Point of Law: Contract and Specific Relief – Jurisdiction - There is no cause of action and matter may be appropriately referred to appropriate forum as there is arbitral agreement between parties to address all issues with respect to contractual agreement between parties before it can knock on writ court for a remedy.

JUDGMENT :

By this writ petition, the petitioner has set the Court in motion for issuance of writ in the nature of mandamus or any other appropriate writ order or direction of the like nature for enforcement of the petitioner’s right guaranteed under Part-III of the Constitution of India particularly, Article 14.

2. Learned senior counsel for the petitioner, Mr. C.T. Jamir, Anand Kumar and Angad Metha appears. For the respondent No.1, Mr. D.K. Banerjee, learned senior counsel assisted by Mr. Moa Jamir appears.

3. Facts leading to filing of the present writ petition is that the petitioner came into contractual agreement on 22-04-2016 with the respondent No.1 for the work of four laning of existing Dimapur-Kohima Road from design Km 152.490 to Km 166. 700 (existing Km 156.000 to 172.900) excluding Dimapur and Kohima bypass in the State of Nagaland under SARDP-NE an engineering procurement and construction (EPC contract) for a contractual price of Rs. 340 crores. The petitioner was performing the contractual work as per agreement and it is stated that 70% of the contractual work had been completed. However, on 09-04-2021, the respondent No.1 issued notice of intention to terminate the contractual agreement citing non progress of work by the petitioner. Thereafter, on 27-01-2021, the respondent No.1 issued notice inviting Bid bearing letter NO.Bid/Package NHIDCL/Nagaland/DK3/BW/2021. Thereafter, notice inviting tender dated 31-03-2021 bearing letter NO.NHIDCL/RO-Kohima/Procurement/M&R/DK-III/2021-22/01. It is the case of the petitioner that the dismal performance of the petitioner is attributable to the non performance of the contractual agreement by the respondent and also due to varied reasons beyond the control of the petitioner. The following grounds for which the work could not be executed on time and which is not solely attributable to the petitioner;

Ground A. Agreement works are delayed due to respondent’s failure to hand over right of way within the specific time in the agreement. The agreement specifically stipulated that on the appointed date the first respondent was to hand over not less than 90% of the ROW and the balance land shall be handed over not less than 90 days from the appointed date.

Ground B. Because the appointed date was wrongly declared on 08-08-2016 whereas, the respondents failed to hand over 90% of ROW within 30-01-2019 which fact is evident from the encumbrances list prepared jointly by the parties. As per the said list, the encumbrances are 1552 metres. It is thus clear more than 10% of ROW is not available even on 30-01-2019

Ground C. After the resumption of contractual work by the petitioner, it is known to one and all that lockdown was imposed on 25-03-2020 which continued uptill October, 2020. It is to be mentioned that all the workers both professional and machine operators and laborers are from outside the State. When the lockdown was imposed, the works could not be expeditiously executed and thus caused the delay in not keeping the contractual agreement on time frame basis.

Ground D: There has been intermittent blockade of road by the order of the Division Bench for allowing the blasting of critical areas specifically Pakala Pahar which caused hardship for transportation of materials to the work site. This has also attributed to the delay in the progress of the work. The above are some of the reasons why the progress of the road as desired could not be performed expeditiously by the petitioner. From the reasons stated, it is evident that all the above factors which have contributed to the delay of completion of the work is not attributable to the petitioner. First two reasons being attributable to the respondents themselves who could not hand over the ROW as per the agreement between the petitioner and the respondent till 2019. Corona is natural phenomena which is not attributable to the petitio