Kerala High Court
Sulfeekarali vs The State Of Kerala on 3 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021/12TH KARTHIKA, 1943
WP(C) NO. 23223 OF 2021
PETITIONERS:
1 SULFEEKERALI,
AGED 41 YEARS,
S/O. HASSAIN E.P.,
PUTHENPEEDIKA HOUSE,
ANCHACHAVADI P.O.,
KALIKAVU, MALAPPURAM DISTRICT.
2 ANEES BABU,
AGED 39 YEARS,
S/O. MOIDEEN HAJI,
PAKIDEERI HOUSE,
KALIKAVU, MALAPPURAM.
3 RAMSHAD P.,
AGED 27 YEARS,
S/O. ALAVI, POOVATHINGAL HOUSE,
VELLAYOOR P.O.,
KALIKAVU, MALAPPURAM.
BY ADV K.RAKESH
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS,
SECRETARIAT, PALAYAM,
TRIVANDRUM, PIN - 695 001.
2 THE DEPUTY DIRECTOR OF PANCHAYATH,
OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH,
CIVIL STATION,
UP-HILL, MALAPPURAM, PIN - 676505.
3 THE KALIKAVU GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
KALIKAVU P. O.,
MALAPPURAM DISTRICT, PIN - 676 525.
WP(C) No.23223/2021
:2 :
4 THE SECRETARY,
KALIKAVU PANCHAYATH,
KALIKAVU P.O.,
MALAPPURAM DISTRICT, PIN - 676 525.
5 THE ASSISTANT ENGINEER,
LSGD SECTION, KALIKAVU GRAMA PANCHAYATH,
KALIKAVU P. O.,
MALAPPURAM DISTRICT, PIN - 676 525.
BY ADV SHRI.EBIN MATHEW, SC, KALIKAVU GRAMA
PANCHAYAT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.23223/2021
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JUDGMENT
~~~~~~~~~
Dated this the 3rd day of November, 2021
The petitioners, who are Contractors who
participated in the tender proceedings conducted by the 5 th
respondent, are before this Court seeking to direct
respondents 3 to 5 to extend the benefit of Ext.P14
Government Order in favour of the petitioners and to execute
the agreement in tune with the stipulations in Ext.P14.
2. Ext.P14 Government Order dated 07.01.2021
extends three special benefits to the Contractors which are as
follows:-
(1) Performance Security / Security Deposit to
be submitted at the time of executing the agreement is
reduced from the existing rate of 5% to 3% of the
contract amount.
(2) Correspondingly Bid Security / Earnest
Money Deposit is reduced from 2.5% to 1.5% of the
estimated amount.
(3) Additional Performance Guarantee is waived
for the low quoted items on the condition that the bidder
shall furnish an undertaking to execute all low quoted
items in full as per contract terms.
WP(C) No.23223/2021
3. The case of the petitioners is that the petitioners
may be permitted to execute agreements in respect of the
works bid by them without giving Additional Performance
Guarantee, on the petitioners undertaking to execute the low
quoted items in full as per contract terms. The learned
counsel for the petitioners submitted that though Ext.P14 is an
order issued by the Government Finance (Industries and
Public works-B) Department, the 3rd respondent-Panchayat is
bound by Ext.P14 and is compellable to extend the benefits
granted by the Government, to the petitioners who are
Contractors engaged by the Panchayat.
4. The learned Standing Counsel for the 3 rd
respondent-Panchayat filed a statement on behalf of
respondents 3 to 5. In the statement, it has been disclosed
that the petitioners in the previous financial years undertook
certain contract works and they slipped over 12 contracts and
abandoned altogether 7 other contracts. When the petitioners
are having the habit of violating their contract terms, they
cannot seek for waiver on the Additional Performance
WP(C) No.23223/2021
Guarantee fixed in Ext.P14.
5. I have heard the learned counsel for the petitioners
and the learned Standing Counsel for the respondents.
6. At the time of hearing, the learned Standing
Counsel for the 3rd respondent submitted that the benefit as
regards Performance Security / Security Deposit to be
submitted at the time of executing the agreement is reduced
from the existing rate of 5% to 3% of the contract amount.
The said benefit has already been extended to the petitioners.
Furthermore, the Standing Counsel submitted that the benefit
of reduction of corresponding Bid Security from 2.5% to 1.5%
of the estimated amount will be given to all Contractors.
7. Therefore, the only issue remaining is relating to
waiver of Additional Performance Guarantee. But, taking into
consideration the fact that the petitioners have slipped over 12
contracts and abandoned 7 works, this Court is of the opinion
that the Panchayat is justified in insisting that the petitioners
should provide Additional Performance Guarantee. This being
an arrangement of contractual nature, the 3 rd respondent will
WP(C) No.23223/2021
be fully justified in insisting for Additional Performance
Guarantee in the facts of the case. Therefore, this Court is of
the considered opinion that the petitioners cannot as of right
claim waiver of Additional Performance Guarantee.
In such circumstances, the writ petition is disposed
of recording the submissions made as above by the Standing
Counsel for the 3rd respondent as regards the conditions at
paragraph 4(1) and 4(2) of Ext.P14. As the last date for
executing agreement is today and since the petitioners did not
execute agreements in view of the pendency of this writ
petition, respondents 3 to 5 are directed to permit the
petitioners to execute the requisite agreement at the latest by
5 p.m. on 05.11.2021.
Sd/-
N. NAGARESH, JUDGE
aks/03.11.2021
WP(C) No.23223/2021
APPENDIX OF WP(C) 23223/2021
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 1ST PETITIONER AS NO.138/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P2 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 1ST PETITIONER AS NO.186/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P3 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 1ST PETITIONER AS NO.142/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P4 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 1ST PETITIONER AS NO.188/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P5 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 2ND PETITIONER AS NO.177/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 2ND PETITIONER AS NO.175/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 2ND PETITIONER AS NO.80/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P8 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 2ND PETITIONER AS NO.74/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
WP(C) No.23223/2021
Exhibit P9 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 2ND PETITIONER AS NO.97/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P10 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 3RD PETITIONER AS NO.114/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P11 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 3RD PETITIONER AS NO.143/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P12 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 3RD PETITIONER AS NO.173/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P13 TRUE COPY OF THE COMMUNICATION DATED
21.10.2021 ISSUED BY THE 5TH RESPONDENT
TO THE 3RD PETITIONER AS NO.179/21-22
AE/LID&EW/GEN, INFORMING OF HIS
SELECTION.
Exhibit P14 TRUE COPY OF THE ORDER AS G.O.(P)
NO.7/2021/FIN DATED 7.1.2021 ISSUED BY
THE GOVERNMENT OF KERALA.
RESPONDENTS' EXHIBITS:
ANNEXURE R3(a) TRUE COPY OF THE RELEVANT PAGES OF THE
TENDER NOTICE DATED 23.09.2021
ANNEXURE R3(b) DECISION OF THE PANCHAYATH DATED
18.10.2021
ANNEXURE R3(c) DECISION OF THE PANCHAYATH DATED
29.10.2021
SR
