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2011 DIGILAW 338 (JK)

M. S. Industries v. State of J and K and Ors.

2011-07-06

J.P.SINGH

body2011
JUDGMENT J.P. Singh, J. 1. The only issue that survives for consideration in this Writ Petition is as to whether or not the Petitioner Firm was entitled to 15% Price Preference on the supplies of ACSR Dog Conductors to the State-Respondents against NIT No. EPC-1/19 of 2005-06, which preference, in terms of the Industrial Policy of the State Government, in vogue, was available to the Small Scale Industrial Units, like the Petitioner. 2. According to the case set up in the Writ Petition, the Petitioner, a Small Scale Industrial Unit, operational in the State, was entitled to 15% price preference in terms of Clause 3.7 of the New Industrial Policy issued vide Government Order No. 21-Ind of 2004 dated 27.01.2004 pursuant to Cabinet Decision No. 19/1 dated 23.01.2004, on the supplies of ACSR Dog Constructors made by it in response to the NIT, And the decision taken by the Purchase committee in its meeting held on 29.11.2006, declining Price Preference to the Petitioner as was allowed to similarly situated State Small Scale Industrial Units in respect of other supplies, and requiring it to make supplies on the lowest rates offered by outside State Units against one third of the material required, was unjustified. 3. While admitting the Petition to Hearing, the State Respondents were directed to consider the Petitioner's case for allowing it 15% Price Preference on the supplies of ACSR Dog Conductors and reflect it in their Response to the Writ Petition. The State-Respondents have rejected the Petitioner's case saying that it was not entitled to 15% Price Preference on the supplies made by it, in view of the judgment delivered by a Division Bench of this Court in LPA(OW) No. 22/2007. I have heard learned Counsel for the parties and perused the judgment delivered by the Hon'ble Division Bench in LPA(OW) No. 22/2007, which was relied upon by the State Respondents to support the rejection of the Petitioner's Claim. 4. The issue as to whether a Small Scale Industrial Unit was entitled to Price Preference in terms of Clause 3.7 of the New Industrial Policy circulated vide Government Order No. 21-Ind of 2004 dated 27.01.2004, does not appear to have been adjudicated upon by the Hon'ble Division bench, in that, the issue that the Division Bench was seized of was entirely different viz. as to whether the Power Development Department of the State Government was authorized to place orders for supply of one-third of the material required, with the lowest or successful bidders. 5. While dwelling on the Government order and the Industrial Policy of 1998, the Hon'ble Division Bench observed as follows: FFFF Petitioner submitted that Government order dated August 16, 1999 would hold good only for that year and that the same has not been extended beyond that year. Reference was made to Government order No. 21-Ind of 2004 dated January 27, 2004, a copy of which is produced as Annexure-C, but which sanction was accorded to the new Industrial policy 2004 as per annexure appended to the said order. Contention of the learned Counsel is that at the relevant time, the Industrial Policy, 2004 was holding the field Clause (6) of the aforesaid Government order says that all instructions/orders and procedures issued by the Industries and Commerce Department from time to time for implementation of earlier package of incentives sanction vide Government orders dated January 19, 1995 and May 27, 1998 shall continue to apply mutatis mutandis in respect of the new package of incentives. It further provides that where such instructions, orders are inconsistent with any provision of the new Industrial Policy, 2004 and package of incentives further modifications to the existing instructions, orders and procedures shall be notified. Further, in Clause (iii) of the package of incentives notified vide Annexure-II to the Government order dated January 27, 2004 says that the incentives under the 2004 Policy are provided under the discretionary powers of the State Government and that the Government may decide to amend, alter, delete or revise any or all of the incentives notified under this Policy and no claim on account of such a decision will be entertained. We may point out that when the Industrial Policy, 2004 was formulated, the Government was well aware of the Cabinet decision dated August 12, 1999. If the Government wanted to do away with that Cabinet decision, the same would have reflected in the 2004 Industrial Policy. Since the same was not modified or altered, we are inclined to hold that the 1998 Industrial Policy still holds good to the extent indicated hereinbefore. F. 6. If the Government wanted to do away with that Cabinet decision, the same would have reflected in the 2004 Industrial Policy. Since the same was not modified or altered, we are inclined to hold that the 1998 Industrial Policy still holds good to the extent indicated hereinbefore. F. 6. Perusal of the above quoted observations of the Division Bench reveals that there is no such direction made by the Division Bench on the basis whereof the Petitioner's claim to 15% Price Preference, being a local Small Scale Industrial Units, could be rejected. 7. What to talk of any decision by the Division Bench on the issue, there is not even an observation in this behalf, on the basis whereof, it be said that the allowance of 15% Price Preference to Small Scale Industrial Units had not been approved. 8. The rejection of the Petitioner's case for grant of 15% Price Preference by the Chief Engineer, P&MM Wing, Jammu vide No. CE/PMM/65 of 2009 dated 04.07.2009 on the plea that the Division bench had held impermissible the allowance of 15; Price Preference to the State Small Scale Industrial Units, is, therefore, unwarranted and unjustified. 9. That apart, perusal of the minutes of the Purchase Committee Meeting reveals that all other local Small Scale Industrial Units which had participated in the tendering process against two-third quantity, were allowed to make supplies at the lowest rates offered by the local Small Scale Industrial Units, but it was the Petitioner Firm alone that was denied opportunity to make supplies at the lowest rates offered by the local Small Scale Industrial Units and was instead required to make supplies at the lowest rates approved in respect of the outside State Firm M/s D.S. Enterprises. The Petitioner Firm has, therefore, been treated differently by the State-Respondents, And for no reasons, when being similarly situated, it was entitled to same treatment that was allowed to other similarly situated Small Scale Industrial Units which were permitted to make supplies at the lowest rates quoted by the State Small Scale Industrial Units. 10. The Petitioner's entitlement to 15% Price Preference in terms of Clause 3.7 of the New Industrial Policy has, therefore, been denied to it erroneously misconstruing the judgment delivered by the Hon'ble Division Bench. The Petitioner's case, accordingly, needs consideration afresh for grant of 15% Price Preference on the supplies made by it to the Respondents. 11. 10. The Petitioner's entitlement to 15% Price Preference in terms of Clause 3.7 of the New Industrial Policy has, therefore, been denied to it erroneously misconstruing the judgment delivered by the Hon'ble Division Bench. The Petitioner's case, accordingly, needs consideration afresh for grant of 15% Price Preference on the supplies made by it to the Respondents. 11. This Writ Petition, therefore, succeeds and is, accordingly, allowed. A direction shall, therefore, issue to the State Respondents to consider the Petitioner's case for grant of 15; Price Preference on the supplies of ACSR Dog Conductors made by it, pursuant to NIT No. EPC-1/19 of 2005-06, allowing it the same benefit which was allowed by the Committee to similarly situated State Small Scale Industrial Units, which were permitted to make supplies at the lowest rates offered by the State Small Scale Industrial Units, for passing appropriate orders in this behalf, within a period of eight weeks.