Full Judgment Text
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IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION
CIVIL APPEAL NO. 705 OF 2011
(Arising out of SLP (C) No. 23706 of 2010)
Zuari Cements Ltd. and others ... Appellants
Versus
A.P. Power Generation
Corporation Ltd. and others ... Respondents
WITH
CIVIL APPEAL NO. 706 OF 2011
(Arising out of SLP (C) No. 23881 of 2010)
WITH
CIVIL APPEAL NO. 707 OF 2011
(Arising out of SLP (C) No. 28234 of 2010)
AND
CIVIL APPEAL NO. 708 OF 2011
(Arising out of SLP (C) No. 30805 of 2010)
O R D E R
Leave granted.
2. Memoranda of Understandings (MOUs) were
executed between the first respondent - Andhra
Pradesh Power Generation Corporation Limited
and cement companies who are the appellants
herein for lifting of fly ash from its Thermal
Plants. Subsequently the first respondent
Corporation terminated the MOUs alleging breach
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on the the part of the appellants. However,
even after such termination, the first
respondent permitted the cement companies to
take 80% of the fly ash from two Thermal Units.
3. Subsequently the first respondent
Corporation invited tenders in regard to the
sale of fly ash and the cement companies
challenged the notice inviting tenders by
filing writ petitions. The said writ petitions
are pending. The learned Single Judge had
passed an interim order therein prohibiting
finalization of tenders, on the ground that the
appellants had been permitted to receive supply
of fly ash even after termination of MOUs. The
said interim order passed by the learned Single
Judge was challenged by the first respondent-
Corporation by filing writ appeals. A Division
Bench of the Andhra Pradesh High Court by the
impugned orders set aside the interim orders of
the learned Single Judge, with an observation
that pending finalisation of tenders, the first
respondent Corporation may consider supplying
fly ash to the writ petitioners for use in
their industry. The effect of the order of the
Division Bench is that the first respondent-
Corporation is not bound to supply fly ash to
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the appellants.
4. The appellants contend that tenders
could not be issued with respect to supply of
fly ash from the same units with respect to
which the appellants have subsisting
agreements.
5. When the special leave petitions were
filed by the appellants, this Court initially
th
on 27 August, 2010 made an ex-parte order
directing interim stay of the order of the
Division Bench for a period of one month,
subject to appellants making payment at the
rate of Rs.90/- per metric tonne of fly ash to
the first respondent. Subsequently in other
cases similar orders were passed.
6. The learned senior counsel appearing on
behalf of the respondent-Corporation submitted
that the appellants have themselves made an
offer of Rs.390/- per metric tonne or more in
response to the tender notice and, therefore,
they cannot get fly ash at any lesser rate.
7. Learned counsel for the appellants
submitted that their contracts for supply at
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lesser rates are subsisting; that higher offers
relate to other units; and that distance of the
thermal unit from their respective cement
factories plays an important role in the price
offered. Various other grounds are also urged
by the appellants.
8. It is not necessary to examine this
aspect at this stage as the writ petitions are
still pending. Interest of justice would be
served if a suitable interim arrangement is
made for supplies pending the decision in the
writ petitions.
9. We, therefore, dispose of the appeals
modifying the interim order already granted by
directing the continuation of the interim order
during the pendency of the writ petition,
subject to the condition that the appellants
shall make payment for the fly ash taken from
the respective dates of interim orders of this
Court and for future supplies during the
pendency of the writ petitions, at the
provisional rate of Rs.250/- per metric tonne
(instead of Rs.90/- per metric tonne) subject
to final accounting and final decision in the
pending writ petition.
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10. If the appellants fail in the writ
petitions, they shall be liable to pay the
difference in price based upon the highest
offer received in response to the tender
notice, in regard to the supplies received in
pursuance of the interim orders, to the first
respondent with interest on such difference at
10% per annum from the respective due dates.
11. Having regard to the facts and
circumstances and continuation of the interim
arrangement, we request the learned Single
Judge to dispose of the pending writ petitions
expeditiously, preferably within three months
from today.
................J.
(R.V. RAVEENDRAN)
................J.
(A.K. PATNAIK)
New Delhi
January 17, 2011