JUDGMENT :

Heard learned counsel for the petitioner and the respondents as well as intervenor.

2. Parties have filed their detailed pleading, but having regard to the fact that the Court proposes to decide the writ application on the issue of compliance of principles of natural

justice alone. There is no occasion for this Court to deal with the detailed facts of the case, except the relevant one, which is set out below:

On 06.02.2018 tender notice was invited in connection with EPC/NH-Gaya/2017-18 for the work strengthening and widening of two lane with paved shoulder from Km 181.465 to Km 201.665 of NH-120 (Nasriganj- Bikramganj).

On 07.09.2018: The tender committee accepted the tender of the petitioner and letter of acceptance was issued in favour of petitioner. On 27.09.2018, agreement was entered between the petitioner and the Superintending Engineering, NH Circle. After agreement correspondence were made between the parties on the issue of providing working front and dispute arose as to acceptance of appointed date for starting construction work. On 28.05.2019, the petitioner invoking clause 23.2.1 of the agreement requested the respondent for termination of agreement on the ground that despite expiry of 90 days the defect pointed out by him was not cured by the respondents and working front and forest clearance was not provided and as such the work could not be started and, therefore, in terms of the agreement, the petitioner requested for termination of agreement.

On 10.06.2019 to 18.03.2020, correspondence were made between the petitioner and the respondents on the issue of forest clearance and providing work site for carrying construction work and blame game on each other started. On 20.03.2020, the respondent terminated the agreement on the ground of petitioner’s failure to carry construction work, despite several opportunities. On 23.03.2020, the petitioner after receipt of the termination order requested the respondents to set aside the termination order. On 14.05.2020 fresh tender was issued.

3. This application was heard on different dates. On 17.08.2020 noticing the submissions of the petitioner that the impugned order dated 20.03.2020 was passed in violation of principles of natural justice inasmuch as no notice in terms of Clause 23.1.2 of the agreement was issued before taking action of termination of contract, the Court directed the respondents to file counter affidavit, but no counter affidavit was filed. In the aforesaid circumstance, on 16.10.2020, the Court was constrained to pass order of status quo as existing on 16.10.2020.

4. After the order dated 16.10.2020, intervention application, bearing I.A. No. 1 of 2020, was filed by the successful tenderer of fresh tender. Considering the reasons mentioned in the intervention application, the intervenor was allowed to be added as party.

5. On 07.01.2021, details submissions were advanced by the parties, which is reflected from the order dated 07.01.2021, which is quoted herein below:

“Heard learned senior counsel appearing on behalf of the petitioner, learned counsel appearing on behalf of the State as well as learned counsel for the intervenor.

The petitioner has challenged the validity of termination letter no. 187 dated 20.03.2020 (Annexure-20) by which the respondents have decided to terminate the engineering procurement and construction agreement dated 27.09.2018 and decided to forfeit performance bank guarantee and additional bank guarantee dated 15.10.2018.

Mr. M.K. Ambastha, learned counsel for the State, right from the very beginning opposed the writ on merit by filing counter affidavit notwithstanding the fact that the petitioner-firm in terms of clause 23.2.1 & 23.2.2 of the agreement on 27.09.2018 requested the respondents for termination of the agreement informing that despite expiry of 90 days, the defect pointed out was not cured and forest clearance was not provided to the petitioner.

Mr. Y.V. Giri, learned senior counsel appearing on behalf of the pet