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2017 Supreme(Ori) 49
IN THE HIGH COURT OF ORISSA : CUTTACK
VINEET SARAN and A.K. RATH AND B.R. SARANGI, JJ.
M/s. Mohapatra Binders and others - Petitioners
Versus
State of Odisha and others (in both) - Opp. Parties
W.P.(C). No. 11817 of 2016 AND W.P.(C). No. 12427 of 2016
Decided On : 13-01-2017
For the Petitioners: Mr. R.K. Mohanty, M/s. D. Mohanty, S. Mohanty, D. Baradwaj and A. Mohanty, Mr. R.K. Rath, M/s. Digambara Mishra, S.K. Satapathy
For the Opp. Parties : Mr. S.P. Mishra, Mr. Sisir Kr. Das, Mr. A.K. Pandey
Headnote:1. CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - 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 priting, under the provisions of Industrial Policy Resolutions issued by the State Government, as well as the Micro, Small and Medium Enterprises Development Act, 2006 and the Orissa MSMED Policy of 2009; or can such work be awarded by way of inviting national tender ? - 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Government from time to time, and such benefit, which was provied to them for nearly two decades has now wrongly been withdrawn - Benefit which may have been given to certain class of persons, without they being covered under any Policy of the Government for grant of such benefit, can be withdrawn with the change of time and circumstances - In the present case, the benefit or protection was not given to the petitioners on the basis of any policy of the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 - 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 - 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 - In the interest of economy of the State, nationalised tender should be issued - Such decisions are essentially commercial decisions and principles of equity and natural justice would stay at a distance in such case - Petitioners would not be entitled to the protection of the IPRs, as well as MSMED Act, 2006 and the OMSMED Policy.
2. INTERIM ORDER - An interim order cannot be said to be a precedent - Interim directions issued on the basis of prima facie findings, are contemporary arrangements to preserve the status quo, to ensure that the matter does not become either infructuous or a fait accompli before final hearing.
3. TENDER - Scope of the Court, for interference in a tender process in exercise of power under judicial review is a limited one.
JUDGMENT :
VINEET SARAN, 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 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. 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 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 p
