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Judgment
,,
.Prathiba M. Singh, J.",,
IRB Ahmedabad Vadodara Super Express Toll Ways Pvt Ltd â€"the appellant Company (for short, „appellant‟) entered into a Concession",,
Agreement dated 25th July, 2011 (for short, „agreement‟) with the Respondent â€" National Highways Authority of India (for short, „NHAI‟)",,
for the development, maintenance and management of National Highway No.8 connecting Ahmedabad and Vadodara (for short `NH-8') and the",,
improvement of the already existing Ahmedabad-Vadodra Expressway (for short `Expressway'). NH-8 and the Expressway are two alternative,,
routes available for commuters travelling between Ahmedabad and Vadodara. The Agreement was on a DBFOT (Design, Build, Finance, Operate",,
and Transform) basis.,,
2.A Request for Qualification (RFQ) was issued by NHAI in May 2010. Bidders were shortlisted and bids were invited from the shortlisted bidders of,,
which one was M/s IRB Infrastructure Developers Ltd. (hereinafter, „selected bidder‟). The bid of the selected bidder was accepted. The selected",,
bidder promoted and incorporated the appellant, and requested the NHAI to accept the appellant as a Concessionaire. All the obligations of the",,
selected bidder were to be performed by the appellant â€" Concessionaire. The Agreement with the appellant, after taking proper assurances and",,
undertakings from the selected bidder, was entered into on 25th July, 2011. Â",,
3.Disputes arose between the parties in 2014, for which amicable resolution was tried but to no avail. Arbitration clause in the agreement had provided",,
for resolution of disputes through International Council of Alternative Dispute Resolution (ICADR). A Supplementary Agreement dated 14th July,",,
2014 was entered for resolution of disputes through rules and procedures of the Society of Affordable Resolution of Disputes (SAROD) instead of,,
ICADR. To this extent there is no dispute.,,
4.SAROD is a body set up by NHAI. A three member tribunal was constituted as per the Rules of SAROD. Claims and Counter Claims were filed,,
before the Arbitral Tribunal. The Arbitral Tribunal by a 2:1 majority upheld the claims of the Appellant in the following terms: “We, member of",,
Arbitral Tribunal having entered upon reference and heard the parties, pursued all documentation brought on record, DO HEREBY DECLARE and",,
publish the award by majority of two Arbitrators as below. The dissenting award by Shri Basant Kumar is attached herewith separately alongwith this,,
majority Award.,,
1.The Respondents must allow the Claimants the authority to issue only single journey without any discount on the Ahmedabad Vadodara,,
Expressway.,,
2.The Recurring losses incurred by the Claimants on account of forced issuance of concession passes to the vehicles amounting to Rs.,,
Rs.24,89,59,565.00 (July 2013 to April 2015). The amount will attract interest @ 15% p.a. from the date of the award till date of realization.",,
3.The recurring losses from May 2015 till effective steps to restore situation of single journey pass and no concession to locals. This amount will,,
attract interest @ 15% from the day audited account is submitted till date of realization of payment.â€,,
5.NHAI challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, „Act‟). The Ld. Single Judge on 6th",,
February, 2017 set aside the Arbitral award dated 8th January, 2016. The present appeal has been preferred against the impugned judgment of the Ld.",,
Single Judge dated 6th February, 2017.",,
6.The crux of the dispute is the issuance of discounted passes, exemptions and concessions on the Expressway. There are four different types of",,
discounts that are given to frequent/local users of the Expressway. The same are:,,
(i)Multiple journey tickets for frequent travellers using the section of the National Highway for two one way journeys during the day @ 1.5 times,,
single journey ticket valid for 24 hours (Return trip passes to frequent users on Expressway/NE-1);,,
(ii)Monthly passes consisting minimum 50 coupons @ 2/3rd amount for 50 single journeys issued to vehicles travelling to and fro daily on the section of,,
the National Highway (Multiple Trip Passes for frequent users on Expressway/NE-1);,,
(iii)Passes for vehicles of local residents who reside within a distance of 20 kms from the nearest Toll Plaza (Monthly passes to local noncommercial,,
vehicles);,,
(iv)Passes for vehicles which are registered within the District where Toll Plazas are located (Discounted fee to local commercial vehicles).,,
7.The dispute in the present case relates to the first three categories of discounts to be given by the appellant on the Expressway, as noted by the Ld.",,
Single Judge, for local vehicles and frequent travellers using the Expressway. It is the case of the appellant that on an interpretation of various clauses",,
of the agreement, it is not liable to grant these discounts/concessions on the Expressway. As a result thereof, it is liable to be compensated by the",,
NHAI. The Arbitral Tribunal accepted the stand of the appellant and awarded a sum of Rs.24,89,59,565.00/- (from July, 2013 to April, 2015) to be",,
paid by the NHAI along with interest @ 15%, as also amount of recurring losses to the appellant from May, 2015 which amount was to carry an",,
interest @15% from the day audited account is submitted till date of passing of the award.,,
8.The question as to whether the appellant is liable to grant the discount/concessions is to be determined as per the terms of the Agreement and also,,
depends upon the applicability of the National Highways Fee (Determination of Rates and Collection) Rules, 2008 (for short, „NHF Rules, 2008‟).",,
It is the stand of the appellant that these Rules have no application to an “Expressway†and hence it is not liable to grant the discounts and,,
concessions under the NHF Rules, 2008.",,
9.Some of the relevant clauses of the Concession Agreement dated 25th July, 2011 are as under:",,
2.1 Scope of the Project The scope of the Project (the “Scope of the Projectâ€) shall mean and include, during the concession Period:",,
(a)construction of the Project Highway on the Site set forth in Schedule-A and as specified in Schedule-B together with provision of project Facilities,,
as specified in Schedule-C, and in conformity with the Specifications and Standards set forth in ScheduleD;",,
(b)operation and maintenance of the Project Highway in accordance with the provisions of this Agreement; and,,
(c)performance and fulfillment of all other obligations of the concessionaire in accordance with the provisions of this Agreement and matters incidental,,
thereto or necessary for the performance of any or all of the obligations of the concessionaire under this Agreement. ……………,,
3.1 The concession,,
3.1.1 Subject to any in accordance with the provisions of this Agreement, the Applicable Laws and the Applicable Permits, the Authority hereby",,
grants to the Concessionaire the concession set forth herein including the exclusive right, licence and authority during the subsistence of this",,
Agreement to construct, operate and maintain the Project (the “Concessionâ€) for a period of 25 (twenty five) years commencing from the",,
Appointed Date, and the Concessionaire hereby accepts the Concession and agrees to implement the Project subject to and in accordance with the",,
terms and conditions set forth herein:,,
27.1 Collection and appropriation of Fee,,
27.1.1 On and from the COD till the Transfer Date, the Concessionaire shall have the sole and exclusive right to demand, collect and appropriate Fee",,
from the Users of Ahmedabad Vadodara Expressway Section subject to and in accordance with this Agreement and the National Highways Fee,,
(Determination of Rates and Collection) Rules, 2008, read along with National Highways Fee (Determination of Rates and Collection) Amendment",,
Rules, 2010, read along with National Highways Fee (Determination of Rates and Collection) Amendment rules, 2011 (the “Fee Rulesâ€);",,
Provided that the Concessionaire shall not be entitled to demand, collect and appropriate Fee from the Users of the Project Highway from km 6.400 to",,
km 108.700 of Ahmedabad Vadodara Section of NH 8 till the completion of Six Laning i.e. before COD provided that for ease of payment and,,
collection, such Fee shall be rounded off to the nearest 5 (five) rupees in accordance with the Fee Rules; provided further that the Concessionaire",,
may determine and collect Fee at such lower rates as it may, by public notice to the Users, specify in respect of all or any category of Users or",,
vehicles.,,
27.3 Exemption of Local Users The Concessionaire shall not collect any Fee from a Local User for non-commercial use of the Project Highway, and",,
shall issue a pass in respect thereof for commuting on a section of the Project Highway as specified in such pass and for crossing the Toll Plaza,,
specified therein. For carrying out the provisions of this Clause 27.3, the Concessionaire shall formulate, publish and implement an appropriate scheme,",,
and make such modifications to the scheme as may reasonably be suggested by the Authority or by Local Users from time to time; provided that for,,
defraying its expenses on issuing of passes and handling of Local users, the concessionaire shall be entitled to charge a monthly fee of Rs.150",,
(Rupees one hundred and fifty only), with reference to the base year 2007-08, to be revised annually in accordance with the Fee rules to reflect the",,
variation in WPI, and then rounded off to the nearest 5 (five) rupees; provided further that no passes will be required or Fee collected from a vehicle",,
that uses part of the Project Highway and does not cross a Toll Plaza.,,
27.5 Discounted Fee for frequent Users,,
27.5.1 The Concessionaire shall, upon request from any person, issue a return pass on payment of a sum equal to 150% (one hundred and fifty per",,
cent) of the Fee payable for the respective vehicle if it were to undertake a single one-way trip on the project highway. Such return pass shall entitle,,
the specified vehicle to undertake a return journey within 24 (twenty four) hours from the time of payment of Fee.,,
27.5.2 The Concessionaire shall, upon request from any person for issue of 50 (fifty) or more one-way toll tickets, issue such tickets at a discounted",,
rate equivalent to two-thirds of the Fee payable for the respective vehicle. Such discounted tickets shall entitle the specified vehicle to commute on the,,
Project Highway by using one ticket for a single one-way trip at any time during a period of one month from the date of payment of Fee. Â,,
27.11Â Display of Fee rates,,
27.11.1 The Concessionaire shall, one kilometer before the Toll Plaza, 500 (five hundred) meters before the Toll Plaza and 50 (fifty) meters before",,
entry to the Toll Plazas, prominently display the applicable rates of Fee for information of Users approaching the toll Plaza and shall also publish and",,
display such other information in such manner as may be prescribed under the Fee Rules.,,
27.11.2 The Concessionaire shall, from time to time, inform the Authority of the applicable Fee and the detailed calculation thereof. Such information",,
shall be communicated at least 15 (fifteen) days prior to the revision of Fee under and in accordance with the Fee Rules.,,
27.11.3 The Concessionaire shall not revise, display or collect any amounts in excess of the rates of Fee payable under the Fee Rules. In the event",,
any excess amounts are collected by or on behalf of the concessionaire, it shall, upon receiving a notice to this effect from the Authority, refund such",,
excess amounts to the authority along with Damages equal to 25% (twenty five percent) thereof.,,
48.1…….. “Fee†means the charge levied on and payable for a vehicle using the Project Highway or a part thereof, in accordance with the Fee",,
Rules and this Agreement;,,
48.1…….. “Fee Notification†means the Notification to be issued by the Government, prior to the Appointed Date, in exercise of the powers",,
conferred by Section 7 of the National Highways Act, 1956 read with Rule 3 of the National Highways Fee (Determination of Rates and Collection)",,
Rules, 2008, read along with National Highways Fee (determination of Rates and Collection) Amendment Rules, 2010, read along with National",,
Highways Fee (Determination of Rates and Collection) Amendment Rules, 2011 in respect of the levy and collection of Fee during the Concession",,
Period, substantially in the form at Schedule-R;",,
48.1…….. “Fee Rules†mean the National Highways Fee (Determination of Rates and Collection) Rules, 2008, read along with National",,
Highways Fee (Determination of Rates and Collection) Amendment Rules, 2010, read along with National Highways Fee (Determination of Rates",,
and Collection) Amendment Rules, 2011;",,
48.1…….“Project Highway†means the Site comprising the existing road comprising NH-8 from km,,
6.400 to km 108.700 (Length 102.300 km) in the State of Gujarat and improvement of existing Ahmedabad Vadodara Expressway from km 0.0000 to,,
km 93.302 (Length 93.302 km) in the State of Gujarat and all Project Assets, and its subsequent development and augmentation in accordance with",,
this Agreement;â€,,
Relevant clauses of the National Highway Fee (Determination of Rates and Collection) Rules, 2008 are as under:",,
“9. Discounts. (1) The executing authority or the concessionaire, as the case may be, shall upon request provide a pass for multiple journeys to",,
cross a toll plaza within the specified period at the rates specified in sub-rule (2) of rule 9.,,
A driver, owner or person in charge of a mechanical vehicle who makes use of the section of national highway, permanent bridge, bypass or tunnel,",,
may opt for such pass and he or she shall have to pay the fee in accordance with the following rates, namely:-",,
Amount payable,"Maximum number of one
way journeys",Period of validity
One and half times of
the fee for one way
journey","allowed
Two","Twenty four hours
from the time of
payment
Two-third of amount
of the fee payable for
fifty single journeys.",Fifty,"One month from
date of payment
morality"". The ground relating to ""the interest of India"" no longer obtains. ""Fundamental policy of Indian law"" is now to be understood as laid down in",,
Renusagar (supra). ""Justice or morality"" has been tightened and is now to be understood as meaning only basic notions of justice and morality i.e. such",,
notions as would shock the conscience of the Court as understood in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49. Section",,
28(3) has also been amended to bring it in line with the judgment of this Court in Associate Builders (supra), making it clear that the construction of",,
the terms of the contract is primarily for the arbitrator to decide unless it is found that such a construction is not a possible one.,,
Thus, an award rendered in an international commercial arbitration-whether in India or abroad-is subject to the same tests qua setting aside Under",,
Section 34 or enforcement Under Section 48, as the case may be. The only difference is that in an arbitral award governed by Part I, arising out of an",,
arbitration other than an international commercial arbitration, one more ground of challenge is available viz. patent illegality appearing on the face of",,
the award. The ground of patent illegality would not be established, if there is merely an erroneous application of the law or a re-appreciation of",,
evidence.â€,,
Thus, an arbitral award which is governed by Part I of the Act can be set aside if it is in contravention with the fundamental policy of Indian law,",,
justice and morality or if it suffers from a patent illegality.,,
17.The Ld. Single Judge has held in para 53 of the impugned judgment as under: “53. For the reasons stated above, this Court, is of the view that",,
the impugned award is fundamentally flawed, contrary to the express language of the concession agreement and, thus, wholly, unsustainable on the",,
touchstone of Section,,
34(2)(b)(ii) of the Act. Further the Arbitral Tribunal has also failed to address all the issues raised by NHAI.â€,,
18.Though, the Ld. Single Judge has set aside the award by applying a specific sub-section of Section 34, the legality and validity of award can be",,
adjudged on the touchstone of Section 34 as a whole.,,
19.The Agreement relates to an infrastructure project between two major cities in India, namely, Ahmedabad and Vadodara. The volume of traffic on",,
this stretch would have been the basis for the decision to have two separate major roads connecting the two cities. The density of population also must,,
have been very high, which may have been the reason for the Expressway with various exits between the two cities being improved, along with",,
construction and development of NH-8.,,
20.The Agreement, especially Clause 27.1.1, 27.3 and 27.5 reflect a major issue of public policy, namely, to keep the usage of the Expressway",,
reasonable for local residents and frequent users. Thus, the Agreement in the present case is not to be interpreted only from the point of view of a",,
commercial contract but also keeping in mind the purpose behind the granting of discounts, exemptions and concessions for frequent travellers and",,
local users. The accessibility and usability of Expressways to the large number of people living in the neighboring areas of the Expressway was a,,
matter of great convenience which could be completely taken away if the discounts, exemptions and concessions were not granted. It is in this",,
background that the Clauses of Agreement need to be interpreted.,,
21.As per the terms of the agreement, under Clauses 27.3 and 27.5 there were two categories of Users who were entitled to discounts. Category 1",,
are Local users under Clause 27.3 and Category 2 are Frequent Users who were entitled to two types of passes â€" a daily return pass and a monthly,,
pass. Both these were to be given to commuters using the `Project Highway’. Further, as per the Agreement, the charges had to be approved by",,
the NHAI.,,
22.A perusal of the letter dated 15th December, 2012, which forwarded the initial financial proposal seeking the validation of toll rates on the",,
Expressway filed by the appellant and the Annexure thereto reveals that the appellant itself had sought validation of toll rates after considering the,,
discounts/concessions to be given to local/frequent users. There is sufficient correspondence on record to show that the NHAI had validated the rates,,
for multiple journey/monthly passes which was forwarded by NHAI on 4th February, 2013 to the appellant. In fact, on 26th June, 2013, the appellant",,
categorically stated as under:,,
“To,,
The Project Director,,
National Highways Authority of India 3A &3B/2nd floor, Amul Building, Nr. Dena Bank, Vejalpur Road, Jivraj park, Ahmedabad - 380051.Sub: Six",,
laning of Ahmedabad to Vadodara section of NH 8 from 6.400 to Km. 108.700 (length102.300) In the State of Gujarat and Improvement of,,
Ahmedabad Vadodara Expressway from km. 0.000 to 93.302 in the State of Gujarat (Length - 93.302 km.) under NHDP Phase V on Design Build,,
Finance Operate Transfer (DBFOT) Toll basis: Applicability of Monthly passes on Ahmedabad VadodaraExpressway.Ref: 1.Your letter No.,,
NHAI/PIU Ahmedabad/1101/3/13/NH 8/6 laning/l8225, dated 26/06/2013.2.OuÂr letter No.IAVSET/BD/Toll Rates/13/11700/,dated 20/06/2013",,
Dear Sir, We reference to the above 2 letters, we hereby confirm that all necessary action is being taken for commencing issue of multiple journey",,
tickets / Monthly passes and daily return passes to the road users immediately. We assure you that the process of updating our computerized tolling,,
system and also updating the signage boards to adhere to the above shall be completed latest by 30th June, 2013, so that we can actually start the",,
issue of multiple journey tickets / monthly passess and daily return passes with effect from 01st July, 2013.",,
Your are requested to kindly validate the revised rates inclusive of daily/ monthly passes at the earliest.Thanking you and assuring your our best,,
services.,,
For IRB Ahmedabad Vododara Super Express Tollway,,
Pvt. Ltd. V.K. Menon,,
Authorized Signatory,,
CC: 1. Member (Admin), NHAI, New Delhi",,
2.GM (CO), NHAI, New Delhi.",,
3.CGM (RO),RO Gandhinagar, NHAI,",,
Gandhinagar,",,
4.GM (T), NHAI, New Delhi.",,
5.Team Leader, Aarvee Associates, Architects, Engineers & Consultants Pvt. Ltd., Anand Gujarat.â€",,
23.Despite this letter, the appellant did not implement the monthly passes/return journey tickets scheme, which led to the dispute. The appellant was",,
well aware, all along, right from the time of submitting the financial proposal that exemptions/ discounts would be applicable on the Expressways. It",,
appears that the appellant after having initially agreed to issuance of discounts/concessions including monthly passes had a change of mind and thus,",,
decided to raise disputes in respect of issuance of the same.,,
24.Moreover, a perusal of Clauses of the Agreement, especially Clause 27 leaves no doubt that the term “Project Highway†as contemplated in",,
Clause 27 includes both the Expressway and NH-8 as per the Definition Clause 48.1. The NHF Rules, 2008 also lend credence to the stand of NHAI",,
that an Expressway means a National Highway and thus, the confusion attempted to be created by the appellant between the term „Expressway‟",,
and „National Highway‟ to escape from its obligation is completely baseless and misplaced.,,
25.The purpose of using two different terms in the contract i.e., Expressway for the section of Highway which was to be improved and NH-8 for the",,
Highway which was to be built was only to distinguish the role of the appellant qua these two Highways. It was not meant to allow an exit for the,,
appellant from its obligations of extending the discounts/concessions to local users and frequent users. The appellant, being fully conscious of its",,
obligations under the Agreement, has attempted to wriggle away by creating a farce of a dispute, when there was none. The correspondence and",,
records beginning with the financial proposal and the letter dated 26th June, 2013 quoted above clearly shows that the appellant was conscious of its",,
obligations. The appellant tried to explain away its earlier conduct by stating in letter dated 26th July, 2013 that it had implemented the discounts only",,
upon being forced to do so by NHAI, though vide letter dated 26th June,2013, the appellant had not expressed any reservation against the issuance of",,
multiple journey tickets/monthly passes and daily return passes on the Expressway. The relevant portion of letter dated 26th July, 2013, by which there",,
was a change of stand by the appellant, reads as under:“…….We had started Issuance of Return Journey Pass and Multiple Journey Pass on",,
Ahmedabad Vadodara Expressway with effect from 01st July, 2013 upon your insistence even though the matter was under contractual Dispute. It is",,
further insisted by your personnel to start issuance of Monthly pass/discounted Fees to the local non commercial vehicles…..â€It appears that through,,
this letter, the appellant was trying to sow seeds of doubts where there were none leading to this litigation between the parties.",,
26.The award of the Arbitrators ignores all the above documents on record and distinguishes between a Highway and Expressway without any basis.,,
The Clauses use the term Project Highway which is a defined term in the contract and expressly includes the Expressway in the definition which,,
reads as - “Project Highway†means the Site comprising the existing road comprising NH-8 from km 6.400 to km 108.700 (Length 102.300 km) in,,
the State of Gujarat and improvement of existing Ahmedabad Vadodara,,
Expressway......"".",,
27.The Supreme Court in Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 (hereinafter, „Associate Builders‟), had elaborated",,
on the scope of the term “patent illegality†in relation to an arbitral award. The Court held as under:,,
“42.3. (c) Equally, the third subhead of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under:",,
“28. Rules applicable to substance of dispute â€" (1)-(2),,
(3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade",,
applicable to the transaction. “ This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the,,
terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on",,
this ground. Construction of the terms of the contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way,,
that it could be said to be something that no fair-minded or reasonable person could do.â€,,
28.Furthermore, recently the Supreme Court in HRD Corporation (supra), in light of the Arbitration and Conciliation (Amendment) Act, 2015 has held",,
that “Section 28(3) has also been amended to bring it in line with the judgment of this Court, in Associate Builders (supra), making it clear that the",,
construction of the terms of the contract is primarily for the arbitrator to decide unless it is found that such a construction is not a possible one.â€,,
29.Applying the above tests, the Arbitrator’s conclusion in paragraph 12.6 i.e., “By no rational, “Highway†can be and should be treated as",,
“Expresswayâ€, is clearly unsustainable and is vitiated by patent illegality i.e., contrary to the terms of the contract itself as held by the by the",,
Supreme Court in Associate Builders (supra). Such a finding is also contrary to the fundamental policy behind incorporation of discount and,,
concession clauses. The Ld. Single Judge has rightly analyzed the NHF Rules, 2008 and the notifications issued by the Central Government which",,
apply to NH-8 and the Expressway. The Ld. Single Judge has further accepted the explanation of NHAI as to why concessions were not being,,
granted prior to the Agreement with the appellant. The provisions of the Concession Agreement dated 5th March, 2002 prevalent at the time were",,
different from the present agreement dated 25th July, 2011. Thus, no parallels could be drawn in the manner sought to be drawn by the appellant.",,
30.The appellant has sought to raise technical difficulties in terms of how a particular exit on the Expressway would be used by commuters and,,
thereafter re-entered for the return journey for the longer stretch of the Expressway. Such arguments have no basis inasmuch as the definition of toll,,
plaza is quite clear and it was up to the appellant to set up a monitoring system to ensure that there was no misuse and the proper discounts and,,
concessions were granted, as agreed and prescribed in the Agreement. The appellant having taken into consideration the discounts and concessions",,
that it had to offer both on the Expressway and NH-8 at the time of bidding cannot be permitted to resile from the same.,,
31.It appears from the correspondence that, after having been awarded the bid for this project, the intention of the appellant appears to have changed.",,
After having initially implemented the discounts as per the Agreement, the appellant’s attempt to withdraw the monthly passes and other",,
concessions for local and frequent users is not acceptable and is contrary to the contract.,,
32.No other grounds are argued or pressed by the appellant. The award is completely vitiated by patent illegality and is also contrary to the policy of,,
using and making available Highway infrastructure to local users on discounted passes and has therefore, been rightly set aside by the Ld. Single",,
Judge.,,
33.The Court has not been appraised as to whether the discounts and monthly passes are being currently offered by the appellant. It is expected that,,
the NHAI would ensure that the notified monthly passes, discounts and concessions to local/frequent users are being made available to the public with",,
immediate effect so as to ensure that commuters are able to avail of the same.,,
34.Before the Arbitrator, the NHAI had filed counter claims and prayed as under:",,
“6.In view of the submissions made above, the Claims of the Claimant may be rejected and the Claimant be directed to:",,
i)continue issuing return journey tickets and remit the already collected excess amount with interest and damages;,,
ii)direct the Claimant to extend the concessional passes for non commercial vehicles residing within 20 km of Toll plaza immediately and submit the,,
details of excess amount collected so far by not extending the said concessions, inspite of clear provisions in the Concession Agreement and repeated",,
requests from the Respondents. Such excess amount collected may be allowed to be recovered along with damages and interest as in case of (i),,
above.,,
iii)The cost of arbitration as per actual may be reimbursed.â€,,
35.The Arbitrators, in the award, did not go into the counter claims of NHAI but granted the claims of the appellant. Since, the stand of the appellant",,
has been rejected and award has been set aside, it is directed that the NHAI shall ensure that the concessional passes, discounts and exemptions as",,
per the notified toll rates are being extended to commuters and users. The appellant shall submit all its accounts within eight weeks to NHAI, who",,
shall be entitled to recover all the excess amounts charged by the appellant. The Appeal is dismissed. All pending applications are disposed of. The,,
NHAI is directed to file its bill of costs of the Arbitration and subsequent bill of costs within four weeks with a copy to the Appellant. The NHAI is,,
awarded actual costs as per both its bills of costs to be paid within eight weeks from receipt of the same. Â,,