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National Highway Authority Of India vs Essel Lucknow Raebareli Toll Roads Ltd & ... on 31 January, 2022

Author: Vipin Sanghi

Bench: Vipin Sanghi, Jasmeet Singh

                          $~64.
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +    FAO(OS) (COMM) 19/2022
                               NATIONAL HIGHWAY AUTHORITY OF INDIA..... Appellant
                                              Through: Mr. Santosh Kumar and Mr.Shashwat
                                                       Singh, Advocates.
                                       versus

                               ESSEL LUCKNOW RAEBARELI
                               TOLL ROADS LTD & ANR.                  ..... Respondents
                                            Through: Mr. Arvind Nayar, Senior Advocate
                                                     along with Ms Ritwika Nanda,
                                                     Ms.Petal Chandhok, Ms. Rupali
                                                     Gupta,   Mr.Akshay       Joshi   and
                                                     Mr.Savyasachi Rawat, Advocates.

                               CORAM:
                               HON'BLE MR. JUSTICE VIPIN SANGHI
                               HON'BLE MR. JUSTICE JASMEET SINGH

                                                         ORDER

% 31.01.2022 CM No. 5424/2022 Exemption allowed, subject to all just exceptions.

The application stands disposed of.

For the reasons stated in the application, the same is allowed.

The application stands disposed of.

FAO(OS) (COMM) 19/2022 and CM No. 5423/2022 & 5426/2022

1. The submission of Mr. Kumar - learned counsel for the appellant/ Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:01.02.2022 16:43:58 NHAI is that the impugned order dated 29.10.2021 passed by the learned single judge in O.M.P. (I) (COMM.) 355/2021, is completely unjustified. He submits that it was the obligation of the respondent contractor to maintain the stretch of the highway in question. The respondent failed to maintain the same and it fell in disrepair from January 2019 itself.

2. From 08.01.2019 onwards, several communications were issued to the respondent contractor brining to its notice the several breaches committed by it vis-à-vis maintenance of the highway. All these notices fell on deaf ears, and the respondent did not carry out repair work.

3. In March 2021, in view of the continuous failure of respondent No. 1 to maintain the road in question, the appellant issued a Short Term Tender for "Emergent Repair and Maintenance of Main Carriageway with overlay of Black Top surface on selected stretches of NH - 24 B from kms 12.700 to 82.700 in the State of Uttar Pradesh".

4. On 19.03.2021 the appellant informed the respondent about issuance of the said fresh tender. Yet, the respondent did not wake up and did not take steps to carry out the repair work. Only some meagre amount of work was carried out in the name of maintenance/ repair, which is evident from the inspection reports of the Independent Engineer.

5. The respondent claimed that only on 13.07.2021, the respondent allegedly awarded a contract to M/s Skylark Infra Engineering Pvt. Ltd. to carry out the repair works. Yet the repair works were not carried out at the site with any seriousness.

6. On 12.08.2021, the appellant issued a cure period notice under Clause 37.1.1 of the Concession Agreement directing the respondent to cure the Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:01.02.2022 16:43:58 breaches detailed in the letter within 60 days.

7. On 17.08.2021, the weekly progress reports were submitted by the respondent, from which it is evident that it would not be possible to complete the finishing of the repair works within the cure notice period.

8. Learned counsel for the appellant submits that without invoking the arbitration agreement under Clause 44.3 of the Concession Agreement, the respondent preferred the petitioner under Section 9 of the Arbitration and Conciliation Act, as aforesaid, in which the impugned ex-parte order was passed on 29.10.2021. Mr. Kumar submits that the impugned order is completely laconic and has serious consequences for the petitioner.

9. Mr. Kumar further points out that till date, the respondent has not invoked the arbitration . He further submits that impugned order does not fall within the scope of the reliefs which could be granted under Section 9 of the Arbitration and Conciliation Act, since the purpose of grant of interim relief under Section 9 is to preserve the subject matter of arbitration and the impugned order goes well beyond that scope.

10. It is the statutory obligation of the petitioner to maintain the highways and interference with the performance of statutory duties by the petitioner would have serious consequences in relation to maintenance of national highways throughout the country. Even otherwise, there was not justification in passing the impugned order. Prima facie, we find merit in the submission.

11. Issue notice. Ms. Ritwika Nanda accepts notice on behalf of the respondent.

12. List for consideration on 15.03.2022. Any works done by the petitioner are entirely at its own risk and cost and without prejudice to the rights and contentions of the appellant.

VIPIN SANGHI, J JASMEET SINGH, J JANUARY 31, 2022 kd Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:01.02.2022 16:43:58