The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 30618 of 2024 (PIL) Bibekananda Dalal ..... Petitioner State of Odisha and others ..... Opposite Parties -versus- Advocates appeared in this case: For Petitioner : Mr. S.K.Dalai, Advocate For Opp. Parties : Mrs. S.Pattanaik, Advocate, Additional Government Advocate THE HON’BLE MR. JUSTICE ARINDAM SINHA, CORAM: ACTING CHIEF JUSTICE AND
Legal Reasoning
THE HON’BLE MR. JUSTICE M.S. SAHOO J U D G M E N T ------------------------------------------------------------------------------------------------------- Dates of hearing : 22nd January and 12th February, 2025 Date of judgment : 12th February, 2025 ------------------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. The writ petition was moved on 22nd January, 2025. Mr. Dalai, learned advocate appearing on behalf of petitioner had submitted, his client was espousing a public cause. Prayer of his client was for quashing ‘Request For Proposal’ (RFP) dated 2nd W.P.(C) no.30618 of 2024(PIL) November, 2023 under annexure-1, in declaring same as illegal, Page 1 of 8 arbitrary, mala fide and contrary to public policy. Further prayer was for restoring prevailing procedure, to secure ends of justice. 2. On query made he submitted, bona fide of petitioner had been stated in paragraph-5, reproduced below. “5. That, the petitioner is an Engineering pass out from Chennai and beneficiary under the schemes of MSME and also had availed a loan to run a small scale industry (Automobile servicing Unit) at Phulbani and in the present context being aggrieved by the present action of the State Govt. in inviting aforesaid tender call notice has approached this Hon’ble Court in present form.” 3. He drew attention to notification of MoU signing for selection of operator, to operate, maintain and manage six State Government testing laboratories, on public private partnership (PPP) mode scheduled for 14th November, 2024. He submitted, it was signed. The management and operation of Government testing facilities were being transferred to the private sector. 4. We reproduce below paragraphs 5 to 7 from our order dated 22nd January, 2025 made on moving of the writ petition. W.P.(C) no.30618 of 2024(PIL) Page 2 of 8 “5. Petitioner has approached by himself. He says he is an engineer and beneficiary under the schemes relating to Micro, Small and Medium Enterprises(MSME). He runs a small scale industry (automobile servicing unit). 6. Petitioner is in no way connected with running of the Government laboratories. He has challenged ‘Request for Proposal’ dated 2nd November, 2023, disclosed at annexure-1. In effect, it is a notice inviting tender. 7. Petitioner has adjournment to demonstrate that under any provision of law the State Government is prevented from entering into private public partnership, in respect of operating the Government laboratories, regarding which notice inviting tender has been made. We grant this accommodation as final opportunity for petitioner to also demonstrate how he is taking up the cause.” 5. Today Mr. Dalai points out from impugned RFP, introduction thereunder by section-1, background clause 1.1.1, there are six State Government testing laboratories functioning at various places by MSME Department, Government of Odisha, through its Directorate of Export, Promotion and W.P.(C) no.30618 of 2024(PIL) Marketing. According to him these laboratories are, therefore, Page 3 of 8 part of the activities of the MSME Department in Government of Odisha. He hands up and relies on Odisha MSME Development Policy, 2022 (effective from 30th November, 2022). Under infrastructure development clause 5.1.4, existing testing laboratories will be strengthened and upgraded to provide support to MSMEs. Development of micro, medium, small industries is a public cause. This is being transferred to the private sector by calling for tenders on impugned RFP. 6. Referring to provisions in Micro, Small and Medium Enterprises Development Act, 2006 he submits, section 9 provides for the Central Government take measure for promotion and development of the enterprises. The State Governments have power to make rules under section 30. Issuance of impugned RFP is not in exercise of such power. On said and aforesaid grounds there be interference. 7. On query made, Mr. Dalai relies on Finance Department resolution dated 31st August, 2023, notified in Odisha Gazette Exraordinary, published on 7th September, 2023. He submits, it is the Finance Department’s policy regarding entering into PPP. W.P.(C) no.30618 of 2024(PIL) Applicability of the policy is by clause-6. None of the entries Page 4 of 8 under the clause apply to Government testing laboratories catering to MSMEs. According to him the Government testing laboratories will not come under residual entry (xxii). 8. Mrs. Pattanaik, learned advocate, Additional Government Advocate appears on behalf of State. She submits, this is a frivolous petition. There has not been expression of bona fide nor compliance of rule 8 in Orissa High Court Public Interest Litigation Rules, 2010. Without prejudice she submits, Government has the power and competence to enter into PPP for purpose of running the Government testing laboratories catering to the MSMEs. In no way can it be said that public cause involving development of the enterprises will be compromised. Furthermore, last date for receiving tenders under impugned RFP was 8th November, 2023. Petitioner is a busybody and the writ petition be dismissed with cost. 9. We are clear in our mind that the six Government testing laboratories being run by the MSME Department in Government of Odisha are catering to the interest of enterprises coming within meaning of provisions in the Act of 2006. Running of W.P.(C) no.30618 of 2024(PIL) the laboratories is in administrative domain of the Government. Page 5 of 8 On query Mr. Dalai reiterates that setting up and maintaining Government testing laboratories is mandated by provisions in section 9, as a measure for promotion and development of the enterprises. However, on perusal of the RFP, Odisha MSME Development Policy, 2009 and relied upon provisions in the Act of 2006, we have not been able to find either a policy decision taken by the MSME Department nor mandate by the legislature for setting up and running Government testing laboratories. 10. The RFP notified invitation of tenders for participation of the private sector, on partnership basis, to run the Government testing laboratories catering to the MSMEs. Obviously the Government had intent and purpose for inviting such participation. That by itself does not indicate Government support to the enterprises is likely to be compromised. Contrary can also be said. Speculation is not necessary since, functioning of the Government testing laboratories is, as aforesaid, in administrative domain of the Government. 11. We reproduce below, inter alia, two paragraphs from notice dated 2nd November, 2023 inviting tenders by the RFP. W.P.(C) no.30618 of 2024(PIL) Page 6 of 8 “It is necessary to regularly modernizing/upgrading the existing Testing Laboratories to cater to the need of industries and MSME players, situated in nearby locality. Therefore, to augment the capacity, upgrade the existing machinery and enhance operational efficiencies of existing six laboratories, MSME Department, Bhubaneswar through Directorate of Export, Promotion and Marketing (the ‘Authority’) have decided to hand- over operation of its these Laboratories to private organisations. As a part of this endeavour, the Authority has decided to invite participations from eligible entities to undertake the Operation and Maintenance of six Government Testing Laboratories functioning at Rourkela, Berhampur, Balasore, Angul, Bolangir and Cuttack Odisha (the “Project”) on Equip, Operate, Maintain and Transfer (the “EOMT”) basis, and has, therefore, decided to carry out the bidding process for selection of an entity as the Bidder to whom the Project may be awarded.” 12. We have not found demonstration of any bar, by statute or otherwise, preventing or restraining the Government from inviting tenders for participation of the private sector in respect of running the Government testing laboratories. Even if we accept petitioner’s contention that the Government testing W.P.(C) no.30618 of 2024(PIL) Page 7 of 8 laboratories are not covered by any of the entries under clause-6 in the PPP policy, then it would necessarily come under the
Decision
residual entry. As such, the writ petition, though cannot be said as not carrying a public cause but does not require order to be made on it. It is disposed of. (Arindam Sinha) Acting Chief Justice (M.S. Sahoo) Judge dutta Prasant Signature Not Verified Digitally Signed Signed by: AJIT KUMAR DUTTA Reason: Authentication Location: ohc Date: 13-Feb-2025 18:29:06 W.P.(C) no.30618 of 2024(PIL) Page 8 of 8