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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:

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, Page No.# 6/27 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.

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.

Yours faithfully Sd/-

(Adil Singh) General Manager (T) NHIDCL"

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 Page No.# 18/27 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.