Hon'ble Attau Rahman Masoodi,J.
These two writ petitions have been filed relating to the supply of textbooks to be distributed free of cost to the students of Basic Schools (Class I to VIII) recognized by the Basic Education Department, State of U.P. and aided by the Government. The supply is under a National Policy for which the State Government has to take a decision for every educational session and in order to ensure such supply and the award of contract for the same, the State Government has been laying down the policy of the quality of the paper to be utilized for the cover pages and the internal pages for printing of such textbooks. This petition is only in respect of the use of the quality of paper for printing the internal pages.
The challenge is to the alteration in the said policy for the current year supply of textbooks in 2016-17 under the Government Order dated 17.2.2016 and the consequential tender notice together with the proceedings that have been undertaken therein dated 17.4.2016.
The policy dated 17.2.2016 has been prayed for being quashed in Writ Petition No.5443 (MB) of 2016 and the same policy has been challenged by way of an amendment in Writ Petition No.8499 (MB) of 2016, which in addition has also challenged the tender notice dated 17.4.2016. Both these writ petitions, even though filed by two separate petitioners, the former being a manufacturer and supplier of eco-friendly paper and the latter by two printers and publishers of the textbooks claiming themselves to be entitled to participate in the tender bid, have therefore been heard together.
Four sets of intervenors have also filed applications for intervention, two in Writ Petition No.5443 (MB) of 2016, namely, M/s Shreyans Industries Limited and M/s. Satia Industries Limited both of whom are manufacturers of paper claiming that they are manufacturers of virgin pulp paper. Two applications have been filed by M/s Singhal Agencies, a registered Partnership Firm, involved in the business of printing and publishing and the fourth application is on behalf of M/s Burda Druck India Private Limited also a printer and publisher. The intervention applications have been filed by all in Writ Petition No.8944 (MB) of 2016 and by M/s Singhal Agencies alone in Writ Petition No.5443 (MB) of 2016. The intervenors are opposing the stand taken by the petitioners alongwith the State Government. The State Government has filed a counter-affidavit and a supplementary counter affidavit in Writ Petition No.8944 (MB) of 2016 supporting the policy dated 17.2.2016 as well as the terms and conditions of the tender notice dated 17.4.2016 that are under challenge.
Writ Petition No.5443 (MB) of 2016 filed by M/s Fibremarx Papers Pvt. Ltd. and another was entertained earlier and the following interim order was passed on 17.3.2016:-
"Heard Sri Jaideep Narain Mathur, learned Senior Counsel, assisted by Sri Shishir Chandra, learned counsel for the petitioner, Sri H. P. Srivastava, learned Additional Chief Standing Counsel for the respondents no.1, 2 & 3 and Sri J. P. Mathur, learned counsel for the respondents no. 4 & 5.
Sri Anupam Mehrtora has filed an impleadment application on behalf of M/s Singhal Agencies, which has been entertained under Chapter XXII Rule 5-A of the Allahabad High Court Rules, 1952.
This petition was taken up on 15th March, 2016 when the following order was passed:-
"Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Attau Rahman Masoodi,J.
The submission raised on behalf of the petitioners is that the utilization of paper which has now been altered under the new policy is contrary to the notification dated 9.11.1992 issued by the Union Government of India and is also in the teeth of Bureau of Indian Standards Specification No. 1848 (4th Revision) which in clause 4.8.2 defines the specific requirements and which excludes utilization of virgin pulp of bamboo and hardwood. It is, therefore, submitted that the policy adopted by the respondent-State inviting tenders for text books being ultra vires the aforesaid provisions of law deserve to be struck down.
On the aforesaid contention, we find that it is necessary that the Union of India through the Ministry of Environment should be made a proper and necessary party and also the party of Bureau of Indian Standards so that they are also represented keeping in view the fact that the petitioners are taking shelter of notifications and the requirements by the said authorities in order to substantiate the pleadings.
Let necessary corrections be made by tomorrow i.e. 16.3.2016 and both the parties be impleaded and copies of writ petition be also served on learned counsel for the said two opposite parties.
Put up tomorrow as fresh."
The challenge is to the inclusion of virgin pulp paper of bamboo or wood base for text book supply to the Basic Education Department which according to the learned counsel for the petitioner is contrary to the ecological and environmental statutory norms prescribed in this regard. The contention is that such virgin pulp based paper is clearly barred to be used and, therefore, the said notification by way of a policy creates a monopoly in favour of such manufacturers who are exclusively manufacturing virgin pulp paper which otherwise cannot be statutorily utilized for printing of text books and work books by the respondent-Basic Education Department.
The tenders have been floated, and according to the petitioners, this would include purchase of paper from the petitioners' mills and consequently, the challenge has been raised contending that the aforesaid condition imposed in the policy be struck down. The petitioners, therefore, claim locus to challenge the policy as it would vitally affect their business.
Learned counsel for the Union of India and the learned counsel for the proposed respondent have vehemently opposed the petition contending that the notification dated 9th November, 1992 does not prohibit the use of virgin pulp and consequently, reliance placed by the petitioner on the notification dated 9th November, 1992 is misplaced. Clauses 2 & 3 of the said notification have been pressed to contend that this merely provides that a selective use is permissible in view of the other norms and even otherwise, clause 3 empowers the Bureau of Indian Standard to formulate and incorporate optional standards for environment friendly characteristics. It is, therefore, urged that the conditions imposed in the Government Order dated 17.2.2016 replacing the earlier policy is neither ultra vires any statutory provisions nor is otherwise unfriendly to the Eco-system.
Learned Standing Counsel has also received instructions from the Director of Education (Basic) and he submits that the policy dated 17.2.2016 does not suffer from any such infirmity so as to enable the petitioner to challenge it on the ground aforesaid. It is also submitted that the said policy has been introduced in public interest and there being no supervening public interest, the prayer made by the petitioner cannot be granted.
Having considered the aforesaid submissions raised, prima facie, we are of the opinion that a policy decision can only be interfered with provided there is supervening public interest but at the same time, a policy decision cannot be contrary to statutory provisions.
The contention of the petitioner is that the notification dated 9.11.1992 prevails, and the Bureau of the Indian Standards with its 4th revision also does not prohibit permitting utilisation of virgin pulp.
Sri Mehrotra on the other hand contends that the same is permissible not only by virtue of reading clause 2 of the notification dated 9.11.1992 but also by the powers which can be exercised under clause 3 of the Bureau of Indian Standards. We have not been apprised of any alternate or optional standard formulated by the Bureau of Indian Standards and therefore, in the absence of any material on record, clause 2 will have to be read in order to understand the impact of the Government Order dated 17.2.2016.
On a plain reading of clause 2, it is correct that the paper and paper board manufactured out of pulp containing not more than 60% by weight of pulp made from materials other than bamboo, hard woods and Reed shall qualify for ECOMARK. Thus, it is only permissible to a limit as prescribed therein and the only natural interpretation that follows is that virgin pulp paper cannot be introduced as eco-friendly without an ECOMARK.
Sri Mehrotra, learned counsel submits that the Bureau of Indian Standards by invoking clause 3 may have relaxed to the same.
We, therefore, provide that as an interim measure that the respondents-State Government while proceeding to finalize any negotiations in terms of the policy dated 17.2.2016 shall first ascertain as to whether virgin pulp paper is an alternate or optional standard admissible under Bureau of Indian Standards mark or not. In the event, the said material is not permitted, then in that event, the State Government shall suitably proceed to implement the notification dated 09.11.1992 while entering into negotiations.
All the opposite parties may file their respective counter affidavits within three weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.
List after expiry of the aforesaid period.
We are therefore not staying the tender process which shall also abide by the interim directions aforesaid."
Following the issuance of the policy dated 17.2.2016, a tender notice had been earlier floated on 23.2.2016 with a corrigendum that was issued after the order dated 17.3.2016 that had been passed in Writ Petition No.5443 (MB) of 2016 on 22.3.2016. The petitioners of the second writ petition, namely, M/s Raja Ram Printers and Publishers and another consequent to the clarification dated 22.3.2016 filed Writ Petition No.8140 (MB) of 2016 challenging the said tender notices. The tender notices dated 23.2.2016 and the corrigendum dated 22.3.2016 were cancelled as the lowest bidder, pursuant to the said tenders, had withdrawn his proposal.
The said facts were brought to the notice of the Division Bench in Writ Petition No.8140 (MB) of 2016 and the following order was passed dismissing the petition at that stage on account of the cancellation of the tender with liberty to challenge and raise the dispute in appropriate proceedings at an appropriate stage. The order dated 19.4.2016 is extracted hereunder:-
"Learned counsel appearing on behalf of the petitioners states that after the institution of the writ petition, prayer clauses (i), (ii) and (iii) have been rendered infructuous in view of the subsequent developments namely the cancellation of the tender by the State. Insofar as prayer (iv) is concerned, learned counsel for the petitioner seeks liberty to withdraw the writ petition with permission granted to raise it in appropriate proceedings at appropriate stage. The petition is accordingly dismissed as withdrawn with the liberty as prayed. There shall be no order as to costs."
It is quite obvious that with the floating of the fresh tender on 17.4.2016, a fresh cause of action had arisen and consequently, Writ Petition No.8944 (MB) of 2016 was filed challenging the tender notice dated 17.4.2016. Thus, the basic challenge in both the petitions, one by the paper manufacturer and the other by the printers, is to the policy dated 17.2.2016 consequent whereto a fresh tender notice has been issued on 17.4.2016.
We have heard Sri S. K. Kalia, learned Senior Counsel assisted by Sri Shishir Chandra for the petitioners in both the writ petitions and Ms. Bulbul Godiyal, learned Additional Advocate General assisted by Sri H. P. Srivastava, learned Additional Chief Standing Counsel for the respondent-State of U.P., Sri S. B. Pandey, learned Assistant Solicitor General of India who has been served with a notice for the Union of India as per our order dated 15.3.2016 in Writ Petition No.5433 (MB) of 2016, Sri Raghvendra Singh, learned Senior Counsel assisted by Sri Anurag Kumar Singh on behalf of two intervenors, namely, M/s Shreyans Industries Limited and M/s. Satia Industries Limited, Sri Anil Tiwari, learned Senior Counsel assisted by Sri Apoorva Tiwari on behalf of the intervenor-Burda Druck India Pvt. Ltd. and Sri Anupam Mehrotra who has filed his intervention application on behalf of M/s Singhal Agencies in both the writ petitions. Affidavits have been filed on behalf of the intervenors as well that have been taken on record. The petitioner-M/s Raja Ram Printers has also filed a supplementary affidavit and a rejoinder affidavit to the counter filed on behalf of the State in Writ Petition No.8944 (MB) of 2016.
The intervenors and their learned counsel raised an objection to the filing of the writ petitions by M/s Fibremarx Papers Pvt. Ltd a manufacturer and M/s Raja Ram Printers and Publishers contending that they have no locus to maintain the writ petitions for challenging the policy, inasmuch as, a manufacturer of paper is different from that of a printing and publishing who has to actually supply the textbooks as per the tender conditions. So far as the printers, namely, M/s Raja Ram and another are concerned, they do not qualify and are not eligible to supply the quality of paper as envisaged under the policy in the tender conditions. Sri Anupam Mehrotra, one of the learned counsels for the intervenors, has gone to the extent of urging that M/s Raja Ram Printers and Publishers cannot maintain this second writ petition in view of the fact that they had withdrawn their earlier Writ Petition No.8140 (MB) of 2016 and the liberty given to them to raise a future challenge therefore cannot be in respect of the same prayers that had been raised earlier.
We will have to, at the very outset reject the aforesaid submissions inasmuch as the issue under challenge is the policy of the State Government as altered in the impugned policy dated 17.2.2106 that requires a supply of textbooks on paper manufactured from Virgin Pulp, Bamboo or Wood-based and the material printed thereon. The issue therefore is both connected with the quality of supply of paper and also the material printed thereon in the shape of textbooks by the printers and publishers. Both the questions are therefore intertwined and consequently, the impugned policy having a direct impact on the same, it cannot be said that the writ petitions cannot be maintained on behalf of such petitioners. Secondly the other way around, the intervenors also consist of two manufacturers and two printers. Thirdly, the relief that was prayed in Writ Petition No.8140 (MB) of 2016 was rendered infructuous as is evident from the order dated 19.4.2016 extracted here-in-above at that stage. The withdrawal of the writ petition with liberty to raise a challenge at an appropriate stage therefore was not prohibited under the said order and the petitioners cannot be presumed to have abandoned their claims. This was done in the peculiar circumstances when the tenders earlier floated had been cancelled by the State Government itself and a fresh tender had been floated on 17.4.2016. The liberty therefore was clearly given for challenging the subsequent tender notice as well. Thus, the aforesaid objections are hereby overruled.
Sri S. K. Kalia, learned Senior Counsel for the petitioners has advanced his submissions primarily which are five-fold apart from the other submissions relating thereto. The first is that the State Government has proceeded to violate the statutory mandate of the standard of paper that is to be utilized for the purpose of printing of internal pages of the textbooks that are to cater to the need of the children going to Basic schools from Class I to VIII which are to be necessarily environment friendly and eco-friendly. The standards that are to be maintained for utilization of the quality of the paper for printing of textbooks have been clearly provided for by the Bureau of Indian Standards (BIS) under the Bureau of Indian Standards Act, 2016 read with its predecessor Act, The Bureau of Indian Standards Act, 1986. It may be put on record that the 2016 Act has repealed the 1986 Act alongwith a saving clause in relation to the regulations, notifications and specifications earlier issued under the 1986 Act. The contention is that the standard and quality of paper to be utilized for printing the internal pages of the textbooks to be supplied by the Government for consumption by the children has to necessarily and compulsorily abide by the standards as per the notification dated 9.11.1992, but the State Government under the impugned policy has clearly deviated therefrom, hence the said mandate of law has been violated. Accordingly, if the paper to be supplied is not possessed of Eco-mark it is not Eco-friendly or environment friendly. Elaborating the same Sri Kalia urges that provision for an Eco-mark therefore would become meaningless thereby giving a handle to the Government to arbitrarily pick up a particular quality of paper of its own choice in derogation of the provisions aforesaid.
His second contention is that this violation is deliberate and is discriminatory as well as violative of the fundamental rights guaranteed under Articles 14 and 19 (1) (g) of the Constitution of India inasmuch as a particular confined raw material, namely, Virgin Pulp, Bamboo or Wood-based has been only prescribed as the content of the paper to be utilized for printing the internal pages of the textbooks. This is tailored to suit certain favoured manufacturers and printers thereby excluding those, including the petitioners, who have offered to print textbooks on environment friendly and eco-friendly paper that is also Eco-marked as per the notification dated 9.11.1992.
His third contention is that earlier this issue of utilization of such paper had come up in two writ petitions, where interim orders were passed on 10.5.2006 in Writ Petition No.2542 (MB) of 2006, M/s Shakumbhari Straw Products Ltd & others v. State of U.P. and others and subsequently, in Writ Petition No.3705 (MB) of 2006 filed by the same writ petitioners vide order dated 17.4.2009. He submits that the subsequent interim order still continues where the term eco-friendly has been used whereafter the State Government has been adopting the policy of utilization of eco-friendly paper. This policy which was being continued till 2015, even otherwise apart from the interim order aforesaid, has been given up for no valid reason and without defining as to how the quality of paper now introduced under the new policy dated 17.2.2016 is environment friendly or eco-friendly.
His fourth contention is that the policy of the State even if within its realm of sovereign authority is to be adhered to, it cannot be allowed to continue or allowed to be enforceed in the garb of the right of choice of the State if it is constitutionally invalid and is harmful to environment.
His fifth argument is that any policy or direction of the State Government if in violation of the mandate of Article 48-A or of Article 51-A (g) is sought to be enforced, then the same is constitutionally impermissible and even if it is a Directive Principle of State Policy, he submits relying on certain judgments to urge that the same can be enforced by this Court through an appropriate writ preventing the State from proceeding further. He has also advanced other submissions in order to substantiate the aforesaid principal contentions that shall be dealt with hereinafter while elaborating the discussions on the issues raised.
Refuting the said submissions, the learned Additional Advocate General Mrs. Godiyal contends that there is no material in both the writ petitions to demonstrate that the material of the paper as prescribed in the policy dated 17.2.2016 is in any way not environment friendly. She contends that the policy dated 17.2.2016 has been clearly framed to do away with harmful and injurious paper by specifically excluding the utilization of re-cycled paper that was also one of the quality of papers prescribed in the notification dated 9.11.1992. In order to further ensure that the same does not in any way sneak into as a manufacturing material, the State Government has made it specific, and in the absence of any pleading or proof that Virgin Pulp, Bamboo or Wood-based would not be environment friendly, the claim of the petitioners is absolutely unfounded and the challenge raised is without any basis. The paper as prescribed in the notification dated 17.2.2016 has not been in any way established to be injurious or hazardous to health nor there is any material or proof to establish that it would have any adverse impact on the environment including the general health of the children who are to utilize the said paper. Inviting the attention of the Court to several paragraphs of the counter-affidavit and the supplementary counter affidavit filed on behalf of the State, she urges that the paper so utilized under the policy dated 17.2.2016 does not in any way violate any environment policy or law nor it would have any adverse impact on the utilization of Bamboo or Wood as the base for such virgin pulp. It is urged that the paper which has been introduced is regarded as the best quality paper being durable and also being environment friendly. The paper is an upgraded paper and the petitioners have failed to establish as to how this quality of paper violates any mandate of law.
The issue of violation of Forest Environment and its preservation or consumption of wood from trees is a natural consequence but nowhere on any count the petitioners have been able to satisfy the violation of Article 48-A and Article 51-A (g). The pleadings and the material therefore do not in any way establish any such constitutional violation.
She further submits that the State has a right to choose a particular quality of paper by way of a policy and if certain manufacturers or printers are excluded by adoption of such a policy which is otherwise valid, then no grievance can be raised of violation Article 14 or Article 19 (1) (g) of the Constitution of India, as persons involved in such business are not being prohibited from carrying-on their business or trade but they stand excluded by virtue of the policy of the Government, which is otherwise valid. They have no fundamental right to trade in a particular item compelling the State to receive their products even if it does not conform to the choice of the State. This would therefore not fall within the scope of an alleged constitutional violation. She further submits that by prescribing the raw material which is otherwise justified the State has committed no arbitrariness nor has it discriminated anybody by preventing participation in the tender. She further submits that the final decision of the policy has been made after consideration of all material and any recommendations made in this regard have been kept in mind without violating any provision of law while introducing the policy dated 17.2.2016. The interim orders that have been referred to and have been passed in the writ petitions are neither precedents nor do they consider the impact of the legal provisions involved and therefore are not binding. Even otherwise, the policy dated 17.2.2016 is a new policy introduced with modifications that was not subject matter of those writ petitions and therefore, the interim orders passed therein are not relevant for the purpose of present controversy. She further submits that the term eco-friendly coined in the said interim order may not be compatible with the provisions of law that are involved herein where the necessity is of environment friendly paper.
She has then urged that the insistence on behalf of the petitioners about the possession of an Eco-marked paper which can only be environment friendly is a misconceived argument inasmuch as Eco-marked paper is a separate category of paper with additional requirements as per the notification dated 9.11.1992 which standard has been framed only for licensed manufacturers. She contends that this has been done to ensure that a manufacturer who desires to get the paper manufactured by it labelled as eco-marked, then this option is available to the manufacturer only on fulfillment of the conditions of Eco-mark that is to be utilized as a label for such paper. This according to her does not mean that only Eco-marked paper is environment friendly. The mark or logo so applied for by a manufacturer is therefore confined to such an option that has to be exercised in the process of manufacturing. It is not necessary or a compulsory requirement of eco-friendly or environment friendly paper. For this, she has relied on the answer given by the Bureau of Indian Standards dated 1.4.2016, a copy whereof has been filed as Annexure - SCA7 to the short counter affidavit of the State, to urge that Eco Mark may be a particular type of standard mark, but the same is optional and if a paper is to be possessed of Eco Mark only then it has to comply with the requirements of BIS mark with the additional requirements as prescribed under the notification dated 9.11.1992, and the standards of BIS that have been framed in pursuance thereof. It is therefore submitted that neither is there any violation of law nor is there any violation of a constitutional policy, nor do the petitioners have any right to compel the State to change its choice so as to include their quality of paper as well and in sum and substance, the policy dated 17.2.2016 being environment friendly, there is nothing so as to extend any relief to the petitioners.
Sri Raghvendra Singh learned Senior Counsel for two of the intervenors who are manufacturers has urged that apart from the arguments that have been advanced by the learned Additional Advocate General it is necessary to emphasize that the pleadings in both the writ petitions do not make out any case of arbitrariness and the State having a full right in the matter of choice of award of tender, the same does not deserve to be interfered with in the absence of any adverse material on record. He submits that the burden lay on the petitioners to challenge the policy dated 17.12.2016 and establish that it was in any way offending the fundamental rights guaranteed under the Constitution of India or was in violation of any law. He submits that the choice of the State Government that Virgin pulp Bamboo and Wood based paper would be utilized for manufacture of such paper clearly means that the principal and fundamental content of such paper would be virgin pulp that is wood and bamboo based. This choice of the State Government cannot be substituted by any other choice or even a better choice through a judicial intervention when the petitioners have failed to establish that the choice so exercised is either adverse to environment or is hazardous or injurious to health. In the absence of any such material the challenge raised is absolutely in the nature of the grievance of a rival in trade who having failed to procure a required material is attempting to introduce the material of his choice which cannot be a matter of compulsion for the State. Merely because the petitioners product can also be one of the products to be utilized for the printing of the text books cannot amount to an act of discrimination in a matter of award of contract where the State according to its decision has opted for a particular type of material which in no way is either harmful or not environment friendly. He, therefore, submits that this attempt on behalf of the petitioners is bound to fail and the writ petition deserves to be dismissed.
Sri Anil Tiwari learned Senior Counsel for one of the intervenor printers has urged that the State Government has the right to change its policy and it has, therefore, done away with the policy of utilization of recycled paper altogether. This part of the policy is not even under challenge. He submits that the petitioners contention that eco-marked paper can only be utilized for such printing of text books is based on the presumption that only eco-marked papers are environment-friendly and eco-friendly. He submits that this contention is absolutely misconceived and without any basis. He submits that paper i.e. recycled paper as indicated in the notification dated 9.11.1992 under clause 2 (ii) thereof has already been done away with and which is no longer in dispute but at the same time since there is a catch, which can also be a mischief, in the quality prescribed for paper under clause 2 (i) to the extent of utilization of virgin pulp, the State Government has rightly specified Virgin Pulp Wood and Bamboo based as the basic quality of the paper which will eliminate the possibility of any other virgin pulp including that of recycled paper. He submits that the manner in which the quality of paper under clause 2 (i) to be used has been indicated namely that paper manufactured out of pulp containing not less than 60% by weight of pulp made from material other than bamboo, hardwood, softwood and reed may also allow the utilisation of pulp of recycled paper to the extent of 99%. Thus, what has been done away with by excluding paper under clause 2 (ii) can be in a around about way be introduced by the utilization of paper mentioned under clause 2 (i) for which the petitioners appear to be insisting. It is for this reason that the government has introduced a specific nature of raw material, namely Virgin Pulp Wood and Bamboo based only to exclude the possibility of utilization of any contaminated paper. He submits that the argument of the petitioners that only eco-marked paper would be environment-friendly is misconceived inasmuch as it is not the case of the petitioners that the paper which is made of Virgin Pulp Wood and bamboo based is not environment-friendly. He has also adopted the arguments on behalf of the other respondents to advance his submissions and has cited authorities to substantiate his contentions.
Sri Anupam Mehrotra has also assisted the Court by specifically inviting the provisions of the 1986 Act and the 2016 Act. He submits that the notification dated 9.11.1992 is not a notification under section 14 of the 1986 Act (which is now section 16 of the 2016 Act). He submits that the notification can be read to be a power exercised by the Central Government in the shape of a direction under section 24 of the 1986 Act which is now section 25 of the 2016 Act. He has also invited the attention of the Court to schedule 1 of the Industries Development and Regulation Act, 1951 item no. 24 to substantiate his submissions with regard to the definition of the word 'wood' and 'pulp' with the aid of the explanation appended to section 14 of the 1986 Act. He has also invited the attention of the Court to the definition of the words Indian Standard and Standard Mark contained in Section 2 of the 1986 Act.
Learned counsel for the parties have relied on certain decisions and authorities apart from the aforesaid submissions that shall be dealt with herein after at the appropriate stage. The decisions that have been relied upon by the learned counsel for the petitioners are as follows :
(1) 2015 Vol. 10 SCC page 664 (Castle Papers Ltd. Vs. Commissioner of Central Excise) para 15 and paras 27 to 33.
(2) Maa Binda Express Career vs. North East Frontier Railway (2014) 3 SCC 760 ( Para 8,9 &11) (3) Michigan Rubber (India) Ltd. vs. state of Karnataka & others (2012) 8SCC 216 (Para 23-24) (4) Union of India vs. Dinesh Engineering Corp. (2001) 8 SCC 491 (Para 12, 14)) (5) Union of India & another vs. International Trading Co. & another (2003) 5 SCC 437 (Para 14, 15 & 16) (6) Reliance Energy Ltd. vs. MSRDC Ltd (2007) 8 SCC1 para 36, 38 & 39.
(7) Siemens Public Communicaiton Network (P) Ltd. Vs. Union of India (2008) 16 SCC 215 para 36.
(8) Tata Cellular vs. Union of India (1994) 6 SCC 651 Para 69.
(9) State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8SCC para 48-58.
(10) Mohini Jain (Miss) v. State of Karnataka (1992) 3 SCC 666, para 8 & 9.
(11) State of Jharkhand v. Harihar Yadav (2014) 2 SCC 114.
Learned Additional Advocate General and Sri H.P. Srivastava learned Additional Chief Standing Counsel for the State have cited following decisions :
(1) (1997) 9 SCC 495 (Krishnan Kakkanth vs. Government of Kerala & others.
(2) (2005) 6 SCC 138 (Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd. & another.
(3) (2010) 6SCC 303 Shimnit Utsch India Private Limited & another vs. West Bengal Transport Infrastructure Development Corporation Limited and others.
(4) (2011) 6 SCC 756 APM Terminals B.V. Vs. Union of India & another.
(5) (2015) 13 SCC 233 Rishi Kiran Logistics Private Limited vs. Board of Trustees of Kandla Port Trust and other.
(6) Essar Steel Ltd. Vs. Union of India and others, Civil Appeal No. 4610 of 2009 Decided on 19.4.2016.
(7) (1994) 6 SCC 651- Tata Cellular Vs. Union of India.
(8) (2004) 4 SCC 19 0- Directorate of Education and others vs. Educomp Datamatics Ltd. And others.
(9) (2005) 4 SCC 435- Global Energy Ltd. And another vs. Adani Exports Ltd. And others.
(10) (2007) 14 SCC 517- Jagdish Mandal vs. State of Orissa and others.
(11) (2011) 5 SCC 430- Larsen & Turbo Ltd. And another vs. Union of India and others.
(12) (2012) 8 SCC 216- Michigan Rubber (India) Ltd. Vs. State of Karnataka and others.
(13) (2014) 3 SCC 760- Maa Binda Express Carrier and another vs. North East Frontier Railway and others.
(14) Writ Petition No. 1592 (MB) of 2003- Indian Agro and Recycled Papermills Association (U.P. Chapter) vs. State of U.P. And others decided on 22.5.2003.
(15) C/SCA/3685/2015-Shah Paper Mills Ltd. And others vs. Director, Gujarat State Board of School Text Books and others decided on 9.3.2015.
(16) W.P. (C) No. 2847 of 2014- Ravi Offset Printers & Publishers Private Ltd. Vs. State of Jharkhand and others, decided on 24.6.2014.
Sri Anil Tiwari has relied on the orders passed in the case of T.N. Godavarman Thirumalpad vs. Union of India & others in interim application no. 707 dated 18.2.2002 which is to the following effect:
It is clarified that the order of this Court prohibiting the cutting of trees does not apply to bamboos including cane, which really belongs to the grass family, other than those in the national parks and sanctuaries. In other words, no bamboos including cane in national parks and sanctuaries can be cut but the same may be cut elsewhere. This IA stands disposed of."
The decision in the case of Nagar Nigam Meerut vs. Al Faheem Meat Exports (P) Ltd. and others (2006) 13 Supreme Court Cases 382 para 20 and in the case of Balco Employees' Union (Regd.) vs. Union of India and others (2002) 2 Supreme Court Cases 333.
Apart from this the first revision in the standards for cutting paper and board issued issued by the BIS and the Circular dated 27.12.2012 containing the report of the committee constituted by the Ministry of Environment and Forest, Government of India have also been placed before the Court.
Sri Anupam Mehrotra has relied on the following decisions in support of his contentions:
(1) (2012) 8 SCC 216 ( Para 21, 23, 35) Michigan Rubber India Ltd. V. State of Karnataka.
(2) (2014) 3 SCC 760 (Para 8) Maa Binda Express Carrier vs. N-E Frontier Railway.
(3) Gujarat High Court, Judgment dated 9.3.2015 (DB) Shah Paper Mills v. Director, Gujarat State Board of School Text Books.
(4) (2002) 3 SCC 496 (Para 10, 11) Haryana Financial Corpn. V. Jagdamba Oil Mills.
(5) (2003) 7 SCC 1 ( Para 5.9.2 at p. 14) Secy. Ministry of Chemicals & Fertilizers vs. CIPLA Ltd.
(6) The order dated 18.2.2002 passed by the Hon'ble Supreme Court in I.A. No. 707 in W.P. (C) No. 202/ 1995: T.N. Godavarman V. Union of India & others.
(7) AIR 1963 SC 1909 (Para 6 ) (5JJ.) Shivdeo Singh v. State of Punjab.
Like a legislative intent that is lacking in specific thought, which gap can be filled by a judicial interpretation, a public policy that is lacking in law or is violative of the constitution of the laws, can also be judicially reviewed and scrutinized to the extent permissible through purposive interpretation without travelling beyond the object that is to be achieved under a public policy. The Court would not intervene so as to substitute a better policy but it can certainly set right a policy that violates law.
The controversy before us relates to the use of commodity that since ancient times has been used by mankind for expressing itself in writing. The ancient predecessor of this commodity was papyrus a substance prepared in the form of thin sheets from the stem of an aquatic plant by laying thin strips or slices of it side-by-side with another layer of similar strips crossing them and usually a third layer again parallel to the first. The whole thing being ended in a sheet, pressed together and tied and then used as a material for writing. This was done by the Europeans, Romans and Greeks and later on spread around the world. The present dispute is about the selective use of raw material for the manufacture of paper by the State Government to be utilized for publishing and printing textbooks for infants and students of Class - I to VIII.
Paper is manufactured from natural resources like, grass, wood, and such material like reeds that contribute to the ingredient of a pulp which forms the basis for manufacture of paper. Pulp is a moist mass of soft or softened stuff or a soft wet mass of wood of which paper is made. The mass moist can be produced by moisturizing and trituration or by boiling whereby the material is reduced to a soft uniform mass basically pulverized and pounded into a material known as papyrine matter.
We have, therefore, to see as to whether the quality of the paper as prescribed in the impugned policy dated 17.2.2016 is in derogation to any fixed standards or is otherwise not environmental friendly.
The two writ petitions - one filed by the printers (bidders) and the other by the manufacturers of paper pose an intricate question before us as to whether the policy of the State Government floated vide Government Order dated 17.2.2016 permitting use of printing paper manufactured of Virgin Pulp based on (bamboo and softwood) would not be environment friendly or it would be Eco-mark paper which conforming to the standards of BIS exclusively is an environment friendly paper which ought to be the choice of State Government which under the Constitution of India and the relevant Statutes is bound to promote environmental friendly policy.
We have heard the learned counsel at length and the arguments led before us were partly of technical nature of which we are not the experts. Looking to the issue from the point of law, we can analyze the issue in the light of Bureau of Indian Standards Act, 1986 as has been repealed in the year 2016 by an Act of the Parliament which materially does not alter the position so far as the issue at hand is concerned.
The industries manufacturing consumer goods are classified into two categories, viz., (a) scheduled industries and (b) non-scheduled industries. The paper industry by virtue of Entry 24 in Schedule - I appended to the Industries (Development and Regulation) Act, 1951 is a scheduled industry.
The scheduled industries are to adhere to the norms of BIS and a product unless it conforms to the Indian Standards cannot be sold in the market. Paper manufacturing industry is a scheduled industry and norms for the manufacture of Indian standard printing paper as revised from time to time are laid down in the Fourth Revision [IS 1848:2007].
We gather from the provisions of BIS Act, 1986 read with the provisions of 2016 Act that Indian standard articles of a particular category are further classified into 'Indian Standard' and 'standard mark' as distinctly defined under Section 2 (17) and 2 (40) of Bureau of Indian Standards Act, 2016. Analyzing from this point of view, we find that the paper manufactured in India at the first instance has to conform to the Indian standards, however, the standard mark has necessarily to adhere to the specific requirements. The specific requirements are indicators of standard mark which are distinctly defined for establishing a specific quality permissible under the Act as compared to an article which otherwise is manufactured as per the certification of Bureau of Indian Standards. For example, the Indian Standard Paper has to conform to clause 4.1 to clause 4.7 of the 4th revision issued by the BIS in the year 2007 as mentioned above, whereas the standard mark, i.e. Eco-mark paper is bound to adhere to the specific requirements mentioned in the fourth revision issued in the year 2007.
Now coming to the real question as to whether the use of Eco-mark paper would be environment friendly or a paper adhering to Indian standard made of Virgin Pulp based on (bamboo or softwood) if chosen to be the article for printing purpose would at all defeat the environment friendly policy or not. Virgin Pulp of the prescribed description in the impugned Government Order dated 17.2.2016 as per the stand of the State in the counter affidavit is a better quality paper and user friendly atleast from the standpoint of the health of students studying in the Basic Schools. The petitioners have been unable to successfully refute the same by placing any cogent material to the contrary. The contention of the learned counsel for the petitioner that the Eco-mark paper being environment friendly alone, therefore, the arrangement deserves to be tested in the backdrop of the material placed by the petitioner which rests on the notification dated 9.11.1992 that was preceeded by a resolution of the government dated 20.2.1991.
The resolution dated 20.2.1991 comprehensively discussed certain objectives to be achieved in order to ensure the availability of an environment friendly product for which the proposal was that in order to ensure quality requirements of the Indian Standards a label known as 'Eco-Mark' may be provided as an environment-friendly product. The object was to provide incentives to manufacturers in order to reduce adverse environmental impact of products. It also indicated rewards being given to such companies for incentives and also to assist consumers to become environmentally responsible in their daily lives. It also indicates that the same was done to encourage citizens to purchase products which have less harmful environmental impacts and ultimately to improve a quality of environment and encourage sustainable management of resources. Consequently with regard to award of a eco-mark certain proposals were made that have been detailed in the resolution dated 20.2.1991 filed as Annexure no. 8 to the counter affidavit of the State Government.
It appears that the said resolution was tabled but the notification which was issued on 9.11.1992 notified the criteria for paper as environment-friendly which included two types of papers that would qualify for the eco-mark. This was in addition to the general requirements as per Indian standards which was indicated in clause 1 of the said notification. Thus, the notification was in two parts, first which indicated the general requirements of Indian Standards product whereas the second part provided for specific requirement of eco-mark in the event a product manufacturer proposes to utilize the logo of eco-mark. A third clause was also incorporated giving powers to the Bureau of Indian Standards to further formulate or incorporate optional Indian Standards for environment-friendly characteristics.
The aforesaid notification dated 9.11.1992 is extracted herein under:
"The Gazette of India Extraordinary Part II-Section 3 - Sub-Section (1) [No.455] NEW DELHI, FRIDAY, NOVEMBER 13, 1992/KARTIKA 22, 1914 Separate paging is given in this Part in order that it may be filed as a separate compilation MINISTRY OF ENVIRONMENT AND FORESTS NOTIFICATION New Delhi, the 9th November, 1992 G.S.R. 867 (E) - Whereas a notification in the exercise of the decision recorded in paragraph 5 of the resolution of Government of India in the Ministry of Environment and Forests, vide GSR No.85 (E) dated 21st February 1991, inviting objections from concerned quarters within a period of sixty days from the date of publication of the said notification, against the intention for prescribing criteria for labeling paper as Environment Friendly was published by the Ministry of Environment and Forests in G.S.R. No. 109 (E) dated 20.02.1991.
And whereas all objections received within the said period of sixty days have been examined. Now therefore, after considering the objections received, Central Government notifies the criteria for Paper as environment Friendly products as under:
1. General Requirements : (i) All the papers manufactured shall meet relevant Indian Standards of Bureau of Indian Standards (BIS) pertaining to quality and performance.
Note. -- Bureau of Indian Standards shall formulate-incorporate optional standards for ecological and environment friendly characteristics.
(ii) The product manufacturer must produce the consent clearance as per the provisions of Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981 respectively alongwith the authorisation, if required, under the Environment (Protection) Act, 1986 and Rules made thereunder to, BIS while applying for ECOMARK.
(iii) The product packaging may display in brief the criteria based on which the product has been labeled as environment friendly.
(iv) The material used for product packaging shall be made from recyclable, reusable or biodegradable material and the parameters evolved for the packaging shall also apply.
2. Product Specific Requirement : in order to qualify for the ECOMARK the product specific requirements shall be as under:
(i) The paper and paper boards manufactured out of pulp containing not less than 60 percent by weight of pulp made from materials other than bamboo, hard woods, soft woods and Reed.
(ii) Recycled paper and paper board must be made from 100 percent waste paper.
3. BIS may formulate/incorporate optional standards for environment friendly characteristics."
At the very outset we may notice the argument of Sri Anupam Mehrotra learned counsel for one of the intervenors who had invited our attention to section 14 and section 24 of the 1986 Act to urge that this notification is not binding and that it is only a direction by the Central Government. We are unable to accept the aforesaid argument of Sri Mehrotra inasmuch as the necessity of a gazette notification is provided for under Section 14 of the 1986 Act whereas there is no such requirement for any direction issued by the Central Government to be through a gazette notification under Section 24. Where the section specifically provides for gazette notification then it would be appropriate to presume that the notification in the gazette is an exercise for a notification under section 14 of the Act and is not a mere direction under section 24. Consequently the notification dated 9.11.1992 has a binding effect. It is a different matter that the binding effect of the notification is in three parts as indicated herein above. The possession of a eco-mark, therefore, is binding to the extent a manufacturer wants to produce an eco-mark paper. The manufacturer will, therefore, have to meet the additional requirements of the standards fixed for an eco-mark Type - B paper as per clause 4.8 onwards in the specifications provided by the Bureau of Indian Standards. This does not mean that a paper which does not bear an eco-mark ceases to be an eco-friendly or environment friendly paper even if it meets the general requirements under clause 1 of the notification dated 9.11.1992 and the standards fixed under the specifications by the Bureau of Indian Standards under 4.1 to 4.7. The additional requirement under the standards fixed are exclusively for an eco-mark paper where the papers prescribed under clause 2(i) and 2 (ii) have been described as Type A and Type B papers. We are of the clear opinion that the provision for eco-mark is a requirement that is additional for such quality of paper which is to be marketed with an eco-mark indicative of its standard mark.
The above notification issued by the Ministry of Environment and Forest prima facie, seeks to enforce environmental friendly policy bringing paper industry within its fold so as to achieve the constitutional objects underlying in Articles 48 and 51-A (g) of the Constitution of India. The notification essentially aims at curtailing adverse impacts of environment as such the prescribed standards by the BIS have specifically been provided to be adhered to. Under clause (1) of the aforesaid notification, the note appended thereto clearly specifies that the Bureau of Indian Standards shall formulate-incorporate optional standards for ecological and environment friendly characteristics. The industries producing Eco-mark paper are necessarily to possess the clearance as per the provisions of various enactments as mentioned in sub-clause (ii) of clause (1) of the notification aforesaid. The Eco-mark paper being categorized as a 'standard mark' of Indian Standards was necessarily to conform to the specific requirements which are specifically provided in clause 2 of the notification. Clause 3 of the notification specifically prescribes that BIS shall formulate/incorporate optional standards for environment friendly characteristics.
From a complete reading of the aforesaid notification, it is crystal clear that so far as the paper conforming to the Indian standards is concerned, the necessary prescription for it being eco-friendly or environment friendly has to be specified by the BIS standards. The BIS standards do not prohibit use of Virgin Pulp based on Bamboo or wood rather the use of bamboo, hardwood, softwood and reed is permissible. Likewise, special requirements for Eco-mark paper have also been specified by the BIS. When we understand the prescription of standards for Indian Standard and Eco-mark with reference to paper in the light of aforesaid notification, we are unable to gather any restriction with respect to the manufacture of either of the two types of ingredients under clause 2 of the notification dated 9.11.1992 that can be used for printing purpose.
The stand of the State Government on the basis of vast experience is that re-cycled paper has proved injurious to the health of children and its quality is hazardous to the health of children at large. The State Government looking to the specific requirements appears to have taken a decision so as to rule out the possibility of re-cycled paper by further restricting the use of Type A paper under clause 2(i) as well by providing specifics of raw material vide policy dated 17.2.2016 for the reason that the use of re-cycled paper indirectly would involve more stringent testing measures and consequently, the purpose for which the policy decision is taken shall stand defeated, therefore a decision had to be taken in the general interest of the health of young students. At this juncture it would be apt to note the argument of Mr. Anil Tiwari one of learned Senior Counsel for the intervenor that clause 2(i) in relation to Type A paper is open endedly worded raising the risk of utilization of recycled paper. The description in clause 2(i) or against Type A in the standards fixed which is one and the same, gives a leverage for utilization of any other pulp not less than 60% to the exclusion of Bamboo and Wood. This provision, therefore, can be invoked for introducing any other form of pulp which can be also a pulp of recycled paper or any other unacceptable pulp. It is in this background that the State Government prescribed a particular type of paper pulp in the policy dated 17.2.2016. Therefore, the only paper pulp which was permitted to be used for printing was desired to be made of Virgin Pulp based on Bamboo and wood.
The question that immediately crops up is as to whether the paper made of Virgin Pulp based on Bamboo and Wood does at all defeat the environment friendly policy of the State Government. It is a misnomer that the industry of paper is solely dependent upon forest produce. Noteworthy to say that the bamboo itself is not wood but grass, therefore, the paper industry to our understanding is more based on agriculture, rather than forests. We may also note that under the Social Forestry Schemes, softwood has been grown by the farmers at a large scale and the same serves as a source of raw material to the paper industry. The felling of trees under the Social Forestry Schemes is also permissible because of perennial forestation and deforestation activities. It is difficult for us to ascribe a very rigid construction to the notification dated 9.11.1992 as has been projected and placed reliance upon. Softwood and bamboo has become a source of livelihood of the farmers, its growth and re-growth is a regular feature of agriculture in the country. This is however not to suggest that there can be an open access by paper industry to any kind of hard or softwood available in the forest areas as notified by the State Government. We have entered into the aforesaid discussion with a view to ascertain as to whether apart from the constitutional objects embodied under Article 48 and Article 51-A (g) of the Constitution of India, whether there is any statutory provision that forbids the use of Virgin Pulp based on Bamboo and wood for it being used as printing material, but the learned counsel for the petitioner has not placed before us any other statutory mandate or any notification apart from the notification dated 9.11.1992 which for the purpose of present controversy cannot possibly be read in any other manner except the manner in which the scope of said notification has been set-out here-in-above.
We also gather from the record that the State Government as a matter of policy is not bound to prescribe the use of paper described under clause 2(i), i.e., the so-called Eco-mark as projected by the learned counsel for the petitioner in order to achieve the environment friendly objects. It was on the strength of an interim order dated 10.5.2006 and 17.4.2009 that the term Eco-mark used in the order passed by this Court came to intervene the process of tenders for a considerable period in the past. We may observe that the interim order dated 10.5.2006 has no impact at all as the petition itself was dismissed as infructuous. The order dated 17.4.2009 is not a precedent nor does it have any binding effect as firstly it is not a ratio-finally expressed and secondly it related to a policy of the past. It's persuasive value if any would also be of no consequence in view of what has been concluded by us here-in-above and here-in-after.
Here we would deal with the argument of Mr. Kalia who has pointed out that the policy of 2015 was independent of any such mark of the interim orders referred to herein above and was a voluntary and conscious adoption of a policy to use environment-friendly and eco-friendly paper. Thus, according to him the policy dated 17.2.2016 which itself described it to be a modification of the earlier policy abrogates and repeals the continuing policy of the State Government to use an environment-friendly paper. He has further pointed out that when the deliberations were going on in the department then the Director of Education (Basic) had made a recommendation for utilization of eco-friendly paper. For this he has placed reliance on the letters which have been filed along with the rejoinder affidavit particularly the letter dated 27.1.2015 and 18.12.2015 where eco-friendly A Type paper has been recommended. Not only this he has invited the attention of the Court to the averments contained in para 10 of the rejoinder affidavit where the petitioner has quoted the relevant extract of the High Powered Committee. The said High level Committee has recommended that environment-friendly Virgin Pulp base paper should be utilized of good quality for publication of the text books. The submission is that the words used were Virgin Pulp and not Bamboo or Wood-based Virgin Pulp.
In our opinion, the letter of the Director or of the High Power Committee were recommendatory in nature. Neither the Director nor the High Power Committee has indicated that the Virgin Pulp paper bamboo and wood-based would not be eco-friendly or environment friendly. The recommendations of the High Power Committee therefore do not run counter to the final decision taken by the State Government may be the recommendation is of a different type of paper. However, as indicated above, type - A paper as per Clause 2 (i) runs the risk of introduction of re-cycled paper and therefore, the State Government was well within its wisdom to prescribe the raw material in the impugned policy which otherwise could not be established by the petitioners to be non-eco-friendly. The authority of the State Government is otherwise not shadowed or taken away under any statutory provision for prescribing the Indian Standard paper made of Virgin Pulp as has been done in the impugned Government Order dated 17.2.2016 with a defined object.
The argument advanced by Sri S. K. Kalia, learned Senior Counsel for the petitioners on the strength of special requirements prescribed for paper Type A under Clause 2 (i) to the effect that bamboo, hardwood, softwood and reed cannot be exclusively used in making pulp for the manufacture of printing paper as per the BIS fourth revision (IS 1848:2007), as the same would not be environment friendly, the argument is attractive but for want of any plausible explanation or justification to rule out the use of re-cycled paper in type - A article. The argument fails and we are unable to accept the same.
Sri Kalia contends that without prescribing the percentage of the base of Virgin Wood and Pulp to be utilized for the manufacturing of such paper there is vagueness and uncertainty and which runs counter to the standards fixed under the notification dated 9.11.1992 and the Bureau of Indian Standards.
The aforesaid argument of Sri Kalia therefore deserves notice to the extent that the State Government cannot utilize such paper which cannot be environment friendly or may be hazardous or injurious to the health of students. The reason is that maintenance of environment stability and also the quality and life cycle of a paper to be utilized as a reading material for the infants coupled with durability is to be the objective and the purpose that has to be kept in mind while taking decision to prescribe the quality of paper. Not only this the same has to be ensured that the paper which is to be supplied is not contrary to the aforesaid objects. We as a Court of law in order to provide a purposive interpretation have to go behind the object and purpose for which the policy has been made. The policy is clearly to the affect that the re-cycled paper being injurious is being done away with and consequently, the paper which is sought to be introduced should in no way bring about the same result. Thus, we direct the State Government to ensure that whatever quality has been prescribed by it is neither injurious or hazardous to the health of the class of infants for whom the textbooks are to be published nor the same in any way is not environment friendly.
The petitioners had a heavy burden on them to prove that the paper prescribed in the policy dated 17.2.2016 is not eco-friendly and Sri Raghvendra Singh, learned Senior Counsel for the petitioner is right in his submission that the petitioners have failed to discharge this burden. The State Government while issuing the Government Order spelling out the policy of procurement cannot give any leverage to the printers and publishers for procurement of any such paper which may endanger either the environment or life and equally the health of its ultimate consumers.
There is one more aspect which we may like to emphasize is that while doing so the State Government had not sought any information from the Bureau of Indian Standards about paper made of wood based and bamboo-based Virgin Pulp to be environment friendly. The letter that was sent by the Bureau of Indian Standards on 1.4.2016, i.e. Annexure - SCA7 to the short counter affidavit does not state that as to whether the said paper would be environment friendly or not. The reply given is that the Indian Standards fixed under the notification dated 9.11.1992 does not prescribe any requirement of raw material for various types of papers except when the paper is to be eco-marked. In the instant case, the stand of the State Government is that there is no compulsion to purchase or procure Eco-mark paper only. If that is the stand of the State without disputing that they are required to have environment friendly paper, then in that event, the State Government will also have to ensure that the paper with raw material prescribed by it is environment friendly. The State Government would therefore have to take a decision on that score while making procurements but we are not entering to the matter any further as the petitioners have not brought any material before us that may lead to the conclusion that the paper to be utilized even if not eco-marked would not be environment friendly. We may reiterate that this does not however absolve the government of its responsibility to ensure the same.
The contention of Sri Kalia, learned Senior Counsel is also that by excluding other papers, the petitioners in particular, have been deprived of a level playing field and has also relied on the judgments that have been indicated above. The aforesaid contention cannot be accepted as the choice of the State Government for a particular type of raw material to be utilized for the manufacturing of paper unless shown to be violative of any provisions of law cannot be said to be an arbitrary exercise of power. In matters of contract, the Hon'ble Supreme Court time and again has indicated that any transactions relating to award of contracts a play in the joints has to be extended in favour of the State. The deprivation as complained of, therefore, is not a prohibition against the petitioners from trading. They can continue to involve themselves in the business of printing and publishing or even manufacturing paper as the case may be but the impugned policy dated 17.2.2016 would not per se become arbitrary or violative of Articles 14 and 19 (1) (g) of the Constitution in the background aforesaid where the petitioners, not conforming to the standards prescribed by the State, cannot claim their compulsory inclusion against the choice of the State which is neither arbitrary nor does it bring about any discrimination. The State could have other options or better choices but that is not for the Court to suggest.
Sri Kalia contends that there are options and which options have not been prescribed. He, therefore, submits that eco-mark is compulsory. As indicated above, the possession of eco-mark being not necessary for being environment friendly, the absence of any option having been provided, would not improve the case of the petitioners. If the authority fixing the standards has not prescribed any option, then the same cannot be construed to mean that if even otherwise, the paper is environment friendly, it would not be treated as such for want of an option. The change in raw material, therefore, cannot be said to be an arbitrary exercise of power by the State.
For all the reasons aforesaid we are, therefore, not inclined to strike down the policy dated 17.02.2016 but we may observe that the State Government shall take notice of the observations made here-in-above to ensure the environment friendly utilization of paper which is not hazardous or injurious to health of the ultimate consumers of the text books for whose benefit, the paper is being procured.
The writ petitions are accordingly dismissed with the aforesaid observations and the interim orders stand discharged.
Order Date :- 31.5.2016 lakshman/Om [Attau Rahman Masoodi, J.] [Amreshwar Pratap Sahi, J.]