High Court
Legal Reasoning
wp8531-25to be the highest bidder or that he had even participatedin the tender process.4. This is further supported by a document atExhibit “T” dated 19.06.2025 obtained by the Petitionerunder the Right to Information Act, 2005, which showsthat after January 2025, the said Respondents did notundertake any process of inviting bids by issuing tenderfor sale of the aforesaid “Pond Ash”.5. The Petitioner has made out a prima facie casein its favour to contend that the impugned sale order hasbeen arbitrarily issued circumventing the entire tenderprocess, solely with a view to benefit Respondent No. 4."3.Respondent Nos.2 and 3- MAHAGENCO as well as RespondentNos. 4 i.e. the entity in whose favour the impugned sale order wasissued, filed their reply affidavits. The petitioner filed its rejoinderaffidavit and the petition is taken up for consideration.4.A measure of urgency is shown in the present petition, for thereason that it concerns lifting of pond ash that accumulates as aconsequence of the activities of the Thermal Power Station and it beinga pollutant, its expeditious disposal is necessary. Initially, the pond ashand fly ash generated from Thermal Power Station was permitted to belifted without any charges but, it was found that the said pond ash/flyash could be used in production of the cement and concrete and in thatlight, the respondent MAHAGENCO came out with a comprehensivePage 3 of 18 wp8531-25Ash Utilization and Management Policy in the year 2024, copy of whichis placed on record along-with reply affidavit on behalf of RespondentNos. 2 and 3. 5. Learned counsel for the petitioner, apart from reiteratingthe above quoted contentions raised on behalf of the petitioner, which isa registered society of Labourers and Project Affected Persons,submitted that the impugned sale order was issued in favour ofRespondent No.4 without tender process and that the respondentMAHAGENCO, by the impugned action, was seeking to illegally benefitRespondent No.4 in the teeth of its own aforesaid policy of utilizationand management of ash. 6.It is submitted that as per the policy, 20% of the pond ash isto be dealt with only by Project Affected Persons and their Associationslike the petitioner, while the remaining 80% is open for all entities. It issubmitted that although the petitioner had participated in the tenderprocess initiated in January 2023 for disposal of pond ash to the extentof 80% and it was the highest bidder, it could not make good its highestbid. The petitioner had asked certain concession but the same could notbe given and therefore, it failed to make good its bid. It is submittedthat there were two other bidders, who also could not take their bids toPage 4 of 18 wp8531-25the logical end and therefore, a situation arose, where there were notakers for the said pond ash.7.It is submitted that in such circumstances, instead ofundertaking fresh tender process, the respondent MAHAGENCO, in aarbitrary, illegal and clandestine manner, issued the impugned saleorder in favour of Respondent No.4 on 30.05.2025, on an applicationprivately submitted by Respondent No.4 before the respondentMAHAGENCO. It is submitted that nothing could be more arbitrarythan the conduct of the said respondent and therefore, the impugnedsale order deserves to be quashed and set aside.8.It is submitted that even if the comprehensive Ash Utilizationand Management Policy-2024 of the respondent- MAHAGENCO is to betaken into consideration, till such time the tender process initiated bythe said respondent results in issuance of order in favour of an entitythrough a fair and transparent process, in the interregnum, short orderscan be issued to ensure that the pond ash does not accumulate and itdoes not pollute the environment. Such short orders can be issued onfirst come first service basis, for a maximum period of six months. Yet,by the impugned sale order, Respondent No.4 was granted permissionto lift pond ash for a period of one year. It is submitted that, therefore,the impugned sale order deserves to be quashed and set aside.Page 5 of 18 wp8531-259.As regards lifting of remaining 20% pond ash, it is submittedthat the contract can be awarded only to the Project Affected Personsand their Associations like the petitioner herein. It is emphasized thatthe tender notice was issued as far back as on 28.05.2024, in responseto which the petitioner had submitted its bid. There were otherbidders also, who had submitted their bids. But, till date, therespondent MAHAGENCO has not taken any steps in furtherance of thesaid tender notice, as a consequence of which, no entity associated withProject Affected Persons has been awarded the contract of picking uppond ash. This is resulting in unnecessary frustration amongst theProject Affected Persons in the vicinity of the Thermal Power Station,indicating the arbitrary approach adopted by the respondentMAHAGENCO. 10.In that light, it is submitted that this court ought not to showany indulgence in favour of Respondent No.4, which is the beneficiaryof illegal acts of the respondent MAHAGENCO and that the saidrespondent ought to be directed to take the tender notice dated28.05.2024 to its logical conclusion. It is submitted that RespondentNo. 4 has already lifted pond ash on the basis of short order issued inMarch, 2025 for a period of three months and as per the aforesaidpolicy of the respondent MAHAGENCO, Respondent No.4 cannot bepermitted to lift the pond ash beyond a further period of three months,Page 6 of 18 wp8531-25if at all. In that light, it is submitted that the writ petition deserves tobe allowed.11.On the other hand, the learned counsel appearing for therespondent MAHAGENCO submitted that the petitioner cannot make agrievance in the facts and circumstances of the present case, as itadmittedly failed to make good its highest bid in the tender processinitiated on 24.01.2023. It is submitted that the base price was fixed atRs.75 per Metric Ton (MT) of pond ash. In the bidding process, thepetitioner offered bid of Rs. 193 per MT of pond ash. The respondentMAHAGENCO waited for a long period of time for the petitioner tomake good its bid. The petitioner failed to make good its bid and inthat backdrop, it cannot turn around and challenge the impugned saleorder issued in favour of Respondent no.4. Much emphasis was placedon the fact that the pond ash is a serious pollutant and if it is allowed toremain, it would not only pollute the air in the form of fly ash, but aspond ash, it has a tendency of polluting the area in the vicinity.Attention of this court is invited to the Central Government notificationdated 31.12.2021, which specifies that compensation will have to bepaid @ Rs.1000 per ton for unutilized ash at the end of the financialyear. It is submitted that the respondent MAHAGENCO is likely to facesuch consequences in the event such pond ash is not lifted within areasonable period of time.Page 7 of 18 wp8531-2512.It is submitted that in such circumstances, the respondentMAHAGENCO was constrained to issue short order in favour of variousentities for lifting pond ash during the period, when the tender processinitiated as far back as in January 2023 could not reach its logicalconclusion. Attention of this court is invited to some such short ordersissued in favour of various entities. It is emphasized that on 06.03.2025,such a short order was issued in favour of Respondent No.4 in terms ofthe aforementioned policy formulated in the year 2024 and therefore,it cannot be said that the respondent MAHAGENCO had, in any manner,favoured respondent No.4.13.It is further submitted that, it is in these circumstances thatthe impugned sale order was issued and the petitioner, which had failedto make good its own bid, cannot be heard to raise a grievance in thefacts and circumstances of the present case.14.It is further submitted that the internal communicationsexchanged between the respondents would show that Respondent No.4was told to increase its bid to the highest bid offered by the petitioner atRs.193 per MT of pond ash. This indicates that the respondentMAHAGENCO ensured that there was no financial loss suffered duringthe process of issuing short order in favour of Respondent No.4. In suchcircumstances, it is submitted that this Court may issue appropriatePage 8 of 18 wp8531-25directions so that pond ash is picked up and disposed off in anexpeditious manner, so that it does not result in any pollution in thevicinity of the Thermal Power Station.15.Mr. P. R. Katneshwarkar, learned senior counsel appearing onbehalf of Respondent No.4, submitted that the impugned sale ordercould certainly be defended to the extent of the six months period asspecified in the aforementioned policy of the year 2024 formulated bythe respondent MAHAGENCO. It is submitted that in the present case,due to the interim order passed by this Court on 16.07.2025,Respondent No.4 was not able to lift pond ash. It was sought to beindicated that between the period from issuance of the impugned saleorder on 30.05.025 till the interim order was passed on 16.07.2025,due to the law and order problem created by the villagers in the vicinity,pond ash could not be lifted. In that light, it is submitted that this Courtmay consider factoring in the effect of the interim order, if respondentNo.4 is permitted to lift the pond ash at the rate of Rs.193 per MT. It issubmitted that this would be in line with the aforementioned policy ofthe year 2024 and, therefore, appropriate orders may be passed in thefacts and circumstances of the present case.16.We have considered the rival submissions. We find that thereis indeed a measure of urgency in the present case for the reason thatPage 9 of 18 wp8531-25pond ash cannot be allowed to remain in the vicinity of Thermal PowerStation, as it would pollute the local environment. The notificationissued by the Central Government indeed shows the seriousness withwhich the policy has been formulated to ensure that the pond ash andfly ash are dealt with expeditiously to reduce adverse effect on theenvironment.17.It is an admitted position that initially pond ash was allowedto be lifted without any charges but, subsequently, the policy isformulated for charging lifting of the said pond ash. We find that insuch circumstances, the respondent MAHAGENCO was and is expectedto undertake transparent tender process to ensure that the highestbidder is allowed to pick up the pond ash as it would not only generatesufficient finances, but it would also ensure the expeditious disposal ofthe pond ash, which otherwise pollutes the environment. 18.The document on record shows that on 24.01.2023, therespondent MAHAGENCO had undertaken the process of inviting bidsby issuing a tender notice for picking up pond ash to the extent of 80%.The petitioner alongwith a number of bidders participated in the tenderprocess. Respondent No.4 was not a participant. The petitioner wasfound to be a highest bidder at Rs.193 per MT of pond ash, while thebase price was fixed at Rs.75 per MT of pond ash. If the petitioner hadPage 10 of 18 wp8531-25made good its bid, perhaps, the matter would not have reached thisCourt. It is because the petitioner failed to make good its bid, despitesufficient time granted by the respondent MAHAGENCO that thesituation arose where the said respondent was constrained to issueshort orders for picking up and disposal of pond ash. The documentson record show that the respondent MAHAGENCO indeed issued suchshort orders in favour of various entities and the said process did notinvolve inviting bids in pursuance of tender notice.19.The record shows that on 06.03.2025, one such short orderwas issued in favour of Respondent No.4. The documents on recordshow that initially an attempt was made to allow Respondent No.4 topick up pond ash at much lower rate but eventually, in pursuance ofcommunications exchanged between the respondents, the RespondentNo.4 was called upon to raise its price equivalent to the highest bid atRs.193 per MT offered by the petitioner. Respondent No.4 agreed forthe same and it is an admitted position that it lifted pond ash betweenMarch and June 2025 for three months at the aforesaid rate of Rs.193per MT. 20.These facts indeed indicate that the respondent MAHAGENCOat least ensured that the respondent No.4 paid at the rate equal to thehighest bid offered by the petitioner. But, we find that in the process ofPage 11 of 18 wp8531-25issuing the impugned sale order dated 30.05.2025, the respondentMAHAGENCO acted in the teeth of its own policy of the year 2024.Ideally, the tender process having failed, the respondent MAHAGENCOought to have issued a fresh tender notice for expeditious disposal ofthe pond ash so that it did not pollute the environment. Instead ofinitiating such a tender process in a fair and transparent manner, therespondent MAHAGENCO continued to stick to its policy of issuingshort orders. The insistence of issuing such short orders gives enoughscope to raise allegations against the respondent MAHAGENCO aboutits intention to favour certain private parties, to the exclusion of otherentities like the petitioner that are concerned with Project AffectedPersons. This appears to be in the teeth of its own policy. Be that as itmay, while issuing the impugned sale order, the RespondentMAHAGENCO awarded a contract period of one year in favour ofRespondent No. 4 till 31.05.2026. A perusal of the relevant portion ofthe policy of the year 2024 shows that the policy contemplates thefollowing action to be undertaken by the respondent MAHAGENCO."If the contracted agencies are not lifting/unable to lift the ashor in case of excess ash generation, then the remaining/balance ash quantity will be given to ash demanding agencieson short term basis (first come first service) for the maximumperiod of six months or till further instructions, whichever isPage 12 of 18 wp8531-25earlier at the highest existing prevailing rate at the respectivepower station."21.The above quoted portion shows that in an emergentsituation, where the contracting agencies do not lift or they are unableto lift the ash and there is excess generation of the same, orders onshort term basis can be issued for a maximum period of six months.We find that in the present case, even if the respondent MAHAGENCOis to take shelter under the said policy of the year 2024, sale ordercould not have been issued in favour of Respondent No.4 beyond theperiod of six months. On this ground itself, the impugned orderdeserves to be quashed and set aside.22. Insofar as Respondent No.4 is concerned, we do findsubstance in the contention raised on behalf of the said respondent thatthe rate, at which the pond ash was allowed to be sold to the saidrespondent, was equivalent to the highest bid offered by the petitioneri.e. Rs.193 per MT. It is a different matter that such an offer was madein the year 2023 but still, it cannot be said that Respondent No. 4 wasallowed to pick up pond ash at either the base price or slightly morethan the base price. Since the highest bid price offered by thepetitioner was indeed paid by the said respondent and it undertakes topay such amount even in future, we are of the opinion that respondentNo.4, in a manner of speaking, justified its stand before this Court.Page 13 of 18 wp8531-2523.As regards the balance 20% disposal of pond ash, we findsubstance in the contention raised on behalf of the petitioner that therespondent MAHAGENCO arbitrarily failed to take the tender noticedated 28.05.2024 to its logical end. The said respondent has not beenable to explain as to why the process kept on languishing, other thanclaiming that villagers in the vicinity of the Thermal Power Plant werecreating law and order problem. If the process could not be takenforward for justifiable reasons, it should have been cancelled and afresh tender notice could have been issued. But, the respondentMAHAGENCO failed to take any such steps. It is to be noted that thebalance 20% pond ash disposal is restricted to Project AffectedPersons/Land affected agencies and persons, thereby indicating thatprivate entities like Respondent No.4 cannot have any role in the same.24.During the course of hearing of this petition, we had put aspecific query to the learned counsel appearing for RespondentMAHAGENCO as to how much time it will take for fresh tender processto be undertaken and completed for disposal of pond ash. The learnedcounsel for the respondent MAHAGENCO relied upon the guidelinesissued by the Central Vigilance Committee (CVC), pertaining toplacement of order against tender, indicating that for various stages ofthe tender process specific days are to be earmarked, totaling to aperiod of 117 days. It is specifically submitted on behalf of the saidPage 14 of 18 wp8531-25respondent that if this court is inclined to issue directions forundertaking fresh tender process, the same would be completed withinthe aforesaid time period specified by the guidelines issued by CVC. Inthis regard, it is vehemently submitted on behalf of the petitioner thatsuch a long period of time will not be necessary and that a shorter timeperiod can be specified by this Court.25.In the light of the observations we have made herein above, itwould be appropriate that the respondent MAHAGENCO is directed toundertake fresh tender process for both, 80% as well as 20% pond ashdisposal in terms of the aforementioned policy adopted by RespondentMAHAGENCO. The time period for initiating and completing the saidtender process can be in terms of the guidelines issued by the CVC.We are inclined to issue directions in respect of even 20% pond ashdisposal, for the reason that we find that the tender process initiatedpursuant to notice dated 28.05.2024 has been frustrated, due toinaction on the part of the respondent MAHAGENCO. We are alsoconcerned with the necessity of ensuring proper and expeditiousdisposal of the pond ash, so that there is no adverse effect on the localcondition of environment in the vicinity of the Thermal Power Station ofthe respondent MAHAGENCO. Page 15 of 18
Arguments
wp8531-25 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 8531 OF 2025M/s Kapileshwar Rakhad Kamgaranchi Abhinav Seva Sahakari Society, Velhale,Tq. Bhusawal, District JalgaonThrough its President-Shri Yogesh Atmaram Patil,Age 47 years, Occu: AgricultureAt Post Velhale Tq. Bhusawal Dist. Jalgaon...PetitionerVERSUS1.The State of Maharashtra,Through Principal Secretary,Industry, Energy and Labour Department,Mantralaya, Mumbai-322.Maharashtra State Power Generation Company Pvt. Ltd., Through its Chief Managing Director,Prakash gad, Bandra East, Mumbai3.Maharashtra State Power Generation Company Pvt. Ltd., Urja Bhavan,Urja Nagar, Bhusawal Thermal Power Station, Deepnagar, Tq Bhusawal, District Jalgaon.Through - its Chief Engineer... Respondents4.Phoenix's SSPM Ventures,Through its Proprietor,Plot No.18, Gopal Nagar, Behind GST Bhavan, Sakri Road, Dhule 425 001Ms. Pradnya Talekar i/by Talekar And Associates, Advocate for the PetitionerMr. V. M. Kagne, AGP for Respondent No.1-StatePage 1 of 18 wp8531-25Mr. Rahul A. Tambe, Advocate for Respondent Nos. 2 and 3Mr. P. R. Katneshwarkar, Senior Advocate i/by Mr. Ajay A. Fulpagar, Advocate for Respondent No.4CORAM: MANISH PITALE & Y. G. KHOBRAGADE, JJ.DATE:19th September, 2025.ORDER: 1.Heard learned counsel for the parties.2.In this petition, while granting interim relief, restraining therespondents from proceeding further with the impugned sale orderdated 30.05.2025, concerning sale of pond ash, from Bhusawal ThermalPower Station of the Respondent-Maharashtra State Power GenerationCompany Pvt. Ltd (MAHAGENCO), on 16.07.2025, this Court made thefollowing observations:"3. The Petitioner is a registered society oflabourers and project affected persons. Their grievance isthat while Respondent Nos.2 and 3 initiated a tenderprocess inviting bids for sale of “Pond Ash” from TalukaBhusawal, District Jalgaon, wherein, the Petitionersociety and others submitted their bids, instead of takingthe said tender process to its logical end, a simpleapplication of Respondent No.4 dated 26.02.2025 wasacted upon by Respondent Nos.2 and 3 to issue theimpugned sale order dated 30.05.2025. The said orderitself does not indicate that Respondent No.4 was foundPage 2 of 18
Decision
wp8531-2526.As regards the manner in which the pond ash is to be disposedoff during the process of completion of fresh tender process, we findthat insofar as 80% disposal of pond ash is concerned, in terms of thepolicy of the respondent MAHAGENCO, directions can be issued infavour of Respondent no.4, particularly for the reason that it has indeedmatched the highest bid offered by the petitioner during the initialtender process, although the respondent MAHAGENCO will have tolimit the order to be issued in favour of Respondent No.4 at the samerate till completion of the fresh tender process.27.In view of the above, the writ petition is disposed of asfollows:(a)The impugned sale order dated 30.05.2025 is quashed and setaside.(b)The respondent MAHAGENCO is directed to issue fresh tendernotices on or before 01.10.2025 for both, 80% as well as 20%pond ash disposal.(c)The tender process shall be undertaken in a fair andtransparent manner, adhering to time lines specified in theaforesaid guidelines of the CVC, with the outer limit of 117days.Page 16 of 18 wp8531-25(d)We would appreciate, if the respondent MAHAGENCOundertakes and completes the tender process in an expeditiousmanner and in a shorter period of time. It is made clear thatthe period of 117 days for the said tender process would betreated as the outer limit, with no possibility of extension oftime.(e)As regard disposal of 80% pond ash during the pendency ofthe fresh tender process, Respondent No.4 be permitted tolift the pond ash at the aforesaid rate of Rs.193 per MT for ashort period of time, not exceeding the period consumed forcompleting the aforesaid tender process. Respondent No.4shall claim no equities in the light of the aforesaid directionissued by this Court.(f)Insofar as tender process of 20% pond ash disposal, it is alsoto be initiated on or before 01.10.2025. The respondentMAHAGENCO shall ensure that till the said tender process iscompleted, the entities concerning Project Affected Persons areissued short orders for disposal of pond as to the extent of20%. This could include the petitioner also on an applicationbeing made to the respondent MAHAGENCO. It is specificallydirected that the respondent MAHAGENCO shall not singlePage 17 of 18 wp8531-25our the petitioner and shall not give discriminatory treatmentmerely because the petitioner approached this Court invokingwrit jurisdiction.(g)We make it clear that Respondent Nos. 2 and 3- MAHAGENCOshall not be permitted to seek extension of time to completethe tender process for both 80% and 20% pond as disposal. Ifthe tender process is delayed beyond the time specified by thisCourt, the officers of Respondent Nos. 2 and 3 shall be heldpersonally responsible for the same.(h)Pending applications, if any, also stand disposed of.( Y. G. KHOBRAGADE, J. ) ( MANISH PITALE, J. )JPChavan Page 18 of 18