The main legal point established in the judgment is that the work of repairing transformers does not fall within the definition of 'Construction Works' under the 1999 Act, and therefore, reservation provided under Section 6 of the Act is not applicable.

JUDGMENT

Shankar Ganapathi Pandit, J. - The petitioners are before this Court under Article 226 of the Constitution of India, questioning the correctness and legality of Tender Notifications at Annexures-B to L all dated 28.03.2022.

2. Heard learned Senior Counsel Sri. Udaya Holla for Smt. M.L. Suvarna, learned counsel for the petitioner and Sri. S. Sriranga, learned Senior Counsel along with Smt. Sumana Naganand, learned counsel for respondent/BESCOM as well as Sri. J.D. Kashinath, learned counsel for impleading applicants in I.A. No. 3/2022.

3. Brief facts of the case leading to the filing of this writ petition are:

Petitioners are rate contractors for the works related to transformers. The respondent-BESCOM under Annexures-B to L dated 28.03.2022 invited tenders for Repairs and Reconditioning of 11 KV class single coil/multi coil Conventional (Aluminium Wound) and 3, 4, 5 Star Rated failed Distribution Transformers of various Capacities from 25 to 500 KVA of CSP to Conventional bolt and nut type on lumpsum percentage (%) Rate Contract basis (Material, Labour and Salvage) at Transformer repair center in RR Nagara, RR Nagara Division of BESCOM Jurisdiction. The short term tender was reserved for Scheduled Caste/Scheduled Tribe category. But the petitioners, who are General Category contractors are before this Court challenging the short term tender reserved for SC/ST contractors, as the same is opposed to the provisions of Karnataka Transparency in Public Procurement Act, 1999 (for short "1999 Act") and further, the Tender Notification would not indicate the value of the tender, so as to make applicable reservation to Scheduled Caste/Scheduled Tribes.

4. Learned Senior counsel Sri. Udaya Holla submits that the tender is called for the purpose of repairing and reconditioning of transformers and it is not a civil construction work as defined under Section 2(a) of the 1999 Act. Learned Senior counsel inviting attention of this Court to Section 2(a) of 1999 Act submits that "Construction Works" means putting up, demolishing repairs or renovation of buildings, roads, bridges or other structures including fabrication of steel structures and all other civil works and it would not include repairs and reconditioning of transformers. Learned Senior Counsel also submits that repairing and reconditioning of transformers in no manner could be called as construction work. Learned Senior Counsel invites attention of this Court to Section 6 of 1999 Act particularly, first proviso to Section 6 and submits that the proviso provides for reservation of construction works, value of which does not exceed Rs. 50.00 lakhs. In the instant case, value of the tender is not mentioned in the tender and applicability of reservation could be based only on the value of the work. Further, he submits that reservation may be made only in construction work, which is defined under Section 2(a) of 1999 Act. Since the tender would not indicate value of the work, Section 6 of 1999 Act would have no application to the tender notifications under challenge. Moreover the work is with regard to repairing and reconditioning of transformers.

5. Learned Senior Counsel submits that co-ordinate Bench of this Court in W.P. No. 12397/2020 disposed of on 22.12.2020 and W.P. No. 13232/2020 disposed of 25.02.2021 interpreting the construction work has held that reservation would not be applicable to work other than construction work. One of the writ petitions was with regard to supply of manpower for shifting and minor maintenance and another decision is with regard to operation and maintenance of street light system. Therefore, he submits that those decisions would squarely apply to the facts of the present case.

6. Per contra, learned Senior counsel Sri. Sriranga for respondent-BESCOM submits that writ petition itself is not maintainable since the 1999 Act provides filing of appeal which the petitioners have not availed. When there is an alternate and efficacious remedy available to t