# M/S Fibremarx Papers Pvt Ltd. & Anr v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 976
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-31
- **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-fibremarx-papers-pvt-ltd-anr-v-state-of-u-p-ors-44023
- **Pages:** 24

## Headnote

Constitutional law-Writ petitions - Supply of textbooks - Basic Schools (Class I to VIII) - Government
policy - Quality of paper - Virgin Pulp - Bamboo and Wood based - Eco-friendly - ECOMARK -
Notification dated 9.11.1992 - Bureau of Indian Standards -Government Order dated 17.2.2016 - Tender
notice dated 17.4.2016 - Policy decision - Articles 14, 19 (1)(g), 48-A, 51-A (g) - No arbitrariness - No
statutory violation - Judicial review - Writ petitions dismissed.

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.(Para 1-2)

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

## Text

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976 INDIAN LAW REPORTS ALLAHABAD SERIES
revisional court namely the Additional District Judge, Court No. 2, Mathura dated 5.2.2016 in SCC
Revision No. 10 of 2011 are hereby set aside. The SCC Suit No. 43 of 1987 is dismissed.

45. However, as the petitioner has not been declared owner till date and, therefore, in order
to protect the occupation of the petitioner/tenant, without prejudice to his rights seeking title in the
suit property it is directed that he shall continue to deposit the rent regularly month by month in the
Court below by filing a proper application under Section 30 of the Act. The plaintiff landlord
would be entitled to withdraw the money on an application moved by him. Alternatively, it is open
for the petitioner/tenant to tender rent directly to the plaintiff/landlord who shall issue rent receipts
as a proof of payment. It shall be a regular payment @ Rs. 2,000/- per month commencing from
1.7.2016 onward payable on 10.7.2016 till the rights of the parties are decided by the Civil Court.
The petitioner, even if succeeds would not be entitled to ask for refund of the amount paid by him
to the plaintiff/landlord for use and occupation of the building. Apart from this, the entire decreetal
amount shall be deposited, if not already, by the petitioner/tenant before the Court below within a
period of six weeks from today and the plaintiff/landlord will be entitled to withdraw the said
money.

46. It goes without saying that this Court has not entered into the merits of the rival claim
of title of the parties. Any observation made herein above would not come in the way of the parties
for establishing their rights in a Competent Court of law.

47. With the above directions and observations, the petition is allowed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No.- 5443 Of 2016
&
Misc. Bench No.- 8944 Of 2016

M/S Fibremarx Papers Pvt Ltd. & Anr. ...Petitioners
 Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Shishir Chandra

Counsel for the Respondents:
C.S.C,Anurag Kumar Singh
5 All. M/S Fibremarx Papers Pvt Ltd. & Anr. Vs State Of U.P. & Ors.

977

Constitutional law-Writ petitions - Supply of textbooks - Basic Schools (Class I to VIII) - Government
policy - Quality of paper - Virgin Pulp - Bamboo and Wood based - Eco-friendly - ECOMARK -
Notification dated 9.11.1992 - Bureau of Indian Standards -Government Order dated 17.2.2016 - Tender
notice dated 17.4.2016 - Policy decision - Articles 14, 19 (1)(g), 48-A, 51-A (g) - No arbitrariness - No
statutory violation - Judicial review - Writ petitions dismissed.

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.(Para 1-2)

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 Ecomark 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.(Para 13)

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
recycled 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
978 INDIAN LAW REPORTS ALLAHABAD SERIES
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.(Para 18)

Held: (32,59.60)
1. 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 sideby-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.

2. 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.

Case Law discussed:

1. Castle Papers Ltd. v. Commissioner of Central Excise, (2015) 10 SCC 664 - Paras 15, 27-33
2. Maa Binda Express Carrier v. North East Frontier Railway, (2014) 3 SCC 760 - Paras 8, 9, 11
3. Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 - Paras 23-24
4. Union of India v. Dinesh Engineering Corporation, (2001) 8 SCC 491 - Paras 12, 14
5. Union of India v. International Trading Co., (2003) 5 SCC 437 - Paras 14-16
6. Reliance Energy Ltd. v. MSRDC Ltd., (2007) 8 SCC 1 - Paras 36, 38, 39
7. Siemens Public Communication Network (P) Ltd. v. Union of India, (2008) 16 SCC 215 - Para 36
8. Tata Cellular v. Union of India, (1994) 6 SCC 651 - Para 69
9. Krishnan Kakkanth v. Government of Kerala, (1997) 9 SCC 495
10. Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517
11. Balco Employees' Union v. Union of India, (2002) 2 SCC 333
12. T.N. Godavarman Thirumalpad v. Union of India, order dated 18.2.2002 in Inter Application No. 707

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
&
Hon'ble Attau Rahman Masoodi, J.)

1. 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.
5 All. M/S Fibremarx Papers Pvt Ltd. & Anr. Vs State Of U.P. & Ors.

979
2. 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.

3. 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.

4. 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.

5. 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.
980 INDIAN LAW REPORTS ALLAHABAD SERIES

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 respondentState 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
5 All. M/S Fibremarx Papers Pvt Ltd. & Anr. Vs State Of U.P. & Ors.

981
replacing the earlier policy is neither ultra vires any statutory provisions nor is otherwise
unfriendly to the Ecosystem.

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.
982 INDIAN LAW REPORTS ALLAHABAD SERIES
List after expiry of the aforesaid period.

We are therefore not staying the tender process which shall also abide by the
interim directions aforesaid."

6. 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.

7. 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."

8. 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.

9. 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
5 All. M/S Fibremarx Papers Pvt Ltd. & Anr. Vs State Of U.P. & Ors.

983
have been filed on behalf of the intervenors as well that have been taken on record. The petitionerM/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.

10. 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.

11. 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.

12. 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
984 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Ecomark 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.

13. 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 Woodbased 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 Ecomarked as per the notification dated 9.11.1992.

14. 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 ecofriendly 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.

15. 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.

16. 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.
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985
17. 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 recycled 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.

18. 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.

19. 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
986 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

20. 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 ecofriendly 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.

21. 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
5 All. M/S Fibremarx Papers Pvt Ltd. & Anr. Vs State Of U.P. & Ors.

987
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.

22. 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 ecofriendly. He submits that this contention is absolutely misconceived
and without any basis. He submits that paper i.e.