ORDER :

1. The State of Andhra Pradesh, which is the 1st respondent herein, in pursuance of its intention to develop an all weather deep water port at Machilipatnam, Krishna District, vide G.O.Ms. No. 2 Infrastructure and Investment (Ports-I) Department, dated 30.01.2008, awarded the contract of developing such a port to a consortium of companies. Pursuant to this award, a Concession Agreement dated 21.04.2008 was executed. The consortium of companies had incorporated a company by the name M/s. Vajra Sea Port Pvt. Ltd. as a special purpose vehicle to execute the Concession agreement. The name of this company was subsequently changed to M/s. Machilipatnam Port Limited and thereafter, to M/s. Navayuga Machilipatnam Port Limited. The said special purpose vehicle is the writ petitioner in the present writ petition.

2. The petitioner on 28.08.2009 informed 1st respondent that some of its promoters had exited the project and sought permission for inducting another company called Navayuga Engineering Company Pvt., Ltd. as the lead promoter. This request was accepted by the 1st respondent, which issued G.O.Ms. No. 7 dated 15.04.2010, for such a change. After the induction of the new lead promoter, a revised Concession agreement dated 07.06.2010 was executed whereby the petitioner was to develop, build, own, operate and maintain the port at it’s own cost and expense during the Concession period and to transfer the port to the Government of Andhra Pradesh at the end of the concession period. After the induction of the new lead promoter, the name of the petitioner was changed to M/s. Navayuga Machilipatnam Port Limited.

3. Under the revised Concession Agreement (hereinafter referred to as “the Concession”) the petitioner was to implement and construct a Green Field All Weather Deep Water Multi Purpose Port at Machilipatnam, on the land, which was to be given by the 1st respondent on a leasehold basis. The concession envisaged an initial period of construction and development of the port, which was termed as “in-operation period” defined under Clause 1.37 of the Concession and a operation period of 30 years after the in-operation period. The operation period would start from the commercial operation date, which was defined in Clause 1.10 to mean the date on which the petitioner is entitled to commence operation of the Port or part of the Port facilities. The in-operation period or the development period and the milestones for such development are set out in Clause 4.3, which is set out here:

“4.3 Major Milestones during Implementation of the Project:

(a) The following major milestones with regard to implementation of the Port Project shall be achieved.

(i) Completion of Detailed Project Report for Port Development by Concessionaire within 6 months from the commencement Date.

(ii) Achievement of Financial Closure by concessionaire within 12 months from the commencement Date.

(iii) Completion of construction of Port Development within 36 months from the Commencement Date.

(iv) Invest the amount agreed as per the detailed proposal for Port Development.

(v) Preparation of plans for future developments whenever that traffic volumes warrant such expansions like addition of berths/terminals and allied port infrastructures.

(b) Starting from the Commencement Date of this Agreement, the Concessionaire shall commence the construction/ implementation, strictly adhering to the Project Development Plan and implementation schedule as given in the Detailed Project Report any variation from the Project Development Plan shall be carried out only with the prior written approval of GoAP.

(c) For non-achievement of the milestones within the specified period as given in Clause (a) (i) to (vi) above the Performance Security in the form of Bank Guarantee shall be encashed. In case of two defaults in succession, GoAP may also consider termination of this Agreement. No prior notice will be given before encashment of Bank Guarantees.

(d) The Performance Security amount will be