Ms. Innprint And Others vs State Of Odisha And Others

For opp. parties: Mr. S.P. Mishra, Advocate General Mr. Sisir Kr. Das, Sr.Standing Counsel Mr. A.K.Pandey, Standing Counsel -------------- -2-

PRESENT: THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN THE HON'BLE DR. JUSTICE A.K. RATH AND THE HON'BLE DR. JUSTICE B.R.SARANGI

Date of Hearing: 15.12.2016 :: Date of Judgment: 13.01.2017

VINEET SARAN, C.J.

The dispute involved in these writ petitions is

whether the petitioners herein, who are small book binding

units and cover/text printers of the State of Odisha, would

be entitled to exclusive right of State Government work of

book binding and printing, under the provisions of

Industrial Policy Resolutions (for short 'IPR') issued by the

State Government, as well as the Micro, Small and Medium

Enterprises Development Act, 2006 (for short 'MSMED Act'),

and the Odisha MSMED Policy of 2009 (for short 'OMSMED

Policy) issued there under by the State Government; or can

such work be awarded by way of inviting national tender.

2. The petitioners claim benefit under the various

IPRs issued from time to time, as well as the MSMED Act

and the policy framed there under and contend that in case -3-

the benefit of exclusive work/purchase (of book

binding/printing) is not accorded to them, it would amount

to frustrating the objectives of the IPRs as well as the

MSMED Act and the policy of the State Government issued

there under.

3. The petitioners in the leading writ petition No.

11817 of 2016 are proprietors of small book binding units

covered under the definition of "micro industries" under the

MSMED Act, and the petitioners in the other writ petition

No. 12427 of 2016 are covers and text printers registered

with the District Industries Centres (for short 'DIC') and

carry on their business as Small Scale Industries (for short

'SSI') defined under the IPR 1980 and subsequent IPRs

issued by the State Government. The challenge in these

writ petitions is to the tender call notice dated 09.06.2016

issued by the Director, Textbook Production and Marketing,

Bhubaneswar inviting national tender for "Printing and

Binding of Nationalised Textbooks for the academic session

2017-18". -4-

4. In the State of Odisha, there are as many as

5000 printing press and binding units, which are set up

under the approval of respective District Industries Centres

(for short "DICs") under the Industrial Policy framed by the

Industries Department, Government of Odisha. Thereby,

they are all covered as SSI units as per IPR 1980 and

subsequent IPRs issued from time to time by the

Government of Odisha. The respective proprietors of such

units, as per the schemes, have modernized their printing

and binding units by installing modern equipments by

incurring huge loans from different banks as well as non-

banking organizations. Most of them are technicians,

skilled and unskilled labourers, who are maintaining their

livelihood from the printing and binding work of

nationalized text books. A large number of skilled

workers/labourers are being engaged in such type of micro

industries so as to earn their livelihood.

5. The State Government continued to procure the

nationalized text books from the small scale industrial (SSI)

units of the State for a period not less than 18 years,

facilitating thousands of workers to maintain their -5-

livelihood. However thereafter, the opposite party no.1,

deviating from the said procurement policy of the

Government, vide Resolution dated 25.08.2009, decided to

procure nationalized text books through national tender for

the first time for the academic session 2010-11 and,

accordingly, the national tender was floated on 11.02.2010.

6. For about two decades, till the academic session

2009-10, the benefit of exclusive purchase from small book

binding and cover/text printing units of the State was being

given to such units, without open competitive tenders,

which benefit, the petitioners were enjoying.

7. Then the nationalised tender, which was issued

for "Printing and Book binding" for the academic session

2010-11, was challenged by the petitioners in W.P.(c) No.

2862 of 2010. By judgment and order dated 19.05.2010 in

the case of Orissa Printers and Binders Mahasangha v.

State of Orissa AIR 2010 Ori 154, the said tender was

quashed, which was not challenged and the same benefit of

tender limited to SSI units of the State, as given to the -6-

petitioners up to the academic session 2009-10, was

continued till the year 2013-14.

8. Then on 07.06.2013, for the academic session

2014-15, the State Government again resorted to and

issued a national tender. The same was challenged by the

petitioners and others in W.P.(C) No. 13203 of 2013. The

Division Bench of this Court, vide its judgment and order

dated 20.12.2013 passed in the aforesaid writ petition of

Mohapatra Binders v. State of Odisha 2014 (Supp.1)

OLR 490, quashed the tender dated 07.06.2013 after

rejecting the view of the State Government relating to

change of circumstances and held that "there is no need to

re-examine the issue which has already been decided by

this court vide its order dated 19.05.2010 passed in W.P.(C)

No. 2862 of 2010 and has attained finality." However while

parting with the case certain directions were issued, which

are reproduced hereunder:

(i) Opposite parties shall entrust the Printing and Binding Works of Nationalized Text books to the petitioners like the preceding years;

(ii) For the purpose of negotiation of rate, the petitioners/their representatives -7-

shall present themselves before the competent authority, i.e., opposite party no.2-Director of Text Book Production and Marketing, Bhubaneswar on 26 of this month; th

(iii) Opposite parties must ensure timely supply of papers to the Printers, who in turn complete their printing work in time. The binders must ensure timely completion of their binding work.

(iv) It is open to the opposite parties to take necessary action as permissible if delay is attributable to any Printers and/or Binders in completing their work in time.

As such, for the academic session 2014-15, the State

Government decided to start the work with the petitioner at

the previous year rates. For the subsequent academic

session 2015-16 also the State floated tender for SSI units

only.

9. The judgment of this Court dated 20.12.2013

was challenged before the apex Court, and on 01.07.2015,

the apex Court granted interim relief in the SLP filed by the

State, staying the implementation of the judgment of the

High Court dated 20.12.2013 until further orders. Then on

22.08.2015

, while the stay order granted by the Apex Court -8-

was in force, the State Government again floated National

Tender for the year 2016-17.

In the meantime, on 24.08.2015, another IPR

2015 was issued, which also provided for similar incentives

for micro and small enterprises, enlisting the items for

purchase from such units, but the said list again did not

include printing and binding.

Then on 22.09.2015, the SLP filed by the State

was disposed of as having become infructuous, with the

observation that "However, it would be open to the

petitioner to reconsider its policy with regard to getting its

text books printed and bound and to take appropriate

decision after having due deliberation on the subject matter

of these petitions."

10. After the disposal of SLP by the apex Court, the

petitioners and others challenged the National Tender

dated 22.08.2015 (issued for the academic session 2016-

17) before this Court in W.P.(C) No. 19062, 19099 and

20138 of 2015. On 26.10.2015, this Court, as an interim

measure, directed that in view of the earlier decision of this -9-

Court dated 20.12.2013, the tender process may continue,

but it shall not be finalised without leave of the Court.

However, for just and proper adjudication, the matter was

referred to Larger Bench of three Judges. The Larger

Bench, vide its order dated 18.01.2016, vacated the interim

order dated 26.10.2015, assigning reasons in paragraphs

14, 15 and 16 of its order, which are extracted below:

"14. It is accordingly submitted that as the policy decision to procure the Nationalised Text Books through process of tender on All India basis is bona fide and in the interest of the students, the interim orders be vacated and the State be permitted to finalise the tender, to ensure supply of books to the concerned schools before beginning of the academic session 2016-17.

15. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial -10-

review, will not be permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court.

Attempts by unsuccessful tenderers with imaginary grievances wounded pride and business rivalry, to make mountains out of molehills of some technical/ procedural violation or some prejudice to self and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a Court would interfere in a tender or contractual matters in exercise of its power of judicial review, only if the process adopted or decision taken by the authority is found to be mala fide or arbitrary or irrational, which affects public interest. (See- Jagdish Mandal v. State of Orissa and others, (2007) 14 SCC

517). 11

16. In the present case, inspite of repeated opportunities, the petitioners have not been able to show as to what is the basis of their claim to be awarded the work of printing and binding of text books, especially when they are admittedly not rate contract holders.

Merely because they have been issued with the work orders for printing and binding of text books for last many years, which may have been due to the judgments of this Court, the same does not give them a vested right to claim that the work of printing and binding of text books should be exclusively awarded to them, without inviting tenders. The petitioners having failed to establish that the issue of the impugned Tender Notice is in any way arbitrary or unreasonable or contrary to any statutory rules or policy of the State Government, we do not find any prima facie -11-

case to allow continuance of the interim orders, to the detriment of the students."

However, writ petitions remained pending and

the National Tender dated 22.08.2015 for the academic

session 2016-2017 was given effect to. After the work for

the academic session 2016-17 was completed and a fresh

National Tender for the academic session 2017-18 was

issued on 09.06.2016, the petitioners moved an application

for withdrawal of the aforesaid three writ petitions, which

were pending before the larger Bench, as having become

infructuous. Larger Bench of this Court vide its order dated

05.08.2016 allowed the prayer of the petitioners and

dismissed the writ petitions.

11. By means of this writ petition, the petitioners

have now challenged the fresh National Tender Call Notice

dated 09.06.2016 for printing and binding of nationalized

text books for the academic session 2017-18.

12. By order dated 09.08.2016, a Division Bench of

this Court passed an interim order to the effect that "tender

process may go on, but no final decision with regard to -12-

awarding of contract shall be taken till the next date." The

said interim order was extended from time to time and is

still continuing.

These petitions were then heard by Division

Bench of this Court and considering the earlier judgments

of this Court passed on 19.05.2010 and 20.12.2013 in the

cases of Orissa Printers (supra) and Mohapatra Binders

(supra) as well as the order dated 18.01.2016 of the Larger

Bench passed in W.P.(C) No. 19062 of 2015 and 2 other

petitions, the Division Bench of this Court, by detailed

order dated 27.9.2016, framed three questions and referred

the matter to a Larger Bench for consideration.

13. It is in the aforesaid facts and circumstances

that this matter has come up before this Bench. During the

course of hearing, learned counsel for the parties had

urged that the writ petitions may themselves be heard and

disposed of by this Bench after deciding the questions

which were, with the consent of the learned counsel for the

parties, reframed as below:-

-13-

(i) Whether the ratio decided by this Court in Orissa Printers and Binders Mahasangha and M/s. Mohapatra Binders still holds the field or requires reconsideration?

(ii) Whether the petitioners, which are the binders and printers of the books and registered under the District Industries Centre as Small Scale Industries are entitled to get any benefit under the IPRs of the State vis-à-vis MSMED Act, 2006 and Policy framed thereunder in 2009?

(iii) If any relief can be granted to the petitioners?

14. We have heard Mr. R.K.Mohanty, learned Senior

Counsel appearing along with Mr. D.Mohanty for the

petitioners in W.P.(C) No. 11817 of 2016 and Mr. R.K.Rath,

learned Senior Counsel appearing along with Mr. D.Mishra

for the petitioners in W.P.(C) No. 12427 of 2016; as well as

Mr. S.P.Mishra, learned Advocate General appearing along

with Mr. Sisir Kr. Das, learned Senior Standing Counsel

and Mr. A.K.Pandey, learned Standing Counsel, for all the

opposite parties.

-14-

Mr. R.K.Mohanty, learned Senior Counsel

appearing for the petitioners has submitted that the case of

the petitioners is covered by the various IPRs issued by the

State Government, which are statutory in nature, and the

petitioners would be entitled to the benefits under such

IPRs, even though the petitioners may not be in the 'rate

contract list' or 'exclusive purchase list'. It has been

contended that because of not being enlisted in the rate

contract or exclusive list, the petitioners, at best may not

be entitled to the prescribed benefits attached to the listed

items, but would still be entitled to the benefits provided to

the SSI unit under the IPRs, which benefits are applicable

to the industries not so listed. It is contended that the

marketing support or benefit would be distinct from fiscal

benefits, and to deprive the petitioner of the marketing

benefit would frustrate the very purpose of IPRs as well as

the Legislative intent behind the MSMED Act, 2006 and

Policy framed there under in the year 2009. The purpose of

the said Policies and the Act is to promote the SSI/MSM

units and thus, if the benefits provided under the IPRs are

limited only to the enlisted industries/units, it would be -15-

against the State Policy so loudly proclaimed in all the

IPRs.

Learned counsel has contended that such

objection of non-inclusion of printers and binders was first

raised in the case of Orissa Printers (supra), but did not

find favour of the Court and the writ petition was allowed

after quashing the nationalised tender for the academic

session 2010-2011 challenged in the said writ petition. The

said decision was followed by another Division Bench in

the case of Mohapatra Binders (supra) wherein the

nationalized tender for the academic session 2014-15 was

under challenge, and the same was also quashed, with

certain directions.

The contention thus is that the earlier two

decisions of this Court do not suffer from any legal

infirmity requiring correction or review of the same,

whatsoever. Learned counsel also submitted that the order

dated 18.01.2016 passed by the Larger Bench, while

vacating the interim order, would not be binding as it was

not a final decision, and the Larger Bench only considered -16-

the application for vacation of the interim order, and the

issues involved in the said writ petitions had not been

finally adjudicated. Learned counsel also contended that

the apex Court, while disposing of the SLPs preferred by

the State Government against the judgment dated

20.12.2013 in the case of Mohapatra Binders (supra), had

vide its order dated 22.09.2015, directed the State

Government to reconsider its policy and take appropriate

decision after due deliberation, which has not been

complied with by the State, and instead it acted contrary to

the said order by issuing impugned national tender call

notice dated 09.06.2016. The State Government, having

withdrawn the SLP before the apex Court, actually

accepted the Division Bench judgments of this Court in the

cases of Orissa Printers and Mohapatra Binders (supra),

and that now the State Government could not have issued

national tender in teeth of the two Division Bench decisions

of this Court.

Learned counsel has relied on the various

provisions of IPRs, as well as the MSMED Act, 2006 and

Policy of 2009 framed there under, in support of his -17-

submission that national tender could not have been

issued in the present case, as the same would defeat the

very purpose of the Act and the Policies.

Mr. Mohanty, learned Senior Counsel has

further urged that by virtue of the impugned tender call

notice, small entrepreneurs, like the petitioners, would not

only become absolutely ineligible to participate in the

same, but at the same time, they would not be able to

compete with units outside the State, which would

frustrate the purpose of the IPRs, the Act of 2006 and

Policy of 2009. As regards the apprehension of delay in

supplying books by the petitioners (which has been raised

by the State in its counter affidavit), because of which

nationalized tender is said to have been floated, Mr.

Mohanty has submitted that the same has no basis, as the

paper for printing is supplied by the State, and that in fact

in the past there had been delay on the part of the State

authorities in providing paper to the successful tenderers,

and thus delay, if any, in printing (which may have been

there) cannot be attributed to the petitioners. He thus -18-

submitted that in the interest of justice and fair play, the

impugned tender call notice is liable to be quashed.

In support of his submission, he has relied on

the judgments of the apex Court in Parappa Ningappa

Khaded v. Mallappa Kallappa, AIR 1956 Bombay 332,

State of Assam v. Barak Upatyaka D.U. Karmachari

Sanstha, (2009) 5 SCC 694.

15. Mr. R.K. Rath, learned Senior Counsel appearing

for the petitioners in the second writ petition, while

adopting the submissions advanced by Mr. R.K. Mohanty,

further contended that the IPRs issued by the Government

of Odisha from time to time are with the objective of

extending opportunities to the persons of Odisha and to

protect the micro, small and medium scale industries

located in the State. He submitted that the units of the

petitioners are employing thousands of persons belonging

to lower economic strata, who would suffer if the exclusive

right to carry on the work of the State for printing and book

binding is not assigned to the petitioners. It is submitted

that the IPRs have been issued for giving purchase -19-

preference, price preference and marketing preference to

the small scale industries of Odisha and, for nearly two

decades, the protection under the said IPRs had been given

to the units of the petitioners. It is thus urged that a

practice which has been adopted by the State for such a

long period would lay the foundation for legitimate

expectation of the petitioners. It has further been

submitted that the petitioners would be entitled to the

benefit of the judgments passed by this Court in Orissa

Printers and Mohapatra Binders (supra).

It is contended that book binding and printing

press, which are included in the list of IPR 2007, are

entitled for fiscal incentives and policy protection of

reserving the goods and services. The basic objection of

the State is that printing press and book binding have been

allegedly excluded from the exclusive purchase list and

that the State Government, in its clarificatory letter dated

08.01.2010 issued by the Director of Industries, Odisha

clarified that the book binding and printing press are not in

exclusive purchase list. Consequentially, the policy of

protection imparted to SSI units of the State is no longer -20-

available to such type of industries. Learned counsel has

raised a preliminary question with regard to the

jurisdiction/competence of the Director to issue such type

of clarificatory order, when the State Government in

Clause-13.1(a) of IPR 2007, specifically states that

comprehensive review of rate contract list, exclusive

purchase list and open tender purchase list shall be

undertaken by a committee consisting of Secretary,

Industries Department; Director, Export Promotion and

Marketing (EPM); Director, Industries and representatives

of Industries Association, which shall submit its

recommendation for Government approval in the Industries

Department. But, no such committee has been constituted

at any point of time, either for exclusion of printing press

and book binding from the exclusive purchase list or to be

treated in a different manner, and no such decision has

been taken by the authority. More so, there is no Cabinet

approval or approval of the State Government of such

exclusion, as indicated in the clarificatory letter dated

08.01.2010 or letter dated 25.06.2013. Apart from the

same, both the letters dated 08.01.2010 and 25.06.2013 -21-

are not based on the recommendation made by the

committee, as contemplated under Clause-13.1 of the IPR

2007/OMSMED Policy, 2009. The stakeholders, like the

Printers and Binders Mahasangh (which is an association

recognised by the opposite parties), has never been given

any opportunity of hearing, as has been mandated in the

IPR 2007.

It is further urged that certain information had

been called for under the Right to Information Act, more

particularly to provide documents/notesheets/ordersheets

indicating whether any committee has been constituted to

exclude printing press/book binding from exclusive list or

from EPM contract list, and what was the decision of the

said committee, has never been informed, rather it has

been stated that "no such information is available in the

Directorate". From the above, it can be construed that

exclusion of book binding and printing press from exclusive

list has never been notified.

Mr. Rath, learned Senior Counsel further

contended that the Industry Department, vide order -22-

No.14835 dated 06.07.1998 notified the exclusive list of

'store items'. Against Sl. No.11-'Paper and Paper Products

(excluding paper bag)' has been notified. The Additional

Secretary to Government, MSME Department issued letter

dated 17.03.2015 to the Director, Export Promotion and

Marketing (EPM), Odisha that the exclusive list of store

items be updated, since it was made way back in 1998. The

State Government, after consideration included 22 more

items in this exclusive list of store items, making total 39

items vide letter dated 19.05.2015. Therefore, the exclusive

list of the 'store items', vide Industry Department letter

dated 06.07.1998, has not been varied in any manner and

holds the field till date. Consequence thereof, based on the

Industry Department order dated 06.07.1998, Government

has been consistently giving printing orders to the SSI

units of the State, except for a period of one year.

It is further contended that the books are prepared

from "paper and paper products (excluding paper bag)" as

mentioned in Sl. No.11 of exclusive list of 'store items'

indicated in letter dated 06.07.1998 of the Industries

department. As per Rule 96 of the Orissa General Financial -23-

Rules (OGFR) (Volume-1), under the heading "Rules and

Instructions Governing the Purchase of Stores", all purchase

of stores for use in the public service should be regulated

in strict conformity with the Store Rules given in Appendix

6. The Appendix 6 of OGFR deals with Rules for the

purchase and supply of articles (including Printing and

Stationery Stores) for the Public Service. As per the

preamble, the policy of the Government of Orissa is to

make their purchase of articles required for the State

Service in such a way as to encourage the development of

the industries of the Indian Union to the greatest possible

extent, consistent with economy and efficiency. In order to

give effect to this policy, preference in making purchase will

be given as per the order mentioned therein. It is stated

that preference will be given to the articles produced or

manufactured in Orissa, over those produced in any other

State of the Indian Union. In view of such provision, the

petitioners, being the SSI units, preference will be given to

the articles produced or manufactured in Orissa, over

those produced in any other State of the Union of India. -24-

To substantiate his contention, Mr. Rath, learned

Senior Counsel has placed reliance upon the judgments of

the apex Court in Maharaja Book Depot v. State of

Gujarat, 1979 (1) SCC 295; Scientific Engineering House

(P) Ltd. v. Commissioner of Income Tax, Andhra

Pradesh, 1986 (1) SCC 11 and Commissioner of Customs

(General), New Delhi v. Gujarat Perstorp Electronics

Ltd. etc., 2005 (7) SCC 118.

16. Mr. S.P. Mishra, learned Advocate General, while

justifying the action of the State-opposite parties in issuing

the tender call notice dated 09.06.2016, has submitted

that the earlier judgments rendered by this Court in the

cases of Orissa Printers (supra) and Mohapatra Binders

(supra) would not be binding, inasmuch as, the said

judgments have not decided the issues involved in the

present writ petition and, even though the submission of

the State may have been recorded in the said judgment of

Orissa Printers (supra), but said submission or issues

have not been dealt with, and the judgment rendered is on

the basis of sympathy for the workers and the owners of

the units of the petitioners, without taking into -25-

consideration the legal aspects of the matter, and without

considering the provisions of the IPRs. In the subsequent

judgment in Mohapatra Binders (supra), the Division

Bench has simply followed the decision in the case of

Orissa Printers (supra) and decided the matter.

The submission is that the petitioners are not

doing government works exclusively, but are entitled to,

and are actually doing other private works, and filing of the

present writ petitions is not for survival of the units but for

creating monopoly. It is contended that under the IPRs,

certain benefits are to be given to the SSI units of the State,

but only to such units which are under the 'rate contract

list' or 'exclusive purchase list' and, admittedly, the

petitioners do not fall in such category. Thus the

petitioners would not be eligible for "fiscal incentives"

under the IPRs, but only to "investment facilitation", such

as allotment of land and recommendation to financial

institutions for term loan and working capital or power

facility. The benefit given to the petitioners for nearly two

decades was not on the basis of the IPRs, but at the

discretion of the Government which, with the change in -26-

time and circumstances, has rightly been withdrawn. Right

from the IPR 1980 and the subsequent IPRs, the Government

organizations were required to purchase the enlisted

products from the SSI units of the State without inviting

tender, but only where rate contract agreement had been

entered into. Such benefit was not to all SSI units, which

may be otherwise entitled to certain specified facilities or

preferences but not "fiscal incentives". It is contended that

benefit once given for certain period cannot be perpetuated in

the absence of any specific policy in that regard.

The contention is, that even though Schedule I

of the Industries (Development and Regulation Act, 1951

(for short 'IDR Act') at Sl.24 "paper and pulp including paper

products" may find place, but 'printing' and 'book binding'

cannot be covered under the classification of "paper and

pulp including paper products". The latter cannot be related

to the business of 'printing' or 'book binding', because in

any case the paper for printing is supplied by the

Government.

-27- It is contended that Section 11 of the MSME Act,

2006 speaks about procurement preference policy, which

would mean that only preference is to be given, but not

reservation. Even otherwise, the IPRs, which have been

issued specifically for such small scale industries, would

continue to have force in the case of the petitioners, even

after issuance of the OMSMED Policy, 2009.

The further submission is that since binding and

printing have never been included in any list under any

IPR, Act or policy, thus, the question of exclusive right in

favour of the petitioners would not arise.

As regards the submission of the learned Senior

Counsel for the petitioners relating to the "store items" as

mentioned in the OGFR Rules, it is contended that even

though books may be prepared out of the "paper and paper

products (excluding paper bag)", but the same cannot be

applicable in the present context, as Rule 96 of the OGFR

does not provide for purchase of 'store items' for use in

public service which specifically includes books, which is

the subject matter of the tender itself. It is further -28-

contended that the printing and book binding would not be

included as 'store items' so as to bring within the fold of the

provisions contained in Rule 96, read with Appendix 6 of

OGFR. As such "paper" would not include "books", so far

as paper products are concerned. It is further contended

that the words "book", "paper" and "binding" have been

explicitly defined in Press and Regulation Books Act, 1967,

which still holds the field. Thereby the word "book" may

have different meaning under different Act, on different

context, and it would be wrong to adopt the meaning to the

word "book" or "paper" in a particular context, to the

meaning of the same terms in the present case.

It is further contended that the judgments in the

cases of Orissa Printers and Mohapatra Binders (supra)

relate to purchase for specific years, i.e., 2010-11 and

2013-14 and would not be binding for challenge to the

policy for the year 2017-18. It is contended that if that be

so, and the same was binding, then the petitioners would

not have withdrawn the writ petition whereby they had

challenged the policy for the academic session 2016-17 -29-

after the interim order for the said year was vacated on

18.01.2016 by the Larger Bench.

Learned Advocate General has thus contended

that the writ petitions are devoid of merits and liable to be

dismissed. In support his submissions, he has relied on

the decisions in Arnit Das v. State of Bihar, (2000) 5 SCC

488; Sarguja Transport Service v. State Transport

Appellate Tribunal, M.P., Gwalior, (1987) 1 SCC 5;

Shimnit Utsch India Private Limited v. West Bengal

Transport Infrastructure Development Corporation

Limited, (2010) 6 SCC 303; Michigan Rubber (India)

Limited v. State of Karnataka, (2012) 8 SCC 216 and

Maa Binda Express Carrier v. North-East Frontier

Railway, (2014) 3 SCC 760.

17. We have carefully examined the submissions

made by the learned counsel for the parties and perused

the record.

18. Keeping in mind that the learned counsel for all

the parties have stated that, besides answering the

questions referred to this Larger Bench, the writ petitions -30-

themselves may be disposed of, we now proceed to consider

the submissions of the learned counsel for the parties to

decide the matter on merits, and also answer the questions

referred.

19. For proper appreciation of the issues involved in

these cases, a brief reference to the various IPRs, as well as

the relevant provisions of MSMED Act, 2006 and the

OMSMED Policy of 2009 and other provisions, as also a

brief history of the litigation is given hereunder.

Industries (Development and Regulation) Act,

1951 (for short 'IDR Act') was enacted by the parliament to

provide for development and regulation of certain

industries. Section 2 of the said Act declares that the Union

Government shall take under its control the industries

specified in its First Schedule. Entry 24 of the said

Schedule relates to "Paper and Pulp including Paper

Products". In 1980, the State Government, in order to

ensure accelerated growth in industrial sectors, issued the

industrial policy know as Industrial Policy Resolution, 1980

(IPR 1980). Clause-L of the said Policy relates to "Price -31-

Preference", and it was provided that small scale industrial

units registered with the Director of Industries shall be

eligible to get a price preference up to 15 per cent for their

products supplied to Government and semi-Government

organisations. An additional price preference of 3% was

provided for small scale industrial units having ISI

certification for their products. Certain exemptions were

also provided for, like payment of earnest money and also

50% of the security deposit. Sub-clause (iv) of the clause-L

further provided that "The Government and semi-

Government organisations have been directed to purchase

their requirement of products of S.S.I. units without inviting

tenders wherever rate contract agreement has been entered

into by the concerned units with the Directorate of Export

Promotion and Marketing".

20. In furtherance of the aforesaid policy, in the year

1986, another IPR 1986 was issued with the objective to give

adequate incentives to entrepreneurs and to introduce the

administrative measures for quickening industrialisation.

Clause-I of the IPR 1986 deals with "Marketing support".

The said clause makes it clear that protection was given -32-

during the initial phase of industrialisation to the nascent

SSI units for which rate contract arrangement had been

made, so as to prevent them from outside competition.

However, it was felt that the "perpetuation of a secured and

sheltered market would not provide the incentive to S.S.I.

units to improve the quality of their products, their overall

competitiveness and explore outside markets". It was thus

felt that for enhancing the competitiveness, there was need

for revising the policy of rate contract, and taking measures

which would be more conducive to improvement of quality

and competitiveness. It was also provided that items for

which rate contract had been fixed, would be purchased by

the Government departments and State controlled agencies

at prescribed rates without inviting tenders, and also that

efforts would be made to encourage industrial units to

produce at all-India market price, so that their products

could find market outside the State.

21. Looking to the encouraging response from

entrepreneurs to the IPRs announced in 1980 and 1986,

the State Government issued the IPR 1989 with a twin

objective of encouraging new industries and providing -33-

support to industries which had come up in the State

during the last few years. The said policy was to remain in

force for five years. Clause 25 of the IPR 1989 relates to

"Marketing support", which provides that State Government

departments and agencies under its control shall ensure

purchase of their requirements of 'store items' available

from industries located inside the State. Clause 25.2 relates

to "Purchase from exclusive list" and clause 25.3 relates to

"rate contract". Annexure-1 of the said IPR 1989 defines

"industrial unit" and paragraph 3 of the said Annexure also

provides for the units which would not be eligible for

incentives as industrial units, and 'book binding' was at Sl.

No. 15 of such list.

Thereafter, the State Government issued IPRs of

1992 and 2001 on similar lines.

22. Then in the year 2006, the Central Government

enacted the MSMED Act with an object to facilitate the

promotion, development and enhancing the competitiveness

of micro, small and medium enterprises and for matters

connected therewith or incidental thereto. Section 11 -34-

thereof, which provides for "Procurement preference policy",

reads as under:

"11. Procurement preference policy.- For facilitating promotion and development of micro and small enterprises, the Central Government or the State Government may, by order notify from time to time, preference policies in respect of procurement of goods and services, produced and provided by micro and small enterprises, by its Ministries or departments, as the case may be, or its aided institutions and public sector enterprises."

23. Then in the year 2007, the State Government

issued IPR 2007. Clause 13 of the said policy relates to

"Marketing support to micro and small scale enterprise in

government procurement". Clause 13.2 provides for the

State Government to ensure that requirement of "store

items" of Government departments and agencies under its

control are procured from industries located within the

State, and such local units shall get price preference for

the purpose, and efforts would be made to ensure that

local products are cost effective and meet overall quality

requirement for competitiveness.

Annexure-II of the said IPR 2007 provided for

Industries listed under the First Schedule of the IDR Act,

1951 to be included as industrial units. However, -35-

paragraph 3 of the said Annexure-II of the Schedule

provided for the units which shall not be eligible for 'fiscal

incentives' as industrial units, but shall only be eligible for

'investment facilitation' such as allotment of land under

normal rules and recommendations to the financial

institutions for term loan and working capital and, if

necessary, for recommendation to the Power Distribution

Corporation. Items No. 29 and 32 of the list are "Book

binding" and "Printing Press" respectively, which units

would be ineligible for 'fiscal incentives' but eligible for

'investment facilitation'.

24. On 17.02.2009 the State Government issued the

Orissa MSME Development Policy, 2009 (OMSMED Policy,

2009), which was in conjunction with IPR 2007. Clause 7

of the said Policy provided for "Marketing". Clause 7.2(d)(i)

thereof provided that goods and services, other than those

in the 'rate contract list' or 'exclusive purchase list', may be

purchased by the State Government departments and

agencies under the control of State Government through

open tender. Price preference of 10% was given to certain -36-

units and additional price preference of 3% was also

provided for, as was provided under the IPR 1980.

It is not disputed that the units of the petitioners

have never been under the 'rate contract list' or 'exclusive

purchase list' under the said policies.

Then, on 24.08.2015, another IPR 2015 was

issued, which also provided for similar incentives for micro

and small enterprises, enlisting the items for purchase

from SSI units, but the said list again did not include

printing and book binding units.

25. The primary contention of learned counsel for

the petitioners is that the petitioners are entitled to the

benefit of various IPRs issued by the State Government

from time to time, and such benefit, which was provided to

them for nearly two decades, has now wrongly been

withdrawn. The anchor sheet of their submission is the

judgment of this Court in the case of Orissa Printers

(supra) wherein, it is submitted that after considering the

provisions of the IPRs, the petitioners were found entitled

to the benefit of the same, and the nationalized tender -37-

issued for the academic session 2010-11 was thus

quashed, still holds the field, and thus the nationalized

tender issued again now on 09.06.2016 for the academic

session 2017-18 is also bad in law, and liable to be

quashed.

26. We have gone through the said judgment of the

Division Bench in the case of Orissa Printers (supra).

What we notice is that only the contention of the

petitioners therein, that they were covered under the IPRs,

was recorded in the said judgment, but no finding in this

regard has been given in the said judgment. It is admitted

by the parties, and also recorded in the said judgment, that

the petitioners were not in the 'rate contract list' or

'exclusive purchase list' under any of the IPRs. The benefit

which was being provided to the petitioners up to the

academic session 2009-10, was not because they were in

the 'rate contract list' or 'exclusive purchase list' of any of

the IPRs, but on independent decisions taken by the State

Government in that regard, as the policies framed by the

State Government were applicable only to such units which -38-

fulfilled the conditions of the IPRs, which alone were

entitled to its benefits as of right.

27. The objections taken by the State in the said writ

petition were duly recorded in para-6 of the said judgment

of Orissa Printers (supra). However, the said objections,

though noted, had not been considered in the judgment. It

was specifically contended by the State that under the IPRs

and the OMSMED Policy of 2009, issued under the

MSMED Act of 2006, it was mandatory for the State

Government departments and the agencies under its

control to procure all the goods and services only from

"EPM Rate Contract Holders" or from the list of goods and

services reserved for "Exclusive Purchase" from Micro and

Small Enterprises, located within the State. "Printing press"

and "book binding" were neither included in the 'rate

contract list' nor 'exclusive purchase list'. It was also the

case of the State that Schedule of Annexure-II of IPR 2007

excluded such "printing press" and "book binding"

industries from the eligible list of industries which could

claim any kind of 'fiscal incentives'. It was also contended

that the cost of outsourcing of private printing/book -39-

binding had gone up to nearly Rs.6.00 crores and since the

spending of such a large amount of public money was

involved, it was decided to go for a composite printing and

binding nationalized tender.

28. Although the said contentions were recorded in

the judgment of the Division Bench in the case of Orissa

Printers (supra), but nowhere have the same been dealt

with, and instead the Court allowed the writ petition and

quashed the nationalized tender, primarily on the ground

that such marketing support was being given to the

petitioners for last 18 years, and that by virtue of national

tender, the small entrepreneurs, as well as those workers

who earn their livelihood by printing and binding of books,

will lose their jobs, and that the small entrepreneurs could

not be expected to compete with big industries, which will

come forward to participate in the national tender. Without

considering the contentions raised by the State

Government, the Court assumed that several incentives

were given to the SSI units under the IPRs for grant of

marketing support, which included facility of preferential

purchase of the products manufactured by such -40-

industries, and that incentives given under the IPRs had

never been withdrawn by the State Government, and thus

the national tender issued for the academic session 2010-

11 was quashed.

29. Perusal of the said judgment would show that

the Bench was swayed by the fact, that if such benefit

given to the petitioners was withdrawn, then thousands of

workers would be rendered jobless. On a plain reading of

the said judgment, it is apparent that the case was decided

on ground of sympathy, and not on legal issues which had

been raised by the State.

30. Benefit which may have been given to certain

class of persons, without they being covered under any

policy of the Government for grant of such benefit, can be

withdrawn with the change of time and circumstances. It is

well settled law that what may have been reasonable at one

stage or point of time, may, with the change in

circumstances and passage of time, become unreasonable,

and thus need to be changed. The Supreme Court has, in

the case of Malpe Vishwanath Acharya vs. State of -41-

Maharashtra (1998) 2 SCC 1, in paragraph 8, held that

"with the passage of time a legislation which was justified

when enacted may become arbitrary and unreasonable with

the change of circumstances." Earlier also, the Apex Court

in the case of State of M.P. vs. Bhopal Sugar Industries

AIR 1964 SC 1179, while dealing with a question whether

geographical classification due to historical reasons would

be valid, observed that "by the passage of time,

considerations of necessity and expediency would be

obliterated, and the grounds which justified classification of

geographical regions for historical reasons may cease to be

valid."

31. In the present case, the benefit or protection was

not given to the petitioners on the basis of any policy of the

State Government. The same appears to have been

independently given to provide impetus to such units to

establish themselves. About two decades back, when the

State Government had decided to supply books and other

materials to schools of the State, then the demand for

books may not have been much. With the passage of time,

the quantum of work, as well as cost of the same has, over -42-

the past about two decades, increased manifolds. Besides

the financial aspect, timely supply of the books would also

be a material consideration. Thus, it was within power and

discretion of the State Government to take a decision to

issue open nationalized tender, in which the petitioners as

well as the others would compete. If advantage had been

given to one set of industries for some time, which may

have been for certain reasons other than under any policy

of the State, the said advantage cannot be allowed to be

perpetuated, and with change in time, providing a level

playing field to all similar industries may be in the interest

of the State, financially, and also otherwise, to maintain

proper supply. Thus protection once given to the

petitioners for certain reasons about two decades back,

cannot be permitted to continue for all times to come,

especially after circumstances for grant of such protection

may have changed.

32. While dealing with a case where the existing

transport operators had challenged the grant of fresh

transport permits, the Supreme Court in the case of -43- Mithilesh Garg vs. Union of India AIR 1992 SC 443 has

in paragraph 47, held that-

"......As mentioned above the petitioners are permit holders and are existing operators. They are plying their vehicles on the routes assigned to them under the permits. They are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1) (g) of the Constitution of India. There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators. There is no complaint of infringement of any of their statutory rights. Their only effort is to stop the new operators from coming in the field as competitors. We see no justification in the petitioners' stand. More operators mean healthy competition and efficient transport system......"

What we notice is that the petitioners herein also

want to have their upper hand in business by getting the

benefit and protection of exclusive purchase, without any

competition. It is not the case of the petitioners that they

are not permitted to, or cannot do private printing and

book binding works, and that they are only supposed to

exclusively do Government works. The fact remains that

the petitioners are at liberty to do private works, and by

insisting on such protection to be continued, they are

actually not fighting for the survival of their units, but for

creating their monopoly in business.

-44-

33. Unless the petitioners are found to be covered

under any policy framed by the State Government for grant

of certain benefits, they would not, as of right, be entitled

for the same, only on the ground that such benefit was

given to them earlier for some years. With change in

circumstances, such benefits can always be withdrawn,

unless the petitioners are found entitled to the same under

the provisions of any policy of the Government. Admittedly,

the benefit of 'fiscal incentives' is to be granted under the

IPRs only to those who are covered under the 'rate contract

list' or 'exclusive purchase list', which is not so in the case

of the petitioners. It needs to be reiterated here that the

judgment in the case of Orissa Printers (supra) has

nowhere held that the units of the petitioners would be

covered by the IPRs.

34. In the case of Mohapatra Binders (supra), what

we notice is that the Division Bench has simply followed

the judgment in the case of Orissa Printers (supra) and

quashed the national tender call notice for the academic

session 2014-15, but with certain directions. By issuing

such directions in the judgment, the Division Bench had -45-

accepted that there were certain shortcomings in the

performance of the petitioners, which required rectification.

35. The constitution Bench of the apex Court in

State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC

647 held as follows:

"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it."

Applying the above principle to the case in hand,

neither the case of Orissa Printers (supra) nor Mohapatra

Binders (supra) has decided the questions which arose

before the Court, and in our view, benefit has been

extended to the petitioners therein on the basis of the

misplaced sympathy, which is not in conformity with the

provisions of law.

36. In Parappa Ningappa Khaded v. Mallappa

Kallappa, AIR 1956 Bombay 332, the Division Bench of

Bombay High Court held as follows:

"A decision of a Full Bench, or of any Court for the matter of that, is binding provided it is a -46-

considered decision. But when a decision has been given without the pros and cons of the question being considered, it cannot possibly be urged that such a decision acquires a finality which cannot be interfered with by any subsequent decision."

In Arnit Das (supra) the apex Court held that

where a particular point of law is not consciously determined

by the Court, that does not form part of ratio decidendi and

is not binding, and the same is hit by rule of sub silentio.

In view of such position, we are of the considered

opinion that the judgments of this Court in Orissa

Printers (supra) and Mohapatra Binders (supra) cannot

be stated to be binding judgments, as these are not

considered decisions, because the questions which had

been raised before the Court were not answered in proper

perspective.

37. Further, we are unable to accept the submission

of learned Counsel for the petitioners that "paper and paper

products" which are included in the exclusive list at Sl. No.

11 of IPR 2001 would cover the units of the petitioners. It is

not understood as to how, under the said heading of "paper

and paper products", "printing" and "book binding" could -47-

also be included. There can be no dispute of fact that

printing work is distinct from "paper and paper products",

hence, there could be no question of printing units being

covered under the aforesaid clause. The contention that

"book binding" is directly concerned with "paper and paper

products", and thus the same would be included in the

exclusive list, also cannot be accepted. "Book" or "book

binding" both would be distinct from "paper and paper

products", as paper may be used for book binding or for

preparing a book, but book binding would be a separate

business, and even though it may be related to paper, it

would not mean to cover book binding unit as small scale

industries related to 'paper and proper products'.

38. Reliance has been placed by the learned

Advocate General on the definition given to "Book", "Paper"

and "Printing" under The Press and Registration of Books

Act, 1867, to support his contention that the units of the

petitioners would not be covered under 'paper and paper

product'. The definitions given in Section 1 of the said Act

are reproduced below:

-48-

"Book" includes every volume, part or division of a volume, and pamphlet, in any language, and every sheet of music, map, chart or plan separately printed.

"Paper" means any document, including a newspaper, other than a book.

"Printing" includes cyclostyling and printing by lithography.

39. In our view, such submission has force. Even if

we consider that the definition of a word or phrase given in

one context could be different in another context, but in our

opinion, under no definition or meaning, 'printing' and

'book binding' units can be considered to be covered as

"paper and paper product" units.

40. Under the various policies of the State

Government, marketing support and price preference has

been provided for to SSI units, but it was also recorded in

the said policies that:

"perpetuation of a secured and sheltered market would not provide the incentive to S.S.I. units to improve the quality of their products, their overall competitiveness and explore outside markets".

As such, it was never the intention of the

Government to guard all the SSI units from the open -49-

market competition but only to certain SSI units which

were in the 'exclusive purchase list' or 'rate contract list' of

the IPRs, which provide that:

"The Government and semi-Government organisations have been directed to purchase their requirement of products of S.S.I. units without inviting tenders wherever rate contract agreement has been entered into by the concerned units with the Directorate of Export Promotion and Marketing".

41. It may be noted that "fiscal incentives" or

"marketing support" of exclusive purchase from such SSI

units, may have been provided to such units which were

enlisted, but the rest of the SSI units could, at best be only

eligible for "investment facilitation", under which facilities

such as allotment of land, recommendation for terms loan

and working capital loans etc. is contemplated. Annexure II

of the Schedule of IPR 2007 gives the list of units which

shall not be eligible for "fiscal incentives", and 'book

binding' and 'printing press' are at item no. 29 and 32 of

such list. As such, when there is a specific provision or a

direct clarification given in the policy itself, then there

would be no question of reading something more than what -50-

is there, or to take indirect support to bring in something

within its fold, which item is not there.

42. Further, clause 7.2(d)(i) of the OMSMED Policy

2009 also clearly provides that goods and services, other

than those in the 'rate contract list' or 'exclusive purchase

list', may be purchased by the State Government

departments and agencies under the control of State

Government through open tender. Thus, the units of the

petitioners which are admittedly not covered under the

'rate contract list' or 'exclusive purchase list' would also not

be entitled to any protection under the OMSMED Policy. It

may also be noted here that even the Director of Industries,

Odisha has clarified, vide communication dated

08.01.2010, that 'printing press' and 'book binding' units

are not included in the 'rate contract list' or 'exclusive

purchase list'.

43. Much reliance has been placed on judgment of

the apex Court in Scientific Engineering House (P) Ltd.

V. Commissioner of Income Tax, Andhra Pradesh,

(1986) 1 SCC 11 wherein, while answering the question of -51-

acquisition of depreciable assets under the Income Tax Act,

the definition of "book" has been taken into consideration,

taking into account the dictionary meaning of that word.

But, the context of using the word "book" in the said

judgment has no application to the present case.

Similarly, in Commissioner of Customs

(General), v. Gujarat Perstorp Electronics Ltd, (2005) 7

SCC 118, while considering the provision of Section 25 (1) of

the Customs Act, 1962, the word "book" occurring under

the exemption notification and scope thereof was considered

by the apex Court, wherein the meaning of "book" has been

considered in paragraphs 44 to 49. The apex Court observed

that, when the expression of word "book" is not defined in

the Act, natural and ordinary meaning of the said

expression must be kept in view. So far as the meaning of

"book" mentioned in the said judgment, there is no dispute

at all with regard to its natural and ordinary meaning, but

the same has to be considered in the facts and

circumstances of a particular case. For the case in hand,

considering the provisions of IPRs and MSME Act, read with

OGFR, as discussed above, we are of the considered view -52-

that the reference made to the judgments by the learned

Senior Counsel for the petitioners has no bearing.

44. Learned counsel for the petitioners has also

contended that under para-13.2 of the IPR 2007, the State

Government was required to ensure that the 'store items'

for the State Government and its agencies should be

procured from the SSI and other local units at 'price

preference'. Firstly, we are of the opinion that the printing

press items and book binding would not be covered under

the various products of the 'store items'. Secondly, even if

included, it is only the 'price preference' which has to be

given (and not the right of exclusive purchase) in case of

the 'store items'.

45. As per the Industry Department Order No.14835

dated 06.07.1998, the list of 'store items' have been notified

wherein at Sl. No.11 "paper and paper products (excluding

paper bag)" has been mentioned. The Additional Secretary

to Government, MSME Department issued letter dated

17.03.2015 to the Director, Export Promotion and

Marketing (EPM), Odisha that the exclusive list of 'store -53-

items' be updated, since it was made way back in 1998.

Subsequently, pursuant to letter dated 19.05.2015, the

State Government, after consideration, included 22 more

items in this exclusive list of store items, making it total of

39 items. Therefore, the exclusive list of the 'store items'

vide Industry Department letter dated 06.07.1998 has not

been varied in any manner and holds the field till date.

But, that ipso facto cannot be construed that the

petitioners are covered under the 'store items' and entitled

to get protection under the OGFR. Rule 96 under the

heading "Rules and Instructions governing the purchase of

stores" clearly deals with all purchase of stores for use in

the public service and should be regulated in strict

conformity with the "Store Rules" given in Appendix 6. The

Appendix 6 of OGFR deals with Rules for the Purchase and

Supply of Articles (including Printing and Stationery

Stores) for the Public Service. In the preamble, it has been

clearly mentioned that preference will be given to the

articles produced or manufactured in Odisha, over those

produced in any other State of the Indian Union. Therefore,

the policy preference in making purchase of goods is being -54-

given under Rule 96 and Appendix 6 of OGFR. The item of

printing and binding of books has been indicated in the

said Rules. Merely policy preference is to be granted, and

that in itself cannot be said that the printing and binding

are covered under the said policy, when it has not been

specifically prescribed in the said Rules under the heading

of 'store items'.

In our considered view, in absence of any

specific exclusive list items, 'printing press' and 'book

binding' cannot be included as "store items" under OGFR,

as urged before this Court. Consequently, we are not able

to accept the argument so advanced by learned Senior

Counsel for the petitioners.

46. The judgments in Mohapatra Binders and

Orissa Printers (supra), and subsequent order passed by

the Larger Bench of this Court, while vacating the interim

order, cannot be termed as precedent, as these decisions

have not decided any question which had been raised

before this Court.

-55-

47. In Kapila Hingorani (I) v. State of Bihar,

(2003) 6 SCC 1, the apex Court while dealing with meaning

of "precedent" has held as follows:

"A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing."

Similar view has also been taken by the apex

court in State of Assam v. Barak Upatyaka D.U.

Karmachari Sanstha, (2009) 5 SCC 694 wherein, it is

further clarified that an interim order cannot be said to be

a precedent. The interim directions issued on the basis of

prima facie findings, are temporary arrangements to

preserve the status quo, to ensure that the matter does not

become either infructuous or a fait accompli before final

hearing. This being the position, while vacating the interim

order, no decision has been rendered by the Larger Bench -56-

of this Court, thereby the order so passed cannot be taken

into consideration as no ratio decidendi to characterise as

precedent for the present case. Therefore, to set at naught

the issue for all times to come, this Court proceeded to

delve into the matter in detail and decide the same by

laying down the principle of law which will remain guiding

force for the parties to this litigation.

48. Mr. S.P.Misra, learned Advocate General for the

State, vehemently urged before this Court that policy of the

Government, relating to printing and binding having

changed, and it being well within the domain of the State

authority, the same cannot be interfered with by the Court

in exercise of its power of judicial review. The said

submission has force.

In Shimnit Utsch India Private Limited

(supra) the apex Court held that in exercise of power of

judicial review, the Court cannot interfere with the policy or

policy decision, or change of any policy framed by the

Government.

-57-

In Michigan Rubber (India) Limited (supra) the

apex Court held that the Government and their

undertakings must have a free hand in setting terms of the

tender and only if they are arbitrary, discriminatory, mala

fide or actuated by bias, then alone the Court would

interfere in exercise of its power of judicial review.

None of the conditions have been satisfied in the

present case, so as to call for interference by this Court in

exercise of power under judicial review.

49. In Maa Binda Express Carrier (supra) the apex

Court held that submission of a bid or tender in response

to a notice inviting tender is only an offer, which the State

or its agencies are under no obligation to accept. Bidders

participating in the tender process cannot insist that their

bids/tenders should be accepted simply because a bid is

the highest or lowest. All that participating bidders are

entitled to is a fair, equal and non-discriminatory

treatment in evaluation of their bids/tenders. When the

power is vested with the Government to fix its modalities,

the same cannot be challenged before this Court, unless it -58-

comes within the parameters of arbitrariness or

unreasonableness and, as such, in a matter of contract, it

is within the complete domain of the Government to frame

its own policies. In view of that, the Government has to be

given a free hand to act fairly, reasonably and non-

discriminatorily, so as to achieve the avowed objective of

tender process.

50. We are of the considered opinion that the scope

of the Court, for interference in a tender process in exercise

of power under judicial review being limited one, as such,

in the present context, as discussed above, we have to

examine the question as to whether any arbitrary exercise

of power has crept in while issuing notice inviting tenders

for printing and binding of books.

51. The IPRs and the Policy of 2009 have been

issued by the State Government with the objective to give

adequate incentives to entrepreneurs, and to introduce the

administrative measures for quickening industrialisation in

the State. Protection is to be given to nascent SSI units

during the initial phase so as to encourage new industries. -59-

Even though not covered under the policy for such

protection, the units of the petitioner were given the

benefit, so as to protect them from outside competition,

which was at the discretion of the Government, and not

under any policy. The same was not as of right, but only to

help the units establish themselves. Such protection,

which is not as of right under any policy, and meant only

for encouraging new units, cannot be perpetuated, and can

be withdrawn with change of time.

52. Sympathy may be a ground for grant of benefits

in certain cases, but not in commercial transactions. The

magnitude of work of printing and binding which is now to

be awarded by the State Government runs in crores of

rupees. Books are now to be distributed by the Government

to the schools in large numbers, within a specified time.

The Government has taken a specific stand that for proper

distribution of books, and in the interest of the economy of

the State, nationalized tender should be issued. Such

decisions are essentially commercial decisions, and

principles of equity and natural justice would stay at a

distance in such cases.

-60-

53. In our view, a judgment passed on sympathy, in

such a matter, would be a case of misplaced sympathy,

and not in accordance with law. The submission that, if the

protection which was given earlier was not continued, the

units of the petitioners would close down, and the workers

engaged in such units would be rendered jobless, does not

have much force. It is not the case of the petitioners that

they are not free to do private business, or that they are

not doing so, and that they are obliged to do the works of

the Government exclusively. In a competitive world of

business, some protection can be given to a certain class of

industry for some time, so as to enable it to establish itself.

If the same is perpetuated and the units are not allowed to

compete in the open market, they would, in fact, be kept

away from making progress and the need of improving their

quality, as well as their efficiency, to make their products

and prices competitive. If, after having been given

protection for nearly two decades, the small scale

industries of the petitioners have not come up to stand on

their own and compete with the outside market, then what

they are actually wanting is, not preference but reservation -61-

of exclusive purchase from their units, which cannot be

permitted in the facts of the present case.

54. We are of the firm view that the protection given

to the petitioners at an earlier point of time was because of

discretion exercised by the Government in their favour, and

not under any policy of the Government. Such discretion,

which was enjoyed by the petitioners for a long period of

time, cannot be perpetuated. If perpetuated, the small scale

industries would become totally dependent and would not

be able to rise and be a part of the general industrial

progress and development. It is like a child, who is given

protection by his guardian during his growing years, and

then after he grows up and matures, he is to be left to fend

for himself and face the world, and make his own place in

the society. If not so allowed, and always kept under the

protective umbrella of his guardian, no man will ever be

able to be self reliant or be independent in life. Similarly, a

small scale industry may be given protection and support

for some time, which may be a few years, but not for all

times to come. Thereafter, unless required in law, no -62-

further protection, concession or preference should be

continued.

In the present case, the petitioners have not

been able to establish that the law requires continuation of

such protection or concession, which was earlier given at

the discretion of the Government, and not under any policy

of the Government.

55. We have already clarified hereinabove that the

judgments in the cases of Orissa Printers (supra) and

Mohapatra Binders (supra) have not been pronounced on

principles of law, after considering the legal objections

raised by the State Government, but on the basis of

misplaced sympathy. The same would, thus, not be

binding. Even otherwise, said judgments relate to the

tenders of particular years and would not be binding for

subsequent years, unless any ratio has been laid down

which would bind the parties on the legal principles, which

is not so. It is, however, also true that the order of the

Larger Bench dated 18.01.2016, wherein observations have

been made against the interest of the petitioners, was only -63-

with regard to vacation of interim order and since the writ

petitions were not decided by the said order, the same

would not have binding force.

56. In view of the aforesaid, we answer all the three

questions in favour of the State-opposite parties and

against the petitioners, and hold that the ratio decided by

this Court in the cases of Orissa Printers (supra) and

Mohapatra Binders (supra), would not have binding force

and the petitioners would not be entitled to the protection

of the IPRs issued by the State Government, as well as

MSMED Act, 2006 and the OMSMED Policy framed there

under in 2009. We also hold that the petitioners would not

be entitled to grant of any relief in these writ petitions.

The writ petitions are, accordingly, dismissed.

No order as to cost.

...........................

(VINEET SARAN) CHIEF JUSTICE

...............................

(DR. A.K. RATH) JUDGE

..............................

(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 13th January, 2017/PCP/DM/SKJ