Madras High Court

Sri Veera Fly Ash (Bricks) vs Union Of India on 5 August, 2021

                                                             W.P. Nos. 12677 to 12686 and 12688 to 12700 of 2011

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 05.08.2021

                                                         CORAM

                                   THE HONOURABLE MR. JUSTICE R. MAHADEVAN

                                    W.P. Nos. 12677 to 12686 and 12688 to 12700 of 2011
                                                            ---

WP No. 12677 of 2011

Sri Veera Fly Ash (Bricks) Rep. by its Managing Partner N. Moorthy 36, Coimbatore Main Road Vellakovil- 638 111 Thirupur District Tamil Nadu .. Petitioner

Versus

1.Union of India Represented by its Deputy Director Ministry of Environment & Forest 146, Paryavaran Bhawan, CGO Complex Lodhi Road, New Delhi.

2.The Tamil Nadu Generation & Distribution Corporation Ltd., Represented by its Chairman 800, Anna Salai Chennai-600 002.

3.Mettur Thermal Station Represented by its Chief Engineer Mettur. ..Respondents

https://www.mhc.tn.gov.in/judis/

W.P. Nos. 12677 to 12686 and 12688 to 12700 of 2011

W.P. No. 12677 of 2011: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the second and third respondent herein to implement the Office Memorandum dated 18.03.2011, issued by the first respondent and Order of the Division Bench dated 16.07.2010, in W.A.No.1361 of 2010 and consequently forbear the second and third respondents from collecting any service charge from the petitioner in respect of the supply of Fly Ash to the petitioner.

                  For Petitioner                     :      Mr. Rathina Asohan
                                                            in all the Writ Petitions

                  For R1                             :      Mr. K. Gunasekar, SPCCG
                                                            in all the Writ Petitions

                  For R2 & R3                        :      Mr. Abul Kalam
                                                            in all the Writ Petitions

                                                   COMMON ORDER

All the petitioners in these writ petitions are engaged in manufacture of

Fly Ash bricks. According to the petitioners, hitherto, Fly Ash was considered

as a waste and posing environmental hazard and therefore, the petitioners were

allotted 100 MT of Fly Ash at free of cost by the third respondent. According

to the petitioners, the Central Government also issued a notification in

S.O.No.763 (E) Government of India, Ministry of Environment and Forest

dated 14.09.1999 making it mandatory for the use of 50% of fly ash in the

manufacture of clay bricks, tiles or blocks for all manufacturers who have their

units within the radius of 100 km from coal or lignite based thermal power

plants. Clause 2 (I) of the notification reads as follows:- https://www.mhc.tn.gov.in/judis/

W.P. Nos. 12677 to 12686 and 12688 to 12700 of 2011

“Every coal or lignite based thermal power plant shall make available ash, for atleast 10 years from the date of publication of this Notification, without any payment or any other consideration, for the purpose of manufacturing Ash based products such as cement, concrete blocks, bricks, panels [or a combination thereof], or any other material or for construction of roads, embankments, dams, dykes or for any other construction activity.”

2. Thus, as per the above Clause 2 (1) of the notification, all

categories of Fly Ash based bricks, blocks, Concrete block, tiles

manufacturing units were entitled to get the Fly Ash without any payment or

any other consideration. While so, from 15.10.2009, the second and third

respondents insisted for payment of Service Charges at Rs.100/- per MT for

the supply of Fly Ash to the petitioners. Therefore, the Tamil Nadu Fly Ash

Bricks and Blocks Manufacturers Association filed W.P.No.12092 of 2010,

before this Court for Writ of Mandamus, to forbear the Tamil Nadu Electricity

Board and the Tamil Nadu Generation and Distribution Corporation Limited,

from collecting Service Charges or any other charges for the supply of Dry

ESP Fly Ash in terms of the notification dated 27.08.2003 of the Government

of India, Ministry of Environment and Forest. Pending writ petition this Court

declined to grant interim injunction. Aggrieved by the same, Writ Appeal https://www.mhc.tn.gov.in/judis/

W.P. Nos. 12677 to 12686 and 12688 to 12700 of 2011

No.1361 of 2010 was filed before the Division Bench of this Court. The Writ

Appeal was disposed of on 16.07.2010 with a direction to the petitioners

herein to approach the first respondent by way of an application for approval

of collection of service charges from the members of the appellant association.

Pursuant to the said direction issued by the Division Bench of this Court, the

first respondent passed an office memorandum dated 26.10.2010 directing the

Tamil Nadu Electricity Board not to collect any kind of Service Charges with

immediate effect, from the members of the said Association and also not to

levy any other charges like handling charge, maintenance charge that was

hitherto imposed to the Fly Ash and bricks manufacturers in this state.

Aggrieved by the office memorandum dated 26.10.2010, the Tamil Nadu

Generation and Distribution Corporation Limited has filed the Writ Petition

No.91 of 2011 before this Court. This Court refused to quash the office

memorandum dated 26.10.2010 and directed the TANGENDCO to approach

the first respondent and the first respondent was directed to consider the claim

of TANGENDCO after affording them an opportunity of personal hearing.

Thereafter, the office memorandum dated 18.03.2011 was passed by the first

respondent reiterating that TANGENDCO shall not levy any charges for the

supply of Dry ESP Fly Ash. According to the petitioners inspite of the office

memorandum dated 18.03.2011, the second and third respondent continued to https://www.mhc.tn.gov.in/judis/

W.P. Nos. 12677 to 12686 and 12688 to 12700 of 2011

demand service charge from the petitioners association. Therefore, the present

writ petition has been filed by the petitioners for a Mandamus directing the

second and third respondent to implement the office memorandum dated

18.03.2011 issued by the first respondent and consequently forbear the second

and third respondents from collecting any service charges from the petitioners

in respect of the supply of Fly Ash.

3. Heard the learned counsel appearing for the petitioners as well as

the learned counsel appearing for the respondents and perused the materials

available on record.

4. The issued involved in these batch of writ petitions is no longer

res integra as it has been settled by the judgment passed by the Division

Bench of this Court in W.A. Nos. 1299, 1510 & 1538 of 2013 dated

19.08.2014. In Paragraphs Nos.52 to 55 of the aforesaid judgment, the

Division Bench of this Court upheld the office memorandum issued by the

first respondent and restrained TANGENDCO from demanding or levying any

service charge for the supply of Fly Ash. Useful reference to the judgment of

the Division Bench can be quoted as under.

52. Considering all the above stated provisions of https://www.mhc.tn.gov.in/judis/ law and the scope of the same, we are of the considered

W.P. Nos. 12677 to 12686 and 12688 to 12700 of 2011

view that the TANGEDCO which is an industry manufacturing power through thermal stations is bound to follow the directions issued by the Union of India which has statutory force and the competent authority having prohibited the collection of any charge for the supply of Fly Ash to brick manufacturers, the TANGEDCO is not entitled to collect the service charge from the Brick Manufacturers.

53. We are also not in agreement with the contention of the TANGEDCO that such expenditure, if not collected by way of service charge from the Brick Manufacturers, will have to be passed on to the common man being the consumer of electricity. Definitely the TANGEDCO cannot pass on such expenditure on the consumer because it is not the expenses being met out for generating the thermal power, but on the other hand, it is the incidental expenses being met out in collecting the by-product viz., Fly Ash in order to prevent the atmosphere pollution. Undoubtedly such expenditure has to be met out only by the TANGEDCO as a mandatory measure in order to comply with the requirement of the various provisions under the Environment (Protection) Act, 1986 while producing electricity. We don't think that the TANGEDCO can pass on all the expenses and expenditure being met out by them to the consumer while dealing with the collection of by product viz. Fly Ash, which has got nothing to do with the consumer.

54. Considering all the above facts and circumstances of the case and the scope of the two enactments discussed above and also considering the earlier orders passed by the Division Bench of this Court out of which one order was confirmed by the Hon'ble Supreme Court and another order has become final and not challenged, we are of the view that the order of the learned Single Judge in allowing the writ petition cannot be sustained as the same has the effect of giving a contra findings to those earlier decisions of the Division Bench. https://www.mhc.tn.gov.in/judis/

W.P. Nos. 12677 to 12686 and 12688 to 12700 of 2011

55. In fine, all the Writ Appeals are allowed and the order of the learned Single Judge is hereby set aside. Consequently, the proceedings No.9-8/2005-HSMD, dated 18.03.2011, impugned in W.P.No.12295 of 2005 issued by the Union of India, Ministry of Environment and Forest, is upheld. No costs. Consequently, connected miscellaneous petitions are closed.

5. In the light of the above decision of the Division Bench of this

Court, this Court holds that TANGEDCO, which is an industry manufacturing

power through thermal stations, is bound to follow the directions issued by the

Union of India, which has statutory force and the competent authority having

prohibited the collection of any charge for the supply of Fly Ash to brick

manufacturers, the TANGEDCO is not entitled to collect the service charge

from the Brick Manufacturers. Accordingly, all the writ petitions are allowed.

No costs. Consequently, connected miscellaneous petitions are closed.

05.08.2021

Speaking order/Non speaking order

Index : Yes / No

Internet: Yes / No