Kerala High Court
V.Ummer Haji vs State Of Kerala on 4 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942
WP(C).No.4783 OF 2021(W)
PETITIONER:
V.UMMER HAJI
AGED 67 YEARS
VAZHAKANDY HOUSE, SULATHAN BATHERY,
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.
SHRI.GEORGE J MOOLAMKUNNAM
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
04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.4783 OF 2021(W)
2
J U D G M E N T
Petitioner, who is a Contractor, has been
awarded the work of construction of Mambilichikadavu
Bridge in Vengapally Grama Panchayath in Wayanad
District. As per the selection notice petitioner was
directed to remit a sum of Rs.11,42,040/- towards
performance guarantee. Stating that amount is due
under various bills pending payment towards work
already executed by the petitioner, he submitted an
application on 11.02.2021 requesting for adjusting
the amount covered by the pending bills towards the
performance guarantee. As per Ext.P2 letter dated
12.02.2021, the 4th respondent-Executive Engineer
informed that a sum of Rs.3432900/- is outstanding
towards the pending bill in respect of another work
carried out by the petitioner which was completed on
06.03.2019. The 4th respondent recommended adjustment
of the amount towards performance guarantee as
WP(C).No.4783 OF 2021(W)
against the said bill.
2. However as per Ext.P3 letter the 3 rd
respondent informed that adjustment can be made only
on production of indemnity certificate through EMLI
software.
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.P4 Government
Order.
4. Learned Government Pleader also submitted
that the EMLI software is not modified so far.
5. Ext.P4 Government order has been issued as
early as on 23.06.2020. As per sub clause (v) of
Clause 3 of Ext.P4 order, amount due under audited
and passed bills of contractors would be accepted as
Performance Guarantee for new works being awarded,
only on the basis of indemnity certificate issued
WP(C).No.4783 OF 2021(W)
online in EMLI application. Clause 4 provides for
effecting necessary modifications in EMLI to
facilitate the new system. Though the facility for
adjustment of the bills have been ordered by the
Government for the benefit of the contractors on
their request, suitable modifications are yet to be
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 same, in case petitioner satisfies all other
conditions in Ext.P4 order. This Court has in
several cases directed the respondents to carry out
the adjustment manually.
Therefore, there shall be a direction to the 3 rd
respondent to consider the request of the petitioner
for adjustment of the amount towards performance
guarantee from the admissible amount, if any under
the pending bill covered by Ext.P2 letter, in
accordance with Ext.P4 Government Order manually,
WP(C).No.4783 OF 2021(W)
i.e., without insisting for indemnity certificate
through EMLI. This shall be done within a period of
'two 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.4783 OF 2021(W)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PROFORMA SHOWING THE
PENDING BILL AMOUNT OF THE PETITIONER
ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE LETTER NO.
A6/121/434/2020 DATED 12-0-2-2020
(WRONGLY DATED 12-02-2020 ) SENT BY
THE 4TH RESPONDENT TO THE 3RD
RESPONDENT
EXHIBIT P3 TRUE COPY OF THE LETTER DATED 16-02-
2021 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 09-
11-2020 IN W.P(C) NO. 22048/2020 OF
THIS HON'BLE COURT.
