The central legal point established in the judgment is the requirement of privity of contract for a sub-contractor to challenge the termination of the principal contract under Article 226 of the Constitution of India.

JUDGMENT :

Anuja Prabhudessai, J.

1. The Petitioner, who was appointed by Respondent No. 11 as a sub-contractor, has filed this petition under Article 226 of the Constitution of India for the following reliefs:

(a) To issue writ of certiorari to:-

(i) Quash and set-aside the Termination Notice dated 03/02/2020 issued by the Respondent No. 3 in respect of EPC agreement dated 23/09/2015 and to reinstate the EPC agreement dated 23/09/2015 and the entire project to the Respondent No. 11 with resultant reinstatement of the official appointment of the Petitioner as Sub- Contractor of the project.

(ii) quash and set-aside the entire tender process in respect of the balance road work project and to set aside the letter of intent issued by Respondent No. 3 allotting the balance road work project to the Respondent No. 8.

(iii) quash and set-aside the action of encashing of the bank guarantee submitted by the Respondent No. 11 in respect of the said road work project and to direct the Respondent No. 3 to reinstate the said bank guarantee submitted by the Respondent No. 11.

(b) To issue a Writ of Mandamus to direct the Respondent No. 3 to comply/adhere to the decision taken in the Review Meetings by the Respondent No. 10 on 13/12/2019 and 18/01/2020 as well as the decisions taken by the Respondent No. 9 in meetings dated 23 and 24 January, 2020 to grant extension of time at least by six months to enable the Petitioner to perform and complete the said road work project subject to compliance to be done by the concerned department as per the minutes of the meeting.

2. The facts giving rise to the Petition in brief are as under:-

The Government of India had entrusted to the Public Works Department, Government of Maharashtra, hereinafter referred to as 'the Authority', the development, maintenance and management of National Highway No. 222. The Authority had resolved for rehabilitation and upgradation of "End of Ahmednagar bypass at Kharwandi Kasar (Pathardi) Section of NH-222 in the State of Maharashtra". The Respondent No. 11 was awarded the said road work project and an EPC Agreement dated 23/09/2015 was executed by Respondent No. 3 in favour of Respondent No. 11 for a contract price of Rs. 129.95 crore. As per the EPC Agreement, the appointed date was declared as 18/01/2016 and completion date was stipulated as 10/07/2017.

3. By Sub-contract Agreement dated 29/04/2016, Respondent No. 11 appointed the Petitioner as a Sub-contractor to execute the said road work project. The Petitioner claims to have mobilized plant and machinery and invested huge amount in the project. The construction work could not be completed within the period stipulated in the EPC Agreement due to several factors, which according to the Petitioner were not attributable to it or to Respondent No. 11. It is stated that despite non-release of funds, resulting in huge loss, the Petitioner and Respondent No. 11 continued with construction work and completed 46% of the project work by June 2018. Thereafter vide letter dated 11/10/2018, the Respondent No. 7 granted approval for official appointment of the Petitioner as Sub-Contractor for 46% of work of the said road work project.

4. The Petitioner claims that the Respondent No. 11 had submitted several proposals for extension of time and that despite positive recommendation, the Authority did not take any decision on extension of time. On the contrary, Respondent No. 6 issued 60 days cure period notice dated 10/04/2019, which was followed by notice dated 26/09/2019 to initiate termination action. The Petitioner replied to the said notice. In the meantime, review meetings were also held by Respondent Nos. 9 and 10 with respect to work progress. The reasons for delay were discussed at length. It is the contention of the Petitioner that on being satisfied that the delay was not attributable to the Petitioner/Respondent No. 11, directions were given to the Authority to grant extension of time without penalty. The Petitioner claims that in