Kerala High Court
V.Ummer Haji vs State Of Kerala on 21 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942
WP(C).No.50 OF 2021(E)
PETITIONER:
V.UMMER HAJI
AGED 67 YEARS
VAZHAKANDY HOUSE, SULATHAN BATHERI,
WAYANAD DISTRICT - 673 592.
BY ADVS.
SRI.JOMY GEORGE
SRI.R.PADMARAJ
SRI.M.J.BENNY
SRI.DEEPAK MOHAN
SMT. CHITRA N. DAS
SHRI.RISHAB S.
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 NORTH CIRCLE, PWD COMPLEX,
MANANCHIRA, KOZHIKODE - 673 001.
4 THE EXECUTIVE ENGINEER
PWD ROADS DIVISION, KALPATTA,
WAYANAD DISTRICT - 673 121.
OTHER PRESENT:
SMT.PRINCY XAVIER, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.50 OF 2021(E)
2
J U D G M E N T
A PWD contractor seeks adjustment of pending
bill towards performance guarantee and additional
performance guarantee for the new work, in the light
of Ext.P3 order of Government.
2. As per Ext.P1 selection notice issued on
20.10.2020 in respect of the work of 'Budget work
2017-18 Construction of Pulikkattukadavu Bridge
across Kabani River in Valad-Wayanad District' the
3rd respondent directed the petitioner to furnish
performance guarantee of Rs.49,98,000/-, 50% of
which was to be by way of treasury deposit and
additional performance guarantee of Rs.14,33,700/-
out of which 50% shall be in the form of Treasury
Savings Deposit for a period of 19 months. It is
stated that petitioner has already undertaken other
works of 'Providing BM/BC Panamaram LPS-Neerittadi-
Vilambukandam Road between Km.0/000 to 2/000 in
Wayanad District' for which a sum of
Rs.2,09,60,616/- is due, as certified in Ext.P2
WP(C).No.50 OF 2021(E)
letter of the Executive Engineer.
3. As per Ext.P3 -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.
4. Petitioner therefore submitted an
application on 04.11.2020 requesting the 3 rd
respondent to adjust the pending bill against the
performance guarantee and the additional performance
guarantee. Thereupon the 3rd respondent informed him
that as per Ext.P3 Government order the bill can be
adjusted only on submission of indemnity certificate
through EMLI software and in the absence of such a
certificate his application has been rejected.
5. 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
WP(C).No.50 OF 2021(E)
modified so far in tune with Ext.P3 Government
Order.
6. Learned Government Pleader also submitted
that the EMLI software is not modified so far.
7. Ext.P3 Government order has been issued as
early as on 23.06.2020. As per sub clause (v) of
Clause 3 of Ext.P3 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 based
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
WP(C).No.50 OF 2021(E)
cases directed the respondents to carry out the
adjustment manually.
Therefore there shall be a direction to the 3 rd
respondent to re-consider the request of the
petitioner and to adjust the admissible amount under
the pending bill covered by Ext.P2 letter towards
performance guarantee and additional performance
guarantee in accordance with Ext.P3 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'.
The writ petition is disposed of accordingly.
Sd/-
P.V.ASHA, JUDGE
AS
WP(C).No.50 OF 2021(E)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE
NO.DB 1/SE/BR/9975/2019 DATED
20.10.2020 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE LETTER
NO.A6/3470/121/2020 DATED 24.11.2020
SENT BY THE 4TH RESPONDENT TO THE 3RD
RESPONDENT.
EXHIBIT P3 TRUE COPY OF LETTER DATED 25.11.2020
ISSUED BY THE 3RD RESPONDENT
REJECTING THE REQUEST OF THE
PETITIONER.
EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER
G.O.(RT) NO.3834/2020/FIN. DATED
23.06.2020.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED
14.10.2020 IN W.P.(C) NO.19846/2020
OF THIS HON'BLE COURT.
