Kerala High Court
Anil Kumar C vs State Of Kerala on 1 February, 2021
WP(C).No.915 OF 2021(L)
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
WP(C).No.915 OF 2021(L)
PETITIONER/S:
ANIL KUMAR C.
AGED 47 YEARS
P.W.D CONTRACTOR, CHAPPOTHIL HOUSE, KUNNAMANGALAM
P.O, KOZHIKODE - 673571.
BY ADVS.
SRI.JOMY GEORGE
SRI.R.PADMARAJ
SRI.M.J.BENNY
SRI.DEEPAK MOHAN
SMT. CHITRA N. DAS
SHRI.RISHAB S.
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695001.
2 THE SECRETARY
PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
3 THE SUPERINTENDING ENGINEER
PWD ROADS, NORTH CIRCLE, PWD COMPLEX, MANANCHIRA,
KOZHIKODE - 673001.
4 THE EXECUTIVE ENGINEER,
PWD ROADS DIVISION, KOZHIKODE - 673020.
OTHER PRESENT:
SRGP.SRI.K.V.MANOJ KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.915 OF 2021(L)
2
JUDGMENT
Dated this the 1st day of February 2021
The petitioner has been awarded four works as per Exts.P1
to P4 selection notices. While issuing selection notice
petitioner was asked to furnish performance guarantee as
directed therein. It is stated that total amount towards all
these works covered by Exts.P1 to P4 comes to Rs.13,75,475/-
(Rupees Thirteen lakhs Seventy five thousand four hundred and
seventy five only). Petitioner submits that a sum of
Rs.21,43,900/- is due to him towards the work undertaken by him
- "Providing drainage facilities on Nellankandy - Avilora -
Katharammal - Choyimadam - Anappara -Padathumkuzhi - Poonoor
road between KM.9/900 to 10/200 LHS" in respect of which Ext.P5
letter has been issued by the 4th respondent on 07.01.2021.
2. As per Ext.P10 -G.O.(Rt) No. 3834/2020/Fin dated
23.06.2020 Government has ordered that the amount under audited
and passed bills of contractors would be accepted as Performance
Guarantee/Additional Performance Guarantee for new contracts.
Petitioner therefore submitted Exts.P6 and P7 representations
dated 28.12.2020 and 05.01.2021 requesting the 4th respondent to
adjust the pending bill against the performance guarantee. The
4th respondent thereupon informed the petitioner that bill amount
would be accepted towards performance guarantee on the basis of
WP(C).No.915 OF 2021(L)
indemnity certificate issued online in EMLI application, as
provided in Ext.P10 order. This writ petition is filed at this
stage, aggrieved by Exts.P8 and P9 letters, as the EMLI software
has not so far been modified in tune with Ext.P10 order.
3. Petitioner points out that in the case of several
contractors pending bills are already adjusted manually on the
basis of directions from this Court since the EMLI software has
not been modified so far in tune with Ext.P10 Government Order.
4. Learned Government Pleader also submitted that the EMLI
software is not modified so far.
5. Ext.P10 Government order has been issued as early as on
23.06.2020. As per sub clause (v) of Clause 3 of Ext.P10 order,
work bill amount will be accepted as Guarantee for new works
being awarded, only on the basis of indemnity certificate issued
online in EMLI application. Clause 4 provides for effecting
necessary modifications in EMLI to facilitate the new system.
The facility for adjustment of the bills have been ordered by
Government for the benefit of the contractors on their request.
When such a facility is ordered, Government has also to see that
suitable modifications are effected in the software so as to
enable the contractors to enjoy the benefit of the order. The
petitioner cannot therefore be denied the benefit of the order.
This Court has in several cases directed the respondents to
carry out the adjustment manually.
Therefore there shall be a direction to the 3rd respondent
WP(C).No.915 OF 2021(L)
to re-consider the request of the petitioner and to adjust the
admissible amount under the pending bill covered by Ext.P5
letter towards performance guarantee in accordance with Ext.P10
Government Order manually, i.e., without insisting for indemnity
certificate through EMLI. This shall be done within a period of
'three weeks' from the date of receipt of a copy of the
judgment. Petitioner shall also be granted time for execution of
agreement by a further period of 'two weeks'.
Sd/-
P.V.ASHA
rkc JUDGE
WP(C).No.915 OF 2021(L)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE NO.
DC09/PRICE/2019/2135 DATED 23.12.2020
ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE SELECTION NOTICE
NO.D1/PRICE/2020/3251 DATED 31.12.2020
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE SELECTION NOTICE
NO.DB3/RD/2020/1312 DATED 31.12.2020 ISSUED
BY THE 4TH RESPONDENT
EXHIBIT P4 TRUE COPY OF THE SELECTION NOTICE
NO.D1/PRICE/2020/578 DATED 04.01.2021
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 07.01.2021
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATIONS DATED
28.12.2020 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATIONS DATED
05.01.2021 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF LETTER DATED 04.01.2021 ISSUED
BY THE 4TH RESPONDENT TO THE PETITIONER.
EXHIBIT P9 TRUE COPY OF LETTER DATED 05.01.2021 ISSUED
BY THE 4TH RESPONDENT TO THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE GOVERNMENT ORDER GO(RT)
NO.3834/2020/FIN DATED 23.06.2020.
EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 09.11.2020
IN WP(C) NO. 22048/2020 OF THIS HON'BLE
COURT.
