IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.02.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P. No.9724 of 2010 and M.P.Nos. 1,2 & 3 of 2010 Malathi Brick Industry Karaikal, Rep. by its power agent N.M.Shanmugham, No.8, Somu Street, Thaltheru, Karaikal – 609 605. .. Petitioner. Vs. 1. The Chief Secretary Government of Puducherry, Puducherry 2. The Superintending Engineer-III, Public Works Department, Government of Puducherry, Karaikal, 3. The Executive Engineer, Puducherry Slum Clearance Board, Puducherry 4. Ministry of Environment and Forests, Government of India H.S.M.Division, "Paryavaran Bhavan", CGO Complex, Lodi Road, New Delhi – 110 003. .. Respondents. Writ petition is filed under Article 226 of Constitution of India for the issuance of a Writ of Certiorarified Mandamus, calling for the entire records pertaining to proceedings No.PSCBd/DB/T/F- 193/2010-11/668 dated 13.04.2010 on the file of the third respondent and quash the same besides directing the third respondent to issue tender notice by incorporating Fly Ash bricks as being one of the components for construction of 432 tenements and sub-works at Kariakovilpathu, Karaikal. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R.Natarajan For R1, R2 & R4 : Mr.D.Srinivasan For R3 : Mr.T.P.Manoharan O R D E R The petitioner has invoked the writ jurisdiction of this Court, with the prayer for issuance of writ in the nature of Certiorari, for quashing the tender notice, issued by the third respondent for construction of 432 tenements at Kariakovilpathu, Karaikal with sub- work construction of 72 tenements in two blocks (A5 & A6) at Karai Kovilpathu, Kovilpathu Revenue Village, Karaikal, under Integrated Housing and Slum Development Programme (IHSDP), being in violation of notification dated 03.11.2009, directing the use of fly ash products for construction. 2. The petitioner is manufacturer of bricks with fly ash. Notification dated 03.11.2009 provides, that every construction agency, engaged in the construction of buildings, within a radius of hundred kilometers from a coal or lignite based thermal power plant, shall use only fly ash based products for construction, such as: cement or concrete, fly ash bricks or blocks or tiles or clay fly ash bricks, blocks or tiles or cement fly ash bricks or blocks or similar products or a combination or aggregate of them, in every construction project. 3. The writ is opposed by the respondents on the ground that the notification is not applicable to the tender notice, as construction under tender notice, is located beyond 100 kilometers of Coal Thermal Power Plant. 4. The averments of the petitioner that the area of construction fall within 100 kilometers of Thermal Power Plant has been controverted by pleading as under: "(C) Only the Ambiga Sugars at Thukaly Village near Mayiladudurai is situated within 100 kms from the Construction Project of the 3rd Respondent Board. The Ambiga Sugars is using Lignite only in its boilers and hence, discharging only a very meagre quantity of fly ash. On enquiries made by the Officers of the Board, it is found that the Ambiga Sugars is selling even the said meagre quantity of fly ash only to the Cement Factories situated at Pennadam and Ariyalur. No other Thermal Power Plant, including Neyveli Lignite Corporation is situated within the 100 km radius of the Housing Project of the 3rd Respondent Board i.e. from Karaikal. Therefore, the 3rd https://hcservices.ecourts.gov.in/hcservices/ respondent Board would not come within the meaning of "Construction Agency" referred to in Paras 1-A, 1-B & 2-A of the Notification dated 03.11.2009 and hence, the provisions contained in the said Paras would not apply not only to the above Housing Project of the 3rd respondent Board, but also, to the Housing Projects to be proposed and commenced by it after the Notification dated 03.11.2009. Consequently, the 3rd Respondent Board is not required to use only fly ash bricks, blocks etc. and make provisions for such use in the Tender Documents, Schedule of Specifications and Construction Application prepared by it for its Housing Projects." 5. In view of the stand taken in the counter affidavit, controverting the allegation, on the factual position with regard to location of site for construction, it cannot be adjudicated in the writ jurisdiction, as this Court cannot decide the disputed question of facts in exercise of jurisdiction under Article 226 of the Constitution of India. 6. Keeping in view the disputed question of fact, this writ petition is ordered to be dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ar To 1. The Chief Secretary Government of Puducherry, Puducherry 2. The Superintending Engineer-III, Public Works Department, Government of Puducherry, Karaikal, 3. The Executive Engineer, Puducherry Slum Clearance Board, Puducherry https://hcservices.ecourts.gov.in/hcservices/ 4. Ministry of Environment and Forests, Government of India H.S.M.Division, "Paryavaran Bhavan", CGO Complex, Lodi Road, New Delhi – 110 003. 1 cc To M/S.R.Natarajan, Advocate, SR.8750 1 cc To Mr.T.P.Manoharan, Advocate, SR.9002 1 cc To The Government Pleader, Cum Senior Public Prosecutor for Pondicherry SR.9061 W.P. No.9724 of 2010 MG (CO) RH (1.3.11) https://hcservices.ecourts.gov.in/hcservices/