JUDGMENT Narendra Nath Tiwari, J. 1. These two writ petitions give rise to the same issues founded on the identical set of facts. Hence, with the consent of the parties, both the cases have been heard together and are being disposed of by this common judgment. 2. The petitioners are aggrieved by the notice inviting tender being NIT No. 01/07-08 issued by the Drinking water and Sanitation Department, Government of Jharkhand for installation of hand pumps on turn-key basis. 3. The petitioners have prayed for quashing NIT No. 01/07-08 (Annexure-4) as also the resolution dated 17.8.07 (Annexure-3) whereby it has been held that henceforth the work done in respect of the village water supply scheme as well as the scheme in relation to installation of hand pumps would be done on turn- key basis irrespective of the cost of the work. The said resolution has been issued in supersession of the earlier resolution dated 15.7.05. The petitioners have further prayed for a direction on the respondents to strictly follow the Jharkhand State Industrial Policy, 2001 (hereinafter referred to as the said policy) in the matter of purchase of goods from the industries situated in the State of Jharkhand, especially, the small scale industries. 4 According to the petitioners, the process of installation of hand pumps involves four agencies, namely, (i) manufacturers of the hand pumps (ii) manufacturers of riser pipes (iii) manufacturers of PVC pipes and (iv) drilling contractors. Earlier the tenders were separately invited and the work orders were also separately issued by the department for purchase of hand pumps, riser pipes, PVC pipes at its own level. After purchase, the said materials were supplied to the drilling contractors for instalment of hand pumps. 5. The impugned resolution dated 17.8.07 and the Notice Inviting Tender being NIT No. 01/07-08 are departure from the earlier system as also from the Jharkhand State Industrial Policy. 6. It has been contended on behalf of the petitioners that the impugned resolution and the NIT introducing the turn-key system are intended to unduly favour certain drilling tube well contractors which is highly prejudicial to the small scale industries of the State. 7. The impugned NIT and the resolution are in complete violation of Clause 32.1.1 of the Jharkhand Industrial Policy, 2001. 8. 7. The impugned NIT and the resolution are in complete violation of Clause 32.1.1 of the Jharkhand Industrial Policy, 2001. 8. Clause 32.1.1 of the Jharkhand Industrial Policy, inter alia, provides that the various departments of the State Government and the various agencies under its control would ensure, without compromising the quality, that minimum 75% of the total order placed with respect to any such tendered item be supplied exclusively by the manufacturing industrial units located within the State. It would also be ensured that 33% of the total annual purchase by any department/agency should be exclusively supplied by the manufacturing small scale industrial units located within the State. According to the impugned resolution and the NIT, which are with regard to allotment of works on the turn- key basis, the said provision has been given go bye. Now the contractors are at liberty to purchase the components used in the instalment of hand pumps from any place in the country. The impugned resolution dated 17.8.07, by which the decision has been taken to execute the work with regard to the scheme of water supply through pipes and also for installation of hand pumps on turn-key basis, is not valid and legal in view of the earlier resolution dated 15.7.05. The earlier resolution of 2005 was passed by the Cabinet whereas the resolution in question has not even been placed before the Cabinet. The Cabinet, which took the earlier resolution, is only empowered to modify or recall the same, but the same cannot be modified and superseded by any executive order or by any other authority, except the Cabinet. The impugned resolution and the NIT are also arbitrary and tainted with malafide as the same are intended to favour the drilling contractors and to oust the small scale industries from the State of Jharkhand. The same amounts to hostile discrimination and is also contrary to the legitimate expectations of the petitioners which manufactured the required components in the hope of getting the work orders. In view of the provisions of the Jharkhand Industrial Policy, the impugned resolution and the NIT are vitiated and unsustainable and the same are liable to he quashed. 9. The State respondents contested the writ petitions. In their counter affidavit, it has been stated, inter alia, that the petitioners have no locus standi to challenge the commercial transaction between the Government and the others. 9. The State respondents contested the writ petitions. In their counter affidavit, it has been stated, inter alia, that the petitioners have no locus standi to challenge the commercial transaction between the Government and the others. It is open for the State or its agencies to decide the mode and manner in which they want to enter into and execute the contract. In the contract on turn-key basis, the contractor procures all the raw materials at his own instance and makes the project functional and then hands over to the State Government for utilization of the project. The process involved in the execution of this work is less cumbersome, speedy and also in the interest of the general public and as such the commercial transaction cannot be challenged/interfered with. It also does not warrant any intervention by the Court. The said decision has been taken by the Government after due care and consideration and for the welfare of the public at large. The Court is not required to enter into and investigate those areas which are the functions of the executives. The decision of the Supreme Court in Raunaq International Limited v. I.V.R Construction Limited and Ors. and also the decision in Narmada Bachao Andolan v. Union of India and Ors. have been referred to and relied upon by learned Counsel for the State-respondents. It has been further contended that the respondents-State of Jharkhand has implemented various schemes for supply of safe water in the territory of Jharkhand. For the implementation of the said scheme, the State of Jharkhand undertakes various worlds including supply of drinking water through the pipe lines and/or installation of hand pumps in rural areas. The decision of the State of Jharkhand to invite tender on turn-key basis has been taken for timely and effective implementation of the schemes, especially the schemes sponsored by the Central Government as well as the State Government. The said decision has been taken keeping in view the larger public interest and not in order to favour one or the other contractors or manufacturers. Adequate safeguards have been made in the impugned NIT as well as in the notes to tenderers to ensure that the materials used in installation of hand pumps should be of requisite quality i.e. of ISI mark. Each consignment of pipes shall be inspected and tested by the renowned agency/authority of D.G.S.D/B.I.S/Crown/S.G.C. 10. Adequate safeguards have been made in the impugned NIT as well as in the notes to tenderers to ensure that the materials used in installation of hand pumps should be of requisite quality i.e. of ISI mark. Each consignment of pipes shall be inspected and tested by the renowned agency/authority of D.G.S.D/B.I.S/Crown/S.G.C. 10. The respondents have further stated that in the year 2004-05, tender was invited for construction of drilled tube-wells on turn-key basis and the achievement or progress in the said year in respect of the expenditure as well as the physical execution of the projects was approximately 99.23%. In the year 20005-06, the department reverted to tender for purchasing the components separately, which resulted in poor progress of the work and the achievement was only 74.80%. In the year 2006-07, again the tender was invited separately and not on turn-key basis and the progress of achievement of the said year was also poor and it was merely 25.27% of the total allocation. The said records demonstrate that when the work was executed on turn-key basis, it achieved the targeted result while the separate tender failed to achieve even the satisfactory level. Thus, The Government has taken the decision for inviting the tender on turn-key basis. It has been stated that the Supreme Court in Rajasthan Housing Board and Ors. v. G.S. Investment and Ors. while examining the scope of judicial review in contractual matter under Article 226 of the Constitution of India, has held that the power of judicial review under Article 226 should be exercised only in public interest. Further, in Master Marine Services (P) Ltd. v. Metcalfex Hodgkingson (P) Ltd. and Ors. , the same view has been taken as in Rajasthan Hosing Board case (supra). 11. The respondents have contended that invitation of tender on turn-key basis is also not contrary to Clause 32.1.1 of the Jharkhand Industrial Policy. According to the provisions of the said Clause, the preference has to be given to the small scale industries of the State in respect of the purchases made by the respective State Government departments for their requirement of store items. The said industrial policy does not contemplate for any preference to be given to the small scale industries by the State in respect of the procurement of the raw materials. The said industrial policy does not contemplate for any preference to be given to the small scale industries by the State in respect of the procurement of the raw materials. The preference is not applicable with regard to the works contract and/or contract on turn-key basis and/or purchases of raw materials. 12. According to the respondents, the petitioners contention that the decision dated 17.8.07 is illegal as the earlier decision dated 15.7.05 was a Cabinet decision and the decision dated 17.8.07 is not a Cabinet decision, is also without basis. The earlier decision dated 15.7.05 was not a Cabinet decision, as alleged by the petitioner, and the impugned decision dated 17.8.07 is also not a Cabinet decision. The said decision has been taken by the department in terms of Rules of Executive Business and the same is valid and in accordance with law. The State-respondents is competent to modify and/or annul its earlier decision in larger public interest. The allegation that the impugned resolution and the NIT are intended to favour some contractors, is wholly without any basis. Such allegation of malafide is not sustainable. The respondents relied on the decision of the Supreme Court in Union of India and Ors. v. Ashok Kumar and Ors. . In the said decision, the Supreme Court has held that the burden of establishing malafide is very heavy on the person who alleges it and the allegations of malafide are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility. The writ petitions are also bad for not impleading 128 groups of contractors, who have been allotted works. The decision of the Supreme Court in Rama Rao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors. has been relied upon by the respondents in support of the said contention. 13. The petitioner of W.P(C) No. 5216/07, in addition, has challenged the impugned decision and the NIT also on the ground that according to a Cabinet decision of the then existing State Government dated 16.7.86, the tender process can be initiated only after proper approval of the Government, allocation of fund and the acquisition of land etc, but the same have not been followed. 14. The State-respondents disputing the same stated, inter alia, that the tender in question does not involve any land acquisition proceeding. 14. The State-respondents disputing the same stated, inter alia, that the tender in question does not involve any land acquisition proceeding. Since the central fund is already available with the department and the share of the State has also been arranged, no further allocation of fund is required and the said ground is not tenable in this case. 15. Some of the contractors, who were allotted works in the said tender process, intervened and appeared in the writ petitions and they were made intervener-respondents in the writ petitions. It was contended on behalf of the intervener-respondents that more than 60% of works has already been executed by them before 7th November 2007. 16. This Court while admitting the said writ petitions for final hearing on 7.11.07 had stayed execution of agreement pursuant to the impugned NIT. 17. It has been contended on behalf of the intervenes that several contractors had already executed the agreement prior to 7.11.07. The work in question is in larger public interest. The dispute involved in the said writ petitions is between the petitioners and the respondents for which the public in general cannot be allowed to suffer. This Court in a case relating to tube-well drilling in Ratan Kumar Gupta and Ors. v. The State of Jharkhand and Ors. 2007 (3) JLJR 710 , had dismissed the writ petition taking into consideration the larger public interest, although it was held that the department had committed mistake in deciding the tender. The Drinking Water and Sanitation Department had issued a tender notice dated 16.12.07 in terms of the Jharkhand Industrial Policy which is in favour of the small scale industries of the State. The value of work is Rs. 171.39 Lacs. The said tender is for supply of the materials relating to installation of the hand pumps. The steps have been taken in the interest of the small scale industrial units in terms of the industrial policy and the petitioners allegation otherwise is wholly baseless. The writ petitions are without any basis and the same are liable to be dismissed. 18. On the rival contentions of the parties, the following points arise for consideration of this Court. (i) Whether the State-respondents are bound to follow the Jharkhand Industrial Policy, 2001 and to make endeavor for protecting the interest of the small scale industries? (ii) Whether the petitioners are entitled to the reliefs prayed for? 18. On the rival contentions of the parties, the following points arise for consideration of this Court. (i) Whether the State-respondents are bound to follow the Jharkhand Industrial Policy, 2001 and to make endeavor for protecting the interest of the small scale industries? (ii) Whether the petitioners are entitled to the reliefs prayed for? Point No. (i) 19. The petitioners have mainly challenged the said NIT and the resolution on the ground that the same are violative of the Jharkhand Industrial Policy, 2001. It has been stated that the said policy of the State Government has been made to ensure that the State Government departments and various agencies under its control will purchase their requirement of store items from the industries located within the State. 20. In order to achieve this, the product of the industries located within the State will be eligible for the facilities of preferential purchase by the State Government departments and the agencies under its control. Various departments of the State Government and the various agencies under its control would ensure, without compromising the quality, that minimum 75% of the total order placed with respect to any such tendered item be supplied exclusively by the manufacturing industrial units located within the State. It would also be ensured that 33% of the total annual purchase by any department/agency should be exclusively supplied by the manufacturing small scale industrial units located within the State. 21. Learned Counsel for the petitioners submitted that the impugned NIT of the Drinking Water and Sanitation Department is contrary to the said industrial policy. The impugned NIT has been issued for installation of hand pumps on the basis of turn-key contract system. In this system the contractors are free to purchase the manufacturing items such as PVC pipes and hand pumps etc from the open market. The resolution dated 17.8.07 (Annexure-3) is not only contrary to that policy, but the same is also contrary to the earlier Cabinet decision being Memo No. 2972 dated 15.7.05 (Annexure-2). The State Government is bound to follow its industrial policy. The impugned NIT and the resolution (Annexures- 4 & 3) are deviation from the said industrial policy and the same are wholly illegal and liable to be quashed. 22. The State Government is bound to follow its industrial policy. The impugned NIT and the resolution (Annexures- 4 & 3) are deviation from the said industrial policy and the same are wholly illegal and liable to be quashed. 22. Learned Counsel appearing on behalf of the respondents, on the other hand, submitted that there has been no violation of the industrial policy either in the impugned resolution or in the NIT. Clause 32.1.1 of the said policy provides that the State Government departments and various agencies under its control will purchase their requirement of store items from the industries located within the State. The impugned NIT is not for purchase of any store item. It has been further stated that the respondents are conscious of their policy and they have acted in accordance with the same. 23. Before dealing with the said point further, it is useful to notice the relevant provisions of the Jharkhand Industrial Policy, 2001. The said policy has been framed in order to accelerate the industrial development of the State and to achieve expected industrial growth. 24. Clause 32.0 of the said policy is regarding marketing assistance and other linkages for the tiny/small scale industries. Clause 32.1.1 of the said policy provides the following measures to be undertaken to facilitate assistance: The policy of the State Government is to ensure that State Government departments and various agencies under its control purchase their requirement of store items from industries located within the State. In order to achieve this, the product of industries located within the State will be eligible for the facilities of preferential purchase by State Government departments and the agencies under its control. Various departments of the State government and the various agencies under its control would ensure, without compromising the quality, that minimum 75% of the total order placed with respect to any such tendered item be supplied exclusively by the manufacturing industrial units located within the State. It would also be ensured that 33% of the total annual purchase by any department/agency should be exclusively supplied by the manufacturing small scale industrial units located within the State. It would also be ensured that 33% of the total annual purchase by any department/agency should be exclusively supplied by the manufacturing small scale industrial units located within the State. In order to provide the price preference facilities, with respect to certain identified item(s) being manufactured by the Small Scale Industries located within the State, with the objective of providing competitiveness to such item(s), a High Level Committee would be constituted by the State Government, which shall duly assess the competitiveness of such items as referred and make recommendations. The State Govt. shall ensure appropriate action with respect to such recommendations to encourage such small scale industrial units. Price preference shall be admissible as per the provisions to the industrial products of the small sale industrial units. The Central Government, its various agencies and private/joint sector industries located within the State will be persuaded to accord similar facilities to the products of local industries. New industrial units coming up in the State will be persuaded to patronize local industries/firms for construction/supply of materials. 25. On perusal of the said clause, it is clear that firstly, percentage has been fixed for purchasing the product of the small scale industries located within the State on preferential basis i.e. minimum 75% of the total order placed with respect to any such tendered item is to be exclusively purchased from the manufacturing industrial units located within the State. Secondly, it has to be assured that 33% of the total annual purchase by any department/agency should be exclusively supplied by the manufacturing small scale industrial units located within the State. 26. The first part of the said clause does not specify the category of industry. The only requirement is that the product must be of the industries located within the State. 27. However, the second part is very specific which fixes 33% of the total annual purchase exclusively manufactured by the small scale industrial units located within the State. The department/agency which purchases the components or industrial products, has to ensure 33% of the total annual purchase from the small scale industrial units located within the State. 28. In my view, 33% of the purchase should be of the total annual purchase by any department/agency and not the purchase of the requirement of store items only. 29. The department/agency which purchases the components or industrial products, has to ensure 33% of the total annual purchase from the small scale industrial units located within the State. 28. In my view, 33% of the purchase should be of the total annual purchase by any department/agency and not the purchase of the requirement of store items only. 29. The first part of the said policy though confines the purchases only to the store items of which minimum 75% of the total requirement has to be supplied exclusively by the manufacturing industrial units located within the State. But so far as the purchases from the small scale industrial units are concerned, the State Government has to ensure 33% of the total annual purchase by the department/agency to be supplied by the manufacturing small scale industrial units located within the State. 30. In view of the above discussions, the contention of the respondents that the provision is meant for purchase of 33% of the store item is not convincing when the provision speaks of 33% "of the total annual purchase by any department/agency". The policies are framed to be followed. The said policy has been formulated to achieve the expected industrial growth. At one place in the introduction, it has been stated that the Government of the nascent State of Jharkhand, in consonance with the need and aspiration of the local populace and entrepreneurs, the changes taking place in the global and national economic scenario and the competition at the national and international level has found it expedient to formulate an industrial policy for attracting investment including forcing investment in identified thrust areas with a focus upon the Balanced Regional Development as also for creation of essential infrastructure including that for power generation. 31. In its objectives, it has been mentioned that the industrial policy aims at making Jharkhand one of the most preferred destination for investment, both from inside and outside the country and to ensure accelerated implementation of infrastructure related projects, increasing employment opportunities, improving productivity, ensuring homogeneous and balanced development of all Geographical regions of the State with emphasis on development of small, tiny and cottage industries. 32. Mr. M.S. Mittal, learned Counsel appearing on behalf of the petitioners, submitted that the issue whether the State-respondents are bound to follow the Jharkhand Industrial Policy, 2001 is no longer res integra. 32. Mr. M.S. Mittal, learned Counsel appearing on behalf of the petitioners, submitted that the issue whether the State-respondents are bound to follow the Jharkhand Industrial Policy, 2001 is no longer res integra. The said issue has already been decided by a Division Bench of this Court in Ranisati Pipe Industries v. State of Jharkhand and Ors. . In Ranisati Pipe Industries (supra), this Court has, inter alia, held that the industrial policy is a well considered decision of the Government approved by the Cabinet and the same cannot be ignored. The Sub-ordinate authority has no right to throw away the said policy decision by its subordinate executive action. 33. I also respectfully endorse the same view. The policy decision is not only a guideline for the Government meant to be followed and acted upon, but the same is also a promise to the players, parties and beneficiaries related to such policy decision who plan their venture, shape their future, make investment, manufacture suitable items in their industrial units or establish new units for the purpose. 34. Deviation from such policy decision or any action contrary to the said provisions, tantamounts to frustrating and causing loss and injury to such enterprises which alter their position, financial or otherwise, acting on such promise given by way of policy decision. 35. The Government or an agency of the Government of a Welfare State cannot be allowed to deviate from its policy decision or to act contrary to the said provisions. Any such deviation is not fair, equitable, legal and reasonable. Such deviation or action contrary thereto being unreasonable offends Article 14 of the Constitution of India and the same cannot be upheld. 36. Answering to the Point No. (i), it is held that the respondents-State Government/its agencies are bound to follow the provisions of the Jharkhand Industrial Policy, 2001, unless there is any exceptional emergency or cause, justifying deviation, particularly in the cases of public interest of such emergent nature weighing over of the objects of the said policy. Point No. (ii) 37. On going through the terms of the impugned NIT vis-a-vis the provision made in Clause 32.1.1 of the Jharkhand Industrial Policy, 2001 which, inter alia, provides for ensuring 33% of the total annual purchase by any department/agency to be exclusively supplied by the manufacturing small scale industrial units located within the State. Point No. (ii) 37. On going through the terms of the impugned NIT vis-a-vis the provision made in Clause 32.1.1 of the Jharkhand Industrial Policy, 2001 which, inter alia, provides for ensuring 33% of the total annual purchase by any department/agency to be exclusively supplied by the manufacturing small scale industrial units located within the State. In view of the said clear expression in the policy, this point can be answered in affirmative even without entering into a detail discussion. 38. Admittedly, the impugned tender has been invited by the State. The works executed by the contractors are exclusively funded by the State Government. Any such contract, which overlooks the provision of the industrial policy of 33% of the total annual purchase to be exclusively supplied by the manufacturing small scale industrial units located within the State, cannot be said to be just and proper. 39. While floating such tender, the State Government can control the terms in order to enforce the provisions of the industrial policy. 40. In the impugned tender the provisions of the industrial policy have been completely overlooked. 41. There is no clause in the impugned NIT providing such purchases from the small scale industrial units located within the State. The respondents have taken the plea that the decision for inviting the tender on turn-key basis has been taken for speedy and effective implementation of the scheme in the larger public interest. While doing so, the State-respondents should have at least put a condition for purchasing from the small scale industrial units according to the provisions of the industrial policy. 42. The petitioners have raised other grounds as well, for assailing the said NIT as also the resolution dated 17.8.07. However, in the circumstances of the case and in view of the order being passed, it is not necessary to deal with them in detail. The petitioners have been able to demonstrate the violation of the provisions of the Jharkhand Industrial Policy, 2001, particularly, the absence of the provision for purchasing the components from the small scale industrial units of the State in the impugned NIT. 43. However, an answer to this point in affirmative, poses another question. What would happen to the huge investments made on execution of 128 groups of works by the contractors who have been allotted the works on the basis of the impugned NIT. 44. 43. However, an answer to this point in affirmative, poses another question. What would happen to the huge investments made on execution of 128 groups of works by the contractors who have been allotted the works on the basis of the impugned NIT. 44. Some of the contractors who have intervened and appeared in the writ petitions have informed that in number of cases either the work has already been executed or the work has been considerably executed on investment of huge amount. All those contractors have not been made parties to the writ petitions. A few of them only intervened. If the impugned NIT is quashed, the contractors, who have invested considerable amounts and who are not the party to the writ petitions, shall be put to suffer heavy loss and injury and shall be greatly prejudiced. The said development and circumstances do not inspire the judicial conscience for annulling the impugned NIT at this juncture. 45. In view of the said discussions, though it is held that the impugned NIT offends the Jharkhand Industrial Policy, 2001, this Court refrains from quashing the impugned NIT, in the absence of the contractors/persons who are likely to be adversely affected by annulment of the NIT. The petitioners, thus, cannot be granted relief to that extent. 46. However, in view of the finding on Point No. (i), the petitioners prayer for directing the respondents to follow the Jharkhand Industrial Policy, 2001, is worth accepting. It is, thus, held that while purchasing/inviting tenders etc., the State Government is bound to follow its industrial policy, amongst other, ensuring the prescribed percentage of purchases from the small industrial units located within the State, without compromising with the quality, except in cases of emergency as observed in deciding Point No. (i) hereinbefore. These writ petitions are disposed of in the terms aforesaid.