Bombay High Court
Samadhan Bricks Factory Through Its ... vs The State Of Maharashtra Through ... on 2 February, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:2381-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1344 OF 2024
1. Samadhan Bricks Factory,
Through it's Proprietor,
Samadhan Narayanrao Bidgar,
Age 30 yrs, Occ. Business,
R/o Dautpur, Tq. Parli Vaijnath,
District Beed.
2. Sainath Veet Udyog Samuh,
Through its Proprietor,
Shivdas Kachruba Bidgar,
age 36 yrs, Occ. Business,
R/o Dautpur, Tq. Parli Vaijnath,
Dist Beed.
3. Y.S.R. Infra,
Through its proprietor,
Mahesh Radhakishana Gitte,
Age 29 yrs, Occ. Business,
R/o. Vagbet, Tq. Parli Vaijnath,
Dist. Beed.
4. Shree Ganesh Bricks An AAC Blocks,
Through its Proprietor,
Meera Angad Changire,
Age 29 yrs, Occ. Business,
R/o Vagbet, Tq. Parli Vaijnath,
Dist. Beed. Petitioners
VERSUS
1. The State Of Maharashtra
Through It's Secretary
Industries, Energy and Labour
Department, Mantralaya, Mumbai-32.
2. The Managing Director,
MHAGENCO Ltd.,
Prakash Gandh, Bandha East,
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Mumbai 400 051.
3. The Executive Director,
(Environment and Safety)
Mahagenco Lt.,
HDIL Towers, 4th Floor, A-wing,
Prof. A.K. Marg, Bandra East,
Mumbai 400 051.
4. Parli Thermal Power Station,
Parli, Tq. Parli, Dist. Beed.
Through the Chief Engineer.
5. The Government of India,
Through its Joint Secretary (Ministry of Power)
Shram Shakti Bhavan, New Delhi.
6. The Government of India,
Through the Joint Secretary,
(Ministry of Environment,
Forest and Climate Change)
New Delhi. Respondents
.....
Advocate for the Petitioners : Mr. B.S. Deshmukh
Government Pleader for Respondents : Mr. A.B. Girase
.....
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
Dated : 2nd February, 2024
.....
FINAL ORDER :- (Per S.G. Chapalgaonkar, J.)
1. The petitioners have approached this Court under
Article 226 of the Constitution of India, thereby impugning E-
auction notice dated 4.1.2024 issued by respondent No.4 i.e.
Parli Thermal Power Station, Parli for sale of dry fly ash.
Petitioners also seeks to issue a writ of mandamus against
respondent nos.2 to 4 to provide them fly ash @ Rs.25 per
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Metric Tons so also enhance quota to the extent of 40% or
permit them to lift the fly ash from 80% quota.
2. The petitioners contend that they are small scale
industries registered with Ministry of Micro, Small and
Medium Enterprises. They are engaged in manufacturing of fly
ash bricks, and blocks. They procure fly ash from Thermal
Power Plants as raw material. According to the petitioners,
under notification dated 14.9.1999 issued by the Government
of India, guidelines for disposal of the fly ash discharged from
thermal power plants were issued. Clause no.2 speaks about
utilization of the ash and making it available at least for 10
years free of costs for the purpose of manufacturing units
consuming the ash as a raw material. The 20% of fly ash was
made available free of costs to the units like petitioners.
Subsequently, fly ash was charged @ Rs.25/- per Metric tons
under the caption of infrastructure development charges.
According to the petitioners,
3. Recently Government of India issued a notification
dated 31.12.2021 and promulgated new policy for disposal of
fly ash. The power plants were made responsible for disposal
of 100% fly ash in Echo friendly manner and it was suggested
to be used in construction activities of road, fly over,
embankments, shoreline protection within 300 kms of Thermal
plant. The Thermal Power plants were permitted to charge for
ash cost and transportation. Accordingly, respondent no.3
issued a letter based on Board Resolution. Sale of 20% dry fly
ash was approved through e-auction at the base price of Rs.195
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per Metric Ton to the Small Scale Industries and 80% of fly ash
quota is made available to big companies @ Rs.81/- per Metric
Tons. Now, the petitioners are asked to pay Rs.195/- per
Metric Ton as a base price for auction. According to the
petitioners, there is discrimination between the Small Scale
Industries and big Industries. The petitioners, therefore, raises
challenge to E-auction notice dated 4.1.2024 and seeks
directions to make available ash to the Small Scale Industries
as per the prevailing rate @ Rs.25/- per Metric Tons.
4. Mr. Deshmukh, learned advocate appearing for the
petitioners would submit that apparently, there is
discrimination among Small Scale Industries and big players.
The petitioners permitted to lift ash from 20% quota @
Rs.195/- per Metric Tons, whereas big industries are granted
80% quota @ Rs.85/- per Metric Tons. The auction notice has
been issued as per Board Resolution dated 5.1.2023. As such,
the Small Scale Industries have been deprived of legitimate
right to run the business. There is no rational in discrimination
among industries or discrimination is arbitrary.
5. Mr. Girase, the learned Government Pleader for
respondents State vehemently opposes the prayers and
supports the impugned order.
6. We have considered the submissions advanced on
behalf of the petitioners in great detail. Pertinently, the
petitioners and similarly situated small scale industries (SSC)
had previously approached this Court in Writ Petition no.1349
of 2023 with almost analogous prayers. In said writ petition,
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e-auction notice dated 24.1.2023 issued by respondent no.3
which was also based on Board Resolution dated 5.1.2023 was
subjected to challenge. One of the ground of challenge raised
in that writ petition was alleged discriminatory treatment to
the small scale industries vis-a-vis big industries. This Court,
after considering the submissions advanced in light of policy
promulgated by Government of India for sale of fly ash and
modes of disposal, specifically observed that the Government
of India policies have undertaken change in previous policy so
as to protect interest of end consumers, who are consuming
power to whom the same is to be provided at affordable rate,
the respondents are permitted to dispose of dry fly ash by
adopting bidding method. It is further observed that the
petitioners have no absolute right to claim the benefit of the
dry fly ash free of costs or at a particular rate and dismissed
the challenge to auction process initiated in pursuance of the
Board Resolution dated 5.1.2023. Apparently, the petitioners
are again raising challenge to fresh auction notice dated
4.1.2024 which is based on same policy and notifications
issued by the Ministry of Environmental, Government of India.
Since this Court had already concluded the issue in writ
petition no.1349 of 2023 vide order dated 4.5.2023, there is no
reason to entertain fresh writ petition with similar challenge.
7. Although, Mr. Deshmukh learned advocate
appearing for the petitioners attempted to advance submissions
that the issue of discrimination was not raised in previous writ
petition, we are not convinced with such submissions.
Apparently, the similar argument was advanced before this
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Court in earlier round of litigation as can be seen from
paragraph no.11 of the judgment dated 4.5.2023. We find that
the petitioners have raised same challenge based on new
auction notice issued this year. Pertinently previous auction
was based on same policy decision under board resolution
which is basis of impugned Auction in present writ petition.
All the grounds canvassed in present writ petition were
available in earlier round of litigation.
8. For sake of arguments, even, it is assumed that
some grounds which were available at the time of filing of
earlier writ petition couldn't be raised, petitioners cannot be
permitted to raise it in fresh writ petition. In Result, writ
petition sans merit. Hence dismissed.
( S. G. CHAPALGAONKAR, J. ) ( SMT. VIBHA KANKANWADI, J. )
...
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