Shri.Shravan And Ors vs The State Of Karnataka And Ors
2022 Latest Caselaw 2616 Kant

             IN THE HIGH COURT OF KARNATAKA

                    KALABURAGI BENCH

       DATED THIS THE 17H DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

     WRIT PETITION NO.226889 OF 2020 (GM-TEN)

Between:

1 . SHRI.SHRAVAN
S/O MANIK RAO MULBHARATHI
AGE 40 YEARS,
OCC CONTRACTOR
R/O NO. AURAD VILLAGE
TQ. DIST KALABURAGI 585103

2 . SHRI SIDRAM
S/O SHIVALINGAPPA BELKOTI
AGE 58 YEARS,
CONTRACTOR,
R/O ASHOK NAGAR
KALABURAGI 585103

3 . SHRI GIREPPA MARTHANDAPPA KATTIMANI
AGE 62 YEARS,
CONTRACTOR
R/O 11-426/16,
DHANAGARAGALLI,
BRAHAMPUR
GULBARGA 585103

4 . SHRI SIDDANNA
S/O BHAGANNA VOGGAR
AGE 64 YEARS,
CONTRACTOR,
R/O H.NO. 11/390/21A,
                           2




NEAR KORIMATH DHANAGARALLI
BRAHAMPUR
GULBARGA 585103

5 . SHRI VIJAYAKUMAR CHAVAN
S/O MANSING CHAVAN
AGE 38 YEAS,
CONTRACTOR
R/O SHAKTINAGAR
RAJAPUR,
KALABURAGI 585103

6 . SHRI DASHARATH S/O BASHA CHOWGLE
AGE 52 YEARS,
CONTRACTOR
NO. 11-630,
WADDARRAGALLI,
KALABURAGI 585103

7 . SHRI JAIKUMAR DEGOANKAR
S/O SHANKAR
AGE 48 YEARS,
CONTRACTOR,
H.NO. ASHOK NAGAR
KALABURAGI 585103

8 . SHRI MANOJ
S/O SUBHASH JADHAV
AGE 50 YEARS,
CONTRACTOR
H.NO. 11/696
WADDARAGALLI
BRAHAMPUR
KALABURAGI 585103

9 . SHRI GURAPPA
S/O SHANKAR SALANKE
AGE 55 YEARS,
                           3




CONTRACTOR
H.NO. 11-6332/62
WADDARGALLI
KALABURAGI 585103

10 . SHRI HARILAL
S/O TOPU CHAVAN
AGE 38 YEARS,
CONTRACTOR
R/O AURAD (B)
TQ AND DIST. KALBURAGI 585103

11 . SHRI ARJUN
S/O SHIVAPPA ITAGAR
CONTRACTOR,
R/O H.NO.11-903/1
KEERTHINGAGAR,
KALABURAGI 585103

12 . SHRI GUNDAPPA
S/O SHANKAR SALANKE
AGE.58 YEARS,
R/O WADDARAGALLI,
KALABURAGI-585103

13 . SHRI SHANKAR
S/O LAXMAN DEODURG
AGE.54 YEARS,
CONTRACTOR,
R/O H.NO.11/663/4,
S.B.TEMPLE ROAD,
NEAR SHIVADAS MAHARAJ MATH,
WADDARAGALLI, BRAHAMPUR,
KALABURAGI 585103

14 . SHRI RAJU
S/O NAGAPPA EMPURE
CONTRACTOR,
PLOT NO.1, OLD JEWARGI ROAD,
                           4




BANASHANKARI COLONY,
KALABURAGI-585102

15 . SHRI SUNIL
S/O MAREPPA RAKULAGI
AGE.32 YEARS,
CONTRACTOR,
R/O BHEEMA NAGAR,
KAKADE, CHOWK,
KALABURAGI-585103

16 . SHRI PRAKASH
S/O HANAMANTHAPPA KAPANOOR
AGE.34 YEARS,
CONTRACTOR,
R/O VIDYANAGAR,
KALABURAGI-585103

17 . SHRI SHANMUKH HOSAMANI
S/O MANIKA RAO
CONTRACTOR,
R/O AURAD(B),
TQ AND DIST.KALABURAGI-585103
                                         ...PETITIONERs
(BY SRI HULEPPA HEROOR, ADVOCATE)

AND

1 . THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
URBAN DEVELOPMENT
VIKASA SOUDHA,
BENGALURU 560001

2 . THE DIRECTOR OF MUNICIPAL ADMINISTRATION
PODIUM BLOCK,
VISHVESHWARAYYA TOWER,
DR.B.R.AMBEDKAR VEEDHI
BENGALURU-560001
                                5




3 . TEH DEPUTY COMMISSIONER
(DISTRICT URBAN DEVELOPMENT CELL)
KALABURAGI DISTRICT
KALABURAGI 585102

4 . THE COMMISSIONER
KALABURAGI MAHANAGAR PALIKE
KALABURAGI DISTRICT
KALABURAGI 585102

5 . THE EXECUTIVE ENGINEER
KALABURAGI MAHANAGAR PALIKE
KALABURAGI DISTRICT,
KALABURAGI 585102
                                                ...RESPONDENTS

(BY SRI VIRANAGOUDA BIRADAR, AGA FOR R1 TO R3
 SRI CHETAN KALBURGI ADVOCATE FOR R4 AND R5)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO WRIT OF
CERTIORARI BY QUASHING THE E-PROCUREMENT TENDER
DATED 01.12.2020 IN NO.KAMAPA/KAAA/ DB/15NE/KAKA/01/
2020-21 PASSED BY THE FIFTH RESPONDENT UNDER THE
PROVISION OF KTPP ACT, 2000 FOR THE WORKS UNDER THE
15TH FINANCIAL PLAN GRANT HAVING BEEN APPROVED BY THE
COMPETENT AUTHORITY UNDER KTPP KW-1, 2, 3 AND 4 AT
ANNEXURE-D; AND ETC.

     THIS PETITION COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

The case of the petitioners is that they are the contractors

belonging to Scheduled Caste/Scheduled Tribe and in this

petition have challenged the e-procurement tender dated 01 st

December, 2020 issued by the respondent-Corporation. The

main ground urged by the petitioners is that the said e-

procurement tender dated 01st December, 2020 is contrary to

Government Order dated 10th October, 2017 and Section 6 of

the Karnataka Transparency in Public Procurements Act, 1999

(for short hereinafter referred to as the 'Act') read with Rule 27A

of the Karnataka Transparency in Public Procurements Rules,

2000 (for short hereinafter referred to as 'Rules').

2. Heard Sri Huleppa Heroor, learned counsel appearing

for the petitioners; Sri Chetan Kalburgi, learned counsel for the

respondents-Corporation and Sri Viranagouda Biradar, learned

Additional Government Advocate for the respondent-State.

3. Sri Huleppa Heroor, learned counsel appearing for the

petitioners contended that Section 6 of the Act has been

amended and Rule 27A of the Rules, provides for preference to

the Contractors belonging to Scheduled Caste and Tribe for

participating in the tenders up to Rs.50,00,000/- of construction

work. He further submitted that the respondent-Corporation has

invited e-procurement tender, contrary to the Act and therefore,

sought for interference of this Court.

4. Per contra, Sri K.A. Kalburgi, learned counsel appearing

for the respondent-Corporation contended that the total work

undertaken by the respondent-Corporation is in an extent of

Rs.3,026 lakhs and therefore, he contended that the writ petition

is liable to be rejected.

5. In the light of the submission made by the learned

counsel appearing for the parties, it is relevant to extract Section

6 of the Act. The same reads thus:

"6. Procurement Entities to follow Procedure.- No tender shall be invited, processed or accepted by a Procurement Entity after the commencement of this Act except in accordance with the procedure laid down in this Act or the rules made thereunder. 1 [Provided that, the tender inviting authority shall, in the notified Departments out of those construction works, value of which does not exceed Rs.50.00 Lakhs such number of works not exceeding 17.15 percent be tendered only among the tenderers belonging to the Scheduled Castes Category and such number of works not exceeding 6.95 percent be tendered only among tenderers belonging to

the Scheduled Tribes Category, by taking out notices, communications and publications required to be taken following the prescribed procedures: Provided further that, if no tender from persons belonging to the Scheduled Castes or Scheduled Tribes as the case may be, is received in response to the invitation in two attempts such works may be tendered among others.

Explanation:- For the purpose of this proviso,-

(1) "Scheduled Castes" shall have reference to the Scheduled Castes specified in part VII of the Constitution (Scheduled Castes) Order, 1950 made under Article 341 of the Constitution of India and as amended from time to time; (2) "Scheduled Tribes" shall have reference to the Scheduled Tribes specified in part VI of the Constitution (Scheduled Tribes) Order, 1950 made under Article 342 of the Constitution of India and as amended from time to time."

6. Rule 27A of the Rules provides as under:

"27. Pre-qualification Procedure:- (1) The tender inviting authority shall for reasons to be recorded in writing provide for pre-qualification of tenderers on the basis of: (a) experience and past performance in the execution of similar contracts."

7. In the light of the aforesaid provisions, the Government

has issued Government Order dated 10th October, 2017,

providing preference to the contractors belonging to Scheduled

Caste and Scheduled Tribe, if the work order reflected in the

tender document, is less than Rs.50,00,000/-. Perusal of

Annexure-C and D would substantiate the fact that the tender

invited for completion of works referred to in the e-procurement

tender is less than Rs.50,00,000/- and in that view of the

matter, I find force in the submission made by the learned

Counsel appearing for the petitioner. This Court in the case of

VISHWANATH H M v. GOVERNMENT OF KARNATAKA

DEPARTMENT OF PARLIAMENTARY AFFAIRS AND ANOTHER

reported in ILR 2020 KAR 3361, has held as under:

"...There is one more aspect which needs to be mentioned in the matter of implementation of doctrine of level playing field. According to Lord Goldsmith, commitment to the "rule of law" is the heart of parliamentary democracy. One of the important elements of the "rule of law" is legal certainty. Article 14 applies to government policies and if the policy or act of the Government, even in contractual matters, fails to satisfy the test of "reasonableness", then such an act or decision would be unconstitutional. Admittedly in the present case, the original KTPP Act is not challenged. In order to encourage the Scheduled Castes and Scheduled Tribes,

the Government thought it fit to reserve not exceeding 17.15% to the Scheduled Castes category and not exceeding 6.95% for scheduled Tribes category in the construction works, the value of which does not exceed Rs.50,00,000/- and the impugned amendments are made based on the principles of distributive justice to protect the interests of weaker sections of the people, in particular, Scheduled Castes and Scheduled Tribes. Therefore, the said judgment has no application to the facts and circumstances of the present case.

8. In view of the law declared by this Court in the

aforementioned case, writ petition is liable to be allowed.

Accordingly, writ petition is allowed and the impugned e-

procurement tender dated 01st December, 2020 passed by the

respondent-Corporation is quashed.

Sd/-

JUDGE

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