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V.Ummer Haji v. State of Kerala

Kerala HC21 Jan 2021WP(C)/50/2021

Case brief

AI extract

What is this about?

The High Court directed the Superintending Engineer to manually adjust the petitioner's pending bill towards the required performance and additional performance guarantees, overriding the requirement for an online EMLI indemnity certificate, until software modifications are effected.

What did the court decide?

Direction to re-consider request and adjust admissible bill amount towards performance guarantee manually within three weeks, granting further time for agreement execution.

V.Ummer Haji Vs State of Kerala — Writ and Judicial Review | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942

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WP(C).No.50 OF 2021(E)

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PETITIONER:

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V.UMMER HAJI AGED 67 YEARS VAZHAKANDY HOUSE, SULATHAN BATHERI, WAYANAD DISTRICT - 673 592.

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BY ADVS. SRI.JOMY GEORGE SRI.R.PADMARAJ SRI.M.J.BENNY SRI.DEEPAK MOHAN SMT. CHITRA N. DAS SHRI.RISHAB S.

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE SECRETARY PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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3 THE SUPERINTENDING ENGINEER PWD ROADS NORTH CIRCLE, PWD COMPLEX, MANANCHIRA, KOZHIKODE - 673 001.

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4 THE EXECUTIVE ENGINEER PWD ROADS DIVISION, KALPATTA, WAYANAD DISTRICT - 673 121.

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OTHER PRESENT:

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SMT.PRINCY XAVIER, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.50 OF 2021(E)

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J U D G M E N T

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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.

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As per Ext.P1 selection notice issued on

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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 3^rd 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-NeerittadiVilambukandam Road between Km.0/000 to 2/000 in

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Wayanad District' for which a sum of

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Rs.2,09,60,616/- is due, as certified in Ext.P2

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WP(C).No.50 OF 2021(E)

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letter of the Executive Engineer.

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As per Ext.P3 -G.O.(Rt) No. 3834/2020/Fin

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dated 23.06.2020 Government has ordered that the

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amount under audited and passed bills of contractors

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would be accepted as Performance

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Guarantee/Additional Performance Guarantee for new contracts.

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Petitioner therefore submitted an

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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 3^rd 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.

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Petitioner points out that in the case of several contractors pending bills are already adjusted manually on the basis of directions from

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this Court since the EMLI software has not been

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WP(C).No.50 OF 2021(E)

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modified so far in tune with Ext.P3 Government Order.

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Learned Government Pleader also submitted

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that the EMLI software is not modified so far.

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Ext.P3 Government order has been issued as

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early as on 23.06.2020. As per sub clause (v) of

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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

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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,

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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

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benefit of the order. This Court has in several

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WP(C).No.50 OF 2021(E)

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cases directed the respondents to carry out the adjustment manually.

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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

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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'.

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The writ petition is disposed of accordingly.

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Sd/- P.V.ASHA, JUDGE

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WP(C).No.50 OF 2021(E)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SELECTION NOTICE NO.DB 1/SE/BR/9975/2019 DATED 20.10.2020 ISSUED BY THE 3RD RESPONDENT.

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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.

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EXHIBIT P3 TRUE COPY OF LETTER DATED 25.11.2020 ISSUED BY THE 3RD RESPONDENT REJECTING THE REQUEST OF THE PETITIONER.

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EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.3834/2020/FIN. DATED 23.06.2020.

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EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 14.10.2020 IN W.P.(C) NO.19846/2020 OF THIS HON'BLE COURT.

V.Ummer Haji v. State of Kerala

Case brief

What is this about?

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V.Ummer Haji v. State of Kerala

Case brief

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