S.J.MUKHOPADHAYA, J. - (1.)THE Chief Engineer, Tamil Nadu State Electricity Board (hereinafter referred to as 'Electricity Board') served the impugned order dated 14th July, 2006, on the appellant, M/s. Associated Cement Companies Ltd. (hereinafter referred to as 'ACC') bringing down its allotment of fly ash from 80% to 40% in Unit -II of Mettur Thermal Power Station (hereinafter referred to as 'MTPS') on the ground that ACC failed to reach its target of lifting 80% of fly ash. Learned single Judge having upheld the order, the present appeal has been preferred.
(2.)THE Ministry of Environment and Forest, Government of India, by its notification dated 14th Sept., 1999, directed all concerns generating fly ash, such as coal and lignite based thermal power plants, to make available fly ash without any cost for atleast 10years to manufacturers of ash based products, such as cement, concrete blocks, bricks, etc. Pursuant to the said direction, Electricity Board reached a Memorandum of Understanding (hereinafter referred to as 'MoU') with ACC on 5th Dec., 2001, as per which 100% fly ash generated has to be collected by ACC and out of the same 20% of the fly ash should be spared for Electricity Board for allotting the same to other industries. ACC has to pay 80% of the charges towards water and current consumption since it is allowed only 80% collection. The appellant, pursuant to the MoU, invested more than Rupees Four Crores and put up necessary machinery for collection of fly ash. Since then, it continued to collect fly ash, paid proportionate electricity, water and other charges and spared fly ash to others as per the direction of electricity board. After about 4 - years, the Chief Engineer, Electricity Board, issued the impugned order dated 14th July, 2006, bringing down the share of ACC from 80% to 40% in Unit -II of MTPS for the reasons as mentioned above. Stand of Appellant - ACC :
Learned senior counsel for the appellant made the following submissions: -

a) The impugned order is violative of terms and conditions of MoU, as the appellant was promised 80% of the fly ash for a period of 9 years. b) The impugned order is a non -speaking order passed in violation of rules of natural justice without notice to the appellant. c) The reasons shown in the impugned order that the off -take of fly ash by ACC is less than the target is incorrect and not supported by materials. d) The impugned order is arbitrary, unilateral, passed with mala fide motive to accommodate the 5th respondent, M/s.India Cements Ltd. e) The impugned order is hit by principles of promissory estoppel and against the doctrine of legitimate expectation.

(3.)CASE of the respondent before the Court:
i) The MoU between ACC and Electricity Board is not statutory and, therefore, breach of MoU is not amenable under writ jurisdiction. ii) ACC's collection of dry fly ash has always been far less than that contemplated under the MoU. Owing to non -collection of required fly ash, Electricity Board was constrained to make the fly ash into slurry, which resulted in considerable inconvenience and expenditure, apart from environmental hazard. The average collection of ACC for the period from October, 2003 to March, 2004, is 45% Electricity Board was constrained to find other takers for collecting the balance 35% of the fly ash required to be collected by ACC. ACC has collected as low as 19% of fly ash in certain months. The average collection was only 53% against 80%. ACC even sold a portion of fly ash to other companies, which proves that its need is far less than the allotted 80%. iii) ACC would be reimbursed the expenditure of operation and maintenance cost in proportion to the quantity reduced and, thereby, it will not suffer monetarily. iv) The order passed in favour of the 5th respondent, M/s.India Cements Ltd., on 14th July, 2006, is to honour the bona fide requirement of such period and mala fide cannot be alleged. v) There being a civil dispute, it can be determined by a civil court of competent jurisdiction disputed questions of fact cannot be determined by this Court under Article 226. Similar stand has been taken by the learned counsel appearing on behalf of the 5th respondent, M/s. India Cements Ltd.