A.K. Goswami, C.J. (Acting).,
1. This intra-court appeal is filed by the National Highways and Infrastructure Development Corporation Ltd. (NHIDCL) and its functionaries against the common judgement and order dated 11.06.2019, passed by the learned Single Judge in WP(C) 3452/2019 and WP(C) 3723/2019.
2. On the request of the learned counsel appearing for the parties, the appeal is heard for the purpose of disposal at the admission stage.
3. We have heard Ms. P. Anand, learned Additional Solicitor General of India, assisted by Ms. S. Sharma, Mr. G. Mahajan and Ms. D. Saikia, Advocates, appearing for the appellants. Also heard Mr. S. S. Dey, learned senior counsel, assisted by Mr. D. J. Kapil and Mr. J. Likha, Advocates, appearing for respondent No. 1 as well as Mr. A. Chamuah, learned counsel for respondent No. 3.
4. In response to a Global Notice Inviting Tender issued by the NHIDCL for construction of the civil work of “Four Laning of NF-37 from Nagaon to Rangagora (Km. 278.600 to Km. 297.000) in Nagaon District in the State of Assam under SARDP-NE, Phase A on EPC Mode”, the writ petitioner submitted its bid on 16.11.2015. Having declared to be the selected bidder, a Letter of Acceptance was issued on 23.12.2015 at its bid amount of Rs. 159,20,00,000/-. A contract agreement was entered into by and between the Ministry of Road, Transport and Highways, Government of India and the petitioner on 02.02.2016. The petitioner furnished its Performance Security on 04.01.2016. A Supplementary Agreement was executed on 27.12.2017 in between the parties whereby the Project Milestone I (10%) and Project Milestone II (30%) was revised from 18.11.2016 and 21.07.2017 to 30.10.2018 and 28.02.2018, respectively.
5. On 24.04.2019, the General Manager (T), NHIDCL, issued a Notice for Intention to Terminate the Contract to the authorized signatory of the petitioner company as per Clause 23.1.2 of the Contract Agreement. The petitioner submitted a representation dated 02.05.2019 to the General Manager (T), NHIDCL, requesting to withdraw the Notice for Intention to Terminate the Contract in the interest of the project on the grounds stated therein. Coming to learn that certain instructions had been issued to take over the site from the petitioner without any further notice, the petitioner had approached this court by filing a writ petition, which was registered as WP(C) 3452/2019. In the said writ proceeding, this court passed the following order on 27.05.2019: “Heard Mr. S.S. Dey, learned Senior Counsel assisted by Mr. D. J. Kapil, learned counsel for the petitioner and Mr. R. K. Talukdar, learned Standing Counsel, National Highways and Infrastructure Development Corporation Ltd. (NHIDCL). Matter relates to proposal for termination of contract awarded to the petitioner regarding four laning of National Highway 37 from Nagaon bypass end to Rangagara. In this connection, notice for termination was issued to the petitioner on 24.04.2019 giving liberty to the petitioner to make a representation within 15 days. Petitioner has submitted representation dated 02.05.2019 responding to such notice. It is apprehended that without taking a decision on the representation submitted by the petitioner, termination order may be issued. On a query by the Court, Mr. Dey submits that it is because of inability of NHIDCL to hand over continuous right of way throughout the stretch of work site that desired progress could not be made. This has been brought to the notice of NHIDCL authorities every now and then. But without appreciating the difficulties faced by the petitioner, impugned notice has been issued. Mr. Talukdar, learned Standing Counsel prays for 15 days time to obtain instruction. Let the instruction be placed before the Court on the next date. In the meanwhile, the contract awarded to the petitioner should not be terminated. However, petitioner shall expedite execution. On the next date, petitioner shall place before the Court the progress made in execution of the work and the road map for completion of the same. List on 17.06.2019.”
6. It is pleaded that the order dated 27.05.2019 was communicated to the respondent authorities at 3:42 P.M. through the e-mail of the counsel for the petitioner. On 29.05.2019, an Interlocutory Application (C) 1851/2019, under Article 226 (3) of the Constitution of India, was filed by the appellants herein for vacation of the aforesaid order dated 27.05.2019 wherefrom it came to the knowledge of the petitioner that an order dated 24.05.2019 was passed notifying “termination of the contract on account of the contractor’s default”. Challenging the said termination notice dated 24.05.2019, WP(C) 3723/2019 was filed by the petitioner praying for a direction to the respondent authorities not to act further in terms of the termination notice dated 24.05.2019 and to allow the petitioner to continue with the project work in terms of the contract dated 02.02.2016. As, in the meantime, the Bank Guarantees of the petitioner in Account No. 35289440227 had been invoked, prayer was also made to direct the respondent authorities to redeposit the Bank Guarantees.
7. From a perusal of the impugned order dated 11.06.2019, it appears that the writ petitions were heard on 03.06.2019 and the parties were directed to maintain status quo as on 03.06.2019. The parties in writ petitions were, thereafter, heard on 10.06.2019 and the impugned order was passed on 11.06.2019.
8. The operative portion of the impugned order dated 11.06.2019, passed by the learned Single Judge, reads as follows:
“It is in the light of the above and taking note of the dispute resolution mechanism provided by the contract agreement, Court is of the view that parties should be relegated to the forum of conciliation as provided in the contract agreement. Further, on due consideration, Court is of the view that Deputy Commissioner, Nagaon, would be the appropriate authority to act as the Conciliator.
Accordingly, Deputy Commissioner, Nagaon is directed to call both the parties within 7 days from the date of receipt of a certified copy of this order and initiate conciliation proceeding. If the Deputy Commissioner finds that it is because of non-removal of utilities from the work site which is causing hindrance in execution of the work, he shall intervene in the matter and do the needful, if necessary by using his good office so that the work can be completed as expeditiously as possible. Deputy Commissioner shall ensure that conciliation proceeding is carried out in the true spirit and concluded expeditiously preferably within 4 (four) weeks.
During conciliation proceeding, status quo order passed on 03.06.2019 shall continue. With the hope and expectation that parties will try to resolve the dispute promptly, equitably and in good faith, both the writ petitions are disposed of with the above observation and direction.”
9. Ms. Anand submits that in a matter of the present nature, where the NHIDCL had terminated the contract by taking recourse to Clause 23.1.2 of the Contract Agreement as the petitioner had miserably failed to perform the work despite issuance of many notices including notice issued for slow progress of work and intimation for damages under Clause 10.3.2 of the Contract Agreement, Cure Notice under Clause 23.1.1, notice indicating intention to Terminate the Contract dated 16.07.2018 under Clause 23.1.2 prior to the one dated 24.04.2019, etc., the remedy of the petitioner, if any, was only in respect of damages by following the procedure prescribed for dispute resolution under Article 26 of the Contract Agreement and, therefore, the learned Single Judge was not correct in entertaining the writ petition. Though elaborate provision regarding conciliation is provided for in Clause 26.2 of the Contract Agreement, the learned Single Judge, while relegating the parties to the forum of conciliation as provided in the Contract Agreement, directed the Deputy Commissioner, Nagaon, who is a stranger to the Contract Agreement, to act as the conciliator. Ms. Anand has further submitted that the learned Single Judge committed manifest error of law in directing that during such conciliation proceeding, status quo order passed on 03.06.2019 shall continue. She has submitted that the work, being a public project of utmost importance, and there having been fundamental breaches of the contract and the petitioner having completed only 20% of the 18.4 Km. of road in last three years or so, the order passed by the learned Single Judge cannot be sustained in law as there cannot be any premium on default. The contract having been terminated, issuance of the order of status quo, thereby preventing authorities from taking steps for carrying on with the construction of the road, which is of utmost importance, through another contractor by following due process cannot be sustained. Relying on the letter dated 05.12.2018, wherein mention is made about the meeting held on 20.11.2018 between the authority of the NHIDCL and the contractor, Ms. Anand has submitted that though the Managing Director of the petitioner company had submitted a Monthly Work Programme relating to DBM completion targets in 4-Lane basis till 31.03.2019, only 1.84 Km. was completed as against projected figure of 13 Km. The plea taken by the petitioner that there was delay because of the fact that continuous Right of Way throughout the stretch of work had not been handed over to the petitioner and that it was not possible on the part of the petitioner on its own to get the utilities, such as, electric lines, telephone cables, etc. shifted, unless assistance is provided by the Corporation, is without any substance as the petitioner itself had projected Work Completion Schedule which it miserably failed to achieve. Relying on Clause 8.3.2 of the Contract Agreement, Ms. Anand has submitted that the contractor is required to complete work before the scheduled completion date with respect to the parts of the site provided. It is submitted that under Article 9.2, it is the contractor who has to cause shifting of any utility including electric lines, water pipes and telephone cables to an appropriate location or alignment, if such utility or obstruction affects the execution of works or maintenance of the project highway. Though assistance of the NHIDCL authority can be taken, there is no material to show that despite request being made by the petitioner, the appellants had failed to provide any assistance in shifting of utilities. Ms. Anand has submitted that as per the Joint Survey report dated 19.04.2019, the encumbrance-free land on the left hand side measuring 17.112 Km. and on the right hand side measuring 17.182 Km., which amounts to 93.19%, have been handed over leaving only 6.81% of the land which is still encumbered. In support of her contentions, learned senior counsel for the appellants has relied on the following judgements: Indian Oil Corporation Ltd. Vs. Amritsar Gas Service and Others, reported in (1991) 1 SCC 533, State of UP vs. Bridge & Roof Co. (India) Ltd., reported in (1996) 6 SCC 22 and State of Bihar vs. Jain Plastics and Chemicals Ltd., reported in (2002) 1 SCC 215.
10. Mr. S. S. Dey, learned senior counsel for respondent No. 1 has submitted that no reliance can be placed on the documents enclosed along with the writ appeal as the appellants had not filed any affidavit before the learned Single Judge and, that apart, no leave was also sought for to place before the court documents which were not part of the writ petition. Mr. Dey has submitted that in that view of the matter, the arguments advanced by Ms. Anand that the petitioner company had also failed to keep its commitment in terms of the minutes of the meeting held on 20.11.2018 cannot be taken cognizance of. He submits that the NHIDCL, though is an authority within the meaning of Article 12 of the Constitution of India, presumption as to genuineness of documents in respect of the Central Government or the State Government, as available under Section 79 of the Evidence Act, 1872, is not available to the NHIDCL. He submits that the crucial aspect of the case is that the 910 days’ of construction period will commence from the Appointed Date, as defined in Clause 28.1 and the authority having not provided and delivered the Right of Way on not less than 90% of the total length of the Project Highway, the Appointed Date has not even started. In the aforesaid context, learned senior counsel submits that it cannot be attributed to the petitioner that there has been failure on the part of the petitioner to complete the project work or that it had failed to perform the work in terms of the Contract Agreement. The present state of affairs is solely due to the failure on the part of the NHIDCL to deliver the Right of Way by clearing encumbrances but for which the petitioner, which is a reputed contractor, could have completed the work as stipulated. He has submitted that the impugned termination notice is exfacie illegal and arbitrary and is violative of Articles 14 and 19 of the Constitution of India and, therefore, the learned Single Judge was wholly justified in entertaining the writ petition and in issuing directions for conciliation through the Deputy Commissioner, Nagaon, in the interest of completion of the project since termination of the contract would entail floating of a fresh global tender which will certainly take a long time to finalize. Learned senior counsel submits that thought the petitioner had submitted a detailed representation dated 02.05.2019 to the Notice for Intention to Terminate the Contract dated 24.04.2019, without dealing with the contentions advanced, points raised had been brushed aside without assigning any reason and, therefore, such rejection depicts total non-application of mind. It is submitted by him that the petitioner is ready and willing to complete the work in one year if complete Right of Way is provided to the petitioner. It is also submitted by him that the appellants acted illegally in invoking the Bank Guarantees and it is doubtful as to whether in reality the order of termination was passed on 24.05.2019 as it does not stand to reason that if such an order had been passed, it would be reasonable to expect that the counsel appearing for the appellants would have apprised the court about such development when the matter was taken up on 27.05.2019. Mr. Dey has relied on the following judgements: State of U.P. vs. Manbodhan Lal Srivastava, reported in AIR 1957 SC 912, Harbanslal Sahnia and Ors. Vs. Indian Oil Corpn. Ltd. And Ors, reported in (2003) 2 SCC 107, Bharat Singh and Others vs. State of Haryana and Others, reported in (1988) 4 SCC 534, Union of India (UOI) and Ors. Vs. Tantia Construction Pvt. Ltd., reported in (2011) 5 SCC 697.
11. Mr. A. Chamuah, learned counsel appearing for respondent No. 3 has adopted the submissions of Ms. Anand.
12. We have considered the submissions of the learned counsel for the parties and have perused the materials on record.
13. At this juncture, it will be relevant to note that an Interlocutory Application, registered as I.A.(C) 2974/2019, supported by an affidavit of Joga Prasad Deka, was filed on 04.09.2019 praying for rejection of the affidavits filed on 09.08.2019 and 14.08.2019. In the said affidavit, at paragraph 1, it is stated that on 05.08.2019, the learned counsel for the appellants had concluded her submissions at about 2:45 P.M. and the learned counsel for respondent No. 1 had commenced his submissions and, as the court rose at 3:00 P.M., submissions on behalf of respondent No. 1 was fixed on 16.08.2019. Joga Prasad Deka had also filed affidavit-in-reply on 05.09.2019, on behalf of respondent No. 1, to the affidavits dated 14.08.2019 and 21.08.2019 filed by respondent No. 3. In the said affidavit, at paragraph 4(c), however, it is stated that respondent No. 3 was not made party deliberately by the appellants and, only after serious objection having been raised by the learned counsel for respondent No. 1, respondent No. 3 was impleaded in the appeal proceeding by order dated 05.08.2019. The order dated 05.08.2019 goes to show that, while fixing the matter on 16.08.2019, on the prayer of Ms. P. Anand, learned Additional Solicitor General of India, appearing for the appellants and not opposed by Mr. S. S. Dey, learned senior counsel for the respondent No. 1, the Union of India, represented by the Secretary to the Ministry of Road, Transport and Highways, Government of India, Transport Bhawan, 1, Parliament Street, New Delhi-110001, and STUP Consultancy Private Ltd., C/o Mr. Bhaskar Tamuly, Fauzdari Patty, Kirtan Ghar Path, Kath Mill Chariali, P.O. & P.S. Nagaon, PIN-781001, were allowed to be impleaded as respondents No. 2 and 3, respectively, with a direction to issue notice to them.
14. At the outset, we deem it appropriate to deal with the submission of Mr. Dey that documents produced by the appellants cannot be looked into by this court as the appellant had not filed affidavit in the writ proceeding.
15. In Manbodhan Lal Srivastava (supra), it was observed that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps and, accordingly, had not permitted the State Government to place additional evidence when there was sufficient opportunity for the State Government to place all the relevant matters before the High Court. It was also observed that position will be different when the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties.
16. In Bharat Singh (supra), it was observed that when a point, which is ostensibly a point of law, is required to be substantiated by facts, the party raising the point must plead and prove such facts by evidence which must appear from the writ petition or the counter affidavit, as the case may be, and, in absence thereof, the court would not entertain the point. In absence of any material in the writ petition in support of the contention of the appellants before the Hon’ble Supreme Court that the impugned acquisition was nothing but a profiteering venture and the said contention having not been advanced before the High Court, the plea sought to be raised in this regard before the Hon’ble Supreme Court, though not entertainable, was still entertained to demonstrate the hollowness of the point urged.
17. The original records of the writ petition are not before this court and, therefore, we cannot say with certainty on what date the writ petition challenging the order of termination was filed. However, going by the averments made in the writ petition, copy of which is part of the appeal papers, it becomes abundantly clear that such writ petition was filed after the application under Article 226(3) had been filed by the appellants on 29.05.2019 in WP(C) 3452/2019. It also is evident from the order of the learned Single Judge that the writ petition was first heard on 03.06.2019, just four days later from 29.05.2019. It is noticed from the impugned judgement that the learned Single Judge had directed the appellants to produce the record and that the documents produced by the learned counsel for the appellants had also been perused. This court, on 27.06.2019, had directed the learned counsel for the appellants to produce the relevant records in terms of which the records have been produced. Having regard to the principles laid down in the aforesaid two judgements of the Hon’ble Supreme Court, it is open for this court to look into the records produced by the learned senior counsel for the appellants. We are, however, conscious of the fact that it will not be appropriate for us to rely on documents, which are disputed by the writ petitioner during the course of the proceeding, as, if such documents had been annexed in an affidavit, the petitioner would have been in a position to advert to the same and make appropriate response. It is on the aforesaid premise, we will proceed to deal with the contentions raised by the parties.
18. At this stage, it will be appropriate to take note of the following definitions as finding place under Clause 28.1 of the Contract Agreement: Appointed Date: Appointed Date means that date which is later of the 15th of the date of this Agreement, the date on which the Contractor has delivered the Performance Security in accordance with the provisions of Article 7 and the date on which the Authority has provided the Right of Way on no less than 90% (Ninety per cent) of the total length of the Project Highway. Encumbrances: “Encumbrances” means, in relation to the Project Highway, any encumbrances such as mortgage, charge, pledge, lien, hypothecation, security interest, assignment, privilege or priority of any kind having the effect of security or other such obligations, and shall include any designation of loss payees or beneficiaries or any similar arrangement under any insurance policy pertaining to the Project Highway, where applicable herein but excluding utilities referred to in Clause 9.1. Right of Way: Right of Way means the constructive possession of the site free from encroachments and encumbrances, together with all way leaves, easements, unrestricted access and other rights of way, howsoever described, necessary for construction and maintenance of the Project Highway in accordance with this agreement.
19. Having regard to the controversy, it will also be apposite to take note of the following Clauses of the Contract Agreement:
4.1.3: The Authority shall provide to the Contractor:
(a) Upon receiving the Performance Security under Clause 7.1.1., the Right of Way in accordance with the provisions of Clauses 8.2 and 8.3, within a period of 15 (fifteen) days from the date of this Agreement, on no less than 90% (ninety per cent) of the total length of the Project Highway;
*** *** ***
8.2.1: The Authority Representative and the Contractor shall, within 15 (fifteen) days of the date of this Agreement, inspect the site and prepare a memorandum containing an inventory of the site including the vacant and unencumbered land, buildings, structures, road works, trees and any other immovable property on or attached to the site. Subject to the provisions of Clause 8.2.3, such memorandum shall have appended thereto an appendix (the “Appendix”) specifying in reasonable detail those parts of the site to which vacant access and Right of Way has not been given to the contractor. Signing of the memorandum, in two counterparts (each of which shall constitute an original), by the authorized representatives of the parties shall be deemed to constitute a valid evidence of giving the Right of Way to the contractor for discharging its obligations under and in accordance with the provisions of this Agreement and for no other purpose whatsoever. Whenever the Authority is ready to hand over any part or parts of the site included in the Appendix, it shall inform the contractor, by notice, the proposed date and time such handing over. The Authority Representative and the contractor shall, on the date so notified, inspect the specified parts of the site, unencumbered land, buildings, structures, road works, trees and any other immovable property on or attached to the site so handed over. Signing of the memorandum, in two counterparts (each of which shall constitute an original), by the authorized representatives of the parties shall be deemed to constitute a valid evidence of giving the relevant Right of Way to the contractor.”
8.3.2: Notwithstanding anything to the contrary contained in this Agreement, the contractor expressly agrees that works on all parts of the site for which Right of Way is granted within 90 (ninety) days of the Appointed Date, or with respect to the parts of the site provided in Schedule-A, not later than the date(s) specified therein, as the case may be, shall be completed before the Scheduled Completion Date and shall not qualify for any Time Extension under the provisions of Clause 8:3:1.
9.2: Shifting of obstructing utilities: The Contractor shall, in accordance with Applicable Laws and with assistance of the Authority, cause shifting of any utility (including electric lines, water pipes and telephone cables) to an appropriate location or alignment, if such utility or obstruction adversely affects the execution of Works of Maintenance of the Project Highway in accordance with this Agreement. The actual cost of such shifting, as approved and communicated by the entity owning the utility, shall be paid by the Contractor and reimbursed by the Authority to the Contractor. In the event of any delay in such shifting by the entity owning the utility beyond a period of 180 (one hundred and eighty) days from the date of notice by the Contractor to the entity owning the utility and to the Authority, the Contractor shall be entitled to Damages in a sum calculated in accordance with the formula specified in Clause 8.3.1. for the period of delay, and to Time Extension in accordance with Clause 10.5 for and in respect of the part(s) of the Works affected by such delay; provided that if the delays involve any time overlaps, the overlaps shall not be additive.
23.1: Termination for Contractor Default
23.1.1. Save as otherwise provided in this Agreement, in the event that any of the defaults specified below shall have occurred, and the Contractor fails to cure the default within the Cure Period set forth below, or where no Cure Period is specified, then within a Cure Period of 60 (sixty) days, the Contractor shall be deemed to be in default of this Agreement (the “Contractor Default”), unless the default has occurred solely as a result of any breach of this Agreement by the Authority or due to Force Majeure. The defaults referred to herein shall include:
(a) *** *** ***
(c) The Contractor does not achieve the latest outstanding Project Milestone due in accordance with the provisions of Schedule-J, subject to any Time Extension, and continues to be in default for 45 (forty-five) days;
(f) The Project Completion Date does not occur within the period specified in Schedule-J for the Scheduled Completion Date, or any extension thereof.
(q) The Contractor has failed to fulfil any obligation, for which failure Termination has been specified in this Agreement; or
23.1.2: Without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Contractor Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Contractor; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Contractor of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Contractor to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice.
26.1 Dispute Resolution
26.1.1. Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement (Including its interpretation) between the Parties, and so notified in writing by either Party to the other Party (the “Dispute”) shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 26.2.
In the event of any Dispute between the Parties, either Party may call upon Authority’s Engineer, or such other person as the Parties may mutually agree upon (the “Conciliator”) to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Conciliator or without the intervention of the Conciliator, either Party may require such Dispute to be referred to the Chairman of the Authority and the Chairman of the Board of Directors of the Contractor for amicable settlement and upon such reference, the said persons shall meet no later than 7 (seven) business days from the date of reference to discuss and attempt to amicably resolve the Dispute. If such meeting does not take place within the 7 (seven) business day period or the Dispute is not resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in writing referred to in Clause 26.1.1 or such longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Clause 26.3.
26.3.1 Any dispute which is not resolved amicably by conciliation, as provided in Clause 26.2, shall be finally decided by reference to arbitration by a Board of Arbitrators appointed in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi (the “Rules”), or such other rules as may be mutually agreed by the Parties, and shall be subject to the provisions of the Arbitration Act. The venue of such arbitration shall be Delhi and the language of arbitration proceedings shall be English.”
20. In the writ petition, amongst others, the writ petitioner had annexed the notice dated 24.04.2019, copy of the representation dated 02.05.2019 and the termination order dated 24.05.2019.
21. The relevant portion of the notice dated 24.04.2019 is reproduced below:
“No. NHIDCL/ASSAM/NH-37/Nagaon-Rangagara/TKE/2016/27/308 date 24.04.2019
The Authorised Signatory,
M/s T.K. Engineering Consortium Pvt. Ltd.,
Model Village, Nahariagun-791110
Papumpare district, Arunachal Pradesh
Kind Attn: Mr. Tara Techi, Director, M/s T. K. Engineering Consortium Pvt. Ltd.
Sub: Four Laning of NH-37 from end of Nagaon Bypass to Rangagara (Ch 278.600 to Ch 297.000) in Nagaon District in the State of Assam under SARDP-NE, Phase A, on EPC basis – Notice for intention to Terminate the Contract as per Clause 23.1.2 reg.
Ref: (i) NHIDCL/Assam/NH-37/Rangagara-Kaliabore Tiniali/Re/2015 dated 16.01.2017 issuing LOA.
(ii) Contract Agreement dated 02.02.2016.
(iii) Supplementary Agreement dated 27.12.2017 (Revision of Milestone I & II)
(iv) GM (T) Letter No. NHIDCL/Assam/NH-52/J-BC/TKE/2016/68 dated 06.09.2017.
(v) Authority Engineer’s letter No. STUP/NH37/NR/NHIDCL/2018/253 dated 16.05.2018.
(vi) Authority Engineer’s letter No. STUP/NH37/NR/TK/2017-18/249 dated 28.02.2018 (Failure in taking follow up action against Cure Notice served).
(vii) GM (P) Letter No. NHIDCL/GHY/2018/Assam/8403 dated 03.02.2018 (Issue of Cure Notice).
(viii) GM (T) NHIDCL/Assam/NH-37/Nagaon-Rangagara/TKE/ 2016/ 1403 dated 16.07.2018 (Issue of Notice regarding Intention to Terminate).
(ix) EPC Contractor Letter No. TKECPL/NH-37/NTR/NHIDCL/2018/ 351 dated 29.07.2018 (Representation on Notice regarding Intention to Terminate).
(x) GM (T) Letter No. NHIDCL/Assam/NH-52/BC-Gohpur/Ramky-TKE/ 2015/34 dated 05.12.2018 (Progress review meeting).
(xi) GM (T) Letter No. NHIDCL/Assam/NH-37/Nagaon-Rangagara/ TKE/2016/14/4316 dated 11.01.2019.
(xii) EPC Contractor Letter No. TKECPL/NH-37/NTR/AE/2018/362 dated 13.11.2018 (Submission of Six months programme).
(xiii) GM (P) Letter No. 10009/Notice/N-R/NHIDCL/Tez/10101/124 dated 20.03.2019.
Whereas, LOA for the work of “4 laning of NH-37 from end of Nagaon Bypass to Rangagara (Ch 278.6000 to Ch 297.000) in Nagaon District in the state of Assam under SARDP-NE, Phase-A, on EPC basis” (hereinafter referred as “project”) was issued to M/s T.K. Engineering Consortium Pvt. Ltd. (hereinafter referred as “Contractor”) on 23.12.2015 by the National Highway Infrastructure Development Corporation Limited (NHIDCL) (hereinafter referred to as “Authority”);
2. Whereas, a Contract Agreement was signed on 02.02.2016 between the Authority and the Contractor; and
3. Whereas, a Supplementary Agreement was signed between the Authority and the Contractor on 27.12.2017 for revision of Project Milestone-I & II from 18.11.2016 to 21.07.2017 to 30.10.2018 & 28.02.2018 respectively; and
4. Whereas, from the very inception of the project, sheer lack of professionalism and zeal towards execution of activities, as per the requirement of contractual obligations, has been observed. As a result of inactivity in the initial months, even the pre-construction activities viz. utility shifting, establishment of Base camp, obtaining permission for extraction of materials etc. which are the prime obligation of the Contractor, unnecessarily got delayed which adversely affected all the subsequent works under the package; and
5. Whereas, the Contractor has continuously failed to induct sufficient manpower, material and resources for progress of work as per desired pace and has shown no reciprocation by increasing the resources; and
6. Whereas, despite repeated notices from Authority/Authority’s Engineer, the performance of the EPC Contractor was extremely poor and was not found satisfactory to the requirement of the project and having no other option left, the Authority issued Cure Notice to the Contractor in accordance with the Clause 23.1.2 of the Contract Agreement, vide Authority’s Letter No. GM (P) Letter No. NHIDCL/GHY/2018/Assam/8403 dated 03.02.2018 and to rectify all defaults of the Contract Agreement in a time bound manner within 60 (sixty) days from the date of notice; and
7. Whereas, the Contractor was warned by AE vide letter No. /NH37/ NR/TK/2017- 18/249 dated 28.02.2018 still the Contractor has not shown any intention to submit revised work programme or mobilize requisite resources for further execution of the activities; and
8. Whereas, the Contractor was asked to submit follow up action against the Cure Notice issued by the Authority. However, neither any response from the Contractor was received nor any significant activities were found to be taken up by the EPC Contractor; and
9. Whereas, an Intention to Terminate Notice was issued to the Contractor vide Authority’s Letter No. NHIDCL/Assam/NH-37/Nagaon-Rangagara/TKE/2016/1403 dated 16.07.2018 which highlighted all the defaults and defects of the Contractor; and
10. Whereas, the Contractor has submitted its representation against the notice for intention to Terminate vide Letter No. TKECPL/NH-37/NTF/NHIDCL/2018/351 dated 29.07.2018; and
11. Whereas, a meeting was held on 20.11.2018 between Authority and the Contractor and Minutes of the Meeting (hereinafter referred as MOM) was finalized. However, representative of the Contractor submitted monthly work programme till 31 st March 2019, which the Contractor failed to achieve in any of the months singly or cumulatively; and
12. Whereas, GM (P) vide Letter No. 10009/Notice/N-R/NHIDCL/Tez/ 10100/124 dated 20.03.2019 has issued Reminder Notice for shortfall in progress and given the current status of work against the target quantum of work. Further, GM (P) has recommended cancelling the Contract Agreement without issuing any further Termination Notice; and
13. Whereas, the Contractor has breached the Contract Agreement, inter-alia, with the defaults in terms of Sub-Clause (c) of Clause 23.1.1 of Article 23 of Contract Agreement.
13.1 Sub-clause (c) “the Contractor does not achieve the latest outstanding Project Milestone due in accordance with the provision of Schedule-I subject to any Time Extension, and continues to be in default for 45 (forty five) days; and
14. Whereas, the Authority has extended all possible support & efforts to expedite the progress of the project but the Contractor has shown no intention to execute the project as per Contract Agreement; and
15. Whereas, in the view of the above, the Authority is left with no other options but to terminate this Contract for the defaults as above; and
16. In the light of the aforesaid, non exhaustive fundamental breached and in view of the Contractor’s persistent & sustained gross default in fulfilling contractual obligations, leading to a material adverse effect on the Project, the Authority hereby notifies its Intention to Terminate the Contract in accordance with the Clause 23.1.2 of the Contract Agreement and grant 15 days to the Contractor to make representation, if any. It is made clear that in the event of non-compliance and failure to rectify the defaults and irrespective of the receipt of any representation, the Authority reserves its right and would be at liberty to take further steps for Termination of the Contract.
17. This Notice is issued without prejudice to any other right or remedy available with the Authority under the Contract Agreement and/or applicable law.
General Manager (T)
22. The aforesaid Notice for Intention to Terminate the Contract indicates, amongst others, that there was lack of professionalism and zeal towards execution of the activities as per the required contractual obligations from the inception of the project and the petitioner had continuously failed to induct sufficient manpower, materials and resources for progress of work as per desired pace despite repeated notices and in spite of extension of possible support and efforts to expedite the progress of the project, but there was no intention on the part of the contractor to execute the project as per the contract agreement. It is also stated therein that despite repeated notices issued, the performance of the petitioner was extremely poor and was not found satisfactory to the requirement of the project and, having no options left, Cure Notice to the petitioner was issued on 03.02.2018 under Clause 23.1.2 of the Contract Agreement to rectify all defaults of the Contract Agreement in a time-bound manner within sixty days and that a Notice of Intention to Terminate the Contract was also issued on 16.07.2018 highlighting the defaults and defects of the petitioner. The notice also referred to the minutes of a meeting held on 20.11.2018 between the NHIDCL authority and the petitioner indicating that the Monthly Work Programme submitted by the petitioner till 31.03.2019 was also not achieved in any of the months singly or cumulatively.
23. The petitioner had submitted a representation dated 02.05.2019, taking various grounds to justify the reasons for the delay. It was stated, amongst others, that the authority was yet to handover the encumbrance free Right Of Way (ROW) as per the contract provisions and that the NHIDCL authorities had violated the various provisions of the Contract Agreement and it was on account of the same the delay had occasioned. It was also stated therein that till the date of filing the representation the total land handed over to the petitioner company was 86.38%. While not disputing the issuance of Cure Notice and Notice for Intention to Terminate the Contract, it was stated that the same were premature and served hastily. Though the meeting held on 20.11.2018 has not been disputed, it is stated that it was NHIDCL who had fixed the monthly progress to be achieved till April, 2019. Accordingly, it was prayed for withdrawal of the Notice for Intention for Termination of Contract with immediate effect.
24. 1st installment of 5% and 2nd installment of 5% towards advance were given in November 2016 and December 2016.
25. The Termination Notice dated 24.05.2019 reads as follows:
“NHIDCL/Assam/NH-37/Nagaon-Rangagara/TKE/2016/29/687 Date: 24.05.2019
M/s T.K. Engineering Consortium Pvt. Ltd.
Model Village, Naharlagun-791110 District Papum Pare,
[Kind Attention: Mr. Tara Techi, Director]
Sub: Four Laning of NH-37 from end of Nagaon By-pass to Rangagarh (Ch 278.6000 to Ch 297.000) in Nagaon District in the State of Assam under SARDPNE-Phase ‘A’; on EPC basis
Reg: ‘Termination Notice’ in accordance with Clause 23.1.2.
Ref: 1. GM(T) Letter No. NHIDCL/Assam/NH-52/J-BC/TKE/2016/68 dated 06.09.2017 (Minutes of Meeting).
2. Authority Engineer Letter No. STUP/NH37/NR/TK/2017/209 dated 04.10.2017 (Slow Progress of work).
3. Authority Engineer Letter No. STUP/NH37/NR/TK/2017/210 dated 06.10.2017 (Maintenance of existing road and construction of four lane).
4. Authority Engineer Letter No. STUP/NH37/NR/TK/2017/217 dated 14.10.2017 (Slow Progress and proposal for intention to termination of contract).
5. Authority Engineer Letter No. STUP/NH37/NR/TK/2017/227 dated 04.10.2017 (Slow Progress of work).
6. Authority Engineer Letter No. STUP/NH37/NR/TK/2017/234 dated 22012.2017 (inadequate mobilisation of resources).
7. Authority Engineer Letter No. STUP/NH37/NR/TK/2017/235 dated 06.01.2018 (Slow Progress of work).
8. Authority Engineer Letter No. STUP/NH37/NR/TK/2017/238 dated 11.01.2018 (Extremely Slow Progress).
9. Authority Engineer Letter No. STUP/NH37/NR/TK/2017/242 dated 01.02.2018 (Slow Progress and intimation of damages under Clause 10.3.2).
10. GM(P), NHIDCL Letter No. NHIDCL/GHY/2018/Assam/8403 dated 03.02.2018 (issue of Cure Notice).
11. Authority Engineer’s Letter No. STUP/NH37/NR/TK/2017-18/249 dated 28.02.2018 (Failure in taking follow up action against Cure Notice served).
12. Authority Engineer’s Letter No. STUP/NH37/NR/NHIDCL/2018/ 253 dated 16.05.2018 (Subsequent action following serving Cure Notice).
13. GM(T) Letter No. NHIDCL/Assam/NH-37/Nagaon-Rangagara/TKE/ 2016/1403 dated 16.07.2018 (issue of Notice regarding intention to Terminate).
14. EPC Contractor Letter No. TKECPL/NH37/NTR/NHIDCL/2018/351 dated 29.07.2018 (Representation on Notice regarding intention to Terminate). 15. EPC Contractor Letter No. TKECPL/NH37/NTR/AE/2018/362 dated 13.11.2018 (Submission of six months programme).
16. Authority Engineer’s Letter No. STUP/NH37/NR/TK/2018/353 dated 22.11.2018 (unsatisfactory work).
17. GM(T) Letter No. NHIDCL/Assam/NH-52/BC-Gohpur/Ramky-TKE/ 2015/34 dated 05.12.2018 (Progress Review Meeting).
18. Authority Engineer Letter No. STUP/NH37/NR/TK/2018/402 dated 27.12.2018 (Maintenance of existing road and diversions).
19. Authority Engineer Letter No. STUP/NH37/NR/TK/2018/403 dated 28.12.2018 (repair and maintenance of existing road).
20. GM(P) Letter No. 10009/Notice/N-R/NHIDCL/Tez/10101/124 dated 20.03.2019 (Notice for Shortfall in progress).
21. GM(T) Letter No. NHIDCL/ASSAM/NH-37/Nagaon-Rangagara/ TKE/2016/27/308 dated 24.04.2019 (Notice for intention to Terminate the Contract as per clause 23.1.2).
22. EPC Contractor Letter No. TKECPL/NH-37/NTR/NHIDCL/2019/439 dated 02.05.2019 (Representation on Notice regarding intention to Terminate).
23. ED (P) Letter No. RO-NE/W/A/N-R/Corres/100/3592 dated 16.05.2019 (Comments on reply submitted by the Contractor on Notice for Intention to Terminate the Contract).
Whereas, LOA for the project “Four laning of NH-37 from end of Nagaon Bypass to Rangagara (Ch 278.600 to Ch 297.000) in Nagaon District in the State of Assam under SARDP-NE Phase ‘A’ on EPC basis” was issued to M/s T.K. Engineering Consortium Pvt. Ltd., the Contractor on 23.12.2015 by the National highway Infrastructure & Development Corporation Limited, the ‘Authority’; and
2. Whereas, thereafter a Contract Agreement for executing the subject work was signed on 02.02.2016 between Authority and the Contractor, and the Appointed Date for the project was declared 25.05.2016; and
3. Whereas, a Supplementary Agreement was signed between the Authority and the Contractor on 27.12.2017 for revision of Project Milestone-I & II from 18.11.2016 & 21.07.2017 to 30.10.2017 & 28.02.2018 respectively; and
4. Whereas, as per the essential Terms and Conditions of the Contract Agreement, the Contractor was obliged to undertake the Survey, Investigation, Design, Engineering, Procurement, Construction and Maintenance of the Project Highway and observe, fulfil and comply with and perform its obligations set our under this Contract Agreement and moreover follow the Contract Agreement and the obligations cast thereon with full adherence, diligence and sincerely; and
5. Whereas, despite repeated notices from Authority/Authority’s Engineer under clause 10.3.3, the performance of the EPC Contractor was extremely poor and was not found satisfactory to the requirement of the project and having no other option left, the Authority issued Cure Notice to the Contractor in accordance with the Clause 23.1.2 of the Contract Agreement, vide Authority’s Letter No. NHIDCL/GHY/2018/Assam/8403 dated 03.02.2018 and to rectify all the defaults of the Contract Agreement in a time bound manner within 60 (sixty) days from the date of notice i.e., before 04.04.2018; and
6. Whereas, the Contractor was warned by Authority’s Engineer vide letter No. STUP/NH37/NR/TK/2017-18/249 dated 28.02.2018 still the Contractor has not shown any intention to submit revised work programme or mobilize requisite resources for quick execution of the activities; and
7. Whereas, the Contractor was asked to submit follow up action against the Cure Notice issued by the Authority. However, neither any response from the Contractor was received nor any significant activities were found to be undertaken up by the Contractor; and
8. Whereas, the Contractor, in addition to the failure to cure any of the defaults, was still not showing any interest or genuine intention to execute the works as per the Project Milestone Dates mentioned in Schedule-J as well as revised Milestone I & II; and
9. Whereas, the Contractor has miserably failed to achieve the 30% physical progress for achieving Project Milestone II, within revised date of Milestone-II i.e., 28.02.2018; and
10. Whereas, 1 st Intention to Terminate Notice was issued to the Contractor vide Authority’s Letter No. NHIDCL/Assam/NH-37/Nagaon-Rangagara/TKE/ 2016/1403 dated 16.07.2018 which highlighted all the defaults and defects of the Contractor; and
11. Whereas, the Contractor submitted its representation against the 1 st Notice for Intention to Terminate vide Letter No. No. TKECPL/NH37/NTR/ NHIDCL/2018/351 dated 29.07.2018; and
12. Whereas, a meeting was held on 20.11.2018 between Authority and the Contractor in which Managing Director of NHIDCL and Director of M/s T.K. Engineering Consortium Pvt. Ltd., namely, Mr. Tara Techi were also present. Representative of the Contractor submitted a monthly work programme in the meeting to showing targets to achieve till 31 st March 2019, which the Contractor failed to achieve in any of the months singly or cumulatively; and
13. Whereas, GM(P) vide Letter No. 10009/Notice/N-R/NHIDCL/Tez/ 10101/124 dated 20.03.2019 has issued reminder Notice indicating shortfall in progress and current status of work against the target committed by the contractor in the meeting held on 20.11.2018; and
14. Whereas, 2 nd Intention to Terminate Notice under clause 23.1.2 was issued to the Contractor vide Authority’s Letter No. NHIDCL/ASSAM/NH-37/ Nagaon-Rangagara/ TKE/2016/27/308 dated 24.04.2019 which highlighted all the defaults and defects of the contractor; and
15. Whereas, the Contractor has submitted its representation against the notice of intention to Terminate vide Letter No. TKECPL/NH-37/NTR/ NHIDCL/2019/439 dated 02.05.2019; and
16. Whereas, the Authority rejected all the submission made by the Contractor and found them to be false, frivolous and misleading vide Letter No. RO-NE/W/A/NR/Corres/100/3592 dated 16.05.2019 & preceding correspondences, and having determined that the Contractor has miserably failed to cure any of the defaults thereby causing delay in progress of the project compromising with the safety and maintenance requirements of the project highway and causing irreparable loss to the Authority; and
17. Whereas, the Contractor has achieved only a progress of 18.062% as on 31.03.2019, even after a lapse of 100% of the Project duration and is therefore in total breach of the Contractual terms and the MOM dated 20.11.2018. The total progress of the project is extremely dismal and the dates committed before the Authority as recorded in the MOM dated 20.11.2018 has been breached by the Contractor and the contractor has fallen foul of its commitments; and
18. Whereas, it has become evident that the contractor is not in a position to execute the contract within the provisions of the Contract Agreement and continues to be in default of most of the obligations as brought out in the ‘Cure Period Notice’ as well as the ‘Intention to Terminate notices’, leading to a Major Material Adverse Effect on the Contract and the contents of the said ‘Cure Period Notice’ and
19. ‘Intention to Terminate’ notices is repeated and reiterated in addition to the contents in this Termination Notice; and
20. Whereas, the Contractor has breached the Contract Agreement, inter-alia, with the following defaults in terms of the Clause 23.1.1 of Article 23 of the Agreement. Sub clause (c): The contractor has failed to achieve the second milestone of 30% progress, even after 100% of the project duration has elapsed.
21. Whereas, the Authority has extended all possible support & efforts to expedite the progress of project but the Contractor has shown no intention to execute the project as per Contract Agreement; and
22. Whereas, the Authority in the interests of the project and since Public Money is involved, it is plainly apparent at this stage the Contractor is not at all serious to execute the project and is causing a huge loss to the Government exchequer; and 23. Whereas, the Authority is left with no other option but to terminate the Contract in accordance with the provisions of clause 23.1.1 (c) for which, in compliance of the terms of the Contract Agreement, intention to Termination Notice was issued on 24.04.2019; and 24. In the light of the aforesaid non-exhaustive fundamental breaches to the Contract, and in view of the Contractor’s persistent & sustained defaults, the Authority is hereby notifying “Termination of the Contract on account of Contractor’s Default” under the provisions of the clause 23.1.1(c) of Contract Agreement with immediate effect; and
23. The provisions of Article 23 shall henceforth apply.
24. Whereas, as a consequence, and in accordance with clause 23.4 upon Termination of this Agreement in accordance with the terms of Article 23, the Contractor shall comply with and conform to the following: a. Deliver to the Authority all Plant and Materials which shall have become the property of the Authority under this Article 23; b. Deliver all the relevant records, reports, intellectual property and other license pertaining to the Works, Maintenance, other design documents and in case of Termination occurring after the Provisional Certificate has been issued, the “as built” Drawings for the Work; c. Transfer and/or deliver all Applicable Permits to the extent permissible under Applicable Laws; d. Vacate the site within 15 (fifteen) days; and
25. Whereas, the Authorized Signatory of the Contractor is directed to meet the undersigned along with all the details pertaining to transfer the rights in accordance with Clause 23.7 within 7 days of this ‘Termination Notice’; and
26. The Authority, under Clause 23.6 of the Contract Agreement shall also encash and appropriates the performance security and retention money, for its losses including damage in accordance with Clause 10.3.2 & 10.3.3 of Contract Agreement, and recovery of expenditure incurred against maintenance executed at contractor’s risk and cost for failure to maintain the project highway in accordance with clause 10.4. The Authority shall also encash and appropriates the bank guarantee for and in respect of the outstanding advance payments and interest thereon. The Contractor is hereby directed to restrain any person claiming through or under Agreement from entering upon the site or in part of the project except for taking possession of materials, stores, implements, construction plants & equipments, which do not vest in the Authority as per the Contract Agreement with prior permission of the Authority.
27. In conjunction with this Contract Termination, your firm shall perform no further services other than those reasonably necessary to close out this Contract.
28. This Notice is issued without prejudice to any other right or remedy available to the Authority under the Contract Agreement and/or applicable law and is issued with the approval of the competent authority of NHIDCL.
26. A perusal of the termination order would go to show that in the light of the non-exhaustive fundamental breaches to the contract, as noted therein, and in view of Contractor’s persistent and sustained gross defaults under Clause 23.1.1 (c) of the Contract Agreement, the NHIDCL had issued the Termination Notice in accordance with Clause 23.1.2. Reference to Supplementary Agreement dated 27.12.2017, whereby revision of Project Milestone-I & II from 18.11.2016 and 21.07.2017 to 30.10.2017 and 28.02.2018, was made. The petitioner in the writ petition had also referred to the same at paragraph 7 though 30.10.2017 had been wrongly typed as 30.10.2018 in respect of Project Milestone-I. It also appears from the Termination Notice that, as on 31.03.2019, even after lapse of 100% of Project Duration, only a progress of 18.062% was achieved. A conclusion was derived that the contractor was not in a position to execute the contract as it continued to be in default of most of the obligations. It was also indicated that under Clause 23.6 of the Contract Agreement, NHIDCL shall appropriate, amongst others, Performance Security and Retention Money and shall encash and appropriate the Bank Guarantee for and in respect of the outstanding advance payments and interest thereon.
27. The sheet anchor of the argument of Mr. Dey is that there was no Appointed Date in consonance with the Contract Agreement and, therefore, question of delay, in terms of the Contract Agreement, could not have arisen as 910 days of contract period would have commenced only from the Appointed Date. Accordingly, he has submitted that when the impugned Termination Notice had been issued in gross violation of the Contract Agreement itself, this court can interfere with such Termination Notice as there is infringement of Articles 14 and 19(1)(g) of the Constitution of India. Though events had not occurred in terms of the definition of Appointed Date of the Contract Agreement, what is indisputable is that the parties to the Contract Agreement had accepted and proceeded with, for all intents and purposes, taking 23.05.2016 as the Appointed Date. At paragraph 2 of the representation dated 02.05.2019, it was stated that the Appointed Date was fixed on 23.05.2016. In the writ petition also there is a reference to declaration of Appointed Date at paragraph 10. To make the position clear, it will be relevant to extract a letter dated 20.12.2016, written by the Project Manager of the writ petitioner on the subject of Appointed Date. The letter reads as under:
“Ref: TKECPL/NH37/NTR/2016 188 Date: 20.12.2016
The Authority’s Engineer,
STUP Consultants Pvt. Ltd.,
Kirtan Ghar Road, Kathmill Chariali,
Nagaon – 781001
Name of work: For lanning of NH-37 from Nagaon to Rangagara (KM 278.600 KM 297.000) in Nagaon District in the State of Assam under SARDP-NE, Phase A on EPC Mode.
Sub: Regarding “Appointed Date”
In reference to the subject cited above and in the interest and progress of the work “Appointed Date” is hereby considered by us on 23.05.2016.
For T.K. Engineering Consortium Pvt. Ltd.,
(1) The General Manager (P), NHIDCL, Tezpur, for information.”
28. It is not in dispute that 910 days from 23.05.2016 is over. As such, the contention sought to be articulated by Mr. Dey that countdown of 910 days of construction period has not commenced as there is no Appointed Date is misconceived. Therefore, it cannot be said that termination has been resorted to in a frivolous manner as is sought to be urged by Mr. Dey.
29. The fact that a Supplementary Agreement had been drawn up on 27.12.2017 revising the Project Milestone I & I
Please Login To View The Full Judgment!
I indicates that non-delivery of 90% of the total length of the Project Highway was not considered to be an impediment to construct the road where Right of Way was provided and delivered. Clause 8.3.2 in this context is also relevant. In terms of Clause 9.2, shifting of obstructing utilities is a responsibility of the contractor and utilities are not within the meaning of encumbrances. Of course, assistance of the authority is visualized, but there is no material on record to indicate that any assistance was sought for shifting the obstructing utilities and assistance was not provided. 30. Though Mr. Dey has contended that no detailed reasoning had been assigned while rejecting the representation dated 02.05.2019, we are of the considered opinion that in the facts and circumstances of the case, more particularly, when a detailed Termination Notice had been issued taking into account the factors as indicated therein, same will not vitiate the Termination Notice on that count. We do not find any good ground to accept the doubt expressed by Mr. Dey that the Termination Notice may not have been really issued on 24.05.2019. Only because the same was not brought to the notice of the court on 27.05.2019, it is not sufficient to hold that it was back dated, as impliedly suggested by Mr. Dey. It can happen for any number of reasons. 31. The NHIDCL had taken a conscious decision to issue the Termination Notice opining that despite extending all possible support and efforts to expedite the progress of the project, the contractor had shown no intention to execute the project leaving the authority with no other option but to terminate the contract. 32. In Bridge & Roof Co. (India) Ltd. (supra), the Hon’ble Supreme Court had observed that when the contract itself provides for a mode of settlement of disputes arising from the contract, there is no reason why the parties should not follow and adopt the remedy and invoke extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India. It was further observed that Article 226 was not meant to supplant the existing remedies at law but only to supplement them in certain well-recognised situations. In Jain Plastics & Chemicals Ltd. (supra), the Hon’ble Supreme Court observed that it is settled law that writ is not the remedy for enforcing contractual obligations. The Hon’ble Supreme Court observed that the issue arising in the said case as to whether alleged non-supply of road permits by the appellants before the Hon’ble Supreme Court would justify breach of contract by the respondent would depend upon facts and evidence and was not required to be decided or dealt with in a writ petition. In Amritsar Gas Service (supra), the Arbitrator having held that termination of the distributorship having not been validly made under Clause 27 of the Agreement and the Agreement being revocable by either party in accordance with Clause 28 by giving 30 days notice, the Hon’ble Supreme Court held that only relief which could have been granted was the award of compensation for the period of notice. In Harbanslal Sahnia (supra), the Hon’ble Supreme Court observed that the rule of exclusion of writ jurisdiction because of an alternative remedy is a rule of discretion and not one of compulsion and, in an appropriate case, in spite of availability of alternative remedy, the High Court may still exercise jurisdiction in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) virus of an act is challenged. In the said case, the sample of SKO taken from the retail outlet of the appellant had failed to meet the standards and, accordingly, the dealership was terminated. However, two Government orders in the matter of taking of samples and carrying out the test were violated and, in that context, the Hon’ble Supreme Court had observed that the case attracted first two contingencies as noted above. In Tantia Construction Pvt. Ltd. (supra), it was observed by the Hon’ble Supreme Court that it is well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction and that without exhausting such alternative remedy a writ petition would not be maintainable. 33. A detailed dispute resolution mechanism is laid out under Clause 26.1 of the Contract Agreement. Having regard to the decisions noted above, we are inclined to take a view that this is not a fit case to invoke the discretionary remedy under Article 226 of the Constitution of India. The learned Single Judge had also relegated the parties to the forum of conciliation as provided in the Contract Agreement. The direction of the learned Single Judge providing that the Deputy Commissioner, Nagaon, shall be the conciliator is, according to us, not in accordance with the provisions as contained in Clause 26.1. In our considered view, the direction of the learned Single Judge to continue the status quo order passed earlier during conciliation proceeding does not promote public interest. The appellants, by virtue of such order, have been restrained from inviting fresh tender. That some time will be required to again award the work after inviting fresh tender cannot be a ground to halt the entire process during the conciliation proceeding. As the Contract Agreement is a determinable one, the contractor would have adequate remedy by way of damages, if the contractor is able to establish that Termination Notice is illegal and wrongful. 34. In view of the above discussions, we are of the opinion that the impugned order of the learned Single Judge cannot be sustained in law and, accordingly, the same is set aside. The appeal is allowed. 35. Before parting with the records, we make it clear that the observations of this court in respect of allegations and counter allegations in connection with breach of contract by either of the parties are only to appreciate the contentions advanced by Mr. Dey that as the Termination Notice issued was, on the face of it, arbitrary or illegal and, therefore, the course of action adopted by the learned Single Judge is justified. We make it clear that our observations made herein will not prejudice the case of either of the parties before the dispute resolution forum. 36. No cost.