Jhansi Orai Tollway Pvt Ltd vs Union Of India & Anr
2017 Latest Caselaw 2131 Del

$~46
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+           LPA 324/2017 & CM Nos.16464-16468/2017
%                                 Date of decision : 1st May, 2017
      JHANSI ORAI TOLLWAY PVT LTD        ..... Appellant
                    Through: Mrs. S.D. Raman and
                             Mr. Garvesh Kabra, Advs.

                         versus

      UNION OF INDIA & ANR                         ..... Respondent
                    Through:            Ms. Anjana Gosain, Adv. for
                                        R-1
                                        Mr. Mukesh Kumar, Adv.for
                                        R-2/NHAI
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE ANU MALHOTRA
                         JUDGMENT (ORAL)

GITA MITTAL, ACTING CHIEF JUSTICE

1. The appellant assails the judgment dated 9th October, 2015 passed by the learned Single Judge dismissing the petitioner's challenge by way of a writ petition impugning the letter dated 3 rd March, 2014 issued by the National Highways Authority of India ('NHAI' hereafter) terminating the concession agreement dated 5th February, 2013 entered into between the appellant and the NHAI for operation and maintenance of Jhansi-Orai section stretch admeasuring 135.413 KM of NH-25 in the State of Uttar Pradesh on an operation management transfer (OMP) basis.

2. Learned counsel for the appellant submits that the appellant

has invoked arbitration proceedings against the respondent no.2 in terms of the arbitration agreement executed between the parties dated 5th February, 2013 and has challenged the actions of the respondent no.2 on several factual and legal grounds.

This position is disputed by Ms. Anjana Gosain, learned counsel for the UOI as well as Mr. Mukesh Kumar, learned counsel representing the NHAI.

3. It is further submitted by Mrs. Shanta Devi Raman, who appears for the appellant before us, that this appeal has been necessitated for the reason that the learned Single Judge has made certain observations on the factual aspects of the matter, which may really prejudice the appellant in the arbitration proceedings.

4. Perusal of the impugned judgment dated 9th October, 2015 would show that given the nature of the agreement, the learned Single Judge in para 28 has observed that the appellant may not be entitled to specific performance thereof. It was on this finding that the learned Single Judge has observed that the appellant was disentitled from challenging the termination of the agreement by the respondent no.2.

Furthermore, in para 32, the learned Single Judge has granted liberty to the appellant to approach the arbitrator or the civil court as it may deem appropriate.

5. Considering the fact that the appellant claims to have not invoked the remedy by way of arbitration, no interference in the order dated 9th October, 2015 is warranted.

This appeal is accordingly dismissed.

Given the liberty granted by the learned Single Judge, it needs no elaboration that the arbitration or any proceedings in the civil court, would require to abide by the evidence and the material which is laid before it, without being influenced by any observations made in the order dated 9th October, 2015. CM Nos.16464-16468/2017 In view of the orders passed on the main appeal, these applications do not require any adjudication and are disposed of as such.

Dasti.

ACTING CHIEF JUSTICE

ANU MALHOTRA, J MAY 01, 2017/kr