No cause for writ petition if there is no colourable exercise of power: Bombay High Court

 on 29 06 2021 on 22 03 sg1 92. wp995 21.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO.995 OF 2021 Satia Industries Ltd. And Anr...Petitionerv s.The State of Maharashtra & Anr...RespondentsWITHWRIT PETITIONNO.7598 OF 2021 Shreyans Industries Ltd. And Anr...Petitionersv s.The State of Maharashtra & Anr...RespondentsWITHWRIT PETITIONNO.7709 OF 2021 Delta Paper Mills Ltd. And Anr...Petitionersv s.The State of Maharashtra & Anr...RespondentsWITHWRIT PETITIONNO.12507 OF 2021 Shree Rama Newsprint Ltd...Petitionerv s.The State of Maharashtra & Ors...Respondents….Dr. Milind Sathe Senior Advocate a w. Mr. Subhash Jadhav Mr. RupeshGeete Ms. Raksha Thakkar and Ms. Sailee Dhayalkar i b. Parinum LawAssociates for the Petitioner in WP 995 2021.Dr. Birendra Saraf Senior Advocate a w. Mr. Subhash Jadhav Mr. RupeshGeete and Ms. Sayali Dhayalkar i b. Parinam Law Associates for thePetitioners in WPL 7598 2021.Dr. Abhinav Chandrachud a w. Mr. Subhash Jadhav and Mr. RupeshGeete i b. Parinam Law Associates for the Petitioners inWPL 7709 2021. on 29 06 2021 on 22 03 sg2 92. wp995 21.doc Mr. Subhash Jadhav a w. Mr. Rupesh Geete Ms. Raksha Thakkar and Ms.Sailee Dhayalkar i b. Parinum Law Associates for Respondent Nos. 3 to 5in WPL 12507 2021.Mr. Kedar Dighe AGP for Respondent No.1 in WP 995 2021.Mr. Abhay Patki Additional Government Pleader for Respondent No.1 in WPL 7709 2021.Mr. Milind More Additional Government Pleader for Respondent No.1 inWPL 7598 2021.Mr. A.A. Kumbhakoni Advocate General a w. Mr. Jagdish G. Aradwad(Reddy) for Respondent No.2 in all petitions.Mr. R.V. Govilkar a w. Mr. Ajinkya Badar for Respondent No.3 inWPL 7598 2021.Mr. Chetan Kapadia a w. Mr. Yash Momaya Mr. Munaf Virjee and Mr.Akash Agarwal i b. ABH Law LLP for Respondent No.3 in WP 995 2021and for Petitioner in WPL 12507 2021. ….CORAM: S.C. GUPTE & M.S. KARNIK JJ. DATE : 15 JUNE 2021.(Oral Judgment) Per S.C. Gupte J.:.Heard learned Counsel for the Petitioners and learned Addl.Government Pleaders for the Respondent State. This group of petitions(Writ Petition No.9921 Writ PetitionNos.7598 and 7709 of2021) challenges tender conditions forming part of invitations to tender.2.The tendersare for supply of 70 GSM(White Shade) writing and printing paperof para 2.2.1 titled as“Important Instructions to bidders”. The clause is in the following terms:2.2.1 Important instructions to bidders(3)Manufacturers of paper i.e. Paper Mills who arehaving a water mark facility and those who are willing tosupply paper with mill’s and Bureau’s water mark andmanufacturing writing and printing paper from 100%recycled pulp only are eligible to submit the tender.”4.It is the case of the Petitioners who are manufacturers ofpaper from virgin pulp which is made of agricultural wastethat this particular condition which requires paper to be suppliedfrom 100% recycled pulp only and not virgin pulp improperly excludesthe Petitioners and similar manufacturers who use virgin pulp formanufacturing paper. The challenge is also on the footing thatmanufacturers of writing and printing paper from 100% recycled pulphave improperly been included as potential bidders in response to thenotice inviting tenders.5.When the matter appeared before this Court on 23 March on 29 06 2021 on 22 03 sg4 92. wp995 21.doc 2021 a statement was made by learned Advocate General appearing forthe Respondent State that subject to further orders that may be passed inthe three petitions at hand the Respondents would amend the impugnedtender conditions of both e tenders so as to include not only thosetenderers who are presently eligible but also manufacturers of paperfrom agro based virgin pulp i.e. pulp made up of basic agricultural wastelike wheat straw rice straw sarkanda grass baggasse etc. Thisstatement was said to be without prejudice to the rights and contentionsof the parties and in view of the urgency involved in the matter. Inkeeping with this statement a corrigendum has been issued by theRespondents amending the relevant terms of both e tenders. Thecorrigendum issued by the State which is part of the additional affidavitfiled on behalf of Respondent No.2 inter alia allows manufacturers ofpaper i.e. paper mills who are having a water mark facility and who arewilling to supply paper with Mill’s and Bureau’s water mark andmanufacturing paper made from 100% virgin pulp and or paper madefrom virgin pulpto submittenders. In other words by this corrigendum the first grievance of thePetitioners that they who are manufacturers of paper from virgin pulp(agro based and not wood tree based) have been improperly excludedfrom participating in the tender process has been fully redressed by theRespondent State. As a result of this corrigendum the Petitioners whomanufacture paper made from virgin pulpare eligible to participate and be selected for supply of paper.The fact that this corrigendum was made by the Respondent State inpursuance of a statement made without prejudice to its rights andcontentions before this Court implies that the State does not accept the on 29 06 2021 on 22 03 sg5 92. wp995 21.doc original contention of the Petitioners that it was not permissible for theState to exclude manufacturers of paper made from virgin pulpaltogether it does not imply that participation of manufacturers of papermade from virgin pulp is in any way restricted or subject to the orders ofthis Court. 6.That leaves the only other grievance in the petition namely that contrary to the earlier view of Respondent No.2 and practice followedby them thus far manufacturers of paper made from 100% recycled pulphave been improperly included in the tendering process. The Petitionersrely on a report made by Central Pulp and Paper Research Institute Saharanpur inter alia indicating that paper made out of recycled pulp istoxic and carcinogenic and is harmful for use by students. LearnedCounsel for the Petitioners submit that this research institute is anautonomous body under administrative control of Department forPromotion of Industry and Internal Trade that is to say a department ofthe Union Government. Relying on this report it is submitted thatdepending on the deinking efficiencycertain residual inkcontaining toxic heavy metals and carcinogenic ingredients remains in thepaper when the pulp is made from recycled paper. It is submitted thatduring the paper making process dispensers are used to disperse inkparticles and converting them into very small loosely bound particles sothat they are not visible to naked eye but these may cause health hazardsto the users as these are closely bound in the paper matrix. It is submittedthat ink particle sludge generated during the deinking operations is bio refractory in nature and toxic waste. On the other hand it is submitted on 29 06 2021 on 22 03 sg6 92. wp995 21.doc that paper containing 10 40% ink particles is considered non toxic. It issubmitted that as against this report underlining the harmful nature ofrecycled paper the State Government has not produced any material orscientific literature to repel the findings of the Central Pulp and PaperResearch Institute. It is also submitted that in response to an earlier PILbefore a Division Bench of this Court at Nagpur the Respondents hadjustified the use of paper from virgin pulpand promoting of virgin pulp paper over recycledpulp paper. Learned Counsel also rely on the decision of the NagpurBench dismissing that PIL and desisting from interfering with the tendercondition of use of paper made of virgin pulp only. 7.Calling for e tenders being an administrative matter it maywell be necessary for the Respondent State to form its policy vis a vis useof paper for manufacture of textbooks but as long as the decision of theState is not demonstrably unreasonable or capricious or guided byimproper or oblique motives this Court sitting in its writ jurisdictionunder Article 226 of the Constitution of India has no cause to interferewith it. In the present case the State has relied on a directive issued bythe Ministry of Environment Forest and Climate Change of Governmentof Indiafor promotingprocurement of recycled paper. The directive has been issued with a viewto promote procurement of recycled paper and avoid improper restrictivemeasures like insisting only on paper made out of virgin pulp in theinterest of environment and for preservation of forests. The directiveindicates that the matter was examined in the Ministry and afterexamination the Ministry was of the view that recycled paper pulp helps on 29 06 2021 on 22 03 sg7 92. wp995 21.doc preserve forest by avoiding cutting of trees besides such paper having lesspollution potential compared to paper made from virgin pulp. Inpursuance of this conclusion the Ministry has advised other departments Ministries such as Ministry of Human Resource Development and State UT Governments to consider purchasing paper made from both recycledpulp as well as virgin pulp made of wood based or agro based material for printing of educational textbooks and for other purposes In keepingwith this directive even the University Grant Commission by itscommunication dated 19 February 2019 issued to Vice Chancellors of alluniversities has requested them to promote procurement of recycledpaper and avoid incorporating restrictive conditions such as exclusive useof paper made of virgin pulp in tenders for procurement of writing andprinting paper. It is obvious from this material that Union Ministry ofEnvironment Forest and Climate Change has been of a considered viewthat it was important to promote use of paper made of recycled pulpequally with paper made of virgin pulp even agro based virgin pulp. Thepractice followed by other departments such as Human Resources as alsothe Respondent State before us was of earlier years that is to say beforethis directive was issued by the Ministry of Environment Forest andClimate Change and the University Grants Commission. The earlieraffidavit referred to by the Petitioners in the PILwasof such anterior date. There has since been a change of view in theMinistry which has now proposed as a matter of policy promotion of useof paper made of recycled pulp with a view to address environmentalconcerns such as climate change air pollution resources depletion waste disposal etc. caused by activities relating to mass production andmass disposal. If that is so that is if the policy of promotion of recycled on 29 06 2021 on 22 03 sg8 92. wp995 21.doc paper pulp has been deliberately propounded by the Ministry afterconsideration of the matter and the concerns behind such policy beingimportant and legitimate concerns with a view to address environmentalissues referred to above it cannot possibly be suggested that theprocurement notice issued by the Respondent State is either capricious orwhimsical or unreasonable. There is no case of any improper or ulteriormotive or colourable exercise of power in the present case. If that is so there is no cause for the writ court to exercise its jurisdiction under Article226.8.The view expressed by the Central Pulp and ResearchInstitute Saharanpur is but a point of view. It is the view of oneparticular body under the agies of the Union Government. Even this pointof view makes it clear that its conclusion of carcinogenic or toxic natureof paper made out of recycled pulp is not based on any concrete scientificliterature or material. As the report itself indicates as regards cancer breathing problems or any other illnesses specifically due to waste pulp the institute has not come across any study in this regard. The statementin its report is merely meant to be a general caution for the use ofrecycled paper for textbooks for children as children tend to ingest paperor lick on it while turning pages. So also it is obvious that the institutehas not come across any specific studies on health hazards from recycledpaper. The institute has made it clear that no such studies are known toit in case such studies have been conducted in any part of the world. Itdoes not emerge from the report of the institute relied upon by thePetitioners that use of paper made from 100% recycled pulp is soobnoxious or harmful that it does not admit of use by children in any on 29 06 2021 on 22 03 sg9 92. wp995 21.doc event. If that is so we are not expected to apply our mind to decidewhether and to what extent if at all use of recycled paper pulp may beharmful or ill advised or to what extent use of alternative paper i.e. papermade of virgin pulp is either advisable or beneficial. 9.We accordingly find no merit in the challenge to theparticular tender condition of allowing manufacturers of paper made of100% recycled pulp to participate in the tender process.10.There is accordingly no merit in the petitions. The petitionsare dismissed. In the facts of the case however there shall be no order asto costs.11.The companion petitionis across petition filed by manufacturers of paper made of 100% recycledpulp. Their grievance is that paper manufactured out of agro based virginpulp cannot be distinguished from paper made out of wood based pulp.Considering that presently we are at the stage of tender conditions andnot consideration of any particular tender learned Counsel for thePetitioners seeks leave to withdraw the petition with liberty to take up achallenge in this behalf as and when advised later. The petition isdismissed as withdrawn with liberty as prayed. We make it clear that wehave not applied our mind to this aspect of the matter and all rights andcontentions of the parties in that behalf are kept open.(M.S. KARNIK J.)(S.C. GUPTE J.) 

Summary: In case there is no improper or ulterior motive or colourable exercise of power, there is no cause for the writ court to exercise its jurisdiction under Article 226, held, a division bench of S.C. GUPTE &amp; M.S. KARNIK, JJ., while adjudicating the matter in Satia Industries Ltd. And Anr v. The State of Maharashtra &amp; Anr. [WRIT PETITION NO.995 OF 2021].  It is the case of the Petitioners, who are manufacturers of paper from virgin pulp, which is made of agricultural waste (and not of wood), that this particular condition, which requires paper to be supplied from 100% recycled pulp only and not virgin pulp, improperly excludes the Petitioners and similar manufacturers, who use virgin pulp for manufacturing paper. The challenge is also on the footing that manufacturers of writing and printing paper from 100% recycled pulp have improperly been included as potential bidders in response to the notice inviting tenders. a statement was made by learned Advocate General appearing for the Respondent State that subject to further orders that may be passed in the three petitions at hand, the Respondents would amend the impugned tender conditions of both e-tenders so as to include not only those tenderers, who are presently eligible, but also manufacturers of paper from agro based virgin pulp, i.e. pulp made up of basic agricultural waste like wheat straw, rice straw, sarkanda grass, baggasse, etc. This statement was said to be without prejudice to the rights and contentions of the parties and in view of the urgency involved in the matter. In keeping with this statement, a corrigendum has been issued by the Respondents amending the relevant terms of both e-tenders. The grievance of the Petitioners is that they, who are manufacturers of paper from virgin pulp (agro based and not wood/tree based), have been improperly excluded from participating in the tender process, has been fully redressed by the Respondent State. As a result of this corrigendum, the Petitioners, who manufacture paper made from virgin pulp (not being pulp made from wood/tree) are eligible to participate and be selected for supply of paper.