Dhurghambhika Swa Sahaya and Others vs State of Karnataka and Others

B.S. Patil, J.—In these batch of writ petitions, petitioners have challenged e-tender Notifications (Notice inviting e-tender through e-procurement) issued by Mahila Supplementary Production Training Centers of different Talukas.

As the questions raised and facts leading to these writ petitions are common and similar to all these writ petitions they are clubbed, heard together and are disposed of by this common order.

At the outset, learned counsel appearing for petitioners and learned Additional Government Advocate submit that questions raised in these writ petitions have been considered and decided in W.P. No. 106212/2014 dated 17.09.2014 by the Dharwad Bench. Whereas, Sri. Ravi, learned counsel appearing for respondent -Taluka Mahila Supplementary Production Training Centers in some of these writ petitions has strongly contended that the Judgment rendered by the Dharwad Bench has not considered certain legal aspects and therefore these writ petitions have to be independently considered on their respective merits. At any rate, it is urged by the learned counsel that certain provisions of The Karnataka Transparency in Public Procurements Act, 1999 (hereinafter referred to as the ''Act'' for the sake of convenience) including the policy decision behind issue of impugned tender notifications has not been considered in the case referred to supra, hence the same cannot be made basis to dispose of these cases.

In this background I have heard the learned advocates for all the parties and perused the pleadings and the documents placed on record. It emerges that petitioners claim to be Societies registered under the provisions of Karnataka Societies Registration Act, 1960 and as self help groups in some cases. It is their case that they were interested in participating in tender process for supply of raw materials for the purpose of preparation of nutritious food for distributing the same to the children and pregnant women being beneficiaries under the Integrated Child Development Scheme (ICDS).

The food materials are supplied to the respective Taluka Mahila Supplementary Production Training Centers who in turn would prepare the food and supply to the beneficiaries. It is in this background the Taluka Mahila Supplementary Production Training Centers have floated tenders to procure the raw materials through e-tender procurement.

These tender notifications have been called in question by the petitioners urging that there is violation of statutory prescription contained in section 18-A of The Karnataka Transparency in Public Procurements Act, 1999 in as much as there shall be a single unified e-procurement platform for all the procurement entity to be notified by the Government in respect of a class of procurement and it is only through the said e-procurement platform the materials could be procured. But, in the instant case the State Government having not notified the procurement entity in respect of a class of procurement the concerned Taluka Mahila Supplementary Production Training Centers could not have adopted e-procurement mode for procuring food materials. In this regard it is urged by the learned counsel for the petitioners that the question raised by these petitioners is no longer res integra in as much as this court has already held that unless procurement entities such as Taluka Mahila Supplementary Production Training Centers is notified by Government in terms of provision contained in sub-clause (2) of Section 18-A of the Act the same will not be entitled to adopt e-procurement process. Reliance is also placed on the Judgment in the case of B.K. Bhaskar and Others Vs. The Commissioner, Bangalore Development Authority and Another, in support of this contention.

Learned counsel for the procurement entity submits that in the above decision the effect of provisions contained in section 12 of the Act not having been considered and the decision to go for e-procurement being a policy decision of the State Government which cannot be called in question except in exceptional circumstances and further the petitioners having no locus standi to maintain the writ petition which facts were not considered in the Judgment relied on by the petitioners, they are not entitled for any relief.

I do not find any substance in both these contentions urged by the learned counsel for the procurement entity. In my view the questions raised in these writ petitions have been, in substance, considered by this court in the aforementioned decision.

Section 18-A has been introduced by Act No. 13 of 2007 which is deemed to have come into effect from 27.11.2006. The said provision provides for e-procurement. Infact, a separate Chapter in Chapter II-A has been introduced which envisages that the Government may by notification specify the procurement entity in respect of a class of procurement to procure its procurement through e-procurement platform in which event there shall be a single unified e-procurement platform for all procurement entities which is so notified.

E-procurement as a concept has been introduced for the first time by way of Section 18-A . The legislature has contemplated a single unified e-procurement platform for procuring the materials. Therefore the object behind this amendment providing for e-procurement is to ensure that tender forms are available in electronic form so that all interested persons have an opportunity to participate in the tender process. Any attempt to deny tender forms to eligible persons is removed and monopoly of vested interest which makes competition a farce is sought to be minimized. Therefore, having regard to the laudable object that is sought to be achieved by introducing Chapter II-A the provision has to be understood so as to further the object behind it. Infact in the Judgment rendered by this court in the case of B.K. Bhaskar and Others Vs. The Commissioner, Bangalore Development Authority and Another, , this aspect has been referred to and emphasized. Therefore, the contention urged by the learned counsel for respondent procurement entity that sub-clause (2) of section 12 of the Act has not been taken note of while interpreting the provisions contained under section 18-A is without any substance.

Sub-clause (2) of section 12 has been there in the statute book, whereas Section 18-A has been introduced by Act No. 13 of 2007. The scope, ambit and understanding of section 18-A cannot be regulated and restricted by referring to sub-clause (2) of section 12 which pertains to procedure to be followed by Tender Inviting Authority in cases pertaining to tenders which apparently pertain to tenders other than e-procurement tenders. The said provision may also confine to in a given case to procurement which cannot be construed to mean that even when e-procurement is resorted to independently the tender inviting authority can sustain the action by referring to sub-clause (2) of section 12 and without there being any notification issued by Government providing for unified e-procurement platform in respect of any procurement entity of a class of procurement.

Similarly, the contention urged stating that impugned tender notifications are the result of policy decision taken by the State Government, therefore such policy decision cannot be challenged by the petitioners cannot also be countenanced. It is relevant to notice here that when a statutory provision prescribes a particular thing to be done in a particular way then in the guise of adopting policy decision the Government cannot deviate from that process. Section 18-A prescribes a method for e-procurement. If any deviation is made and the Government does not follow the said procedure but wants to justify it by taking a defence that it is a policy decision, then the same cannot be sustained. The Judgment, in the case of Narmada Bachao Andolan Vs. State of Madhya Pradesh and Another, on which Sri. Ravi, learned counsel has placed reliance itself makes it clear that such policy decision cannot violate any statutory provision and if it so violates the court will interfere with such policy decision. Useful reference can be made to the observations made in paragraph 35 of the Judgment of the Apex Court in this regard.

As regards the last of the contentions urged by Sri.Ravi that petitioners do not have any locus standi to maintain the writ petition, it is to be noticed that all these petitioners claim to be persons or bodies interested in and aspiring for participating in tender process to supply raw materials which are in the form of food grains to the procurement entity. It is contended by the learned counsel appearing for them that if only the provisions contained under section 18-A had been complied with and a notification had been issued by the State Government notifying the procurement entity in respect of a class of procurement then they would have had a chance to participate in the tender process. Therefore, it cannot be said that these petitioners do not have any locus standi to maintain these writ petitions.

Hence, none of the contentions urged by the procurement entity are tenable as regards the merits of the matter. It is not necessary to further dilate in detail regarding the application of the provisions contained under section 18-A and in understanding the scope and ambit of the said provision. This court in the two Judgments referred to above particularly, in the Judgment dated 17.09.2014 passed in W.P. 106212/2014 has categorically held that as the respondent/procurement entity not having been notified under section 18-A, it could not have adopted e-process for supply of food and any other items under Integrated Child Development Scheme (ICDS), following the said Judgment these writ petitions are liable to be disposed of in similar terms.

In the result, writ petitions are allowed. Impugned notifications and all consequential actions taken, challenged in these writ petitions are set aside.

It is made clear that the Judgment rendered in these batch of cases has application to the parties involved in these cases and not in respect of tenders already accepted and acted upon. In other cases this court does not intend to say anything at this stage.

In view of the submission made by the learned counsel for the procurement agencies that having regard to the nature of supplies intended for the benefit of children and pregnant women and the need to address the matter immediately, liberty is reserved to the Government and the concerned authorities to adopt all such legal steps to expeditiously ensure the procurement. It is also necessary to observe that State Government may take immediate steps in the matter to ensure that supplies are made in accordance with law by strictly following the provisions of the Act and in the light of direction issued by the Hon''ble Apex Court in the case of People''s Union for Civil Liberties v. Union of India and others in W.P. 196/2001 disposed of on 13.12.2006.