AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Sri C. Damodar Reddy, learned Senior Counsel on behalf of Sri C. Ruthwik Reddy for petitioners and learned Standing Counsel for TS – GENCO (NS) Sri R. Pavan Reddy for Respondents 1 to 7.
This Writ Petition is filed seeking following relief:
“…. to issue Writ of Order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondents No. 1 to 7 in not taking proper steps for quick disposal of Pond Ash from the V, VI and VII stages of Kothagudem Thermal Power Station, Ploncha, Bhadradri-Kothagudem district by issuing the Tender Notice in Proc. No. CE/C/T/SE/C/TCD-1 / E&FDvn/KTPS Pond Ash/ D. No. 78 / 2023 dated 11-04-2023, Notice Inviting Tenders (NIT) No: RFx. No: 510000103 dated 11-04-2023 for sale of Pond Ash from additional ash ponds of KTPS V & VI stages and Northern ash Pond-I & II of KTPS VII stage fixing minimum Reserve price as Rs. 150/- per MT and consequently set aside the said Tender Notice dated 11-04-2023 issued by the respondents Nos. 1 to 7 and direct the respondents Nos. 1 to 7 to issue permissions to ST Contractors / ST Agencies for transportation of the fly ash from V, VI and VII stages of KTPS, Paloncha, Bhadradri-Kothagudem district on free of cost in the interest of Justice.”
It is the case of petitioners that the 1st respondent established Kothagudem Thermal Power Station at Paloncha for production of thermal power and V stage initially established long back for 500 MW power generation and thereafter, in 2011, VI Stage of KTPS was established for generation of 500 MW Power. Though V and VI stages of KTPS started generation of power using coal and discharges ash out of the said process, respondents have been dumping ash into several ponds without any mechanism of disposal of the said ash, as such thousands Million Metric Tons of ash accumulated in that area. Further, in 2018, respondents have established VII stage of KTPS for production of 800 MW Power by using coal. Now V, VI and VII stages of KTPS have been releasing about 1500 Metric Tons of fly ash every day and dumping the total ash into the ash ponds in an area of 1330 acres of land nearby villages of petitioners. In fact, Respondents 1 to 7 did not dispose of the pond ash till 2017 and did not even bother about Air and Water pollution in the surrounding villages, causing chronic diseases affecting lungs, causing cancer, skin allergies and cardiac complaints to the people of that area. Petitioners further state that the National Green Tribunal, New Delhi imposed huge penalty of Rs.4 crores on KTPS for not achieving 100% ash utilization as per directions issued by the Ministry of Environment, Forest and Climate Change, Government of India vide notification dated 22.04.2021.
Petitioners contend that Respondents 1 to 7 instead of disposal of pond ash on free of cost for immediate clearance, have started sale of pond ash initially @ Rs.10/-per MT through the tribal agencies and every year they have been enhancing the sale price only with an intention to get huge amounts in crores to KTPS. Due to increase of sale price every year, admittedly, disposal of pond ash has been decreasing every year and last year, Respondents 1 to 7 have issued Tender Notice dated 18.02.2022 inviting tenders for sale of pond ash in KTPS V, VI and VII stages fixing minimum reserve price as Rs.75/- per MT and though various firms and agencies have participated in the bids, they could not lift the pond ash as required since there was no purchasers of pond ash with the said higher price @ Rs.75/- per MT apart from taxes, transportation charges, etcetera. since the cement companies and brick industries are getting concrete dust at lessor price than the said fly ash. It was further contended that the Government issued G.O. Ms. No. 97, 30 and 90 instructing respondents and others to provide 100% works, providing employment to ST Contractors / ST Agencies, including grant of permission for transportation of ash from the KTPS and when Respondents 1 to 7 deliberately failed to provide permissions for transportation of ash and even providing employment to SC/ST youth of that area, the District Collector and the Project Officer, ITDA, Bhadrachalam have been requesting Respondents 4 to 7 for implementation of said G.Os. and also the 8th respondent issued several letters for grant of permission for transportation of ash from KTPS free of cost, but Respondents 4 to 7 have given a deaf ear.
Petitioners further contend that Respondents 1 to 7 issued Tender Notice in Proc. No: CE/C/T/SE/C/TCD-1/E&F Dvn/KTPS Pond ash/D.No:78/2023 dated 11.04.2023 vide Notice Inviting Tenders (NIT) No:RFx.No:510000103 dated 11.04.2023 for sale of pond ash from KTPS – V, VI & VII stages and sale of wet bottom ash from KPTS-VI stage, Paloncha for 2023-24 fixing the Minimum Reserve Price as Rs.150/- per MT for both general and reserve category excluding taxes and duties applicable and duration of contract form 20.05.2023 to 31.03.2024. The said Tender Notice clearly shows that Respondents 1 to 7 have their concentration only on Rs.36.74 crores as estimated by them and they are least bothered on air and water pollution causing due to ash and black smoke discharged from KTPS and its ash ponds accumulated in thousands of Million Metric Tons of ash nearby villages. Due to abnormal increase of sale price of pond ash, contractors could not lift and sell the said ash to the cement companies and brick industries, since they are not purchasing at higher rate as they are getting concrete dust at lessor price and due to the said abnormal increase in the Minimum Reserve Price as fixed by the respondents, there cannot be more participants in the Tender process and in view of the conditions therein, SC/ST Agencies of the area may not compete with others and even they cannot participate in the bids, due to all these aspects, ultimately, disposal of pond ash has been decreased and delayed further. KTPS V, VI and VII stages have been releasing 1500 MT of ash everyday, but the agencies are hardly taking 150 to 200 MT when sale @75/-per MT and rest of 1300 MT of ash accumulating every day. This year, Respondents 1 to 7 issued Tender Notice fixing Minimum Reserve Price as Rs.150/- per MT and due to the said abnormal increase of sale price, most of the bidders will not be able to participate in the bids quoting more than Rs.150/- per MT, due to which, disposal of pond ash will be further delayed which may result in causing much air pollution causing serious health issues to petitioners, their family members and other villagers of Patha Suraram and Karakavagu and people of about 23 villages nearby KTPS, Paloncha. Petitioners have been making requests to all the respondents to take necessary steps for immediate disposal of pond ash and also submitted written representations, complaints to the authorities of Telangana State Pollution Control Board, but they have also not responded properly.
Petitioners further contend that vide Notification dated 22.04.2021, Government of India, Ministry of Environment, Forest and Climate Change, New Delhi issued directions to Thermal Power Plants for utilization of fly ash in manufacturing of building materials and construction activity and for implementation of notification to ensure 100% utilization of fly ash by the coal or lignite based Thermal Power Plants to protect the environment, to conserve top soil and natural resources by promoting utilisation of fly ash by Coal or lignite based Thermal Power Plants to protect the environment, to conserve top soil and natural resources by promoting utilization of fly ash discharged from coal. According to the said directions, fines can be imposed on the plants in case of failure to implement the said directions and very importantly, the plants shall dispose of the fly ash within four years from commencement of power generation. But, though more than decades elapsed, Respondents 1 to 7 deliberately failed to dispose of the pond ash since decades. Admittedly, KTPS has only disposed of about 50% of pond ash so far and they never bothered for early disposal. Respondents failed to implement the said directions issued by the Government of India for quick disposal of Ash from V, VI and VII stages of KTPS. There is much air pollution due to black smoke and fly ash and the accumulated pond ash, due to which, people of their villages are suffering from serious health complaints.
Respondents filed their counter stating that fixing minimum reserve price for sale of pond ash in the above Stages is prerogative right of the respondent Corporation and issuance of tender notification is in accordance with the procedure established by the Government of India, Ministry Power, to dispose of ash. It was further contended that fly ash is disposed of about 70-80% and remaining unutilized ash is being pumped to ash ponds of KTPS complex for several years and only from 2017 onwards, pond ash is being disposed for manufacturing of bricks, embankments and roads and filling of low-lying areas apart from the same is also being utilized in rising of ash pond bunds and by selling ash, Corporation is gaining financially by inviting tenders, year by year. It is further contended that it is not possible to dispose of pond ash free of cost since Corporation is gaining financially with it and lifting of pond ash from KTPS complex is increasing year by year as there is increase of pond ash demand in the market and more awareness in utilizing of pond ash.
Respondents further contend that in order to maintain transparency and to restrict malpractices, competitive bidding process is the most suitable method to determine the rate of supply of goods and services, therefore, it is necessary to streamline the procedure to dispose of ash by TPPs. in a transparent manner and also to monetize sale of ash so as to reduce tariff burden on consumers. They state that for the FY 2023-24 for lifting of pond ash from 13 points/ locations of KTPS complex, 49 bidders have participated and the highest bid price obtained in the above tenders is Rs. 304.99 per MT as against the reserve price of Rs.150/- and sale orders were issued on 6 bidders on 09.09.2023. It is further contended that during the Financial year 2022-23, average pond ash lifted from ash ponds of KTPS- V, VI and VII stages is about 1018 MT/Day and 885 MT/Day respectively.
Petitioners filed their reply contending that in response to an Application under RTI Act, the 7th respondent furnished information vide letter dated 16.04.2023 confirming 3.47 crore MT ash available in AB ash pond and during 2020-2021 and 2021-2012, there were five agencies for lifting the said ash. As per Annexure-I of the Counter affidavit, pursuant to the present Tender Notice, only one contractor Sri Dharamsoth Ramgopal was allotted the quantity of 100 MT a day as against his quoted quantity of 1150 MT per day. This clearly shows that nobody is coming forward to lift the ash from V and VI Stages and insofar as VII Stage is concerned, more than one crore MT's of ash available in Northern ash pond. It is further contended that respondents have been insisting and pressurizing the contractors to lift ash from ash ponds with the said amount, which is not viable to them and all the participants have represented that ash cannot be lifted with said huge amount and also reduce the same and also to lift the Penalty Clause in failure to lift the pond ash as per the allotment. It was further contended that respondents have not placed the quantities of ash generating every day from V, VI and VII Stages of KTPS and figures shown in the Counter Affidavit regarding the lifted quantity during 2020-2021, 2021-22 and 2022-23, which are meager quantity when comparing the storage of ash in Crores of MT and generation of ash every day in huge quantity.
It was further contended by petitioners that contrary to Tender notification and Rules, the 3rd respondent issued the letter dated 01.06.2023 informing all the participants that the rate quoted by H1 bidder for the subject work is Rs.304.99/- per MT and in view of the same, TS GENCO proposed to invite willingness from them to increase their quoted rate to match with H1 bidder and called for their willingness within three days i.e. by 03.06.2023 and respondents have been pressurising them to accept for the said proposal, as such there was no progress in the matter in spite of lapse of four months. Respondents 1 to 7 instead of concentrating on disposal of ash from ponds on priority basis, are trying to do business with the fly ash and bottom ash by increasing the amount every year for disposal of ashes making it impossible for the contractors and also spending crores of rupees for digging ponds for storage of ashes in that locality. There are hundreds of Tribal Agencies and groups having no source of income having lost their lands and houses for establishment of V, VI and VII Stages of KTPS and if the respondents issue permits to them on nominal rate, huge storage of ash in crores of MTs. will be cleared within a short time, without calling Tender with high rate.
Respondents filed additional counter contending that it is the general practice of TSGENCO from the last three years onwards that in order to maintain uniform rate for all the ash lifting agencies, it will take the willingness from the other qualified bidders to match the rate quoted by H1 bidder price and based on the bidder willingness only, sale order will be issued. Further, TS GENCO requested the qualified 13 bidders, excluding H1 bidder, in response, inter alia 10 qualified bidders have submitted their willingness and accordingly, TS GENCO issued sale orders and approval to 40 other ash lifting agencies based on their willingness at H1 bidder price to lift the pond from KTPS complex for FY 2023 - 24.
From a perusal of the averments and after hearing learned counsel on either side, this Court is of the considered opinion that disposal of fly ash and pond ash is a mandatory requirement for the Corporations in the interest of health of general public and for environment. Notification issued by the Government of India, Ministry of Environment, Forests and Climate Change dated 22.04.2021, states it is the responsibility of the Thermal Power Plant to dispose fly ash and bottom ash and ensure 100% unitization of ash generated by it in an eco-friendly manner. Ash generated from the Plant, in case, was not disposed within four years, the Corporation shall be liable for penalty. As per the facts stated in the affidavits filed by petitioners and respondents, it is noted that disposal of ash by the Corporation is minimal when it is compared to the rate of its generation. It is noted that around 1500 MT /day Ash is generated from KTPS and around 6.51 crore MT Ash available in AB ash pound as on 11.01.2024. Respondents failed to dispose fly ash and bottom ash and ensure 100% unitization of ash generated by it in an eco-friendly manner, as per the Government Notification. The expedited disposal of fly ash and bottom ash is a mandatory requirement of the Corporation and to monetize the same by risking the public health and environment is bad in law since the actual purpose of disposing the ash affectively is not achieved. Further, Respondents failed to show that tender process adopted by it for overall disposal of ash from the ponds is effective. The said process is followed from the last four years, however, the overall quantity of fly ash and bottom ash generated and stored in the ponds has increased and the same is impacting the health of public and environment. Further, by imposing the minimum reserve price for sale of pond ash, respondents are only reducing number of bidders from Tender process. The Objective of the Corporation should be to dispose of the effluents expeditiously and encourage as many people / agencies as possible and in the process, if it gains monetarily, it has an option. However, to gain financially, the tender process cannot be imposed rigorously at the cost of health and environment even though the benefit is for the end customers. Therefore, the Tender Notice dated 11.04.2023 issued by the respondents is arbitrary and unsustainable.
Accordingly, Writ Petition is disposed of setting aside the Tender Notice in Proc. No. CE/C/T/SE/C/TCD-1 / E&FDvn/KTPS Pond Ash/ D. No. 78 / 2023 dated 11.04.2023 issued by Respondents 1 to 7 and directing them to take proper steps for quick disposal of pond Ash from V, VI and VII Stages of Kothagudem Thermal Power Station, Ploncha, Bhadradri-Kothagudem district by permitting ST agencies including petitioners for transportation of fly ash and bottom ash from V, VI and VII Stages of KTPS on nominal price basis in the interest of Justice. No costs.
Consequently, the miscellaneous Applications, if any shall stand closed.