THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT APPEAL Nos.553 and 554 of 2010 Dated:02.08.2010 WRIT APPEAL Nos.553 and 554 of 2010 Between: The Andhra Pradesh Power Generation Corporation Limited, represented by its Chairman and Managing Director, Vidyuth Soudha, Somajiguda, Hyderabad and others .. Appellants And M/s.Zuari Cements Limited, 8-2-269/5/4, Sagar Society, Road No.2, Banjara Hills, Hyderabad – 34, represented by its General Manager (Admn.) Mr. M.V.K.L.N.Raju And others .. Respondents WRIT APPEAL Nos.554 and 554 of 2010 Between: The Andhra Pradesh Power Generation Corporation Limited, represented by its Chairman and Managing Director, Vidyuth Soudha, Somajiguda, Hyderabad and another .. Appellants And The India Cements Limited, White House, Block-III B, III Floor, 6-3-1192/1/1, Kundanbagh, Begumpet, Hyderabad – 16, Represented by its Deputy General Manager (Legal), Sri M.S.Trivikrama Rao and another .. Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT APPEAL Nos.553 and 554 of 2010 COMMON JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) These two appeals filed by Andhra Pradesh Power Generation Corporation (APGENCO) arise out of two separate interlocutory applications in different Writ Petitions filed by manufacturer of cement and cement products. By impugned order, the learned Single Judge directed the appellants herein not to finalize the tenders pursuant to impugned e-Procurement Notifications. These were issued notifying tenders for sale of Fly Ash from Unit-IV (210 MW) of Dr.Narla Tata Rao Thermal Power Station for the sale of Fly Ash from Unit-III (210 MW) of said Power Station. The fact of the matter in a nutshell, which is not disputed, may be noticed as follows. Fly Ash is a waste (?) hazardous product in a Thermal Power Station. To dispose of Fly Ash had been a challenge. It is discovered that Fly Ash can be used as a raw-material in the manufacture of cement and cement products. Taking advantage of the same, Government of India in 1999 issued guidelines which provide that 20% of Fly Ash shall be made available free from charge to small scale industries and 80% can be supplied to large scale industries like the writ petitioners. In March, 2006, the appellants entered into Memoranda of Understanding (MOU) with writ petitioners for lifting Fly Ash from two Thermal Units. These inter alia provided that the petitioner establish/upgrade Fly Ash handling system. The duration of MOU is ten years. On allegation that the conditions of MOU were breached by not adhering to time schedule of eight months, the appellants terminated MOU in February, 2007. The writ petitioners were, however, allowed to take delivery of Fly Ash to the extent of 80% from two thermal units. In 2009, the Government of India amended 1999 Guidelines. Now, Fly Ash producing thermal units can dispose of the product by collecting Rs.90/- per Metric Tonne. Presumably, for this reason, appellants floated two e-procurement notifications inviting tenders which were assailed in the Writ Petitions. The learned Judge passed the orders prohibiting finalization of the tenders for the reason that the writ petitioners were permitted to have supply of Fly Ash even after termination of MOU. The Standing Counsel for the appellants and the counsel for respondents/writ petitioners made their submissions, in tune with the position in pleadings. Indisputably, the orders terminating MOU have not been challenged till day. The mere allowance of taking supplies of Fly Ash by the appellants during this period does not by itself confer any right on the writ petitioners when their MOU was already terminated. Therefore, the continuing Fly Ash supply by itself cannot be a ground to tilt balance of convenience in their favour. Further, it is well settled that ordinarily unless the public interest warrants, the tender process is not stayed. In Raunaq International Limited v I.V.R. Construction Limited[1], it was held. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the Court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers. The Standing Counsel for appellants submits that without there being any right in their favour, the writ petitioners are taking delivery of supply of Fly Ash, causing financial loss to APGENCO. We, therefore, find it difficult to sustain the impugned interlocutory orders. The writ petitioners prima facie have failed to demonstrate any right which can be enforced nor they are able to show any duty that can be compelled to be performed. Therefore, we set aside the impugned orders in both these matters observing that pending finalization of tenders, APGENCO may consider supplying Fly Ash to the writ petitioners for use in their industry. The Writ Appeals are, accordingly, disposed of. _____________ V.V.S. RAO, J ___________________________ RAMESH RANGANATHAN, J 02.08.2010 KH [1] (1999) 1 SCC 492