JUDGMENT :

G.S. PATEL, J.

1. The 1st Petitioner is a cooperative society of handloom weavers. It produces various types of handloom products such as sarees, dhotis, towels, napkins, bedsheets, bed covers, mattress covers, dress materials, chadars and various bedding materials. The 2nd Petitioner works with the 1st Petitioner.

2. The 1st Respondent is the principal contestant. It is the State of Maharashtra through the Department of Industries, Energy and Labour. The 7th Respondent is the Federation society, the Maharashtra State Handloom Cooperative Federation Limited, through its Managing Director. The intervenor is the successful bidder at the e-tender in question. The other Respondents are the State Government’s tribal department and industries department.

3. In this Petition, the Petitioner assails an e-tender notice dated 9th June 2021 issued by the 2nd Respondent, the Commissioner of Tribal Department, Nashik. The challenge is limited to five of the eight items of the procurement tender, viz. (i) carpet (satranji) (ii) bed sheet (iii) chadar (iv) woollen blanket and (v) pillow cover. The first prayer asks that the e-tender notice be quashed. The second prayer is for a direction to the Respondents concerned to accept and purchase these articles from the 7th Respondent federation and a further direction to the 7th Respondent to purchase the articles required for supply from the Petitioner. These are the two principal prayers in the Writ Petition.

4. Very broadly stated, the case of the Petitioners is that they have been unlawfully, illegally, arbitrarily and unfairly excluded from the e-tender. The submission is that the procurement sought by the e-tender is of items that are exclusively reserved for handloom producers such as the Petitioner. There is statutory bar against the procurement of such items reserved for handloom production from persons other than those handloom manufacturers.

5. We have heard Dr. Saraf, learned Senior Advocate for the Petitioners and Mr. Kamdar, learned Senior Advocate for the contesting Respondents, at some length. With their assistance we have considered the relevant documents on record.

6. That there is a reservation for handloom production is not contentious. The Handlooms (Reservation of Articles for Production) Act of 1985, states that it is Act specifically to reserve certain articles for the exclusive production by handloom and for matters connected therewith. In Section 2(b) of this Act, a handloom is defined as any loom other than a power loom. A power loom is correspondingly defined in Section 2(d) as a loom which is worked by power as defined in Clause 2(g) of the Factories Act 1948. Section 3(1) of the Handloom Reservation Act is an enabling provision. It permits that some items can be reserved for handloom production. It opens with a non-obstante clause regarding the Industries (Development and Regulation) Act 1951. If, after considering recommendations by an advisory committee (under the Handlooms Reservation Act), and if it feels it necessary for the protection and development of the handloom industry, the Central Government may periodically make orders reserving any article or class of articles exclusively for handloom production. These orders must be published in the Official Gazette. Section 5 makes it explicit that where there is a Section 3 order, the articles or class of articles covered by that order cannot, from the date of reservation, be produced other than by handlooms. This schema completely ring-fences such notified reserved articles or class of articles for handloom production. In other words, production exclusivity is assured to the handloom industry for Section 3 notified articles or classes of articles.

7. There is an order of 3rd September 2008 issued by the Ministry of Textile Department and duly gazetted under SO2160(E) which provides for precisely such a reserva