JUDGMENT :

Songkhupchung Serto, J.

1. This is a petition praying for issuance of a writ in the nature of mandamus or any other appropriate writ or order or direction directing the respondent No. 1 to go for foreclosure of the agreement dated 22.04.2016 executed by both the petitioner and the respondent No. 1 for the work, four lanning of the existing Dimapur-Kohima road from design chainage Km 152.490 to 166.700 (existing Km 156.00 to 172.900) excluding Dimapur-Kohima Bypass, under SARDP-NE through Engineering, Procurement and Construction (EPC contract), for a contract price of NIR 340 crores in terms of the O.M. dated 09.03.2019, issued by the Ministry of Road Transport and Highway dealing with stuck projects and, other consequential reliefs.

2. Heard Mr. C.T. Jamir, learned Sr. counsel, assisted by Mr. Ram Babu and Mr. N. Khat for the petitioner. We have also heard Mr. D.K. Banerjee, learned Sr. counsel appearing for the NHIDCL (respondents No. 1 & 3), assisted by Mr. Moa Jamir and, Mr. Paul, Authority Engineer (respondents No. 10) in person and, Mr. K. Sema, learned Sr. Addl. Advocate General appearing for the State of Nagaland, assisted by Ms. Livika.

3. Mr. C.T. Jamir, learned senior counsel appearing for the writ petitioner submitted that as per paragraph 4 of the OM No. NH-24028/19/2018-H(Pt.), dated 9/3/2019 issued by the Government of India, Ministry of Road Transport and Highways, all projects undertaken or executed by the Ministry and other agencies like NHIDCL through various modes including EPC mode, should be foreclosed if the project is stuck and cannot be completed. Mr. C.T. Jamir referred to paragraph 2(i) of the guiding principle in support of his submission and the same reads as follows:-

"(i) Stuck Projects awarded under EPC Mode:

The projects awarded under the EPC mode, which qualify as Stuck Projects, recourse may be taken to fore-closure of the EPC Agreement vide a Supplementary Agreement mutually agreed and executed between the Parties. The Authority would pay for executed/completed work in terms of milestone payment criteria set forth in Schedule-H of the Agreement in the manner laid down in the concerned Agreement. As regards the executed work not meeting the aforementioned milestone payment criteria but determined to be usable by the Authority, payment for such work will be made as per the amount assessed by the Authority."

Mr. C.T. Jamir, thereafter, submitted also that in view of the stated principle and as per clause 26.2 of the contract agreement, the parties were under a process to foreclose the agreement. And pursuant thereto, a conciliation meeting was held on 16/2/2012 and in that meeting, the NHIDCL asked the writ petitioner to surrender the work so that unfinished part of the project can be entrusted to another contractor for early completion. Accordingly, a draft for foreclosure was prepared by the respondents and the same was communicated to the writ petitioner through an e-mail, dated 24/2/2021. And on received of the same, the writ petitioner suggested some changes through an e-mail, dated 24/2/2021. The changes suggested were however, rejected by the respondents and instead, the writ petitioner was directed to complete the project by 31/5/2021. But, in another meeting held on 5/3/2021 between the employer and the contractor, an understanding was reached whereby, the writ petitioner agreed to surrender the project and the respondent was willing to take over the same. However, certain changes were made in the draft of foreclosure agreement by the respondent and, while the matter was pending at that stage, the respondent issued the notice dated 9/4/2021 for termination of the contract agreement. Thereafter, without considering petitioner's reply given through a letter dated 19/4/2021 the respondents, vide letter 1/6/2021 informed the petitioner that the contract agreement has been terminated forthwith in accordance with clause 23.1.2 of the contract agreement. This order of termination of the c