Kerala High Court
Austin Kadamala vs State Of Kerala on 14 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942
WP(C).No.553 OF 2021(T)
PETITIONER:
AUSTIN KADAMALA,
AGED 48 YEARS,
P.W.D. CONTRACTOR, KADAMALA HOUSE, PALLIKKUNNU P.O,
KALPETTA, WAYANAD - 673 124.
BY ADVS.
SRI.JOMY GEORGE
SRI.R.PADMARAJ
SRI.M.J.BENNY
SRI.DEEPAK MOHAN
SMT. CHITRA N. DAS
SHRI.RISHAB S.
SRI.R.AJITH KUMAR [V.K.EDOM]
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE SECRETARY,
PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3 THE SUPERINTENDING ENGINEER,
PWD ROADS AND BRIDGES DIVISION, NORTH CIRCLE,
PWD COMPLEX, MANANCHIRA, KOZHIKODE - 673 001.
4 THE ASSISTANT EXECUTIVE ENGINEER,
PWD ROADS SUB DIVISION, 16/XVI, VIVEKANANDANAGAR,
KALPETTA, WAYANAD - 673 122.
BY ADV. SMT.PRINCY XAVIER, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.553 OF 2021(T)
2
JUDGMENT
The petitioner, who is an A Class
contractor, has been issued Ext.P1 selection
notice dated 06.11.2020 for the work of
'Providing BM&BC to Panamaram LPS-Neerattadi-
Vilambukandam road between km 2/000 to 5/600
Wayanad District'. As per the said notice, he
is directed to deposit Performance Guarantee
for an amount of Rs.15,68,500/-, 50% of which
should be in the form of Treasury Deposit.
2. Petitioner pointed out that a sum of
Rs.12,88,095/- is due to him towards the work
of 'Flood 2019-20 Construction of drain at km
8/000 -8/950 RHS of Chennalode -Mundakutty
Chaeriamkolly road' covered by Exts.P2 and P3
proceedings. The petitioner had as per Ext.P4
application, requested the 4th respondent to
adjust the amount covered by the aforesaid
bills towards the Performance Guarantee
WP(C).No.553 OF 2021(T)
demanded in Ext.P1.
3. The 3rd respondent as per Ext.P5 letter
informed that the pending bills registered
under EMLI from 01.04.2020 can be pledged
towards the Performance Guarantee for
executing agreement. It is stated that the
petitioner was asked to submit the indemnity
certificate from the EMLI application in
accordance with the Government Order Ext.P6
dated 23.06.2020.
4. The petitioner submits that even
though Government has issued Ext.P6 as early
as on 23.06.2020, necessary modifications are
not effected in the software EMLI, BDS etc so
far and the said system is not operational. It
is stated that this Court has in several cases
directed such adjustments by manual operation.
5. The learned Government Pleader on
instructions submits that the amount available
WP(C).No.553 OF 2021(T)
to the petitioner under the bill is only a sum
of Rs.12,88,095/- whereas the total amount
required for Performance Guarantee is
Rs.15,68,500/-.
6. At any rate, there cannot be any
objection for adjustment of the said bill to
the extent of Rs.12,88,095/- towards the
Performance Guarantee as the petitioner can
deposit the balance amount either as Treasury
Deposit or otherwise in accordance with the
selection notice, subject to the direction of
the 4th respondent.
As it is pointed out that the software
is not working and the indemnity certificate
as provided in Ext.P6 Government Order would
not be available as the system is not made
operational, there shall be a direction to the
respondents to consider the request of the
petitioner in Ext.P4 application for adjusting
WP(C).No.553 OF 2021(T)
the said pending bill as against the
Performance Guarantee and to process the same
manually, within a period of three weeks from
the date of receipt of a copy of the judgment.
The petitioner shall thereafter be allowed to
execute the agreement and to carry out the
work. There shall also be a direction that
time for execution of agreement shall be
extended for a further period of two weeks.
Accordingly, the writ petition is
disposed of. Sd/-
P.V.ASHA
JUDGE
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WP(C).No.553 OF 2021(T)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE NO.DC02/
2018/9969 DATED 06.11.2020 ISSUED BY THE
3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE PROFORMA ISSUED BY THE 4TH
RESPONDENT SHOWING AN AMOUNT OF
RS.8,04,007/- IS DUE TO THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE PROFORMA ISSUED BY THE 4TH
RESPONDENT SHOWING AN AMOUNT OF
RS.4,84,088/- IS DUE TO THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED
21.12.2020 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF LETTER DATED 23.12.2020 ISSUED
BY THE 3RD RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER GO(RT)
NO.3834/2020/FIN DATED 23.06.2020.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 09.11.2020
IN WP(C) NO.22048/2020 OF THIS HON'BLE
COURT.
