REENA ENGINEERS AND CONTRACTORS PVT. LTD v. KERALA WATER AUTHORITY

KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 THE SUPERINTENDING ENGINEER OFFICE OF THE SUPERINTENDING ENGINEER, P.H.CIRCLE, KERALA WATER AUTHORITY, UPHILL.P.O.,MALAPPURAM, PIN - 676505 ADDL R3, THE EXECUTIVE ENGINEER, PWD DIVISION, MANJERI. *(ADDL R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 15-12-2023.) SRI.GEORGIE JOHNY - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 41254 OF 2023 2 JUDGMENT The petitioner, who is stated to have taken a contract for laying pipe lines under the Kerala Water Authority (‘KWA’), has approached this Court seeking a direction to the said Authority to permit them to honour the Performance Guarantee, mandatorily required, through a Bank Guarantee rather than by deposit of money.

2. Sri.P.Shanes Methar – learned counsel for the petitioner, submitted that his client has been constrained to approach this Court because, though the tender conditions mandate that the Performance Guarantee must be honoured through a Cash Deposit, his client will be put to irreparable prejudice because, the work cannot be even commenced now, much less completed, on account of the fact that the KWA has not obtained the necessary Road Cutting Permits from the Public Works Department (‘PWD’).

3. Sri.Georgie Johny – learned Standing Counsel for the KWA, however, in response, submitted that, as long as the petitioner is aware and admits that the Performance Guarantee has to be furnished by Cash Deposit and not Bank Guarantee, they cannot seek any reliefs in this writ petition.

4. Noticing the afore rival submissions of the learned counsel for WP(C) NO. 41254 OF 2023 3 the parties, this Court asked the learned Standing Counsel for the PWD Sri.K.V.Manoj Kumar as to why the Road Cutting Permit has not been offered to the KWA. Interestingly, to this query, Sri.K.V.Manoj Kumar has filed a statement on record, dated 04.01.2024, averring as under: “5. As per Annexure I, the Kerala Water Authority which awards the works under Jal Jeevan Mission, has to deposit the restoration charges in order to see that the road cut has been restored to the original position maintaining quality. Certain other modalities are also prescribed in the Annexure I Government Order. Pursuant to the Annexure I Government Order in respect of certain works road cutting permission has been granted.

6. It is submitted that Kerala Water Authority had raised a concern that they are not in a position to immediately deposit the restoration charges for obtaining road cutting permission and it may cause further delay. It is further informed that the Jal Jeevan Mission is planned to be completed by March, 2024. Therefore further delay is to be avoided. In that circumstances the Secretary level Co-ordination Committee had convened a meeting on 04.12.2023 and issued a Circular dated 19.12.2023 relaxing the conditions in Annexure I Government Order. True copy of the Circular dated 19.12.2023 issued by the Chief Engineer (Roads) PWD is produced and marked as Annexure II. As stated in Annexure II in respect of work tendered prior to 14.09.2023, the Government Order dated 14.09.2023 is not applicable and the Water Authority is authorized to restore the road cut portion for the purpose of laying the pipes.”

5. It is, therefore, obvious that the delay in commencement of the work is solely on account of the failure of the KWA to deposit the restoration charges with the PWD, for which, the petitioner cannot be put to prejudice. The conduct of the KWA as afore, prima facie, may also in breach of the tender conditions because, the petitioner cannot complete the work within the time frames as has been stipulated in the contract. WP(C) NO. 41254 OF 2023 4 In the afore circumstances, this writ petition is ordered in the following manner: (a) If the KWA is unable to obtain the Road Cutting Permit from the PWD as is required for the completion of the contract entered into with the petitioner within a period of one month from now, then the petitioner will be allowed to substitute Ext.P5 Treasury Deposit with a Bank Guarantee, pending such permission being obtained. (b) In case of (a) above, and on the Road Cutting Permit being thereafter obtained, the competent Authority of the KWA will notify the petitioner; and they will thereupon substitute the Bank Guarantee with Cash Deposit, as per the tender notification, within a period of one week thereafter. Sd/- DEVAN RAMACHANDRAN JUDGE MC/12.1 WP(C) NO. 41254 OF 2023 5 APPENDIX OF WP(C) 41254/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 TRUE COPY OF THE TENDER NO SE/PHC/MPM/53/2022-23 DATED 11.10.2022 A TRUE COPY OF THE SCOPE OF WORK OF EXT.P1 TENDER TRUE COPY OF THE G.O.(MS) NO.11/2023/PWD DATED 14-02-2023 TRUE COPY OF THE WORK ORDER (LETTER NO. SE/PHC/MPM/ DB4/998/2022-23) DATED 08-12- 2022 ISSUED BY THE SECOND RESPONDENT A TRUE COPY OF THE TREASURY DEPOSIT RECEIPT NO. JL 1638481 DATED 22-12-2022 ISSUED FROM DISTRICT TREASURY; KANNUR TRUE COPY OF THE AGREEMENT NO. SE/PHC/ MPM/50/2022-25 DATED 22-12-2022 A TRUE COPY OF THE LETTER NO. REC/618/2023- 24 DATED 23-11-2023, SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT A TRUE COPY OF THE JUDGMENT DATED 10-11- 2023, IN W.P.(C) NO. 37371 OF 2023 A TRUE COPY OF THE LETTER NO.REC/457/2023- 24 DATED 13.9.2023 SUBMITTED BY THE PETITIONER A TRUE COPY OF THE LETTER NO.REC/528/2023- 24 DATED 24.10.2023 SUBMITTED BY THE PETITIONER A TRUE COPY OF THE LETTER NO.REC/495/2023- 24 DATED 9.10.2023 SUBMITTED BY THE PETITIONER RESPONDENT ANNEXURES Annexure R1(a) Annexure R1(b) Annexure R1(c) Annexure R1(d) Annexure R1(e) True Copy of the Screenshot to evidence submission of Application before the Authority concerned. True Copy of the Screenshot to evidence submission of Application before the Authority concerned True Copy of the Screenshot to evidence submission of Application before the Authority concerned. True Copy of the Screenshot to evidence submission of Application before the Authority concerned. True Copy of the Screenshot to evidence submission of Application before the WP(C) NO. 41254 OF 2023 6 Annexure R1(f) Annexure R1(g) Annexure R1(h) Annexure R2 Annexure I Annexure II Authority concerned. True Copy of the Screenshot to evidence submission of Application before the Authority concerned. True Copy of the Screenshot to evidence submission of Application before the Authority concerned. True Copy of the Screenshot to evidence submission of Application before the Authority concerned. True Copy of the letter dated 08.12.2023 Issued by this Respondent No.1 Kerala water Authority to the Executive Engineer, PWD. True copy of the Government Order dated 14.09.2023. True copy of the Circular dated 19.12.2023 issued by the Chief Engineer (Roads) PWD.