Jai Gurudatta Suppliers vs Reliance Infrastructure Ltd. And Ors

The Applicant claims to be a Partnership firm engaged in sale of fly ash with its place of business at Punit Park, Vangaon, Palghar.

It has approached this Tribunal invoking provisions under Section 14 read with Section 18 of the National Green Tribunal Act, 2010 (`The Act' for short). The main relief sought in the Application is to direct the Respondent No.1 to allow the Applicant to lift ash from ash pond without any assistance from Respondent No.2 and further to direct the Respondent No.1 to facilitate the Applicant to lift ash from the ash pond. The second relief sought is to direct Respondent No.1 to provide and facilitate the Applicant to lift 25% of fly(dry) ash of the total generation from 3rd November, 2009 to 25th January, 2016 free of cost within such period Tribunal may fix. Besides, the Applicant seeks an Order against Respondent No.1 to pay to it compensation and cost of the present Application.

The material propositions in support of such reliefs are aplenty. The assertion of the Applicant is that by virtue of Notification No.S.O.763(E) issued by Ministry of Environment and Forest (MoEF) in exercise of its powers conferred by Rule 3 of Rule 5 of the Environment (Protection) Rules, 1986 and the Notification of Government of India in the MoEF No.S.O.453(E) dated 22/5/1988 to protect the environment, conserve top soil and prevent the dumping and disposal of fly ash discharged from coal or lignite based thermal power plants on land, use of fly ash, bottom ash or pond ash in the manufacture of bricks and other construction activities is permitted and the producers of such ash are required to allow it to be lifted free of cost.

The Notification provides that every construction agency engaged in the construction of buildings within a radius of hundred kilometers from a coal or lignite based thermal plant shall use only fly ash based products for construction, such as cement or concrete, fly ash bricks or tiles or clay fly ash bricks, or bricks, blocks or tiles or cement fly ash bricks or similar products or a combination or aggregate of them, in every construction project.

The Applicant contention is that it is engaged in the business of dealing with fly ash to such construction companies and by virtue of said Notification is entitled to lift fly ash from the thermal power plant generating it free of cost with free access.

Its main grievance is that the Applicant wanted to lift the pond ash from the premises of Reliance Infrastructure Ltd - Respondent No.1 the thermal power plant, the Respondent No.1 officials refused entry to the Applicant and directed it can gain access only through Ashtech Private Limited - Respondent No.2 to whom the 1 st Respondent appears to have granted notional monopoly.

The Applicant submits that it has made complaints to various authorities but the answer given is that in view of certain directions issued by the law enforcing authorities' entry to the vicinity is restricted.

Learned Counsel relies on sub-clause 2(i) of the aforesaid Notification to point out that the Notification does not permit any such restriction for lifting of pond as. It should be made available free of any charge on "as is where basis". The learned Counsel contends that the words used "as is where basis" speaks aloud that Respondent No.1 cannot create monopoly and restrict who should enter the premises. He submits the restriction imposed by 1st Respondent is unreasonable and in total violation of Clause-2 sub-clause (i) of the aforesaid Notification.

We have given a serious consideration to the grounds raised by the learned Counsel and have examined the Notification in its totality. The Notification referred to above has since been amended by virtue of subsequent Notification gazetted on 27/01/2016 by MoEF. Of course, the amendment brought to the sub-clause (ii) is only with regard to fly ash. Even that does not specify any quantification on the basis of which lifting is permissible or can be carried out individually.

The issue raised by the Applicant is that word "as is where basis" means the generator of fly ash, pond ash, etc shall make free access to category of persons who are entitled to lift without any restriction.

It is difficult to accept such proposition. The word "as is where basis" is referable to the quality and conditions of the ash and not the accessibility to the place where it is generated. Therefore, misconstruing the term "as is where basis" a plea has been raised. We are unable to accept such contention.

As regards second contention of the Applicant Counsel that there should be free access to the place to enable lifting of the ash, we have perused the Notification and we are satisfied that the Notification referred to above has not imposed any condition for lifting of the dry ash but the question is whether uncheck free access to general public could be allowed in the premises of a factory where fly ash is produced risking security of the generator of the ash? On perusal of the Notification, we are satisfied that the Notification only permits lifting of fly ash by manufacturer of bricks, etc to be used in building construction for the reasons stated in the Notification. Therefore, the Notification gives right to lift the ash of different types free of access but to lift the fly ash undoubtedly the security of the place has to be respected and honoured. At the same time, the generator of fly ash cannot create monopoly in favour of any one particular consumer. If what the Applicant state is true then the 1st Respondent is alleged to have imposed a condition directing the Applicant to approach the 1st Respondent through 2nd Respondent. Such unjustified restriction would create a monopoly which cannot be permitted. However, the question is whether this Tribunal could issue any direction or not. From the petition averment we do not find that the Applicant has vented out his grievance and lodged complaint to the competent authority. The competent authority in this case would be the Government which fact the learned Counsel for the Applicant accepts, therefore, the Applicant has to approach the Government through its complaint bringing it to the notice of the Government about the restriction imposed by the 1st Respondent creating a sought of monopoly in favour of 2nd Respondent. In case the Government does not address grievance of the Applicant, we reserve the liberty to the Applicant to approach the Tribunal subject to Tribunal jurisdiction on this matter.

In the circumstances, we are not inclined to admit this Application but to dispose off for the reasons aforesaid reserving liberty to the Applicant.

Application No.187/2016 stands disposed of with no order as to costs.