JUDGMENT :

K.S. JHAVERI, J.

1. By way of this writ petition, the petitioners have challenged the action of the opposite party-National Aluminum Company Ltd. (NALCO) inviting tender vide Tender No. NAL/EXP/T(CA)/S/140 dated 01.02.2019 for sale of 30,000 MT Metallurgical Grade Calcined Alumina.

2. Mr. H.P. Raval, learned Senior Counsel for the petitioners has stated that the petitioner No.1 is a largest manufacturer of aluminum and is engaged in manufacturing and selling of Aluminum products. The company is having 1.6 Million Tonnes Per Annum (MTPA) Aluminum Smelter Plant which includes a Special Economic Zone (SEZ) unit having an Aluminum Smelter Plant with a capacity of 1.25 MTPA at Bhurkamunda, P.O. Siripura, Dist-Jharsuguda, Odisha.

2.1. The petitioner No.1 has also set up a 1215 MW Captive Power Generating Plant and a 2400 MW Thermal Power Plant within the said premises to supply continuous and uninterrupted power to its aluminium smelter units. In addition to the foregoing business unit, the petitioner also operates a 2 MTPA green field alumina refinery and an associated 75 MW captive power plant at Lanjigarh, Odisha.

3. It is submitted that the opposite party-NALCO a Central Public Sector Enterprises under Ministry of Mines, Government of India, is a leading producer of lowest-cost metallurgical grade alumina in the world. As per NALCO's objective, the Alumina produced is used to meet NALCO's requirements for production of primary aluminium at smelter.

3.1. The surplus alumina is sold to third parties in the export markets; NALCO has bulk shipments facilities at Vizag Port for undertaking the export.

4. It is respectfully submitted that the petitioner No.1 has established a SEZ Unit at Jharsuguda, Odisha for aluminum production with capacity of 12.5 lacs tone per year. A huge investment to the tune of INR 12,000/- crores was made by the petitioner with the understanding that Calcined Alumina would be supplied by Vedanta's Lanjigarh Alumina Refinery. Clacined Alumina is a Smelter grade Alumina used for production of Aluminium.

4.1. It is white powder. One of the outstanding characteristics of Calcined Alumina is its hardness which is 9 on mohs scale. Fired alumina ceramic parts can be harder than tungsten carbide or zircon, two to four times as strong as electrical porcelain, and very resistant to abrasion. Alumina is thus used in grinding media, cutting tools, high temperature bearings, and a wide variety of mechanical parts. Compared to zircon it has a higher thermal conductivity and a higher thermal expansion.

5. Learned counsel for the petitioners brought to our notice the following facts which are necessary for adjudication of the present case:

(a) The Special Economic Zones Act, 2005 (Act 28 of 2005) is enacted on 23.06.2005. The provisions of Section 1 to 19, 25 to 30 and 40 to 52 respectively came into force only on 10.02.2006 in view of S.O. 195(E) dated 10.02.2006. Thus, though the Act was enacted but it was not brought into force till 10.02.2006.

(b) On 22.07.2005 196th meeting of NALCO-opposite party, Marketing Guidelines was approved for export of Alimina and the same was brought into force with immediate effect.

(c) The Marketing Guidelines was published by the opposite partyNALCO on 30.07.2005. Para-5.0 states that out of the total production of Calcined Alumina of 15,75,000 MT around 7,00,000 MT is used for captive consumption in Aluminum Smelter and out of the balance available alumina a small quantity is sold in domestic market and rest is exported in loose bulk condition directly to overseas customers. All exports are on FOB Vizag Port. It also states that such exports are done through long term and spot contacts entered into with overseas buyers through the process of limited tendering.

(d) On 25.03.2013 the opposite party-NALCO in reference to a letter vide letter dated 05.03.2013 of the SEZ Unit of the peti