Punjab-Haryana High Court
Nkc Alewa Pandwa Expressway Pvt Ltd vs Haryana Power Generation Corporation ... on 12 May, 2022
Author: Arun Palli
Bench: Ravi Shanker Jha, Arun Palli
CWP No.10019-2022 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 10019-2022
Date of Reserve: 12/05/2022
Date of Pronouncement: 31.05.2022
NKC Alewa Pandwa Expressway Private Limited
... Petitioner
Versus
Haryana Power Generation Corporation Ltd. and others
... Respondents
CORAM: HON'BLE MR. JUSTICE RAVI SHANKER JHA, CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI, JUDGE
Present: Mr. Ashish Aggarwal, Senior Advocate, with
Mr. Mukul Aggarwal, Advocate,
for the petitioner.
****
ARUN PALLI, J.
The petitioner-NKC Alewa Pandwa Expressway Private Limited has prayed for the following substantive reliefs:-
"Civil Writ Petition under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari setting aside the impugned Memo No.08/2022-23/CMDP-II/PTPS dated 13.04.2022 (Annexure P-7) issued by Respondent No.1 being arbitrary, illegal, without jurisdiction and violative of Circulars dated 22.02.2022 (Annexure P-6) and dated 18.04.2022 (Annexure P-8) issued by Govt. of India;
And also for issuance of mandamus to Respondents directing them to permit the Petitioner to lift the ash/pond ash as per Memorandum of Understanding (MoU) dated 06.07.2021 (Annexure P-
2);
And for staying the operation and
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CWP No.10019-2022 -2-
implementation of impugned Memo dated 13.04.2022 (Annexure P-7) during the pendency of the present writ petition before this Hon'ble Court;
And for permitting the Petitioner to lift the ash/pond ash as per MoU dated 06.07.2021 (Annexure P-2), during the pendency of the present writ petition;
And for issuance of any other writ, order or direction in favour of the Petitioner which this Hon'ble Court may deem fit and proper in the facts & Circumstances of the present case."
In brief, the case set out in the petition is that a concession agreement dated 17.06.2021 (P-1), was entered into between the National Highways Authority of India (NHAI) and the petitioner for Construction of Four-Lane Greenfield Delhi-Amritsar-Katra Expressway from Junction with Jind-Karnal road (NH-709A) near Alewa village to Junction with Ambala- Kaithal-Hissar road (NH-152) near Kharak Pandwa village (Km 91+400 to Km 120+250) under Bharatmala Pariyojana in the state of Haryana. The Haryana Power Generation Corporation Limited (HPGCL), amongst others, has a thermal power station, namely Panipat Thermal Power Station, Panipat (PTPS). And, PTPS generates approximately 4000 metric tons of fly ash per day. Thus, with the obvious concern qua disposal and utilization of fly ash or fly ash based products, the Ministry of Environment, Forests and Climate Change (MOEF&CC) had issued a notification dated 25.1.2016 (P-1A), which required the State authorities, approving various construction projects, to ensure that an MoU is arrived at between the construction agencies and thermal power plants. Accordingly, a memorandum of understanding (MoU), dated 06.07.2021 (P-2), was entered into between HPGCL and 2 of 8 ::: Downloaded on - 24-07-2022 19:50:44 ::: CWP No.10019-2022 -3- NHAI, whereby, PTPS was to provide 60 lac cubic meters of pond ash free of cost, on 'as is where is basis', to NHAI. Even the transportation cost was to be borne by the PTPS. Resultantly, the petitioner, being the concessionaire of NHAI, started lifting the pond ash from the identified ash pond located in the Ash dyke area of PTPS. But, as the demand for fly ash was increasing each year and it was emerging as a valuable commodity, the Government of India, Ministry of Power, vide circular dated 22.09.2021 (P-3), required all thermal power plants situated across India to provide fly ash to the end users through a transparent bidding process. However, as certain doubts arose as regards application of the said circular vis-à-vis the existing projects and agreements, the Ministry of Power, vide communication dated 08.11.2021 (P-4), clarified that the circular dated 22.09.2021 was to be followed for all new commitments and would apply prospectively. In the meanwhile, even the MOEF&CC, vide notification dated 31.12.2021 (P-5), issued fresh instructions/guidelines on ash utilization from coal and lignite based thermal power plants. Following which, the Ministry of Power, to increase the ash utilization, vide another circular dated 22.02.2022 (P-6), to be applied prospectively, required all thermal power plants to provide fly ash through a bidding process, in terms of the notification dated 31.12.2021.
Now, the grievance being expressed by the petitioner is that HPGCL, vide impugned memo dated 13.4.2022 (P-7), has conveyed to the NHAI that, since the Ministry of Power had decided that fly ash should be auctioned through a transparent bidding process, an auction was held for disposal of pond ash at PTPS, Panipat, and a rate of Rs. 152 per metric ton was discovered. Accordingly, the State Government has decided that pond 3 of 8 ::: Downloaded on - 24-07-2022 19:50:44 ::: CWP No.10019-2022 -4- ash would be provided to NHAI, only if it matches the auction price of Rs.152 per metric ton. And in the meanwhile, the lifting of pond ash by the existing lifters has been stopped.
Whereas, the case of the petitioner is that thermal power plants were/are required to honour their existing commitments of selling/transportation of fly ash, till the expiry of the mutually agreed period. Thus, the impugned memo is based on a complete misconstruction of the circular dated 22.9.2021, notification dated 31.12.2021 and circular dated 22.2.2022 (ibid). Accordingly, the petitioner, vide communication dated 23.4.2022 (P-9), alleged to have represented to the NHAI as also HPGCL, that in terms of notification dated 31.12.2021 and circular dated 22.2.2022 (ibid), HPGCL has to honour the existing commitments, as the guidelines/notification dated 31.12.2021 is prospective in nature. But to no avail.
We have heard learned senior counsel for the petitioner and perused the records.
Ex facie, the dispute, if any, emanates from the MoU, (ibid) and its enforcement. Concededly, the MoU was entered into between HPGCL and NHAI. Pursuant whereto, PTPS allowed excavation, loading and transportation of pond ash, under Bharatmala Pariyojana, in the State of Haryana, to the authorized transporters/concessionaire of NHAI. Neither the petitioner is a party to the MoU, nor there is any privity of contract between the petitioner and HPGCL. Undoubtedly, the petitioner happens to be a concessionaire of NHAI, but qua HPGCL, its identity is of an authorized transporter. The MoU cannot be termed to be a collateral contract to the 4 of 8 ::: Downloaded on - 24-07-2022 19:50:44 ::: CWP No.10019-2022 -5- Concession Agreement either or vice versa, as neither of these stem from the other. And, are two independently standing contracts. The MoU was entered, pursuant to a Government Policy (regarding utilization of fly ash), between NHAI and HPGCL. Although, supply of fly ash is for the project to which the petitioner is a concessionaire, but it cannot be said that the MoU was executed to intently benefit the petitioner. Thus, whether the petitioner is an intended beneficiary in the MoU or is merely an incidental beneficiary is yet another question that assumes significance. Therefore, in context of the MoU and the dispute as regards its construction, interpretation and enforcement, HPGCL and NHAI appear to be the only stakeholders. Significantly, vide memo dated 29.4.2022, NHAI has already raked up the issue and has sought State's intervention to get the necessary directions issued to the authorities concerned to expedite the sanction for lifting of fly ash for smooth implementation of its project:
"However, PTPS vide letter dated 13.04.2022 has asked NHAI for matching the auction price for lifting of Flyash which is not in accordance with the provisions of MoEf&CC notification dated 31.12.2021, MOU between NHAI and PTPS, and Ministry of Power circular dated 22.09.2021, 08.11.2021, 22.02.2022 on the following grounds:
(i) MoEF&CC notification dated 31.12.2021 is effectively based on polluters pays principle.
(ii) The stand of PTPS shall directly affect the underline principle of MoEF&CC Notification dated 31.12.2021 which is based on the need to conserve top soil and natural resources by promoting utilization of ash in road laying, road and flyover embankments, shoreline protection measures, low lying areas of approved projects,
5 of 8 ::: Downloaded on - 24-07-2022 19:50:44 ::: CWP No.10019-2022 -6- backfilling of mines, as an alternative for filling of earthen materials; as specified above. This is against the environmental and public policy of India.
(iii) Ministry of Power circular dated 22.09.2021, 08.11.2021 and 22.02.2022 clearly specify that the decision shall be applicable on a prospective basis and TPPs are advised to honour the existing commitments of selling/transportation of fly ash on the basis of rates arrived through a transparent competitive bidding/state schedule of rates only, till the expiry of their existing commitment.
(iv) MOUs signed between NHAI and PTPS are valid and operative for 24 months from the date of signing or period by which the agreed quantity is lifted, whichever is earlier. Accordingly, stoppage of supply of fly ash before this date is a breach of contract between NHAI and PTPS. The project of national importance and its implementation will be affected due to the sudden stoppage of fly ash supply by PTPS and result into consequential losses to the Concessionaire.
4. In view of the above, it is requested to intervene into the matter and get the necessary directions issued to the authorities concerned to expedite the sanction for lifting of flyash and extend support for smooth implementation of these prestigious project of NHAI, the progress of which is being monitored by PMO."
However, nothing can be deciphered from the petition as regards the status, progress or decision, if any, on the representation (ibid), submitted by NHAI to the State Government. Thus, we can safely presume 6 of 8 ::: Downloaded on - 24-07-2022 19:50:44 ::: CWP No.10019-2022 -7- that the matter is pending consideration. Likewise, it would be apposite to point out further that clause 15 of the MoU envisages a dispute redressal mechanism and clause 16 provides for arbitration:-
"15. Dispute Resolution: In case of any dispute or difference between the PTPS and NHAI, PIU-Bhiwani hereto, the Head of the NHAI and the PTPS HQ shall at the first instance try to resolve the dispute amicably, which shall henceforth be binding upon both the parties.
16. Arbitration: In the event the dispute or difference or claim, as the case may be, is not resolved, under ibid clause 15, within thirty (30) days of reference of such dispute/difference, as the case may be, the same shall referred to sole Arbitrator to be appointed by MD/HPGCL. The arbitration under the Arbitration and Conciliation Act, 1996 as amended from time to time shall apply to decide the dispute."
But again, nothing is stated in the petition to indicate, if NHAI has invoked clause 15 or 16 (ibid), to resolve the issue or seek redressal of its grievance/concerns.
Not just that, the petitioner itself, vide letter dated 23.4.2022, has requested the NHAI to take up the matter with the authorities concerned to continue the uninterrupted supply of fly/pond ash:-
"In view of the above, the Authority is hereby requested to take the matter appropriately with PTPS so that the existing commitments of MOU signed between NHAI and PTPS dated 06.07.2021 be honoured for the transportation of Fly Ash to Pkg-4 for a quantity of 60 lacs cum at a rate of Rs. 5.128 per cum per km plus GST, which is valid and operative for 24 months from 06.07.2021 or the period by which the agreed quantity of 60 lac cum is lifted, whichever is earlier."
7 of 8 ::: Downloaded on - 24-07-2022 19:50:44 ::: CWP No.10019-2022 -8- Having said that, upon an analysis of the matter in issue, and in the wake of the reliefs that are being prayed for, we are of the opinion that the petitioner lacks locus to seek enforcement of the MoU and question the memo dated 13.4.2022 (P-7). To be fair to the learned senior counsel for the petitioner, our attention was sought to be drawn to clauses 1, 2, 10 and 11 of the MoU, to contend that the petitioner has a visible stake in the arrangement arrived at between HPGCL and NHAI. Suffice it to say, the clauses, referred to above, cannot be read in isolation, but in conjunction with all other terms and conditions, intent and the spirit, with which the document (MoU) was executed. Even otherwise, a bare analysis of these clauses do not show if the petitioner was/is an intended beneficiary of the MoU. No other argument was advanced. Nor any other material was referred to substantiate if the petitioner had even a collateral contract with HPGCL.
In the wake of the above, we are dissuaded to interfere in the matter. The petition is accordingly dismissed.
(RAVI SHANKER JHA) (ARUN PALLI)
CHIEF JUSTICE JUDGE
31.05.2022
AK Sharma
Whether speaking / reasoned: YES
Whether Reportable: YES/NO
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