before this Court. According to Mr. Mitra, from the order dated February 18, 2010 passed in W.P. No. 2651(W) of 2010, as well as the order March 20, 2015 passed in the present writ petition, it is evident that the Court held that the respondent no. 1 being an Article 12 Authority as the guardian of the finances of the State is entitled to look for the best offer and to maximize its financial interest and it cannot forego the opportunity that presents itself for generating revenue. In this regard, he also relied on the order dated March 20, 2015 passed by a learned Single Judge of this Court in the present writ petition, where it was held that since there is a market for the fly ash generated at the thermal power station as a by-product, the respondent no. 1 Corporation as a State or instrumentality of State cannot forego the opportunity that presents itself for generating revenue and it is desirable that fly ash generated at thermal power station be disposed of by auction or by conducting a transparent tender process for a fixed duration.
Mr. Mitra strenuously urged that the case sought to be made out by the petitioners, on the basis of the agreements entered into by the respondent no.1, on June 28, 2006 and October 01, 2007 entered into with the private respondent nos. 6 and 7, respectively is devoid of any merit. According to him, the respondent no. 1 had entered into the said agreements dated June 28, 2006 and October 01, 2007 with the private respondent nos. 6 and 7, respectively who were the bulk consumers of fly ash, at a point of time when there was no demand for fly ash and the petitioner no. 1 was already receiving the monthly supply of 5000 M.T. of dry fly ash from KTPS on the strength of the said order dated June 16, 2006 and the petitioners raised no grievance in respect of any of the said agreements dated January 28, 2006 or October 01, 2007 contemporaneously. He further contended that from a reading of the letters dated February 23, 2009 and February 25, 2009 25 exchanged between the petitioner no. 1 and the respondent no. 1 it is clear that instead of obtaining the existing supply 5000 M.T. of fly ash from KTPS, on the strength of the said order dated June 16, 2006 the petitioner no. 1 was claiming grant of permanent linkage of 9000 M.T. of fly ash per month from the respondent no. 1 which was rejected by the respondent no. 1. It was submitted that the respondent no. 1 has not granted any linkage to any party for obtaining supply of fly ash from any of its thermal power station.
It was further argued on behalf of the respondent no. 1 that the reliance placed by the petitioners on the amending notification dated November 03, 2009 issued by the Ministry of Environment and Forest is absolutely misplaced. Referring to the said notification dated November 03, 2009 Mr. Mitra submitted that the said amending notification requires the construction agency engaged in the construction of building within the radius of one-hundred kilometers from a coal or lignite base thermal power plant to use only fly ash based products for construction, such as cement and concrete, fly ash bricks or blocks or tiles etc. in every construction project. As per the said amending notification, the "fly ash based products", is to be used by the construction agency for construction of building within the radius of one-hundred kilometers from the thermal power plant must contain fly ash as 15% of the total raw material. Therefore, according to the respondent no. 1, the said amending notification dated November 03, 2009 issued by the Ministry of Environment and Forest cannot be construed to stipulate any direction on it to supply dry fly ash to the petitioner no. 1. It was contended that the said amending notification requires a thermal power station to make available the pond ash, free of charge to the manufacturers of bricks, blocks or tiles to the Central and State Road Construction Agencies. It was also urged that from the amending notification dated November 03, 2009 it is clear that the same conferred no right on any cement manufacturer to have preferential supply of dry fly ash and on the contrary, the said notification makes the thermal power 26 stations free to sell 80% fly ash to others by keeping 20% of fly ash available free of charge for units manufacturing fly ash bricks, blocks and tiles. Mr. Mitra contended that in the years 2006, 2007 there was no demand for fly ash and, as such, during that period the respondent no. 1 used supply fly ash to various parties at administrative cost only. With the passage of time the demand for fly ash has increased manifold and in the meeting held on May 11, 2015 the Board of Directors of the respondent no. 1 took a policy decision to sell fly ash from the silos of the thermal power plaints, including KTPS through tenders. He contended that Clause 6.4 of the said new policy decision of the respondent no. 1 provides that existing MOUs signed by the respondent no. 1 earlier with the manufacturing industries at a lower rate for a long period shall not be further extended instead, the units may participate in the common tendering process for contractual period of 3 to 5 years for additional quantity. According to him, by no means the said policy, which is also in consonance with the findings of a learned Single Judge of this Court in the said order dated March 20, 2015 passed in this writ petition, can be called arbitrary.
It strenuously urged that it is well settled law that the Government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. In support of such contention, reliance was placed by the petitioners on the decision of the Supreme Court in the case of Shimnit Utsch India Pvt. Ltd. and Anr. vs. West Bengal Transport Infrastructure Development Corporation Limited & Ors. reported in (2010) 6 SCC 303.
Mr. Mitra also contended that in any event, in the present writ petition the aforementioned policy decision taken by the Board of Directors of the respondent no. 1 in the present meeting held on May 11, 2015 is not the subject matter of challenge, the petitioners have not amended their writ petition seeking any relief to challenge the said policy decision and, therefore, the allegations made on behalf of the petitioners that the said policy decision is arbitrary or violative of Article 14 of the 27 Constitution of India has no merit. It was vehemently urged that in any event, that the policy decision adopted by the Board of Directors of the respondent no. 1 in the said meeting held on May 11, 2015 laying down for disposal of fly ash from the silos of the thermal power station of the respondent no. 1 by the process of tender and to augment its revenue cannot be held to be arbitrary or violative of Article 14 of the Constitution of India. In these facts, according to Mr. Mitra, none the decisions of the Supreme Court in the cases of Ashoka Smokeless (supra), Dinesh Engineering Corporation (supra) and Raja Shri Shivrai Pratishthan (supra) cited on behalf of the petitioner has any bearing on the present case. It was urged that in any event since the issues sought to be adjudicated by the petitioners in the present case are disputed questions of fact the present writ petition is not maintainable. In this regard, reliance was placed the decision of the Supreme Court in the cases of New Okhla Industrial Development Authority vs. Kendriya Karmachari Sahkari Grih Nirman Samiti reported in (2006) 9 SCC 524 and in the case of State of Assam vs. Bhaskar Jyoti Sarma and Ors. reported in (2015) 5 SCC 321. It was strongly contended that in the facts in the present case, the petitioner has no legal right to get monthly supply of 5000 M.T. of fly ash and neither the notification dated November 03, 2009, nor the said order dated June 16, 2006 passed in the first writ petition confers any legal right of the petitioner to get supply of fly ash, that to at the rate of Rs. 12/- M.T. in perpetuity. According to the respondent no. 1 in response to the notice inviting tenders dated January 20, 2010 the petitioner no. 1 itself quoted its offer to obtain supply of fly ash from KTPS at the rate of Rs. 110/- per M.T. and their claim in this writ petition to obtain monthly supply of 5000 M.T. of fly ash from KTPS at Rs. 12/- per M.T. is wholly unreasonable, inequitable and by no means such claim of the petitioners can be entertained. It was also urged that when in the present case it is evident that the petitioners do not consume the 5000 M.T. of fly ash supplied to them per month for manufacturing cement on its own account, any order if passed in 28 this writ petition would result in unjust enrichment in favour of the petitioners, at the cost of public undertaking. Urging the aforementioned grounds, Mr. Mitra prayed for dismissal of the writ petition.
In reply Mr. Mukherjee, learned Senior Advocate appearing for the petitioners contended that none of the decisions cited on behalf of the respondent no. 1 has any application in the present case. According to him, the decision of the Supreme Court in the case of Harinarayan Jaiswal (supra) was in a case under the Excise Act while the State Government dealing with auction of liquor shops which is governed by the concept of res extra commercium falling within the exclusive jurisdiction of the State. It was urged that disposal fly ash by the respondent no. 1 is controlled by the aforementioned notifications of the Central Government and the present case manifestly involves a public law element and the decision of the Supreme Court in the said case of Joshi Technologies International (supra) cited by the respondent no. 1 has no application in this case. He further contended that although in the case of Shimnit Utsch India (P) Ltd. (supra), the Supreme Court upheld the cancellation of the previous tender, the terms of which were even approved by the Supreme Court and issuance of fresh notice inviting tenders on the basis of changed policy but the said case has no application in the case at hand, for the aforementioned policy adopted by the respondent no. 1 in 2015 does not deal with the case of the petitioner no. 1 at all as a cement manufacturer. He strenuously contended that in any event, the said policy of the respondent no. 1 adopted in 2015 can have no retrospective effect to invalidate the operation of the said agreed order dated June 16, 2006. It was also urged that it is settled law that if, an administrative policy is unjust and unfair the same can be challenged before the writ Court and in the present case, the policy adopted by the Board of Directors of the respondent no. 1 on May 11, 2015, not providing for supply of fly ash to the manufacturers of cement located within the vicinity 29 of the thermal power station of the respondent no. 1 on a preferential basis is arbitrary and violative of Article 14 of the Constitution and the same liable to be set aside. Mr. Mukherjee further submitted that the plea taken by the respondent no. 1 that the petitioner no. 1 is a trader dealing in fly ash is one of desperation and manifestly mala fide, such plea cannot prevail over the statutory records disclosed by the petitioners in their affidavit affirmed on June 21, 2016 and continuous supply of fly ash by the respondent no. 1 till today. According to him, the disputes raised in the present writ petition can by no means be called as disputed questions of fact and the decisions cited on behalf of the respondent no. 1 in New Okhla Industrial Development Authority (supra) and Bhaskar Jyoti Sharma (supra) do not have any bearing on the present case.
Mr. Siddhartha Mitra, learned Senior Advocate appearing for the private respondent no. 7 submitted that Ramco Cements Ltd. is a group company of the respondent no. 6 presently known as Ramco Industries Ltd.. and the Ramco Cements Ltd. was producing cement for Ultratech Cement Ltd. According to him, as per the previous arrangement between the petitioner no. 1 and Ramco Cements Ltd. , the petitioner no. 1 was manufacturing cement at the said factory of Ramco Cements Ltd. at its said Kolaikunda. He further submitted that as stated by the petitioner the said arrangement between the petitioner no. 1 and Ramco Cements Ltd. has ceased to exist. However, none appeared on behalf of the private respondent no. 7.
I have considered the facts of the present case, the materials on record and the arguments advanced on behalf of the petitioners and the respondent no. 1 corporation, respectively. The private respondent no. 6 was represented before this Court by Mr. Siddhartha Mitra, learned Senior Advocate but since in the writ petition there is no challenge to its said agreement dated June 28, 2006 entered into with the respondent, I did not invite Mr. Mitra to make any submission on the merit of the disputes raised by the petitioners in this petition except for recording the change of 30 name of the respondent no. 6 in the cause title of the writ petition. However, none appeared on behalf of the private respondent no. 7.
Before proceeding to deal with the contentions raised on behalf of the petitioners and the respondent no. 1 with regard to the merit of the claim raised by the petitioner in the present case, I would like to decide the point raised on behalf of the respondent no. 1 with regard to the maintainability of this writ petition. It is not in dispute that the respondent no. 1 is an instrumentality of State within Article 12 of the Constitution, but it was contended by the respondent no. 1 that the actions in selling fly ash from various thermal power station are purely of private character and do not involve discharge of public duty and, therefore, the present wit petition is not maintainable. It is to be noted that in the first writ petition W.P. 4694(W) of 2006 the respondent no. 1 did not raise any objection with regard to maintainability of the writ petition. Further, from the order dated February 18, 2010 passed by a learned Single Judge of this Court passed in W.P. 2651(W) of 2010 it is evident that even in the said writ petition, the respondent no. 1 did not urge this ground with regard to the maintainability of the writ petition. For all these reasons, I am unable to find any merit in the contention of the respondent no. 1 with regard the maintainability of this writ petition.
From the facts already recorded above, it is evident that the petitioners' claim for supply of 5000 M.T. of fly ash by the respondent no. 1 from KTPS is first founded on the said order dated June 16, 2016 passed by a learned Single Judge of this Court in the first writ petition, W.P. 4694(W) of 2006. According to the petitioners, the petitioner no. 1 is a manufacturer of cement and for manufacturing cement at their said factory they required and still require the monthly supply of 5000 M.T. of fly ash and, as such, as per the said order dated June 16, 2006 the respondent no. 1 has to continue with the said monthly supply of fly ash to the petitioner no. 1. A copy of the first 31 writ petition, W.P. 4694(W) of 1996 was produced before this Court at the time of hearing of this writ petition and the same was kept on record. In paragraph 13 of the first writ petition, W.P. 4694(W) of 2006 filed in the month of February, 2006, it was the petitioners' own case that in the year 2005, upto the month of December the petitioner no. 1 consumed only 20227.909 M.T. of fly ash and, as such, as on June 16, 2006 the petitioner no. 1 did not require 5000 M.T. of fly ash per month to manufacture cement. Therefore, there cannot be any doubt that ioon June 16, 2016 the respondent no. 1 offered to supply 5000 M.T. of fly ash, per month to the petitioner no. 1 by way of concession, without satisfying itself with the petitioners' actual requirement of fly ash to manufacture cement. From a reading of the said order dated June 16, 2006 it is clear that the same was passed on the basis of concession granted by the respondent no. 1 and there was no mention of the time period upto which the respondent no. 1 would continue to the monthly supply 5000 M.T. of fly ash, to the petitioner no. 1 at the said rate of Rs. 12/- per M.T for. For all these reasons, I am unable to accept the contention of the petitioners that the said order dated June 06, 2006 recorded any contract between the parties whereby the petitioner no. 1 is entitled to receive 5000 M.T. of fly ash, per month from the respondent no. 1 at the rate of Rs. 12/- per M.T. for perpetuity. In the facts of this present case, the passage from Indian Contract Act, 1872 by Pollock and Mulla (14th Edition) relied by the petitioner, as already quoted above, has no application.
Further, in the present case, it was alleged on behalf of the respondent no. 1 that the petitioner no. 1 does not require the fly ash for manufacturing cement and it is a trader of fly ash, but except disclosing some certificates, licesces/permissions issued by various statutory and other authorities, the petitioners withheld the sales tax returns, excise return and relevant primary documents of the petitioner no. 1 to substantiate its monthly requirement of 5000 M.T. of fly ash as a manufacturer of cement. When the issue of actual requirement of the petitioners of fly ash, as a 32 manufacturer of cement is in serious dispute, only on the basis of a chart disclosed by the petitioner of alleged payment of excise duty, value added tax, electricity cost, while exercising jurisdiction under Article 226 of the Constitution this Court cannot uphold the claim of the petitioners about its monthly requirement of 5000 M.T. of fly ash, as a manufacturer cement. In any event, the application dated April 25, 2012 filed by the petitioner no. 1 before the West Bengal Pollution Control Board, containing the categorical statement that it uses 2450 M.T. of fly ash, per month at its said factory, clinches the issue that the claim of the petitioners in this case for obtaining monthly supply of 5000 M.T. of fly ash, from the respondent no. 1 as a manufacturer of cement is bereft of any element of truth. Even in their written notes of argument, the petitioners could not explain their said application dated April 17, 2012 filed before the Pollution Control Board. Thus, in these facts I find substance in the submission advanced on behalf of the respondent no. 1 that the petitioners have not approached this Court with clean hands and they are trading in the fly ash supplied by the respondent no. 1.
In any event, from a reading of the amending notification dated November 03, 2009 issued by the Ministry of Environment Forest it is clear that the same does not confer any right on any cement manufacturer to obtain any preferential supply of fly ash from any thermal power station. Therefore, I do not find any merit in the contentions raised by the petitioners that the respondent no. 1 has any obligation to continue the monthly supply of fly ash to the petitioner no. 1. Further, when the petitioners have failed to establish any right to obtain monthly supply of 5000 M.T. of fly ash from the respondent no. 1 on the basis of the said order dated June 16, 2006 or otherwise, they have no right to challenge the policy decision of the respondent no. 1 to sell fly ash from its thermal power station through tender to extract higher revenue. In any event, by the order dated February 18, 2010 passed in W.P. 2651(W) of 2010, as well as the order dated March 20, 2015 passed in the 33 present writ petition this Court has upheld the right of the respondent no. 1 to sell dry fly ash generated at its thermal power station through tender for extracting maximum revenue. The petitioners themselves participated in the tender dated January 20, 2010 and made its offer to procure dry fly ash from the respondent no. 1 at a price of Rs. 110/- per M.T. The tender submitted by the petitioners in response to the said notice inviting tenders dated January 28, 2010 was rejected and the petitioners accepted the same without raising any grievance. The said policy decision adopted by the Board of Directors of respondent no. 1 adopted on May 11, 2015 is not even the subject matter of challenge in this writ petition. For all these reasons, the petitioners cannot sustain their claim in the present writ petition by alleging the said policy decision of the respondent no. 1 to be illegal. In any event, in view of the undisputed facts already discussed above, with the increase of the demand of fly ash, I do not find any merit in the contention of the petitioners that the new policy decision of the respondent no. 1 to sell fly ash a through tender to be either arbitrary or violative of Article 14 of the Constitution of India.
So far as the contention raised on behalf of the petitioners that the petitioner no. 1, the private respondent nos. 6 and 7 are all manufacturers of cement and as such the petitioner no. 1 is also entitled to receive continuous supply of fly ash from the respondent no. 1 on the same terms as supplied to the said private respondents, there is no merit in such contention. First, in this writ petition, the petitioners have not claimed any relief to obtain supply of fly ash on the same terms as are supplied to the private respondent nos. 6 and 7. Secondly, as already held the petitioners have failed to substantiate that the petitioner no.1 ever required monthly supply 5000 M.T. of fly ash to manufacture cement. Thirdly, in view of present policy of the respondent no. 1 adopted by its Board of Directors on May 11, 2015 to sell fly ash to all manufacturing units through tender, there is no scope for the respondent no. 1 to supply fly ash to the petitioner no. 1 on the basis of any 34 private arrangement. For all these reasons, I am unable to hold that any refusal on the part of the respondent no. 1 to continue the monthly supply of fly ash to the petitioner results in any violation of Article 14 of the Constitution. Therefore, in the present case, the decisions of the Supreme Court in the case of Ramana Shetty (supra) and above quoted the passage from Indian Constitutional Law by M.P. Jain as relied upon by the petitioners have no application.
Further, as mentioned in the circular and letter both dated September 25, 2009 the monthly supply of 5000 M.T. of fly ash was continued by the respondent no. 1 to the petitioner no. 1 upto October 31, 2009 and even for the period extended thereafter. However, in view of the above findings I have already arrived at, the challenge made by the petitioners in the present writ petition against the said circular and letter of the respondent no. 1, both dated September 25, 2009 has lost significance.
For all the foregoing reasons, I find no merit in this writ application. In view of the above findings, I do not find any necessity to deal with the other contentions raised by the petitioners and the respondent no. 1, respectively. The writ petition, being W.P. No. 18386(W) of 2009 stands rejected with costs assessed at Rs. 30,000/- (Rupees Thirty Thousand only) to be paid by the petitioner no. 1 to the Calcutta High Court Legal Services Committee within December 15, 2016. The interim order dated November 26, 2009 passed in the writ petition also stands vacated.
In view of dismissal of the writ petition itself, the application filed by the respondent no. 1, being CAN 1571 of 2010 also stands disposed of without any further order.
Urgent certified copy of this judgement, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.) 35 Later-
After the delivery of the judgment, a prayer is made by Mr. Mondal, appearing for the petitioners for stay of operation of the above order. Such prayer is considered and rejected.
(Ashis Kumar Chakraborty, J.) 36