Smt. Anuja Prabhudessai, J. - 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 23rd and 24th 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 total contravention of such decisions and directions, Respondent No.3 re-tendered the balance road work project and later issued a termination notice dated 03/02/2020 vide Article 23 of EPC Agreement and thereby terminated the contract, encashed the bank guarantee and issued letter of intent to the Respondent No.8. The Petitioner claims that termination of contract as well as re-tendering of balance work project is illegal, arbitrary and is in contravention of the terms of the EPC agreement. It is in these facts and circumstances, that the Petitioner has invoked the writ jurisdiction of this Court to seek the reliefs as stated above.

5. Mr. Singh, learned Additional Solicitor General appearing for Union of India has raised a preliminary objection about maintainability of the writ petition and locus standi of the Petitioner. He has stated that the Petitioner is not a party to the EPC agreement executed by Respondent No.3 in favour of Respondent No.11. He has submitted that the Petitioner is a Sub-Contractor appointed by Respondent No. 11 and that there being no privity of contract between the Petitioner and the Authority, the Petitioner has no locus to file the petition.

6. Learned counsel Mr. Singh further submits that EPC Agreement provides for dispute resolution by conciliation or arbitration. In fact, Respondent No. 11 vide letter dated 18/07/2020 has already taken recourse to the dispute resolution mechanism as stipulated in clause 26.2 of the agreement and under such circumstances, the writ petition may not be entertained.

7. In response, Mr. Mayur Khandeparkar, learned counsel for the Petitioner contends that though the Petitioner is a Subcontractor, his appointment as a Sub-contractor has been approved by Respondent No.7 vide letter dated 11/10/2018. He submits that the term 'Contractor' in EPC Agreement dated 23/09/2015 entered into between Respondent No.11 and Respondent No.3 includes "permitted assigns". He therefore contends that the Petitioner has the locus to challenge termination of the principle contract. He further states that being "Representative in interest" of Respondent No.11 under contract dated 29/04/2018 as regards the balance work, Petitioner is entitled to seek specific performance as per Section 15(b) of the Specific Relief Act, 1963. He submits that termination notice dated 03/02/2020 is contrary to the decision taken by the Respondent No. 10 in the meeting dated 18/01/2020. He submits that the delay is neither attributable to the Petitioner nor to the Respondent No. 11 and that termination as well as further action of re-tendering the balance work and /or issuance of letter of intent is arbitrary and illegal. He has relied upon the decision of the Apex Court in ABL International Ltd. and Anr. Vs. Export Credit Guarantee Corporation of India Ltd. and Ors. (2004) 3 SCC 553 to contend that contractual dispute can be adjudicated under writ jurisdiction of Article 226 of the Constitution of India. He submits that the decision of the Apex Court in KPM Builders Private Ltd. vs. National Highways Authority of India and Anr. (2015) 15 SCC 394 [LQ/SC/2010/230] is not applicable because the Petitioner as an 'approved sub- contractor' and 'permitted assign' under EPC agreement is entitled to impugn the termination of the contract and re-tendering process.

8. We have perused the records and considered the submissions advanced by the learned counsel for the respective parties.

9. At the outset, we may point out that the question for consideration in the decisions relied upon by learned counsel Shri Khandeparker, was maintainability of a writ petition under Article 226 of the Constitution of India to enforce a contractual obligation of the State or its instrumentality, by an aggrieved party. While considering this question in ABL International Ltd. (supra) the Apex Court, after considering the previous decisions on the subject has reiterated that :-

"(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.

(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.

(c) A writ petition involving a consequential relief of monetary claim is also maintainable".

While laying down the principle, the Apex Court though sounded a word of caution as under:-

28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks reported in (1998) 8 SCC 1 [LQ/SC/1998/1044] ) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."

10. There can be no dispute that the power of judicial review can be exercised even in contractual matters; if the action of the state or its instrumentalities is per se arbitrary, unfair, unjust, unreasonably contrary to public interest or is violative of the Constitutional mandate of Article 14 of the Constitution of India. However, this ratio, as laid down in the decisions relied upon by Shri. Khandeparkar, is not applicable to the facts of the present case as the issue involved in the present case is not about maintainability of a writ petition in contractual matters but is of the locus of a sub-contractor to challenge termination of contract of principal contractor.

11. The facts narrated in the Petition clearly show that by an EPC Agreement, executed by the Authority through its Chief Engineer, the Respondent No. 11 had been awarded the said road work project. The said Agreement permits the Contractor to sub contract the Project Work with a rider that the Contractor shall not sub-contract any work in more than 70% of the total length of the Project Highway and shall carry out work directly under his own supervision and through his own personnel in at least 30% of the total length of the Project Highway. The EPC Agreement expressly stipulates that it is the Contractor, who shall at all times be responsible and liable for all its obligations under the agreement notwithstanding anything contained in the agreement with its sub-contractor or any other agreement that may be entered into by the Contractor.

12. It is thus manifestly clear that the contractual relationship under this Agreement is only between the Authority and the Contractor and that the Petitioner, who is not a party to the said Contract, has no rights or obligations under the Agreement. The rights of the Petitioner flow from the sub-contract agreement dated 29/04/2016 entered into between the Petitioner and the Contractor, to which the Authority is not a party. There being no contractual relationship between the Petitioner and the Authority or any of its instrumentalities, the Petitioner has no right of action to enforce the contract.

13. The Petitioner contends that the letter dated 11/10/2018 establishes privity of contract between the Petitioner and the Authority. In this context, it would be advantageous to refer to the decision of the Hon'ble Apex Court in Essar Oil Limited v. Hindustan Shipyard Limited (2015) 10 SCC 642 [LQ/SC/2015/835] , wherein the question for consideration was whether in the absence of any contract, the ONGC was liable to make payment to the sub-contractor. In that case, the ONGC had entered into a contract with Hindustan Shipyard Limited (Contractor) regarding certain work to be carried out. The ONGC had not only permitted the Contractor to engage a sub-contractor but had also made direct payment to the sub-contractor in respect of the contractual work. The Hon'ble Apex Court has held that the mere fact that the ONGC had made some payments to the sub-contractor would not establish that there was a privity of contract between the ONGC and the sub-contractor. The Apex Court has observed that the Contractor had given a sub-contract to the sub-contractor and in the said agreement of sub-contract, the ONGC was not a party and there was no liability on the part of the ONGC to make any payment to the sub-contractor. The Apex Court held that there was no correspondence establishing contractual relationship between the ONGC and the subcontractor and as such there was no legal obligation on the part of the ONGC to make payment to the sub-contractor.

14. In the present case, by letter dated 11.10.2018 Respondent No.7 had given ex-post facto approval for appointment of the Petitioner as a sub-contractor for work upto 83.14 crores subject to condition that firstly, all conditions mentioned in CE(NH)'s letter no. CENH/P-2/NH-22/1928/2018 dated 26/06/2018 should be strictly followed; secondly, Authority would not be liable to any payment/claim of the sub-contractor and shall reserve the right to review the above approval if it finds that the project is adversely affected due to the disputes between contractor and main subcontractor; thirdly, there should be no financial implication on the Authority due to this approval and lastly, the approval of the subcontractor should not absolve the main contractor from any of his responsibility and duties mentioned in the contract agreement.

15. The letter dated 11.10.2018 only recognizes the petitioner as a sub-contractor in respect of 46% work performed under the sub contract agreement and not in respect of the balance work of the subject project. The letter itself reflects that the Authority is absolved from making any payment or any other liability towards the petitioner. This letter does not create any contractual relationship and cannot be construed as a contract either express or implied between the petitioner and the Authority. In the absence of any privity of contract, between the Petitioner and the Authority, the Petitioner cannot be construed to be 'a person aggrieved' and thus has no locus to enforce a contractual obligation qua the Authority in respect of the balance 64% work.

16. The general conditions of the sub-contract agreement and other annexures forming part of the said agreement indicate that the Respondent No. 11 had appointed the Petitioner as a sub-contractor for vicarious performance of his own obligation under the main Contract. Having regard to the terms and conditions of the main contract as well as the sub-contract agreement, it is clear that the Petitioner has carried out construction work not as an assignee but as a sub-contractor appointed by Respondent No. 11 under the sub-contract agreement. Hence the submission that the Petitioner has locus to enforce the contract as 'permitted assign' is devoid of merit.

17. It is also pertinent to note that the Respondent No. 11, who is the main Contractor, has already taken recourse to dispute resolution mechanism as provided under Articles 26.1 to 26.4 of the main Contract. Under the circumstances, the Petitioner, who has no independent rights qua the Authority is not competent to initiate parallel proceedings in respect of the same dispute.

18. In view of the aforestated reasons, we are not inclined to entertain the writ petition. Accordingly, the writ petition is dismissed but with no order as to cost.