Delhi High Court
M/S Irb Ahmedabad Vadodara Super ... vs National Highways Authority Of India on 11 February, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 24 July 2024
Pronounced on: 11 February 2025
+ O.M.P. (COMM) 261/2024
M/S IRB AHMEDABAD VADODARA SUPER EXPRESS
TOLLWAY PVT. LTD. .....Petitioner
Through: Mr. Vikram Nankani, Sr. Adv.
with Mr. Karan Bharihoke, Mr. Anirudh
Bakhru, Ms. Devika Mohan, Ms. Teresa
Daulat, Mr. Mohanish Patkar, Mr. Raj
Adhia, Mr. Param Bir Singh, Mr. Humraz
Bir Singh, Mr. Ankit Banati and Ms. Tarini
Khurana, Advs.
versus
NATIONAL HIGHWAYS AUTHORITY OF INDIA
.....Respondent
Through: Mr. Ankur Mittal, Mr. Abhay
Gupta and Mr. Sanjivan Chakraborty, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
11.02.2025
The challenge, and issue in controversy
1. Under challenge at the instance of IRB Ahmedabad Super
Expressway1, in the present petition preferred under Section 34 of the
Arbitration & Conciliation Act, 19962 is an arbitral award passed by a
learned three-member Arbitral Tribunal on 7 April 2024. IRB was the
1 "IRB" hereinafter
2 "the 1996 Act" hereinafter
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claimant in the arbitral proceedings, and the National Highways
Authority of India3 was the respondent and counter-claimant.
2. The challenge, in this petition, is restricted to the rejection, by
the Arbitral Tribunal, of the claim of IRB for compensation, from
NHAI, under Article 35.4 of the Concession Agreement4, dated 25
July 2011, executed between them.
3. To clear the air and not for anything else, I may note, here, that
the CA envisaged payment of premium by IRB to NHAI. The
Government had announced a Premium Deferment Scheme,
whereunder part of the premium could be paid by Concessionaires
(such as IRB) upfront, and the remainder deferred for payment later.
NHAI raised a counter-claim, in the arbitral proceedings, against IRB,
claiming payment of the deferred premium. The Arbitral Tribunal has
held NHAI to be entitled to the said payment. IRB has, candidly,
conceded that it is not challenging that part of the award, though the
parties have joined issue, in other cognate proceedings, on the issue of
whether the deferred payment is to be paid by IRB upfront, following
the impugned Arbitral Award, or at a later point of time.
4. That controversy is, however, foreign to the present petition,
which is restricted to IRB's claim against NHAI for compensation in
terms of Article 35.4 of the CA, and the sustainability of the decision
of the Arbitral Tribunal to reject the said claim. I have deemed it
appropriate to mention this only because the impugned Award, which
3 NHAI
4 "CA" hereinafter
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is lengthy deals at times with IRB's claim against NHAI and at others
with NHAI's counter-claim against IRB, and there is chance of
confusion.
5. To repeat for the third time, this petition is concerned only with
the decision of the Arbitral Tribunal on IRB's claim, against NHAI,
for compensation in terms of Article 35.4 of the CA.
6. Needless to say, even if this Court were to agree with IRB, that
the Arbitral Tribunal was not justified in rejecting IRB's claim, for the
reasons contained in the impugned award, this Court would have to
stop at that. It cannot adjudicate on the claims on merits, as that would
amount to modifying the impugned arbitral award, which the law
proscribes. The power with the Court is only to uphold the award, or
set aside the award, or, in the very limited circumstances envisaged by
Section 34(4), adjourn the matter to enable the Arbitral Tribunal to
take steps, as it may choose, to remove any removable defect in the
Award, so as to avoid the Award being set aside on that ground 5.
Exercise of Section 34(4) jurisdiction can, however, only be on
application ad invitum, and not suo motu.
7. It is nobody's case that Section 34(4) applies.
Facts
8. Under the CA, which was executed between IRB and NHAI on
5 NHAI v M. Hakeem, (2021) 9 SCC 1
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25 July 2011, IRB was to develop, maintain and manage, by six
laning, a stretch of NH-86 between km 6.4 and km 108.7, and improve
the existing Ahmedabad Vadodara Expressway from km 0.00 to km
93.302. The agreement was on Design, Build, Finance, Operate and
Transfer basis, as per which, on completion of the construction of the
Project Highway as per the CA, IRB could commence collecting toll
from the users of the Highway.
9. In accordance therewith, consequent on completion of
construction as per the contracted schedule, IRB commenced
collecting toll, from the Project Highway, on 6 December 2015.
10. Under the CA, IRB, acquired exclusive license to operate and
maintain the Project Highway for 25 years from the Appointed Date,
which was 1 January 2013. All costs and expenses, towards operating
and maintaining the Project Highway were to be borne by IRB. IRB
was entitled to demand, collect and appropriate toll from vehicles
plying on the Project Highway.
11. Article 6.3 of the CA proscribed the emergence of any
"Competing Road", as it would have adverse effect on the volume of
traffic and the toll collections on the Project Highway. It read thus:
"6.3 Obligations relating to Competing Roads
The Authority shall procure that during the subsistence of this
Agreement, neither the Authority nor any Government
Instrumentality shall, at any time before the 10th (tenth)
anniversary of the Appointed Date, construct or cause to be
6 "the Project Highway" hereinafter
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constructed any Competing Road; provided that the restriction
herein shall not apply if the average traffic on the Project Highway
in any year exceeds 90% (ninety percent) of its designed capacity
specified in Clause 29.2.3. Upon breach of its obligations
hereunder, the Authority shall be liable to payment of
compensation to the Concessionaire under and in accordance with
Clause 35.4."
12. "Competing Road", was defined, in the CA, thus:
"Competing Road" means a road connecting the two end points of
the Project Highway and serving as an alternative route thereof,
such road being an existing paved road, which has been widened
by more than 2 (two) metres of paved road for at least 75%
(seventy five per cent) of the total length thereof at any time after
the date of this Agreement, or a new road, which is constructed
after such date, as the case may be, but does not include any road
connecting the aforesaid two points if the length of such road
exceeds the length of the Project Highway by 20% (twenty per
cent) thereof."
13. Thus, a "competing road" was a road
(i) which connected the two ends of the Project Highway,
(ii) which served as an alternative route to the Project
Highway, and
(iii) which was
(a) either an existing paved road, widened by more
than 2 m for at least 75% of its length, after 25 July 2011,
or
(b) a new road, constructed after 25 July 2011.
The definition excluded any road connecting the two ends of the
Project Highway, if the length of the road exceeded the length of the
Project Highway by 20%. As the recital hereinafter would disclose,
the Arbitral Tribunal has proceeded on the premise that the Savli road
- up and down which the dispute in this case has, in a sense, travelled
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- was, in fact, a "competing road" as defined in the CA.
14. Breach, by NHAI, of the obligation cast by Article 6.3 resulted
in IRB being entitled to compensation in terms of Article 35.4 of the
CA, which read:
"In the event that an Additional Tollway or a Competing Road, as
the case may be, is opened to traffic in breach of this Agreement,
the Authority shall pay to the Concessionaire, for each day of
breach, compensation in a sum equal to the difference between the
average daily Realisable Fee and the projected daily Fee (the
"Projected Fee") until the breach is cured. The Projected Fee
hereunder shall be an amount equal to the Average Daily Fee,
increased at the close of every month by 0.5% (zero point five per
cent) thereof and revised in accordance with Article 27.2. For the
avoidance of doubt, the Average Daily Fee for the purposes of this
Article shall be the amount so determined in respect of the
Accounting Year or period, as the case may be, occurring prior to
such opening or operation of an Additional Tollway or a
Competing Road, as the case may be."
15. Towards compliance with its obligations under the CA, NHAI
entered into a State Support Agreement7 with the State of Gujarat on
11 February 2016. In furtherance of the CA, an Escrow Agreement
was also executed among IRB, NHAI, Infrastructure Development
Finance Company Ltd.8 and the Punjab National Bank9 on 10
February 2012. The CA and the Escrow Agreement envisaged
resolution of disputes by arbitration.
16. The Court is, therefore concerned, in this petition, with the issue
of whether the decision of the Arbitral Tribunal, qua IRB's claims,
7 "SSA" hereinafter
8 "IDFCL" hereinafter
9 "PNB" hereinafter
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can sustain the scrutiny of Section 34 of the 1996 Act.
The impugned Award, to extent it is challenged herein
17. IRB contended that it had completed construction and
development of the Project Highway within the contractually
stipulated period and commenced toll collection from 6 December
2015. However, the Savli road, which was a toll free State Highway
constructed by the State of Gujarat, 119 km in length and connecting
Vadodara to Ahmedabad, constituted a "Competing Road" as defined
in the CA. The existence of this Competing Road resulted in adverse
impact on the toll collections on the Project Highway, thereby
entitling IRB to compensation in terms of Article 35.4 of the CA. A
claim to this effect was, therefore, raised by IRB on NHAI vide letter
dated 24 May 2017, reiterated in a subsequent communication dated
22 September 2017.
18. As already noted, the Arbitral Tribunal has ultimately rejected
the claim of the IRB for compensation in terms of Article 35.4 of the
CA, on account of the Savli Road having become a Competing Road.
19. What falls for consideration is, therefore, whether this rejection
is sustainable in law.
20. For this purpose, it is necessary to reproduce, in full, paras 12
(i) to 12 (xiv) of the impugned award, thus:
"12(i) Issues No. (i) to (ix) flow from each other sequentially and
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thus the Tribunal decides the basic issue which sings the signature
tune underlying the nine issues. To make the issue short and crisp,
the Tribunal notes that in its Interim Award dated 14.10.2021, the
Tribunal has, in para 104 thereof, recorded: hence the broad end
points of the Project Highway would be Vadodara and
Ahmedabad. In para 106 the Tribunal has recorded that: the length
of Project Highway is not to be derived. It is contained in the
definition of Project Highway, and provides for the NH-8 Section
length as 102.30 Km and the Expressway Section as 93.302 Km.
This is in recital B of the Concession Agreement dated 25.07.2011.
While deciding preliminary Issue A, the sub-issue whether the 'end
points' of Savli Road are required to coincide with the 'end points'
of the Project Highway for the Savli Road to qualify as a
'Competing Road', subject to further conditions laid under the
definition of a Competing Road, the Tribunal had held in para 104
of the Interim Award as under:
"104. Hence the broad end points of the Project Highway
would be Vadodara and Ahmedabad. It follows, that if
there be an alternative toll-free route offered as a choice
to any vehicle owner, which also similarly provides a
connection between the city of the Ahmedabad and
Vadodara, he would opt for such a route. In such case,
such alternative toll-free route would 'compete' with the
NH-8 Section. The Savli Road provides a connection
between the cities of Vadodara and Ahmedabad, is a toll
free (and hence commercially more attractive option for
any vehicle user), becomes an alternative choice and thus
become a 'Competing Road' for all intents and purposes,
to the extent of this parameter. The Claimant is correct in
contending that merely because the 'Competing Road'
terminates at a point earlier then or other than the exact
termination point of the Project Highway, would be
immaterial and does not take away from the fact that by
using such 'Competing Road' a user can reach the same
destination as the Project Highway' and thus such
'Competing Road' connects the end points of the 'Project
Highway' i.e. Ahmedabad and Vadodara. This is the
essence of the end point criteria mentioned in the
definition of 'Competing Road'."
12(ii) The Claimant had argued that the end points of Savli Road
would be Vadodara (Dhumad Chowkdi) to Ahmedabad (Hathijan)
and the length is 119 Km and the Tribunal proceeds on the basis
that this would be the length of the Savli Road. The Tribunal
further proceeds treating as correct the evidence led by the
Claimant, which comprises letters obtained by the Claimant from
the Public Works Department, State of Gujarat (Road & Bridges
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Department), without juxtaposing the rival evidence led by the
Respondent which dents the correctness of the information
conveyed to the Claimant by the Public Works Department. The
Tribunal is also not venturing into the debate between learned
counsel for the parties as to whose evidence had a better quality
nor the argument of Learned Senior Counsel for the Claimant that
since the information obtained and filed before the Tribunal by the
Respondent was after the Claimant had led evidence the possibility
of the information provided by the Public Works Department was
tainted or contrived for the reason the State of Gujarat which had
signed the State Support Agreement would have been fastened with
the liability should the claim of Savli Road being a Competing
Road succeed. In the written submissions filed by the Claimant at
the opening arguments, in para 39, the Claimant has tabulated the
widening details of Savli Road as emerging from the documentary
evidence filed by the Claimant. The table reads as under10:
*****
12(iii) Clarifying once again that without venturing into the
correctness of the information provided to the Claimant by the
Public Works Department of the State of Gujarat and the Tribunal
is treating the said data compilation to be correct, relevant would it
to highlight that as per the table out of a total length of 119 Km of
Savli Road, 92.310 Km length has been widened and the
percentage of widening is 77.56%.
12(iv) The case of the Claimant is that the Project Highway was
opened for tolling on 06.12.2015. The data compiled by the
Claimant in the table reproduced by the Tribunal in para 12(ii)
above shows that the widening of all the sections, except Ode-
Umreth (length being 6.20 Km) which commenced on 17.01.2014
and was completed on 16.01.2016, commenced after 06.12.2015
and obviously was completed after 06.12.2015. Thus, treating the
data compiled by the Claimant to be correct, it stands out that only
widening to the extent of 5.21% of Savli Road commenced before
the Project Highway was opened to toll and even this segment was
ultimately widened on 16.01.2016 i.e. a little over one month after
the Project Highway was opened for tolling.
12(v) The argument of Learned Senior Counsel for the Claimant
was premised on the definition of the word 'construction' in
Article 1.2.1(f) of the Concession Agreement and the mandate in
Article 1.2.4 that words or expressions used in the Agreement
shall, unless otherwise defined, bear their ordinary English
10 The Table is annexed to this judgment as Annexure A
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meaning. Thus, as per Learned Senior Counsel the word 'serving'
and the word 'alternative' finding a mention in the definition of
Competing Road must be accorded their ordinary English meaning.
12(vi) The Concession Agreement, vide Article 1.2.1(f) defines
the words 'Construction' or 'Building' to include, unless the
context otherwise requires, investigation, design, developing,
engineering, procurement, delivery, transportation, installation,
processing, fabrication, testing, commissioning and other activity
incidental to the construction.
12(vii) Article 6.3 casts Obligations relating to Competing Roads,
in the following terms: The Authority shall procure that during the
subsistence of this Agreement, neither the Authority nor any
Government Instrumentality shall, at any time before the 10th
(tenth) anniversary of the Appointed Date, construct or cause to be
constructed any Competing Road; provided that the restriction
herein shall not apply if the average traffic on the Project Highway
in any year exceeds 90% (ninety percent) of its designed capacity
specified in Article 29.2.3. Upon breach of its obligations
hereunder, the Authority shall be liable to payment of
compensation to the Concessionaire under and in accordance with
Article 35.4.
12(viii) Article 48.1 of the Concession Agreement defines
Competing Road as follows: "Competing Road" means a road
connecting the two end points of the Project Highway and serving
as an alternative route thereof, such road being an existing paved
road, which has been widened by more than 2 (two) metres of
paved road for at least 75% (seventy five per cent) of the total
length thereof at any time after the date of this Agreement, or a
new road, which is constructed after such date, as the case may be,
but does not include any road connecting the aforesaid two points
if the length of such road exceeds the length of the Project
Highway by 20% (twenty per cent) thereof.
12(ix) The phrase: 'Serving as an alternative route', or even
'alternative route' and 'serving' have not been defined in the
Concession Agreement and therefore as per Learned Senior
Counsel for the Claimant the ordinary English meaning of the
words 'alternative' and 'serving' have to be adopted. Learned
Senior Counsel submitted that the word 'alternative' is defined in
the Oxford Advanced Learner's Dictionary to mean: 'a thing that
you can choose to do or have out of two or more possibilities.' The
Collins Dictionary defines the word to mean (i) 'If one thing is an
alternative to another, the first can be found, used, or done instead
of the second, (ii) An alternative plan or offer is different from the
one that you already have, and can be done or used instead.'
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Merriam Webstar Dictionary defines the word to mean: 'Offering
or expressing a choice'. The word 'serving' is defined in the
Oxford Advanced Learner's Dictionary to mean: to provide an area
or a group of people with a product or service serve
somebody/something'. The Collins Dictionary defines it to mean:
If something serves people or an area, it provides them with
something that they need. The Merriam Webstar Dictionary defines
it to mean: 'to be of use'. Learned Senior Counsel for the Claimant
had additionally submitted that it would be impermissible to add
the phrase 'resulting in a diversion of traffic' in the definition of
the Competing Road.
12(x) Even if the argument of Learned Senior Counsel for the
Claimant is accepted and the principle of interpretation of contracts
being that where a word has both an ordinary meaning as well a
specialized meaning, no evidence will be admitted of the
specialized meaning, unless it is first proved that parties intended
to use the word/phrase in the latter sense as per the opinion in the
decision reported as Holt & Co. v Collyer11 and the decision
reported as Briggin Hill Airport Ltd. v Bromley12, is accepted and
adopting the wide meaning of the word 'Construct' to include
investigation, design, developing, engineering, procurement,
delivery, transportation, installation, processing, fabrication,
testing, commissioning and other activity incidental to the
construction, would only mean that the moment a design is made
or the moment developing activity commences on an existing
paved road, of widening the same by more than 2 meters and
ultimately resulting in at least 75% of the total length thereof
widened by more than 2 meters, it would result in the said road
being a Competing Road from the date when developing activity
commences.
12(xi) The consequence of a Competing Road being allowed to
come into existence, is in Article 35.4 of the Concession
Agreement, for the same provides the compensation for Competing
Road and reads: In the event that an Additional Tollway or a
Competing Road, as the case may be, is opened to traffic in breach
of this Agreement, the Authority shall pay to the Concessionaire,
for each day of breach, compensation in a sum equal to the
difference between the average daily Realisable Fee and the
projected daily Fee (the "Projected Fee") until the breach is cured.
The Projected Fee hereunder shall be an amount equal to the
Average Daily Fee, increased at the close of every month by 0.5%
(zero point five per cent) thereof and revised in accordance with
Article 27.2. For the avoidance of doubt, the Average Daily Fee for
11 (1881) 16 Ch D 719
12 (2001) EWCA CIV 1089
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the purposes of this Article shall be the amount so determined in
respect of the Accounting Year or period, as the case may be,
occurring prior to such opening or operation of an Additional
Tollway or a Competing Road, as the case may be.
12(xii) The compensation for allowing a Competing Road to be
constructed, as per Article 35.4 of the Concession Agreement,
requires the Tribunal to keep in mind that the compensation
triggers only when the Competing Road 'is opened to traffic'. A
road being 'opened to traffic' means that the travel lanes are
available for the unrestricted flow of traffic, and this has to be in
the realm of reality i.e. actually existing in the world. Thus, it is
only when such road (Competing Road) is opened to traffic, can
the toll revenues of the Claimant be impacted. Thus, the
compensation provision triggers not when a Competing Road is
constructed as projected by the Claimant. The right to seek
compensation triggers only when such road is opened to traffic.
The interplay between the definition of a Competing Road and the
compensation for said Competing Road being opened to traffic,
plainly means that such paved road has to be opened to traffic after
75% length thereof is widened by more than 2 meters for the
entitlement to compensation to kick-in.
12(xiii) Learned Senior Counsel for the Claimant, with respect to
the interpretation of Competing Road, had argued that if the
interpretation as proposed by him was not accepted, the
Respondent (a public authority) could cheat the concessionaire by
widening an existing paved road by more than 2 meter thereof only
to the extent of 74.99% to avoid the 75% limit and just a day after
the end of the concession period widen the same by 0.01%. This
would be rank cheating; an act to be frowned upon. As the Tribunal
has noted, by accepting the data tabulated by the Claimant, in para
12(iv), only widening to the extent of 5.21% of Savli Road
commenced before the Project Highway was opened to toll and
even this segment was ultimately widened on 16.01.2016 i.e. a little
over one month after the Project Highway was opened for tolling.
The theoretical argument need not be answered by the Tribunal as
the same does not arise to be considered in the facts of the instant
case, because the process of widening of only 5.21% of the Savli
Road commenced prior to when the Project Highway was opened
to toll and even that segment was widened after the tolling
commenced.
12(xiv) The compensation claim for Savli Road even if it is treated
as a Competing Road when tolling commenced on the Project
Highway must therefore fail."
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21. From a reading of the aforesaid passages from the impugned
award, the reasoning adopted by the Arbitral Tribunal, for arriving at a
finding that IRB is not entitled to its claim for compensation under
Article 35.4 of the CA may be set out thus:
(i) Out of a total 119 km length of the Savli Road, 92.31 km
had been widened. This amounted to 77.56%.
(ii) Of this stretch, the entire exercise of widening of the
road, except for 6.2 km of the Ode-Umreth stretch, commenced
and was completed after 6 December 2015, when the Project
Highway was opened to toll.
(iii) The 6.2 km Ode-Umreth stretch constituted 5.21% of the
Savli Road.
(iv) The Savli Road was a "Competing Road", within the
meaning of definition of the expression as contained in the CA.
On this aspect, the Arbitral Tribunal has followed para 104 of
the interim award dated 14 October 2021, rendered by it.
(v) The right to seek compensation from NHAI, for breach of
Article 6.3 of the CA, in terms of Article 35.4, triggered only
when the Competing Road was opened to traffic. A road could
be treated as having been "opened to traffic" only when all its
travel lanes were available for unrestricted flow of traffic as it
was only then that the toll revenue of IRB could be set to be
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impacted.
(vi) In the present case, the commencement and construction
of the entire stretch of the Competing Road, except for 5.21%,
representing the Ode-Umreth stretch, was after 6 December
2015, when IRB started collecting toll from the Project
Highway. Even in respect of the Ode-Umreth stretch,
completion of widening was only on 16 January 2016.
(vii) As such, no part of the Competing Road had been
"opened to traffic" prior to commencement of collection of toll
from the Project Highway by IRB, on 6 December 2015.
(viii) The right to compensation, in terms of Article 35.4 of the
CA, had not, therefore, been triggered before IRB commenced
collecting toll from the Project Highway. Ergo, IRB's claim to
compensation had to fail.
22. Clearly, the entire controversy revolves around Articles 6.3 and
35.4 of the CA, chiefly the latter, in the light of the definition of
"Competing Road" in the CA. This Court is, therefore, required to
examine whether the interpretation, by the Tribunal, of these
covenants, can sustain Section 34 scrutiny.
23. The extent to which interpretation of contract, by an Arbitral
Tribunal, can be vivisected under Section 34 of the 1996 Act has been
subject matter of several judicial authorities. The parameters of
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judicial review, in this regard, stand authoritatively delineated, most
recently, in DMRC Ltd v Delhi Airport Metro Express Pvt Ltd13, the
relevant passages of which may thus be reproduced:
"34. The contours of the power of the competent court to set
aside an award under Section 34 has been explored in several
decisions of this Court. In addition to the grounds on which an
arbitral award can be assailed laid down in Section 34(2), there is
another ground for challenge against domestic awards, such as the
award in the present case. Under Section 34(2-A) of the Arbitration
Act, a domestic award may be set aside if the Court finds that it is
vitiated by "patent illegality" appearing on the face of the award.
35. In Associate Builders v DDA14, a two-Judge Bench of this
Court held that although the interpretation of a contract is
exclusively within the domain of the arbitrator, construction of a
contract in a manner that no fair-minded or reasonable person
would take, is impermissible. A patent illegality arises where the
arbitrator adopts a view which is not a possible view. A view can
be regarded as not even a possible view where no reasonable body
of persons could possibly have taken it. This Court held with
reference to Sections 28(1)(a) and 28(3), that the arbitrator must
take into account the terms of the contract and the usages of trade
applicable to the transaction. The decision or award should not be
perverse or irrational. An award is rendered perverse or irrational
where the findings are:
(i) based on no evidence;
(ii) based on irrelevant material; or
(iii) ignores vital evidence.
36. Patent illegality may also arise where the award is in breach
of the provisions of the arbitration statute, as when for instance the
award contains no reasons at all, so as to be described as
unreasoned.
*****
38. In Ssangyong Engg. & Construction Co. Ltd. v NHAI15, a
two-Judge Bench of this Court endorsed the position in Associate
Builders v DDA16, on the scope for interference with domestic
awards, even after the 2015 Amendment :
13 (2024) 6 SCC 357
14 (2015) 3 SCC 49
15 (2019) 15 SCC 131
16 (2015) 3 SCC 49
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"40. The change made in Section 28(3) by the Amendment
Act really follows what is stated in paras 42.3 to 45 in
Associate Builders v DDA (supra), namely, that the
construction of the terms of a contract is primarily for an
arbitrator to decide, unless the arbitrator construes the
contract in a manner that no fair-minded or reasonable
person would; in short, that the arbitrator's view is not
even a possible view to take. Also, if the arbitrator wanders
outside the contract and deals with matters not allotted to
him, he commits an error of jurisdiction. This ground of
challenge will now fall within the new ground added under
Section 34(2-A).
41. ... Thus, a finding based on no evidence at all or an
award which ignores vital evidence in arriving at its
decision would be perverse and liable to be set aside on the
ground of patent illegality. Additionally, a finding based on
documents taken behind the back of the parties by the
arbitrator would also qualify as a decision based on no
evidence inasmuch as such decision is not based on
evidence led by the parties, and therefore, would also have
to be characterised as perverse."
(emphasis supplied)
39. In essence, the ground of patent illegality is available for
setting aside a domestic award, if the decision of the arbitrator is
found to be perverse, or so irrational that no reasonable person
would have arrived at it; or the construction of the contract is such
that no fair or reasonable person would take; or, that the view of
the arbitrator is not even a possible view [Patel Engg. Ltd. v North
Eastern Electric Power Corpn. Ltd.17]. A "finding" based on no
evidence at all or an award which ignores vital evidence in arriving
at its decision would be perverse and liable to be set aside under
the head of "patent illegality". An award without reasons would
suffer from patent illegality. The arbitrator commits a patent
illegality by deciding a matter not within his jurisdiction or
violating a fundamental principle of natural justice."
24. The view, of the Arbitral Tribunal, as expressed in para 12 (xii)
of the impugned Arbitral Award, that
17 (2020) 7 SCC 167
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(i) the mere construction of a Competing Road would
not ipso facto entitle IRB to compensation, till the road
was opened to traffic,
(ii) a road can be regarded as "opened to traffic" only
when its "travel lanes are available for the unrestricted
flow of traffic, and this has to be in the realm of reality
i.e. actually existing in the world", and
(iii) "such paved road has to be opened to traffic after
75% length thereof is widened by more than 2 meters for
the entitlement to compensation to kick-in",
in my view, reflects a plausible interpretation of Article 35.4 of the
CA, and cannot brook interference under Section 34 of the 1996 Act.
25. Proceeding therefrom, and with greatest respect to the learned
Members of the Arbitral Tribunal, for whom this court has the highest
regard, there appear, to me, to be two fundamental mistakes in the
reasoning adopted by the Arbitral Tribunal which, if endorsed, would
require Article 35.4 to be rewritten, and Article 6.3 of the CA to be
read in part and omitted in part. These may be noted thus:
(i) Re. Article 35.4
(a) The Arbitral Tribunal has held that, as the
Competing Road was opened to traffic only after 6
December 2015, when IRB started collecting toll, no
compensation under Article 35.4 could be paid. The
Arbitral Tribunal has, therefore, proceeded on the
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premise that IRB would be entitled to compensation,
under Article 35.4 of the CA, only if the Competing Road
was opened to traffic before IRB commenced collection
of toll from the Project Highway.
(b) In my respectful opinion, there is no sustainable
basis for this inference.
(c) The linking of the date of opening of the Competing
Road to traffic, with the date from which IRB commenced
collecting toll from the Project Highway, as a basis to
determine IRB's entitlement to compensation under
Article 35.4 of the CA, is not borne out by Article 35.4
itself and amounts, in fact, to introduction, into Article
35.4, of a consideration which is not to be found in the
Article. There is no clause in the CA which entitles IRB
to compensation only if the Competing Road is open to
traffic before collection of toll by IRB commences.
(d) In fact, the view adopted by the Arbitral Tribunal,
if accepted, would require Article 35.4 of the CA to be
rewritten thus, adding the italicized words:
"In the event that an Additional Tollway or a
Competing Road, as the case may be, is opened to
traffic in breach of this Agreement, after the date on
which the Concessionaire commences collection of
toll from the Project Highway, the Authority shall
pay to the Concessionaire, for each day of breach,
compensation in a sum equal to the difference
between the average daily Realisable Fee and the
projected daily Fee (the "Projected Fee") until the
breach is cured. The Projected Fee hereunder shall
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be an amount equal to the Average Daily Fee,
increased at the close of every month by 0.5% (zero
point five per cent) thereof and revised in
accordance with Article 27.2. For the avoidance of
doubt, the Average Daily Fee for the purposes of
this Article shall be the amount so determined in
respect of the Accounting Year or period, as the
case may be, occurring prior to such opening or
operation of an Additional Tollway or a Competing
Road, as the case may be."
The interpretation adopted by the Arbitral Tribunal in
para 12 (xiii) of the impugned award effectively re-writes
Article 35.4 of the CA by inserting, into the said Article,
the italicized words supra. It is settled, in law, that an
Arbitral Tribunal, which re-writes a contractual covenant,
is liable to be set aside even on that score. The Supreme
Court held, in PSA Sical Terminals Pvt Ltd v Board of
Trustees of V.O. Chidambranar Port Trust18, thus:
"85. As such, as held by this Court in Ssangyong
Engg. & Construction Co. Ltd. v NHAI (supra),
the fundamental principle of justice has been
breached, namely, that a unilateral addition or
alteration of a contract has been foisted upon an
unwilling party. This Court has further held that a
party to the agreement cannot be made liable to
perform something for which it has not entered into
a contract. In our view, rewriting a contract for the
parties would be breach of fundamental principles
of justice entitling a court to interfere since such
case would be one which shocks the conscience of
the court and as such, would fall in the exceptional
category."
(Emphasis supplied)
(e) If an Arbitral Tribunal cannot foist, on a party,
18 (2023) 15 SCC 781
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any liability by effectively rewriting the contract,
neither, in my respectful opinion, can an Arbitral
Tribunal deny, to a party, a right to which it is entitled
under the contract, by introducing, into the concerned
contractual clause, a consideration which is not to be
found therein as that, too, would result in rewriting the
contract.
(ii) Article 6.3
(a) In conjunction with this, it appears that the Arbitral
Tribunal has completely overlooked the words "at any
time before the tenth Anniversary of the Appointed
Date", contained in Article 6.3 of the CA. The terminus
ad quem, by which date the construction of the
Competing Road was required to be completed, to sustain
a finding that NHAI had breached Article 6.3 of the CA
was, therefore, the tenth Anniversary of the Appointed
Date. The Appointed Date was 1 January 2013. The
tenth Anniversary of the Appointed Date would,
therefore, be 1 January 2023. Admittedly, the
construction of the entire Competing Road was over
before 1 January 2023.
(b) Ipso facto, therefore, by completing the
construction of the Competing Road before the tenth
Anniversary of the Appointed Date, Clause 6.3 of the CA
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stood breached. This fact has, it appears, not engaged the
attention of the Arbitral Tribunal while passing the
impugned Arbitral Award.
(iii) That said, however, mere breach of Clause 6.3 would not
inexorably entitle IRB to compensation from NHAI, as such
entitlement would have to be in accordance with Article 35.4.
Not only would, therefore, the Concessionaire have to establish
breach, by NHAI, of Article 6.3; it would also have to establish
satisfaction of the ingredients of Article 35.4, in order to be
entitled to compensation.
(iv) The issue, therefore, again peters down to Article 35.4.
In that regard, and at the cost of repetition, the Arbitral Tribunal
has, in my respectful opinion, erred in holding that, merely
because the Competing Road was opened to traffic after 6
December 2015, when IRB commenced collecting toll from the
Project Highway, the claim of the IRB under Article 35.4 of the
CA had to fail. As already noted, this would require re-writing
of Article 35.4 by introduction, into the Article, of an additional
requirement of the Competing Road being opened to traffic
before the date when toll collection, by IRB, from the Project
Highway, commenced.
(v) Viewed from another perspective, Article 35.4 merely
envisaged "opening to traffic", of "an Additional Tollway or
Competing Road ... in breach of (the CA)" as sufficient to
entitle IRB to compensation from NHAI. There was no further
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requirement, in the CA, of the construction of the Competing
Road to be complete prior to commencement of toll collection,
by IRB, from the Project Highway. This is an additional
conditionality, effectively imported into Article 35.4 of the CA
by the impugned Arbitral Award, which is not to be found
therein.
(vi) Even if, therefore, the Competing Road was opened to
traffic after IRB had commenced toll collection from the Project
Highway on 6 December 2015, the entitlement of IRB for
compensation under Article 35.4 would have nonetheless to be
reckoned from the date when the Competing Road was opened
to traffic. The claim could not altogether have been rejected.
Application of the law, and the sequitur
26. In the above backdrop, when one applies the judicially
recognized tests regarding scope of scope of interference, under
Section 34 of the 1996 Act, with the manner in which an Arbitral
Tribunal interprets a contract, as exposited, most recently, in DMRC,
the following position emerges:
(i) The opinion, expressed by the Arbitral Tribunal, that
entitlement to compensation, in terms of Article 35.4, is not
triggered merely by the fact of construction of a Competing
Road, but would commence only when the Competing Road is
opened to traffic, is a plausible interpretation, which cannot
brook interference under Section 34.
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(ii) The opinion of the Arbitral Tribunal, in para 12 (xiii) of
the impugned Award, that compensation under Article 35.4
would be available only if the Competing Road was opened to
traffic prior to the commencement of collection of toll from the
Project Highway by IRB is, however, unsustainable, as the said
interpretation re-writes Article 35.4 in the manner indicated in
para 25 (i) supra.
(iii) The Arbitral Tribunal also appears to have overlooked
the fact that, if the Competing Road completely came into
existence prior to the tenth Anniversary of the Appointed Date
(and not necessarily prior to commencement of toll collection
by IRB from the Project Highway), there was ipso facto breach,
by NHAI, of Article 6.3 of the CA.
(iv) At the very least, therefore, the Arbitral Tribunal would
be required to revisit the claim, of IRB, to compensation in
terms of Article 35.4 of the CA, with effect from the date when
the various stretches of the Savli Road were opened to traffic.
27. Mr. Nankani, learned Senior Counsel for the petitioner,
valiantly sought to exhort this Court to advance some opinion, even
tentative, regarding the entitlement of IRB to compensation under
Article 35.4 of the CA. I, however, am not inclined to do so.
Embarking on such an exercise would, in my view, amount to this
Court substituting its view in place of the view expressed by the
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Arbitral Tribunal, regarding the merits of the petitioner's claim to
compensation under Article 35.4. NHAI v M. Hakeem forbears this
Court from doing so. Having expressed the view that the interpretation
of the contractual covenants, by the Arbitral Tribunal, may not sustain
Section 34 scrutiny, the Court has necessarily to leave the exercise of
determination of whether IRB would be entitled to compensation,
were the contractual covenants to be interpreted as this judgement
holds, to the Arbitral Tribunal, in a de novo exercise.
Conclusion
28. In the result, while setting aside the impugned award, to the
extent it rejects the claim of IRB to compensation under Article 35.4
of the CA, the Court leaves it open to IRB to reinitiate arbitral
proceedings with respect to the said claim. In the event such
proceedings are initiated, the Arbitral Tribunal would re-examine the
claim in the light of the aforesaid observations and findings.
29. It is made clear that the Court has not expressed any opinion on
the actual entitlement of IRB to compensation under Article 35.4 of
the CA as claimed by it. The examination would, however, have to be
in terms of the observations and views expressed in this judgement,
regarding the interpretation of Articles 6.3 and 35.4 of the CA.
Needless to say, the de novo proceedings, if they are initiated, would
have to consider all the material produced by IRB to substantiate its
claim to compensation under Article 35.4 of the CA. On the
sufficiency, or merits, of the said material, however, I do not venture
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any opinion. It would be for IRB to satisfy the Arbitral Tribunal that
it is, in fact, entitled to compensation under Article 35.4 and, needless
to say, it would be open to NHAI to assert to the contrary.
30. Should either side be aggrieved by the decision of the Arbitral
Tribunal, if and when it is rendered, the remedies, in law, to the
aggrieved party/parties shall remain reserved.
31. The petition is disposed of in the aforesaid terms.
C. HARI SHANKAR, J.
FEBRUARY 11, 2025 aky/ar Click here to check corrigendum, if any Annexed: Annexure A, as per Footnote 10 supra.
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Ahmedabad-Vadodara Project Completing Road Widening Details Status of Competing Road Total Length of Competing Road Sr. Division Name of Chainage Lengt Widening Scheme Date of Date of Length of Road /Km h of start of completion Competing From To road Earlier Road width Roads of road Road as per as per road after works as works as certificatio site width development per RTI per RTI n received check as per /widening from R&B RTI works as per Department RTI
1. Vadodara Vadodara - 9.600 18.00 8.40 7.0 m 14.0 m (4 25.12.201 Road is 8.40 Savli Km. 0 (2 lane) 5 traffic 9/6 to 18/0 lane) worthy in full width and only sundry work in progress
2. Vadodara - 18.00 32.40 14.40 7.0 m 14.0 m (4 25.12.201 Road is 14.40 Savli Km. 0 0 (2 lane) 5 traffic 18/0 to 32/4 lane) worthy in full width and only Signature Not Verified Signature Not Verified O.M.P. (COMM) 261/2024 Page 26 of 29 Digitally Signed By:AJIT Digitally Signed KUMAR By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:11.02.2025 Signing Date:11.02.2025 17:50:46 17:44:38 sundry work in progress
3. Savli - 0.00 5.20 9.70 7.0 m 7.0 m (2 lane) 13.10.201 12.12.2017 0.00 Poicha - (2 7 Ahima Km. lane) 0/0 to 5/2
4. Savli - 5.20 9.70 7.0 m 7.0 m (2 lane) 12.11.201 11.01.2019 0.00 Poicha - (2 8 Ahima Km. lane) 5/20 to 9/7
5. Anand Ahima - 14.40 8.60 7.50 7.0 m 10.0 m (2 23.10.201 22.10.2020 5.80 Ode Km (2 lane) 9 14/4 to 8/6 lane)
6. Ode - 0.00 9.20 9.30 7/10 10/14 m (2/4 17.01.201 16.01.2016 6.20 Umreth m (2 lane) 4 (GSHP) lane)
7. Umreth to 83.00 84.50 1.50 15.0 15.0 m (4 23.10.201 22.01.2019 0.00 Dakor Km m (4 Lane) 7 83/0 to 86/2 Lane)
8. 84.50 86.20 1.70 15.0 18.0 m (4 23.10.201 22.01.2019 1.70 m (4 Lane) 7 Lane)
9. Noida 5.10 10.0 14.0 m (4 2008 2009 0.00 Signature Not Verified Signature Not Verified O.M.P. (COMM) 261/2024 Page 27 of 29 Digitally Signed By:AJIT Digitally Signed KUMAR By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:11.02.2025 Signing Date:11.02.2025 17:50:46 17:44:38 m (2 lane) lane)
10. Alina to 54.35 51.00 5.60 7.0 m 14.0 m (4 2007 2008 0.00 Dakore Km (2 lane) 43/00 to lane) 54/35
11. 51.00 43.00 8.00 7.0 m 14.0 m (4 06.05.201 05.08.2017 8.00 (2 lane) 6 lane)
12. Mahudha - 43.00 30.15 12.85 7.0 m 14.0 m (4 03.05.201 02.11.2017 12.85 Alina Km (2 lane) 6 30.150 to lane) 43.00
13. Khatraj 30.15 13.60 15.55 7.0 m 14.0 m (4 03.05.201 02.11.2017 16.55 Chokdi (2 lane) 6 Mahudha lane) Chokdi from Km 13/60 to 30/150
14. Nenpur 25.00 30.15 5.15 10.0 14.0 m (4 12.05.201 31.12.2017 5.15 Chokdi to m (3 lane) 6 Khatraj lane) Chokdi Signature Not Verified Signature Not Verified O.M.P. (COMM) 261/2024 Page 28 of 29 Digitally Signed By:AJIT Digitally Signed KUMAR By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:11.02.2025 Signing Date:11.02.2025 17:50:46 17:44:38 from 25.00 to 30/150
15. Ahmedabad 16.14 25.00 13.26 10.0 14.0 m (4 15.01.201 10.12.2017 8.86 - m (3 lane) 6 Mahemdaba lane) d Km 16/140 to 25.00
16. Ahmedab Hirapur 11.80 16.20 10.0 15.0 m (4 30.12.201 29.11.2016 4.40 ad Chowkdi - m (2 lane) 5 Hathijan lane) Circle Km 11/8 to 16/2 Total length in Km 119.0 92.310 75% length as per site 89.26 77.56% check in Km Signature Not Verified Signature Not Verified O.M.P. (COMM) 261/2024 Page 29 of 29 Digitally Signed By:AJIT Digitally Signed KUMAR By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:11.02.2025 Signing Date:11.02.2025 17:50:46 17:44:38