M/S Hill Track Construction ... vs Kerala Water Authority
2023 Latest Caselaw 3446 Ker

WP(C) NO. 9785 OF 2023
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             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
                      WP(C) NO. 9785 OF 2023
PETITIONER/S:

           M/S HILL TRACK CONSTRUCTION
           REPRESENTED BY ITS MANAGING DIRECTOR, DEVASIA P.A,
           AGED 69 YEARS, S/O AUGUSTY, PUTHUPPARAMBIL HOUSE,
           NADAVAYAL POST , PANAMARAM, WAYANAD, PIN - 670721
           BY ADVS.
           JOBY JACOB PULICKEKUDY
           ANIL GEORGE
           DAJISH JOHN
           SMITHA PHILIPOSE
           ASHIK TOM


RESPONDENT/S:

      1    KERALA WATER AUTHORITY
           REPRESENTED BY THE MANAGING DIRECTOR, JALABHAVAN,
           THIRUVANANTHAPURAM, PIN - 695033
      2    THE SUPERINTENDING ENGINEER
           OFFICE OF THE SUPERINTENDING ENGINEER, PUBLIC
           HEALTH CIRCLE KERALA WATER AUTHORITY, PALAKKAD,
           PIN - 678001




           SRI.V.V.JOSHI,SC


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   24.03.2023,   THE   COURT    ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 9785 OF 2023
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                              JUDGMENT

This writ petition is filed by the petitioner, a contractor engaged

by the Kerala Water Authority, seeking the following reliefs:-

"I) to call for the records which lead to the issuance of Exts.P2 and to issue writ in the nature of certiorari or any other appropriate writ, order or direction quashing the condition of imposing Rs.2,93,94,095/- (Rupees Two Crore Ninety Three Lakh Ninety Four Thousand Ninety Five only) as additional performance guarantee.

II) to declare that the petitioner is entitled for benefits under Ext.P1 G.O.(P) No.7/2021/FIN dated 07.01.2021 and Ext.P3 - G.O. (P) No.32/2022/FIN dated 15.03.2022

III) to issue a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding respondents to permit the petitioner to execute the agreement without insisting for conditions in Ext.P2.

IV) to issue such other order or direction as this Hon'ble Court deems fit and proper to grant, in the nature and course of the proceedings."

2. The contention put forth by the petitioner is on the basis of

Exts.P1 and P3 orders issued by the State Government in the matter of

providing additional performance guarantee, taking into account, the

Covid-19 related issues. According to the petitioner, consequent to the WP(C) NO. 9785 OF 2023

Government Orders, petitioner is not liable to provide any

performance guarantee. The said question was considered by this

Court in a batch of writ petitions in W.P.(C)No.14051/2022 and

connected cases, and held that Ext.P3 order extending the time limit

of benefit on account of Covid-19 related issues is only for relaxation

granted for furnishing performance guarantee and not additional

performance guarantee. In that view of the matter, I do not think

petitioner is entitled to get any relief as are sought for in the writ

petition. Therefore, the reliefs sought for are declined.

3. However, on hearing the learned Counsel for the petitioner

Sri. Anil George and the learned Standing Counsel for the Kerala

Water Authority Sri. V.V.Joshi, I make it clear that if the time period

for execution of the agreement is expired or about to expire, two weeks

time shall be granted to the petitioner for execution of the agreement

by providing additional performance guarantee.

The writ petition is dismissed accordingly.

Sd/-

SHAJI P.CHALY JUDGE

uu 24.03.2023 WP(C) NO. 9785 OF 2023

APPENDIX OF WP(C) 9785/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF G.O.(P) NO.7/2021/FIN DTD.

07.01.2021 ISSUED BY ADDITIONAL CHIEF SECRETARY FINANCE, GOVERNMENT OF KERALA Exhibit P2 THE TRUE COPY OF LETTER OF ACCEPTANCE DATED 17.03.2023 ISSUED BY THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF G.O.(P) NO.32/ 2022/FIN DATED 15.03.2022 ISSUED BY ADDITIONAL CHIEF SECRETORY FINANCE GOVERNMENT OF KERALA Exhibit P4 HE TRUE PHOTOCOPY OF INTERIM ORDER IN WPC 12099 OF 2022 BEFORE THIS HON'BLE COURT DATED 08/04/2022