Gauhati High Court
Ms Bn Infra Llp Ripl Jv vs The Union Of India And Othrs on 26 September, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/8
GAHC010220822025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5796/2025
MS BN INFRA LLP RIPL JV
OFFICE AT- AMBAGAN ROAD, BYE LANE, WARD NO. 8, TEZPUR TOWN,
DISTRICT-SONITPUR, ASSA - 784001 REPRESENTED BY ITS AUTHORISED
PERSON HAREN NATH, AGED ABOUT 55 YEARS, SON OF JOGESWAR
NATH.
VERSUS
THE UNION OF INDIA AND OTHRS
THROUGH THE SECRETARY, MINISTRY OF RAILWAYS, RAIL BHAWAN,
RAISINA ROAD, NEW DELHI-110001
2:THE RAILWAY BOARD
THROUGH THE MEMBER ENGINEERING
RAIL BHAWAN
RAISINA ROAD
NEW DELHI1100 01
3:THE GENERAL MANAGER
NORTHEAST FRONTIER RAILWAY CONSTRUCTION
MALIGAON
GAUHATI-781011
For the Petitioner(s) : Mrs. G.J. Rautruy, Advocate
Ms. D. Thakur, Advocate
Ms. B. Chouwdhury, Advocate
Ms. Imsenkala, Advocate
For the Respondent(s) : Ms. R. Devi, CGC
Page No.# 2/8
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 26.09.2025
Issue notice making it returnable on 27.10.2025.
2. Ms. R. Devi, the learned CGC appears on behalf of the
respondent Nos. 1 to 3 and accepts notice.
3. Extra copies of the writ petition along with the documents
enclosed therewith be served upon her during the course of the
day.
4. The petitioner herein is aggrieved by the communication
dated 17.09.2025 whereby the Respondent Authorities
terminated the contract and initiated steps for the invocation of
the Bank Guarantee which was kept with the Respondent
Authorities in the form of performance security and retention
money.
5. It is the case of the petitioner that they were awarded a
contract for Engineering, Procurement and Construction of BG
formation including side drains, retaining walls, other protection
works, minor, major and important bridges, RUB/LHS, station
building, platforms, FOBs, development of circulating areas and
other passenger amenities including Electrical General works for
commissioning of Doubling of BG Railway track between Katihar
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and Kumedpur-28.885 Km {CH-1.388 Km to 30.273 Km}.
Amongst various Terms and Conditions of the said contract,
Clause 4.3 of the Scope of the Project i.e. Part II of the Bid
Documents pertains to Environmental and Forest Clearances.
The said Clause 4.3 being relevant, is reproduced here in under:
"4.3 Environmental and Forest Clearances
Environmental and forest clearances are not required for this
project
The Authority represents and warrants that the environmental clearance
and Forest clearance for the project is not required. In the event of any
delay, the Contractor shall be entitled to Time Extension for the period of
such delay in accordance with the provisions of Clause 10.4 of this
Agreement and shall also be entitled to Damages calculated as if the
Right of Way for and in respect of such sections of the New BG Railway
line Project has not been provided in accordance with the provisions of
Clause 8.2 and as a consequence thereof, the Contractor shall be entitled
to Damages under and in accordance with the provisions of Clause 8.3.
For the avoidance of doubt, the present status of forest clearances is
specified in Schedule-A."
6. A perusal of the above quoted Clause categorically shows
that in respect to the project in question Environmental and
Forest clearance was not required. It further stipulates that in
the event of any delay, the contractor on account of
Environmental and Forest clearances, shall be entitled to time
extension for the period of such delay in accordance with the
provisions of Clause 10.4 of the Agreement and shall also be
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entitled to damages calculated as if the Right of Way for and in
respect of such Sections of the New BG Railway line Project has
not been provided in accordance with the provisions of Clause
8.2 and as a consequence, the contractor shall be entitled to
damages under and in accordance with the provisions of Clause
8.3. Pursuant to the said contract, which was awarded to the
petitioner, the work continued. However, the Supreme Court in
the case of Noble M. Paikada Vs. Union of India reported in
(2024) 12 SCC 363 observed that there would be a requirement
for Environmental Clearances in respect to projects similar to
the project executed by the petitioner.
7. The materials on record further show that on account of the
judgment passed by the Supreme Court in the case of Noble M.
Paikada (supra), steps were being taken by the Respondent
Authorities for carrying out Environmental Clearances. In such
circumstances, admittedly, there has been some delay, which
the petitioner claims that the petitioner is entitled to an
extension and damages in terms with Clause 4.3 as referred to
hereinabove.
8. Be that as it may, the Respondent Authorities had issued a
15 days show cause notice dated 26.08.2025 whereby the
concerned authority conveyed its intention to initiate
termination proceedings and advised the petitioner to submit
Page No.# 5/8
any representation within the stipulated period of 15 days from
the date of issuance. It is the further case of the petitioner that
on 09.09.2025, a request was made for an extension to submit
a detailed reply. Immediately thereafter, on 16.09.2025, the
petitioner submitted a detailed reply. However, without
considering the detailed reply dated 16.09.2025 and on a mere
technicality that the petitioner did not submit the representation
within 15 days, the impugned termination letter dated
17.09.2025 was issued.
9. The learned Counsel appearing on behalf of the petitioner
submitted that if the Respondent Authorities would have
considered the detailed Reply submitted on 16.09.2025 wherein
due details have been provided, the Respondent Authorities
may not have taken drastic measures of issuance of the
termination letter dated 17.09.2025. The non-consideration of
the reply dated 16.09.2025 violates the petitioner's right under
Article 14 and Article 21 of the Constitution of India inasmuch
as it violates the principles of natural justice. The learned
counsel therefore submitted that taking into account that the
order of termination dated 17.09.2025 has already been passed,
the petitioner would not seek an interim direction as regards
stay of the said order of termination. However, as the
termination is apparently illegal, pending notice, the
Page No.# 6/8
consequences which would fall upon the petitioner on the basis
of the order of termination dated 17.09.2025 be stayed.
10. Ms. R. Devi, the learned CGC appearing on behalf of the
respondents submitted that she needs to obtain necessary
instruction(s). She further submitted that one aspect is very
clear that the said termination order dated 17.09.2025 duly
contained detailed reasons, for which, the petitioner's contract
has been terminated. She further submitted that no interim
directions should be passed without giving an opportunity to the
respondents to place the necessary instruction(s).
11. This Court had perused the materials on record as well as
the judgment passed by the Supreme Court in the case of
Noble M. Paikada (supra).
12. From the materials on record, it appears that when the
contract was initially awarded to the petitioner, there was no
requirement of any Environmental or Forest Clearance. In view
of the judgment passed by the Supreme Court in the case of
Noble M. Paikada (supra), the necessity had arisen for obtaining
the Environmental Clearance. This Court further takes note of
that the petitioner had duly submitted a request on 09.09.2025
which is also mentioned in the termination order dated
17.09.2025 seeking further time for the purpose of submission
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of a detailed reply. The petitioner further had submitted a
detailed reply on 16.09.2025. The said reply, however, was not
considered as is very much apparent from a perusal of the
termination order dated 17.09.2025, inasmuch as there is no
reference to the petitioner's reply dated 16.09.2025.
13. The question whether the respondents could have permitted
the petitioner to submit the reply beyond the period of 15 days
requires deliberation. This Court had also perused the reply
dated 16.09.2025 and prima facie is of the opinion that before
taking the drastic steps for termination, the respondents could
have dealt with the reply submitted on 16.09.2025, more so,
when the impugned order is passed after the submission of the
reply dated 16.09.2025. This Court is also aware that an order
of termination cannot be stayed and as such, the question of
staying the termination order does not arise.
14. Be that as it may, this Court however directs the
Respondent Authorities not to invoke the Bank Guarantee being
BG No. 33060ILG001523 amounting to Rs. 14,83,00,000/-
issued by the Punjab National Bank, MG Road, Tezpur, Assam till
the next date.
15. The above directions are passed taking into consideration
that if such directions are not passed, the petitioner would
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suffer irretrievable injury. Additionally, this Court finds more
than a prima facie case at this stage.
16. This Court shall consider whether the interim order is to be
extended or not on the next date.
17. The question of maintainability of the writ petition is kept
open.
18. The respondents are directed to bring on record their stand
by filing the affidavit on or before 22.10.2025.
19. Liberty is given to the petitioner to the file the reply, if so
advised.
20. List accordingly.
JUDGE
Comparing Assistant
