Bombay High Court
Satia Industries Ltd And Anr vs The State Of Maharashtra And Anr on 15 June, 2021
Bench: S.C. Gupte, Makarand Subhash Karnik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.995 OF 2021
Satia Industries Ltd. And Anr. .. Petitioner
v/s.
The State of Maharashtra & Anr. .. Respondents
WITH
WRIT PETITION (L) NO.7598 OF 2021
Shreyans Industries Ltd. And Anr. .. Petitioners
v/s.
The State of Maharashtra & Anr. .. Respondents
WITH
WRIT PETITION (L) NO.7709 OF 2021
Delta Paper Mills Ltd. And Anr. .. Petitioners
v/s.
The State of Maharashtra & Anr. .. Respondents
WITH
WRIT PETITION (L) NO.12507 OF 2021
Shree Rama Newsprint Ltd. .. Petitioner
v/s.
The State of Maharashtra & Ors. .. Respondents
....
Dr. Milind Sathe, Senior Advocate, a/w. Mr. Subhash Jadhav, Mr. Rupesh
Geete, Ms. Raksha Thakkar and Ms. Sailee Dhayalkar, i/b. Parinum Law
Associates, for the Petitioner in WP/995/2021.
Dr. Birendra Saraf, Senior Advocate, a/w. Mr. Subhash Jadhav, Mr. Rupesh
Geete and Ms. Sayali Dhayalkar, i/b. Parinam Law Associates, for the
Petitioners in WPL/7598/2021.
Dr. Abhinav Chandrachud, a/w. Mr. Subhash Jadhav and Mr. Rupesh
Geete, i/b. Parinam Law Associates, for the Petitioners in
WPL/7709/2021.
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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 5
in 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 in
WPL/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 in
WPL/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/995/2021
and 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.995 of 2021, Writ Petition (L) Nos.7598 and 7709 of
2021) challenges tender conditions forming part of invitations to tender.
2. The tenders (two in number) are for supply of 70 GSM
(White Shade) writing and printing paper (With Mill's and Bureau's Water
Mark). They have been issued by Respondent No.2 - Maharashtra State
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Bureau of Textbooks & Production and Curriculum Research ("Balbharti").
The invitations to tender contain various conditions inter alia concerning
technical qualifications for bidding and instructions to bidders.
3. The condition, with which we are mainly concerned in the
present petition, is contained in clause (3)(a) of 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) (a) Manufacturers of paper, i.e. Paper Mills who are
having a water mark facility and those who are willing to
supply paper with mill's and Bureau's water mark and
manufacturing 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 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.
5. When the matter appeared before this Court on 23 March
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2021, 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
corrigendum issued by the State, which is part of the additional affidavit
filed on behalf of Respondent No.2, inter alia allows manufacturers of
paper, i.e. paper mills, who are having a water mark facility and who are
willing to supply paper with Mill's and Bureau's water mark and
manufacturing paper made from 100% virgin pulp and/or paper made
from virgin pulp (except paper made from pulp of wood/tree) to submit
tenders. In other words, by this corrigendum, the first grievance of the
Petitioners 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.
The fact that this corrigendum was made by the Respondent State in
pursuance of a statement made without prejudice to its rights and
contentions before this Court implies that the State does not accept the
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original contention of the Petitioners that it was not permissible for the
State to exclude manufacturers of paper made from virgin pulp
altogether; it does not imply that participation of manufacturers of paper
made from virgin pulp is in any way restricted or subject to the orders of
this Court.
6. That leaves the only other grievance in the petition, namely,
that contrary to the earlier view of Respondent No.2 and practice followed
by them thus far, manufacturers of paper made from 100% recycled pulp
have been improperly included in the tendering process. The Petitioners
rely on a report made by Central Pulp and Paper Research Institute,
Saharanpur inter alia indicating that paper made out of recycled pulp is
toxic and carcinogenic, and is harmful for use by students. Learned
Counsel for the Petitioners submit that this research institute is an
autonomous body under administrative control of Department for
Promotion of Industry and Internal Trade, that is to say, a department of
the Union Government. Relying on this report, it is submitted that
depending on the deinking efficiency (generally ranging between 60-90%,
depending on the process of technological use), certain residual ink
containing toxic heavy metals and carcinogenic ingredients remains in the
paper, when the pulp is made from recycled paper. It is submitted that
during the paper making process, dispensers are used to disperse ink
particles and converting them into very small loosely bound particles so
that they are not visible to naked eye, but these may cause health hazards
to the users as these are closely bound in the paper matrix. It is submitted
that ink particle sludge generated during the deinking operations is bio-
refractory in nature and toxic waste. On the other hand, it is submitted
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that paper containing 10-40% ink particles is considered non-toxic. It is
submitted that as against this report underlining the harmful nature of
recycled paper, the State Government has not produced any material or
scientific literature to repel the findings of the Central Pulp and Paper
Research Institute. It is also submitted that in response to an earlier PIL
before a Division Bench of this Court at Nagpur, the Respondents had
justified the use of paper from virgin pulp (in that case it was use of paper
from virgin pulp only), and promoting of virgin pulp paper over recycled
pulp paper. Learned Counsel also rely on the decision of the Nagpur
Bench dismissing that PIL and desisting from interfering with the tender
condition of use of paper made of virgin pulp only.
7. Calling for e-tenders being an administrative matter, it may
well be necessary for the Respondent State to form its policy vis-a-vis use
of paper for manufacture of textbooks, but as long as the decision of the
State is not demonstrably unreasonable or capricious or guided by
improper or oblique motives, this Court, sitting in its writ jurisdiction
under Article 226 of the Constitution of India, has no cause to interfere
with it. In the present case, the State has relied on a directive issued by
the Ministry of Environment, Forest and Climate Change of Government
of India (communication dated 29 August 2018) for promoting
procurement of recycled paper. The directive has been issued with a view
to promote procurement of recycled paper and avoid improper restrictive
measures like insisting only on paper made out of virgin pulp in the
interest of environment and for preservation of forests. The directive
indicates that the matter was examined in the Ministry and, after
examination, the Ministry was of the view that recycled paper pulp helps
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preserve forest by avoiding cutting of trees, besides such paper having less
pollution potential compared to paper made from virgin pulp. In
pursuance 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 recycled
pulp as well as virgin pulp, made of wood based or agro based material,
for printing of educational textbooks and for other purposes, In keeping
with this directive, even the University Grant Commission, by its
communication dated 19 February 2019, issued to Vice Chancellors of all
universities, has requested them to promote procurement of recycled
paper and avoid incorporating restrictive conditions, such as exclusive use
of paper made of virgin pulp in tenders for procurement of writing and
printing paper. It is obvious from this material that Union Ministry of
Environment Forest and Climate Change has been of a considered view
that it was important to promote use of paper made of recycled pulp
equally with paper made of virgin pulp, even agro based virgin pulp. The
practice followed by other departments such as Human Resources as also
the Respondent State before us, was of earlier years, that is to say, before
this directive was issued by the Ministry of Environment, Forest and
Climate Change and the University Grants Commission. The earlier
affidavit referred to by the Petitioners in the PIL (referred to above) was
of such anterior date. There has since been a change of view in the
Ministry, which has now proposed, as a matter of policy, promotion of use
of paper made of recycled pulp with a view to address environmental
concerns, such as climate change, air pollution, resources depletion,
waste disposal, etc. caused by activities relating to mass production and
mass disposal. If that is so, that is, if the policy of promotion of recycled
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paper pulp has been deliberately propounded by the Ministry after
consideration of the matter, and the concerns behind such policy being
important and legitimate concerns with a view to address environmental
issues referred to above, it cannot possibly be suggested that the
procurement notice issued by the Respondent State is either capricious or
whimsical or unreasonable. There is no case of any improper or ulterior
motive 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 Article
226.
8. The view expressed by the Central Pulp and Research
Institute, Saharanpur is but a point of view. It is the view of one
particular body under the agies of the Union Government. Even this point
of view makes it clear that its conclusion of carcinogenic or toxic nature
of paper made out of recycled pulp is not based on any concrete scientific
literature 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 statement
in its report is merely meant to be a general caution for the use of
recycled paper for textbooks for children, as children tend to ingest paper
or lick on it while turning pages. So also, it is obvious that the institute
has not come across any specific studies on health hazards from recycled
paper. The institute has made it clear that no such studies are known to
it, in case such studies have been conducted in any part of the world. It
does not emerge from the report of the institute relied upon by the
Petitioners that use of paper made from 100% recycled pulp is so
obnoxious or harmful that it does not admit of use by children in any
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event. If that is so, we are not expected to apply our mind to decide
whether, and to what extent, if at all, use of recycled paper pulp may be
harmful or ill-advised or to what extent use of alternative paper, i.e. paper
made of virgin pulp, is either advisable or beneficial.
9. We, accordingly, find no merit in the challenge to the
particular tender condition of allowing manufacturers of paper made of
100% recycled pulp to participate in the tender process.
10. There is, accordingly, no merit in the petitions. The petitions
are dismissed. In the facts of the case, however, there shall be no order as
to costs.
11. The companion petition (Writ Petition No.12507 of 2021) is a
cross-petition filed by manufacturers of paper made of 100% recycled
pulp. Their grievance is that paper manufactured out of agro based virgin
pulp cannot be distinguished from paper made out of wood based pulp.
Considering that presently we are at the stage of tender conditions and
not consideration of any particular tender, learned Counsel for the
Petitioners seeks leave to withdraw the petition with liberty to take up a
challenge in this behalf as and when advised later. The petition is
dismissed as withdrawn with liberty as prayed. We make it clear that we
have not applied our mind to this aspect of the matter and all rights and
contentions of the parties in that behalf are kept open.
(M.S. KARNIK, J.) (S.C. GUPTE, J.)
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