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Saturday, April 19, 2014

Public interest Litigation - arose out of accidental death of petitioner's son to provide and to follow road rule - scope of the writ metamorphosed and included the validity of contract between M/s. Soma Isolux NH One Tollway Pvt. Ltd. and NHAI - High court gave certain directions - Apex court set aside the order of High court and allowed the appeal on the ground that exercising jurisdiction under Article 226 of the Constitution of India is an act of judicial overreach under the garb of public interest and on the ground that the terms and conditions of a concluded contract can not be nullified by the High Court by issuing sweeping directions in an ongoing Public Interest Litigation Petition which renders the terms and conditions of the Concession Agreement between the contracting parties redundant at the instance and initiative of the Court itself when such directions has not even been sought by any of the parties to the Public Interest Petition and on the ground that Bench of the High Court which is seized of a particular dispute would not be justified in not taking note of the final judgment and order passed earlier by a co-ordinate Bench settling the said controversy in view of which no direction could be issued by the High Court nullifying the contractual rights of the affected party = M/S. SOMA ISOLUX NH ONE TOLLWAY PRIVATE LIMITED . Appellant Versus HARISH KUMAR PURI & ORS. ..Respondents=2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41427

  Public interest Litigation - arose out of accidental death of petitioner's son to provide and to follow road rule - scope of the writ metamorphosed and included the validity of contract between M/s.  Soma Isolux  NH  One  Tollway  Pvt.  Ltd.  and NHAI - High court gave certain directions - Apex court set aside the order of High court and allowed the appeal on the ground that exercising jurisdiction under Article 226 of the Constitution of India  is an act of judicial overreach under the garb of public interest and on the ground that the terms and conditions  of  a  concluded  contract  can  not be nullified by the High Court by issuing sweeping directions in  an  ongoing Public Interest Litigation Petition which renders the terms and conditions of the Concession Agreement between the contracting parties  redundant  at
 the instance and initiative of the Court itself when such  directions  has not even been sought  by  any  of  the  parties  to  the  Public  Interest Petition and on the ground that Bench of the High Court which is  seized  of  a  particular dispute would not be justified in not taking note of the  final  judgment  and order passed earlier by a co-ordinate Bench settling the said  controversy
 in view of which no direction could be issued by the High Court nullifying the contractual rights of the affected party =

Public Interest Litigation Petition -   High Court  whereby
 certain adverse directions to be related hereinafter  were  issued  having
 grave implication on the contractual rights of the  appellant-  M/s.  Soma
 Isolux  NH  One  Tollway  Pvt.  Ltd.  (hereinafter  referred  to  as  ‘the
 Concessionaire company’) as it was saddled with a fine of Rs.60 crores and
 Rs.7 crores to be paid by the  appellant-Concessionaire  Company  and  its
 Director respectively which  were  to  be  deposited  with  the  Registrar
 General of the High Court within one month of the date of the order.   
The
 respondent No.6 National Highways Authority of India (shortly referred  to
 as ‘the NHAI’) was further directed to proceed in the matter forthwith and
 take possession of the Highway project and ensure that collection of  toll
 is deposited in a separate account and the work of repairs of the  highway
 commenced within a week and the work of construction of highway  commenced
 and completed within a month thereafter.  
The High  Court  further  issued
 direction that the entire matter relating to the contract, the  completion
 of the work of the highway, collection from tolls without existence of six-
 lanes be enquired into and a report in that regard be  placed  before  the
 High Court within three months.  
It was also made clear that  the  enquiry
 shall not be construed to be an excuse to delay the  construction  of  the
 highway.  
It was  further  observed  that  the  Chairman,  NHAI  shall  be
 personally responsible for ensuring that the work  of  six-laning  of  the
 highway between Panipat and  Jullunder  is  completed  within  six  months
 failing which the Chairman, NHAI would be held personally  liable  to  pay
 fine  similar  to  the  terms  imposed  on  the   Concessionaire   Company
 –respondent No.7.  
The appellant-Concessionaire  Company  has,  therefore,
 come up to this Court challenging the impugned order passed  by  the  High
 Court.=

     i    Whether the directions issued  by  the  High  Court  which  have  far
 reaching  consequences  against   the   petitioner/appellant   and   which
 directions by a judicial fiat, has the effect of nullifying the  terms  of
 the  Concession  Agreement  dated  09.05.2008  defeating  the  rights  and
 obligations arising  therefrom  in  a  Public  Interest  Litigation  while
 exercising jurisdiction under Article 226 of the Constitution of India  is
 an act of judicial overreach under the garb of public interest?
 ii   Whether the terms and conditions  of  a  concluded  contract  can  be
 nullified by the High Court by issuing sweeping directions in  an  ongoing
 Public Interest Litigation Petition which renders the terms and conditions
 of the Concession Agreement between the contracting parties  redundant  at
 the instance and initiative of the Court itself when such  directions  has
 not even been sought  by  any  of  the  parties  to  the  Public  Interest
 Petition?
 iii  Whether a Bench of the High Court which is  seized  of  a  particular
 dispute would be justified in not taking note of the  final  judgment  and
 order passed earlier by a co-ordinate Bench settling the said  controversy
 in view of which no direction could be issued by the High Court nullifying
 the contractual rights of the affected party?          =                                            
In
 the PIL, the respondent No.1 Mr. Puri prayed for issuance of a writ in the
 nature of mandamus directing for  enforcement  of  traffic  rules  and  to
 maintain the signal system, rumble strips on crossing,  first  aid  units,
 control over speeding on G.T. Road National Highway  No.1  and  a  further
 writ or direction holding the State functionaries liable for the  criminal
 negligence on the part of  its  employees  and  saddle  it  with  monetary
 liability.
over  the  years
 metamorphosed into a long drawn litigation alleging breach of  contractual
 obligations  between  the   appellant-concessionaire   company   and   the
 respondent No.7 NHAI wherein the respondent Union of  India  as  also  the
 respondent/PIL petitioner in the High Court  have  jumped  into  the  fray
 giving rise to several rounds of litigation=
Conclusion
As a consequence and fall out of the above position, we deem it
  just and appropriate  to set aside  the impugned directions of  the  High
 Court, and   permit the appellant to restore  the  construction   of   the
 balance stretch/area of  the highway project by further directing the NHAI
 to permit the appellant to shift the Toll Plaza from  KM 146 to any  point
 between KMs 110 and KMs 117 with concurrence  of  the  NHAI.  
 The   exact
 point of construction of Toll Plaza between KMs 110  to KMs 117 shall thus
 be  decided  by  the  NHAI   holding   mutual    consultation   with   the
 appellant/concessionaire in the light of the approval already  granted  by
 the Independent Engineer in terms of the Agreement  which  also  had  been
 approved by the High Court earlier.  
However, we take  note  of  the  fact
 that  the High Court  although  by  its  order  referred  to  hereinbefore
 permitted shifting  of the Toll Plaza in dispute  to point KM 110, we have
 noticed that the distance  between KMs 96 where Toll Plaza of  L  &  T  is
 existing and the proposed toll plaza at KMs 110 would be at a distance  of
 only 14 KMs which may not be in the interest of the  commuting public and,
 therefore,  we direct that the shifting although may not be  permitted  at
 KMs 110, it may be allowed to be  shifted  at any point   between KMs  110
 and KMs 117 in consultation and with concurrence of the NHAI.  
In fact, we
  could have   directed the appellant to shift the Toll Plaza  even  beyond
 117, KMs but we have been informed that  beyond KM 117 the area is thickly
 populated  and would not be practically possible  to   set  up   the  Toll
 Plaza  beyond KMs 117.
 67.         Therefore, and in order to facilitate and expedite  completion
 of the Highway Project, we direct the respondent NHAI to  permit  shifting
 of  Toll  Plaza  from  146  to  anywhere  between  KMs  110  and  KMs  117
 expeditiously  but not later than a period of  two months from the date of
 this order during which period the required legal formality  of  notifying
 the area for construction of the Toll Plaza shall also be complied with by
 the NHAI by getting it notified through the Competent Authority and making
 the land available free from all encumbrance.  
 The  appellant  thereafter
 shall forthwith restart the construction  including  setting  up  of  Toll
 Plaza at the agreed point and continue with construction of the  remaining
 area of the Highway Project and shall complete the entire construction  of
 the  Highway  on  or  before   31st  of  March  2015  failing  which   the
 appellant/concessionaire company shall be liable for penal consequences to
 be determined by the NHAI in terms of the Concession Agreement.
 68.         The appellant/concessionaire company is  further  directed  to
 report/update the progress/development of the construction  to   the  NHAI
 referred to in the Concession Agreement  after every three months from the
 date of  compliance  of the required statutory  notification  for shifting
 of Toll Plaza  at the instance of  the NHAI and   the   Ministry  of  Road
 Transport and Highways/any other  competent  authority.      
However,   we
 make it explicitly clear that no dispute shall be  allowed  to  be  raised
 further by any of the parties  before any court which may impede  or  slow
 down the progress of completion of the Highway Project  as  this   measure
 most certainly would not be in the interest of  the  Highway  Project  and
 consequently not in public interest in any  manner.    
However,  the  main
 contesting parties i.e. the appellant-Concessionaire Company and the  NHAI
 would be at liberty to  seek  such other or further  direction  from  this
 Court in case there is   bona fide need to resort to such  an  eventuality
 in regard to the Highway Project referred to  in  the  Agreement.      
The
 appeal  accordingly is allowed  but  in    the  circumstances   leave  the
 parties  to  bear  the costs on their own.


2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41427

GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE

REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION




                       CIVIL APPEAL NO.  4611 OF  2014
                 (Arising out of SLP (Civil) No. 19379/2013)




 M/S. SOMA ISOLUX NH ONE TOLLWAY
 PRIVATE LIMITED                                       . Appellant


                                   Versus


 HARISH KUMAR  PURI & ORS.                        ..Respondents






                               J U D G M E N T






 GYAN SUDHA MISRA, J.


 1.         Leave granted.
 2.         This appeal by special leave has been filed assailing the order
 dated 27.5.2013  passed by  the  High  Court  of  Punjab  and  Haryana  at
 Chandigarh in C.M.No. 3301/2013 arising out of CWP No. 13848/1998  whereby
 certain adverse directions to be related hereinafter  were  issued  having
 grave implication on the contractual rights of the  appellant-  M/s.  Soma
 Isolux  NH  One  Tollway  Pvt.  Ltd.  (hereinafter  referred  to  as  ‘the
 Concessionaire company’) as it was saddled with a fine of Rs.60 crores and
 Rs.7 crores to be paid by the  appellant-Concessionaire  Company  and  its
 Director respectively which  were  to  be  deposited  with  the  Registrar
 General of the High Court within one month of the date of the order.   The
 respondent No.6 National Highways Authority of India (shortly referred  to
 as ‘the NHAI’) was further directed to proceed in the matter forthwith and
 take possession of the Highway project and ensure that collection of  toll
 is deposited in a separate account and the work of repairs of the  highway
 commenced within a week and the work of construction of highway  commenced
 and completed within a month thereafter.  The High  Court  further  issued
 direction that the entire matter relating to the contract, the  completion
 of the work of the highway, collection from tolls without existence of six-
 lanes be enquired into and a report in that regard be  placed  before  the
 High Court within three months.  It was also made clear that  the  enquiry
 shall not be construed to be an excuse to delay the  construction  of  the
 highway.  It was  further  observed  that  the  Chairman,  NHAI  shall  be
 personally responsible for ensuring that the work  of  six-laning  of  the
 highway between Panipat and  Jullunder  is  completed  within  six  months
 failing which the Chairman, NHAI would be held personally  liable  to  pay
 fine  similar  to  the  terms  imposed  on  the   Concessionaire   Company
 –respondent No.7.  The appellant-Concessionaire  Company  has,  therefore,
 come up to this Court challenging the impugned order passed  by  the  High
 Court.
 3.          The  substantial  questions  of  law  of  general  and  public
 importance that emerge for consideration in this appeal inter alia may  be
 crystallised as follows:
 i    Whether the directions issued  by  the  High  Court  which  have  far
 reaching  consequences  against   the   petitioner/appellant   and   which
 directions by a judicial fiat, has the effect of nullifying the  terms  of
 the  Concession  Agreement  dated  09.05.2008  defeating  the  rights  and
 obligations arising  therefrom  in  a  Public  Interest  Litigation  while
 exercising jurisdiction under Article 226 of the Constitution of India  is
 an act of judicial overreach under the garb of public interest?
 ii   Whether the terms and conditions  of  a  concluded  contract  can  be
 nullified by the High Court by issuing sweeping directions in  an  ongoing
 Public Interest Litigation Petition which renders the terms and conditions
 of the Concession Agreement between the contracting parties  redundant  at
 the instance and initiative of the Court itself when such  directions  has
 not even been sought  by  any  of  the  parties  to  the  Public  Interest
 Petition?
 iii  Whether a Bench of the High Court which is  seized  of  a  particular
 dispute would be justified in not taking note of the  final  judgment  and
 order passed earlier by a co-ordinate Bench settling the said  controversy
 in view of which no direction could be issued by the High Court nullifying
 the contractual rights of the affected party?
 4.         In order to appreciate and adjudicate the controversy  involved
 and to put the matter in proper perspective certain factual background may
 be related which disclose  that  this  appeal  by  way  of  special  leave
 petition has its genesis in a writ petition  bearing  CWP  No.  13848/1998
 which came to be filed  in  the  High  Court  of  Punjab  and  Haryana  at
 Chandigarh as a public interest litigation on 25.7.1998 by the  respondent
 No.1 herein Harish Kumar Puri whose son had died in  a  road  accident  on
 14.5.1996 at Pipli Chowk,  Kurukshetra  due  to  the  criminal  negligence
 alleged on the part of the traffic police posted on the  said  chowk.   In
 the PIL, the respondent No.1 Mr. Puri prayed for issuance of a writ in the
 nature of mandamus directing for  enforcement  of  traffic  rules  and  to
 maintain the signal system, rumble strips on crossing,  first  aid  units,
 control over speeding on G.T. Road National Highway  No.1  and  a  further
 writ or direction holding the State functionaries liable for the  criminal
 negligence on the part of  its  employees  and  saddle  it  with  monetary
 liability.
 5.         Interestingly, this writ petition which was filed as a PIL with
 the laudable object of improving management of traffic on the  highway  in
 the interest of the commuters and the  public  at  large  over  the  years
 metamorphosed into a long drawn litigation alleging breach of  contractual
 obligations  between  the   appellant-concessionaire   company   and   the
 respondent No.7 NHAI wherein the respondent Union of  India  as  also  the
 respondent/PIL petitioner in the High Court  have  jumped  into  the  fray
 giving rise to several rounds of litigation.  In the process  it  affected
 the very purpose and object for which the writ petition had been filed  as
 also the construction of the Highway for which a concession agreement  had
 been  executed  between  the  appellant-concessionaire  company  and   the
 respondent No.6 NHAI by  way  of  a  competitive  bidding  process  during
 pendency of the PIL as a step towards resolving the issue of management of
 traffic.
 6.         While tracing out the background of the matter,  bereft of  not
 so essential factual details, it may  be  sufficient  to  state  that  the
 Division Bench of the High Court issued notice of motion  on  1.9.1998  in
 the writ  petition  (PIL)  which  came  up  before  the  High   Court  for
 consideration from time to time spanning over several years and finally on
 11.4.2002, an order  was  passed  by  the  High  Court  on  11.4.2002  for
 impleading the Secretary to the Government  of  India,  Ministry  of  Road
 Transport and Highways, New Delhi when the issue camp  up  regarding  non-
 opening of the railway bridge near Dera  Bassi  for  the  general  public.
 Several years thereafter, notice was also issued to the National  Highways
 Authority of India (NHAI) to appear before  the  High  Court  through  its
 authorized representative as on 9.5.2008 a Concession Agreement  had  been
 executed between  NHAI  and  the  appellant-company  since  the  appellant
 succeeded in a  competitive  bidding  process  by  which  it  was  granted
 exclusive rights, license and authority to construct, operate and maintain
 its project namely, six-laning of a part of NH  1  from  KM  96.00  to  KM
 387.100 (approximately 291.10 KM) from Panipat to Jullundur for  a  period
 of 15 years.  While awarding  the  contract,  the  credentials  and  track
 record of the appellant  was  taken  note  of  which  indicated  that  the
 appellant M/s Soma Isolux NH One Tollway Pvt.  Ltd.  is  a  joint  venture
 company with Isolux Corsan Group which is a multinational  company  having
 vast experience of Infrastructure Development in various part of the world
 including  Europe,  South  America,  North  America  and  Asia   and   has
 successfully developed Highway Projects  in  various  countries  including
 Spain, Mexico, Brazil, India etc.   Isolux Corsan  Group  is  the  leading
 European Investor in infrastructure in India and M/s Soma Enterprise  Ltd.
 is a renowned Development  Construction  firm  and  has  several  National
 Highway Projects in the past 13 years and have completed projects ahead of
 schedule.   It  has  also  undertaken  and  completed  projects  in  other
 infrastructure sectors like Irrigation Hydro Power and Railways.
 7.         The Concession Agreement envisaged reciprocal obligations  from
 various parties including NHAI, the State of  Haryana  and  the  State  of
 Punjab.  Under Clause 4.1.2 (a) NHAI is/was required to provide  right  of
 way and the  appellant-company  is/was  entitled  to  demand  and  collect
 appropriate fee commonly known as  toll  fee  from  vehicles  and  persons
 liable to pay toll fee for using the  national  highway.   The  Concession
 Agreement was drafted as per the model approved by the Planning Commission
 of India and the draft concession was in  fact  circulated  with  the  RFP
 (Tender Document) and, therefore, neither the  appellant-company  nor  the
 NHAI could have changed the contents of  the  agreement  pursuant  to  the
 award of contract.
 8.         In so far as  the  financing  and  investment  to  the  Highway
 Project is concerned the agreement envisaged  that  the  appellant-company
 and the NHAI would be on the basis of Build,  Operate,  Trade  (BOT)  mode
 which enumerated that the project being in BOT mode, all investment in the
 project will have to be  made  by  the  appellant-company  by  the  income
 generated from toll collection and no amount was to  be  invested/received
 from the  NHAI.   On  the  contrary,  the  appellant-company  as  per  the
 Agreement, offered to pay to the respondent/NHAI premium  equal  to  20.14
 per cent of the total collection of toll  for  the  first  year  and  this
 premium was to be increased by one per cent every subsequent year.   Based
 on a detailed analysis of the Concession Agreement, the NHAI thus  is  not
 only not funding any part of the project development cost, it is receiving
 a significant portion of the  revenue  collected  as  premium  by  way  of
 collection of toll.  However all the amount collected by way of toll  were
 to be deposited in the ESCROW account as a result of which any amount from
 this account cannot be withdrawn by the appellant without  signature  from
 the other contracting party i.e. NHAI.  It may further be noted  that  the
 agreement between  the  appellant  and  respondent/NHAI  acknowledges  and
 confirms the role of lending institutions, mainly nationalised banks as  a
 major significant holder in project  implementation.   All  the  financial
 agreement  dealing  in  the  administration   occurred   between   lending
 institutions and the appellant and the financial model for the project had
 been submitted regarding revenue and approval prior to the commencement of
 the project.  Agreement entered into between the appellant/company and the
 NHAI  also  envisages  continuous  support  and  co-operation   from   the
 respective State Governments of Punjab  and  Haryana  and  the  Concession
 Agreement as per Article 47.3 requires the execution of  Tripartite  State
 Support  Agreement  between  NHAI,  Concessionaire  and  respective  State
 Governments for which support agreements  were  signed  by  the  State  of
 Punjab on 11.9.2009 and the State of Haryana on  16.9.2009.   As  per  the
 agreement six laning was to be retrofitted on the  existing  four-lane  as
 per  standards  and  specifications  which  temporarily  was  to  put  the
 travelling public to some inconvenience.  On 8.9.2008, the Division  Bench
 of the High  Court  which  was  seized  of  the  matter  passed  an  order
 impleading M/s. Himalayan Expressway Limited as respondent No.7 herein and
 on 11.9.2009  the  State  Support  Agreement  mentioned  hereinbefore  was
 executed between the Governor  of  the  State  of  Punjab,  NHAI  and  the
 appellant-company regarding the obligations of the  Government  of  Punjab
 and its continued support for grant of certain rights and authorities  for
 mobilization  of  resources  by  the  appellant-company.   The   agreement
 visualizes continuous  support  and  co-operation  of  the  Government  of
 Punjab.
 9.         In the meantime, the writ petition/Public  Interest  Litigation
 which was  pending  in  the  High  Court  during  pendency  of  which  the
 Concession Agreement was executed, continued to be taken up  by  the  High
 Court and various directions came to be passed from time to  time  by  the
 High Court in course of hearing of the PIL.
 10.        The High Court thereafter vide order dated 2.1.2012 on an  oral
 request impleaded the appellant-company as a party respondent  and  issued
 notice to it on 2.1.2012 to ascertain the progress of the Highway Project.
  The appellant-company responded to the notice and sought time to file its
 reply.  Thereafter, on 28.1.2012, an affidavit was filed  by  the  Project
 Chairman, NHAI, Ambala before the High Court in the pending PIL  informing
 the status of Panipat – Jullundur Section of NH 1 stretch from  KM  96.000
 to KM 387.100 wherein it  was  stated  that  the  Concessionaire-appellant
 company could not achieve the milestone –II on the specified date  due  to
 delay in various  clearance,  tree  cutting,  utility  shifting  etc.  and
 further stated that the scheduled six laning date  has  been  extended  to
 15.6.2012.  In the meantime and in response to the notice,  the  appellant
 also had filed affidavit on 12.3.2012 giving details of  the  progress  of
 the construction on the highway as also the difficulties  and  impediments
 encountered in the construction.
 11.        The High Court however refused to consider  even  remotely  the
 reasons for the delay in the progress of the  Highway  Construction,  much
 less scrutinized it and further failed to examine or even visualise as  to
 why the appellant/concessionaire company, which within a period  of  three
 years had constructed 71 % of the highway project had suddenly slowed down
 for the rest 29% of the project.  In the process  it  further  refused  to
 consider whether there were bonafide reasons for the delay on the part  of
 the appellant/concessionaire company or the delay was on  account  of  the
 impediments created by the NHAI violating the terms and conditions of  the
 Agreement as also ignored even the reasoned judicial orders passed earlier
 by a co-ordinate Bench of the Punjab and Haryana High Court  itself  which
 had permitted the appellant to shift the toll plaza in view of  the  terms
 and conditions in the Agreement which were  conveniently  ignored  by  the
 NHAI contrary to the opinion of its own Independent Engineer whose opinion
 in terms of the Agreement was binding on the NHAI and the  same  has  been
 upheld by the High Court by several  judgments  and  orders  settling  the
 controversy.  It further failed to take note of the  fact  that  the  High
 Court itself had stayed the show cause notice issued by the  NHAI  to  the
 appellant/company for  terminating  the  contract  and  had  it  not  been
 stayed/ordered to be kept in abeyance, the cause as to whether  the  delay
 was on the part of the appellant/company or  on  account  of  unreasonable
 stand of the NHAI which was contrary to the terms and  conditions  of  the
 Concessionaire Agreement would have come to the fore.  However,  the  High
 Court never addressed itself on these aspects but was pleased to  pass  an
 order on 13.3.2012  inter  alia  directing  the  functional  head  of  the
 appellant-company as also the Director-Officer-Incharge of the Project  to
 remain present in Court on the adjourned date of hearing.  The presence of
 the Chief General Manager of the NHAI along with the Project Director  was
 also  ordered  as  it  was  directed  that  the  representative   of   the
 Concessionaire company as well as the NHAI will come prepared  to  respond
 to all questions as may  be  raised  by  the  Court  with  regard  to  the
 completion of the project within a particular time frame  and  shall  also
 come ready to execute the necessary  undertakings  before  the  Court  for
 completion of the project with the time schedule.
 12.        The matter was thereafter  listed  before  the  High  Court  on
 22.3.2012 wherein it was submitted that the Haryana  Section  of  the  Six
 Lane Highway was expected to be complete by December 2012 and  the  Punjab
 Section was expected to be complete by March 2013.  The High Court however
 failed to  scrutinise  the  cause  of  delay  and  refused  to  take  into
 consideration the terms  of  the  Concession  Agreement  under  which  the
 respondent No.6  NHAI  was  under  the  contractual  obligation  to  grant
 approval to shifting of Toll Plazas, straightaway perhaps  on  an  overall
 impression observed that there has been inordinate delay in conducting the
 project and hence directed the appellant-company to submit an  undertaking
 before the Court for  completion  of  the  project  as  per  the  schedule
 mentioned by the appellant No.2 before the High Court in the  form  of  an
 affidavit.
 13.        In compliance to the same, a  detailed  affidavit  further  was
 filed by the appellant No.2 on behalf of the appellant-company wherein  it
 was submitted inter alia that  there  were  certain  bottlenecks  existing
 between the  appellant/company  and  the  respondent  NHAI  in  regard  to
 contractual violations which were adversely affecting the efforts  of  the
 appellant/Concessionaire company  in  achieving  the  project  completion.
 However, it was added that the Concessionaire-company shall be making  all
 out efforts to complete the project highway within 12 months from the date
 of clearance of  all  obstructions  that  currently  existed  between  the
 appellant and the NHAI.  The High Court, however, directed  the  appellant
 to file a clarificatory affidavit by 2 o’clock on the same date which  was
 submitted in the Court.
 14.        However, in order to check the authenticity of the difficulties
 expressed by the appellant, the High Court thought it appropriate  to  get
 it verified by directing the parties  to  hold  a  joint  meeting  of  the
 appellant/Concessionaire company and the  respondent/NHAI  and  any  other
 authority  that  may  be  involved  and  steps  be  taken  to  remove  the
 obstructions and  difficulties  in  completing  the  construction  of  the
 highway if that were found to be actually existing.  It was also  directed
 that a report in this regard including such steps  as  may  be  taken  for
 completing the project be submitted before the High  Court.
 15.        In pursuance to the order passed by the High  Court, a  meeting
 was  held  on  12.4.2012  under  the  Chairmanship  of  Secretary  to  the
 Government of Punjab, Department of Public  Works  (B  &  R)  between  the
 appellant-company represented by the appellant No.2 and other officers  of
 the appellant-company and various officials including that  of  the  NHAI.
 Another meeting also took place on 14.4.2012 between the officers  of  the
 State of Haryana,  the  officers  of  the  appellant-company  and  various
 officials including that of the NHAI.  An affidavit was, thereafter, filed
 by the Director of appellant-company on behalf of the appellant-company to
 complete the project obviously anticipating that the respondent/NHAI  will
 remove the impediments which was coming  in  the  way  of  completing  the
 project which was also the contractual obligation of the respondent  NHAI.


 16.        The Division Bench of the High  Court  however,  did  not  feel
 convinced and satisfied, hence passed an order  on  19.4.2012  wherein  it
 observed that the appellant-company is not serious about  the  undertaking
 given to the Court and that it entertained serious doubts with  regard  to
 sincerity of the appellant-company to complete the work  within  the  time
 frame undertaken. The High Court, therefore, directed that in the event of
 work not completed on schedule which was  December  2012  and  March  2013
 which were the dates furnished by the appellant-company  to  complete  the
 project before the Court, it would be liable to pay a sum of Rs. 50 crores
 by way of penalty and its Director Shri  Patri  Ramachandra  Rao  who  was
 responsible for running the day-to-day affairs of  the  company  would  be
 personally liable to the extent of Rs. 5 crores. The  High  Court  further
 observed that the Concession Agreement appears to  be  one  sided  in  its
 application i.e. in favour of the Concessionaire and  contrary  to  public
 interest ignoring the fact that the terms and conditions of the  agreement
 were in consonance with the guidelines of the  Planning  Commission  which
 had been approved by the Government of India. The  High  Court  thereafter
 directed  that  the  matter  be  listed  after  two  months  for   further
 monitoring.
 17.        The  appellant  in  the  meantime  preferred  a  Special  Leave
 petition (Civil) No. CC 8974/2012 before this Court on 3.5.2012 which  was
 later dismissed as subsequent development had  taken  place  in  the  High
 Court itself. Thereafter, the Division Bench of the High Court on 6.7.2012
 modified the order dated 19.4.2012 and increased the penalty to be paid by
 the appellant-company to Rs. 60 crores and the personal liability  of  the
 Director of the appellant No.1 company to Rs. 7 crores in case the project
 was not completed within the time granted by the Court on 19.4.2012.
 18.        On 3.8.2012 when the matter was further listed before the  High
 Court, the counsel for the appellant-company informed the Court  that  the
 NHAI had issued a show cause  notice  to  the  appellant  as  to  why  the
 contract be not terminated.  The High Court, however, passed an order that
 the operation of the show cause notice issued  by  the  NHAI  be  kept  in
 abeyance till further orders.  In the said  order,  the  High  Court  also
 directed  the  Ministry  of  Defence,  Government  of  India  to  pass  an
 appropriate order regarding the land needed for widening of NH  1  falling
 within the area of Jullundur Cantt. in the  State of Punjab and granted 15
 days time to the authorities concerned to do the needful. The  High  Court
 vide  Order  dated  24.8.2012  also  directed  the  Ministry  of  Defence,
 Government of India to hand over the land for  widening  of  the  National
 Highway forming  part  of  the  Concession  Agreement  against  which  the
 Ministry of Defence approached  this  Court  by  filing  a  Special  Leave
 Petition bearing No. 26544-26545/2012 which however  were  dismissed  vide
 Order dated 5.9.2012 granting further six weeks time  to  the  authorities
 concerned to comply with the orders and  directions  issued  by  the  High
 Court. The Ministry of Defence, Government  of  India,  thereafter  handed
 over the land for the project to  the  appellant  in  October  2012  after
 dismissal of the special leave  petitions  before  the  Supreme  Court  on
 5.9.2012.  According to the appellant’s plea the work at the said  defence
 land could not commence due to utility shifting, boundary wall shifting in
 4 kms. of length.
 19.        In order to explain and highlight the impediments faced by  the
 appellant-company seeking extension of time to fufill its undertaking, the
 appellant/company filed an application bearing C.M. No. 14936/2012 in  the
 pending writ  petition  in  the  High  Court  of  Punjab  and  Haryana  at
 Chandigarh which is pending disposal.  It  was  stated  therein  that  the
 appellant/concessionaire company was making every effort to  complete  the
 six laning works at the earliest provided there was complete  co-operation
 by all concerned and work was not  hampered  for  any  reason  beyond  the
 control of the concessionaire as the agreement itself envisaged continuous
 support and co-operation from the respective State Governments  of  Punjab
 and Haryana and the Concession Agreement as per Article 47.3.
 20.        The appellant in its application came up with a case  that  the
 highway in question commenced on 11.5.2009 which was  the  appointed  date
 and the appellant has  been  diligently  proceeding  with  the  work  upon
 declaration of the appointed date by the respondent.  However, the project
 work were adversely affected on account of  several  impediments,  delays,
 which according to the appellant are solely attributable to the respondent
 NHAI.  The appellant company submitted that it has been  carrying  on  its
 obligation under the existing Concession Agreement towards construction of
 the aforesaid six lane highway earnestly in a professional manner  and  to
 the best of its ability and in spite of the impediments and  difficulties,
 obstructions and hindrances, the appellant-Concessionaire  till  date  has
 completed 71.06 per cent of the work in the  project  highway  as  on  May
 2013.  However, due to certain circumstances beyond  the  control  of  the
 appellant-company, the project was getting delayed.  The  appellant  while
 explaining the delay, stated that  in  spite  of  extremely  adverse  site
 conditions since commencement of the project, it has managed  to  complete
 substantial  portions  of  the  project  highway  because  of   its   well
 preparedness and adequate mobilization of resources. It has been submitted
 on behalf of the appellant  that  the  appellant-Concessionaire  is  fully
 geared up for  the  completion  of  the  project  provided  the  two  main
 impediments/obstacles namely the stringent conditions  of  mining  in  the
 States of Punjab and Haryana and the shifting  of  Toll  Plaza  which  was
 hampering the only source of revenue for the Concessionaire were  resolved
 which were the main reasons for non-completion  of  the  project  highway.
 Thus, it had been submitted  that the flow of work in the project  highway
 had been hindered/slowed down due to various reasons beyond the control of
 the appellant-company which was primarily attributable to the NHAI.
 21.        Since the High Court by its impugned  judgment  and  order  has
 permitted the NHAI to take away the project from the appellant due to slow
 progress of the National Highway Project and has also imposed  heavy  fine
 on the company for violating its undertaking in  completing  the  project,
 the appellant has sought to explain the reasons in detail for the  alleged
 slowing down of the project.  It has been stated that  one  of  the  major
 constraints that the appellant faced and which vitally affected the normal
 flow of work of the project in question was and is the non-availability of
 an essential raw material, namely, stone aggregate in the States of Punjab
 and Haryana due to the stringent conditions of mining of the said material
 in Haryana with effect from  1.3.2010  and  in  Punjab  with  effect  from
 January 2011. However, in course of  arguments  the  plea  regarding  non-
 availability of supply of raw material, namely, stone  aggregate  was  not
 seriously pressed as it was submitted that the appellant would try to sort
 it out and avail  the material from the adjoining states.
 22.        What has seriously been contested and is the  core  contentious
 issue between the appellant and the respondent-NHAI,  which  is  hindering
 the completion work of the project highway is non-relocation of  the  Toll
 Plazas by the NHAI at two locations at KM 110 and KM  211  at  Karnal  and
 Ambala  for  which  the  appellant-Concessionaire   had   approached   the
 appropriate authority ever since March 2010 which is  hampering  the  only
 source of revenue for the appellant-Concessionaire Company.  It  has  been
 explained that as per  the  policy  of  NHAI  (referred  to  hereinbefore)
 approved by the Planning Commission and as per  the  Concession  Agreement
 entered  into  between  the  parties,  tolling  is  allowed   during   the
 construction of the project from four laning to six laning. Article  3  of
 the Concession Agreement which grants  the  Concessionaire  by  virtue  of
 Article  3.1.2.  (d)  entitled  the  Concessionaire  to  demand,   collect
 appropriate fee from vehicles and persons liable for payment  of  fee  for
 using the project highway or any part  thereof  or  refuse  entry  of  any
 vehicle if the fee due/toll fee is not paid. Internal  accruals  from  the
 tolls during construction are part of the financing  package  agreed  with
 the lenders and critical to enable financing for the  project  as  already
 recorded hereinbefore.
 23.        On the question of  relocation  of  toll  plaza,  it  has  been
 submitted that the Concession Agreement allows the  appellant  company  to
 choose the location of Toll Plazas in consultation  with  the  Independent
 Engineer and the authority as per the explicit provisions in  this  regard
 agreed between the parties in the Concession Agreement. In  this  context,
 attention of this Court has been invited to clause 2.1 of Schedule ‘C’ and
 Article 48 of the Concession Agreement which reads as follows:-


 Clause 2.1 of Schedule ‘C’
            “Toll Plaza means the structure  and  barriers  erected  on  the
      project Highway for the purpose of regulating the entry and  exist  of
      vehicles in accordance with the provisions of this Agreement and shall
      include all land, buildings, equipment  and other facilities  required
      in accordance with or incidental to the provisions of this  Agreement;
      situated at locations to be  decided  by  the  Concessionaire  as  per
      Schedule D in consultation with NHAI and IE”.  The tentative locations
      of the Toll Plazas are given in Appendix-I.”


 Article 48 defines Toll Plaza as
            “the structure and barriers erected of the project  highway  for
      the purpose of regulating the entry and exit of vehicles in accordance
      with the provisions of this Agreement  and  shall  include  all  land,
      buildings, equipment and other facilities required in accordance  with
      or incidental to the provisions of this Agreement; provided that  such
      toll plazas shall not be erected within a distance of 20 km and 10  km
      from the notified urban of Karnal, Ambala, Ludhiyana, Jalandhar cities
      and Gharonda, Nilokhere, Kurushetra, Shahabad, Rajpura, Sirhind  Mandi
      Govindgarh, Khanna, Doraha, Sahniwal, Pillore, Goraya, Phagwara  towns
      respectively as notified on the date of this Agreement  and  shall  be
      situated  at  locations  to  be  decided  by  the  Concessionaire   in
      consultation with the Independent Engineer.”


 24.         Placing  heavy  reliance  on  the  aforesaid  clause  of   the
 Concession Agreement, learned Senior Counsel Dr. Abhishek M.  Singhvi  has
 submitted on behalf  of  the  appellant-Concessionaire  that  it  has  the
 exclusive right in  accordance  with  the  provisions  of  the  Concession
 Agreement to choose the location of Toll Plazas in consultation  with  the
 Independent Engineer and NHAI.  It  was,  therefore,  submitted  that  the
 existing Toll Plazas at KM 146 and KM 212 were proposed to be  shifted  to
 KM 110 and KM 182 with the 3rd Toll  Plaza  at  KM  328  retained  at  the
 existing location in view of the contractual rights of  the  appellant  to
 fix the Toll Plaza location and recommendations  of  Independent  Engineer
 for relocation of the existing Toll Plaza at KM 146 and KM 212 to  KM  110
 and KM 211 respectively vide letter dated 9.11.2010 issued by the Ministry
 of Road Transport  and  Highways  to  the  Regional  Officer  (Punjab  and
 Haryana), National Highways Authority of India, the appellant started  the
 construction of Toll Plazas and subsequently  the  Haryana  Government  on
 4.7.2011 put forward the requirement to shift  the  Toll  Plaza  from  the
 approved location at KM 182 to KM 211 in consultation with the respondent.
  It has further been stated that  based  on  the  discussion  between  the
 Haryana Government and the respondent on the issue, the respondent  sought
 consent of the appellant regarding proposal of the Haryana Government  for
 shifting of Toll Plaza to KM 211 in lieu of the Toll Plaza at KM  182  for
 which the in principal approval was granted earlier.
 25.        In order to honour  the  proposal  of  Haryana  Government  and
 keeping in view the national interest and public utility of  the  project,
 the appellant agreed to follow  the  proposal  of  Haryana  Government  to
 relocate the Toll Plaza at  KM  211  instead  of  KM  182.  The  appellant
 reserved its rights regarding the shifting  of  Toll  Plaza   as  per  the
 provisions of the Concession Agreement while communicating its willingness
 to  follow  the  proposal  of  Haryana  Government  as  suggested  by  the
 respondent.   Subsequently,  the  respondent  NHAI   gave   approval   for
 relocation of Toll from KM 213 to KM 211.550 to 212.250 on  the  basis  of
 recommendation of the Independent Engineer,  consent of appellant and  the
 Government of Haryana vide its letter dated 11.10.2011.
 26.        The aforesaid order of shifting of  Toll  Plaza  gave  rise  to
 further litigation as a fresh spate of public  interest  litigations  were
 filed in November 2011 in the High Court of Punjab and Haryana against the
 relocations  of  Toll  Plazas  since  a  writ  petition  bearing  CWP  No.
 21332/2011 (Gram Panchayat Dangdehri & Ors. vs. Union of India & Ors.) was
 filed against the relocation of  Toll  Plaza  KM  110  but  the  same  was
 dismissed by the High  Court  of  Punjab  and  Haryana  vide  order  dated
 25.1.2012 wherein it was held as follows:
            “Moreover, shifting of Toll Plaza from the present  location  to
      the proposed location seems to be bona fide in view of the  fact  that
      at the present location flyover has to  be  constructed  to  ease  the
      traffic flow within stipulated time as per the agreement.  Development
      and construction of National Highway should not  be  stopped  for  the
      simple reason that some of the residents shall face  inconvenience  or
      shall be burdened with toll fee.”


 The High Court further held:
            “the  NHAI  and  Concessionaire  while  choosing  the  site  for
      installation of Toll tax have to consider viability,  availability  of
      space/location including financial aspect  …………….Therefore,  action  /
      decision to shift Toll Plaza within 1.5 KM from Ambala Muncipal  Limit
      does not seem to be unjustified, arbitrary or in  violation  of  Rules
      2008………………… shifting of  Toll  Plaza  is  necessitated  to  facilitate
      construction of flyover at the present site.”


 27.        Another writ petition being CWP No. 23971/2011 (Vishal  Nagrath
 & Ors. Vs. Union of India & Ors.) had  also  been  filed  challenging  the
 relocation of Toll Plaza at 211 KM – 212 KM but the same was dismissed  by
 the High Court of Punjab and Haryana vide  order  dated  1.5.2012  wherein
 another Bench of the High Court had also not found any  infirmity  in  the
 decision of the respondents (appellant herein and NHAI)  to  relocate  the
 Toll Plaza and they were held to be well within their  right  to  evaluate
 the location of the Toll Plaza considering the fact that they  were  being
 located with reference to the entire project of 291 KM and the requirement
 was to have only three Toll Plazas which had to be so  located  that  they
 did not result in  a situation of peristalsis movement of the  traffic  or
 even create bottlenecks.  The Court went on to hold  that  such  decisions
 were to be left to the wisdom of the agencies involved in the execution of
 the project and merely because another location may be perceived to be the
 better one, cannot be a ground to warrant judicial interference.
 28.        The PIL petitioners challenged this order of the  single  Judge
 by filing a Letters Patent Appeal bearing LPA No. 170/2012  but  this  was
 also dismissed by the High Court of Punjab and Haryana  vide  order  dated
 6.12.2012.  While  dismissing  the  appeal,  the  learned  Judges  of  the
 Division Bench had clearly held  which is extracted hereinunder:
            “The  argument   that  the  shifting   of  the  toll  plaza   is
      actuated  with arbitrariness  or mala fide  is also  to  be  rejected.
      Learned   Single  Judge, in this behalf  has  remarked,   and  rightly
      so,  that the shifting  of toll plaza to the present location seems to
      be bonafide  in view of the  fact  that at the  present  location  fly
      over  has  to  be   constructed   to  ease  the  traffic  flow  within
      stipulated  time  as  per  the   agreement    and   development    and
      construction of National Highway should  not be stopped for the simple
      reason that some of the residents  shall face  inconvenience or  shall
      be burdened with toll fee.


            Before we close, we would also like to point out the  submission
      of learned senior counsel  for the National Highway Authority of India
      as well as the  Concessionaire  to the effect that in so  far  as  the
      local residents are concerned, they would have to pay the toll at much
      lesser rate, which is projected at Rs. 150/- per month per vehicle.


            Normally, the choosing of location of Toll Plaza is to be   left
      to the parties concerned.  When in the present  case,  two  States  as
      well as government  undertaking  like the National  Highway  Authority
      of India are involved in the decision making  process  and  they  have
      considered  financial aspects, the Courts are ill equipped  to go into
      the rationale of such decisions.  After it is found  that the decision
      is bonafide; it does not suffer from any oblique motive; and it is not
       in violation  of  any  statutory   provisions,  no  further  judicial
      scrutiny on the merits of such a  decision is admissible in law.


            We, therefore, do not find any merit in  this  appeal  which  is
      accordingly dismissed.”


 The judgment and order passed in the LPA was thereafter  never  challenged
 either by the PIL petitioner or the respondent  NHAI  or  the  respondent-
 Harish Kumar Puri and this judgment and  order  passed  in  the  LPA  thus
 attained finality.
 29.        However, despite the orders passed by the High Court of  Punjab
 and Haryana and approval granted by the respondent NHAI, the appellant has
 been prevented from commencing tolling at located Toll Plaza at 211 KM and
 110 KM due to which it is contended that the appellant is gravely affected
 and is losing substantial fund due to non-commencing  of  tolling  at  the
 located Toll Plazas that could have been utilized for the construction  of
 the project.  It  has  been  urged  that  the  NHAI  has  all  along  been
 consistently stating  that  the  Toll  Plaza  relocation  is  as  per  the
 Concession Agreement. Based on this assurance, the lenders have  continued
 disbursement to the project. Thus, the respondent by granting of  approval
 and re-affirming  the  appellant  Concessionaire  right  to  relocate  the
 Plazas, has induced the appellant and lenders to invest in construction of
 the project but the NHAI has now reversed its decision after 2 ½ years  in
 spite of giving the in principal approval.
 30.        It has been submitted by Dr. Singhvi that the above  change  in
 stand of the respondent on the Toll Plaza relocation and  disallowing  the
 appellant-Concessionaire’s rights under the  Concession  Agreement  has  a
 material adverse affect on the concession as the entire investment on  the
 project was based on its right to enforce the provision for  shifting  the
 Toll Plazas i.e. fixing the Toll  Plaza  location  to  have  optimum  toll
 collection  as envisaged in  its  financial  model.    As  a  result,  the
 lenders have stated that they cannot continue disbursing  to  the  project
 without  the  appellant  being  allowed  to  collect  toll  from  the  new
 locations.
 31.        It appears that the appellant although  had  succeeded  in  the
 High Court of Punjab and Haryana on the dispute regarding shifting of Toll
 Plaza, the appellant approached the High Court of Delhi in view of  Clause
 47.1 of the Concession Agreement under Section 9 of  the  Arbitration  and
 Conciliation Act, 1996  by  filing  OMP  No.  321/2013  which  is  pending
 disposal before the Delhi High Court wherein the appellant inter alia  has
 raised several issues before the High Court of Delhi including the  issues
 of mining as well as the relocation of the Toll  Plaza.  It  was  informed
 that OMP No. 321/2013 is still pending consideration before the High Court
 of Delhi but the fact remains that the issue/dispute regarding shifting of
 Toll Plaza had already been set at rest by the High Court  of  Punjab  and
 Haryana as already related hereinbefore.
 32.        However, the  High  Court  in  its  impugned  order  manifestly
 appears to have ignored or failed to take notice of the  orders  by  which
 the High Court vide CWP No. 21332/2011 and CW No. 23971 of  2011  and  LPA
 No. 170/2012 had permitted vide order dated 6.12.2012 to  shift  the  Toll
 Paza and completion of the highway project entrusted to the appellant vide
 Concessionaire Agreement which had been approved by the NHAI  itself  vide
 letter dated 30.6.2010.
 33.        However, the NHAI which  had  approved  the  shifting  of  Toll
 Plazas all through suddenly took a U turn after  2  ½  years  when  a  new
 Chairman of the NHAI  took  over  the  charge  on  18.3.2013  and  started
 questioning the decision of the NHAI for the first  time  which  had  been
 approved by an independent Engineer Louis Berger  permitting  shifting  of
 Toll Plazas earlier by the NHAI  stating  that  it  was  an  error  and  a
 malafide decision of some of the officers of the  NHAI  oblivious  of  the
 fact that the same had already been upheld by the High Court after contest
 when the PIL filed against the shifting of toll plaza had been rejected by
 the High Court upto  the  Division  Bench  against  which  no  appeal  was
 preferred either by the NHAI or any other party.  In fact, at the  initial
 stage, the counsel representing the NHAI had submitted  that  shifting  of
 Toll Plazas is contrary to the Concession Agreement but the same could not
 withstand the express clause in the Concession Agreement  which  permitted
 such shifting with the approval of the NHAI and Independent  engineer  who
 under the agreement was competent to approve or disapprove  the  shifting.
 Confronted with the glaring contradiction, the then  counsel  representing
 the NHAI went on to advance other arguments which were never raised before
 the High Court at any point of time earlier.
 34.        Contesting  the  plea  of  the  appellant  and  supporting  the
 directions issued by the High  Court  in  its  impugned  order,  Ms.  Indu
 Malhotra, learned senior counsel appearing for the respondent  NHAI  at  a
 much later stage submitted that the appellant was required to complete the
 project of six laning of National Highway No.1 by November 2011 under  the
 Concession Agreement. But even though two years have already elapsed since
 the period stipulated in the Concession Agreement got over,  the  progress
 of the National Highway project has been negligible  since  January  2012.
 It is alleged that the appellant, in fact, is not carrying  out  any  work
 whatsoever  since  November  2012.   It   was   submitted   that   several
 opportunities had been granted to the appellant to  complete  the  project
 within the period stipulated and several extensions were also  granted  up
 to 31.3.2013. Despite this, appellant has failed to complete the  project.
 It was elaborated that the appellant has practically suspended work on the
 National Highway ever since  November  2012  even  though  toll  is  being
 collected from the commuting public since 11.5.2009 which is the appointed
 date.  The NHAI in support of its bona fide has urged that it is primarily
 concerned with completion of the project highway in the interest of safety
 and security of the public at large, but  the  appellant  having  put  the
 project on hold by not doing any progress in completing  the  construction
 of the highway, the respondent-NHAI should be allowed  to  substitute  the
 Concessionaire as per the provisions of the Concession Agreement.  It  has
 been further urged that the appellant has been  flouting  the  undertaking
 given to the Punjab and Haryana High Court and  thus  the  impugned  order
 passed by the High Court should not be interfered with.
 35.        On the most contentious issue regarding shifting, relocation of
 the Toll Plaza, it has been submitted that there is no  provision  in  the
 Concession Agreement for shifting/relocation of the Toll Plazas  from  the
 pre-determined locations set out in the bid documents.  Similarly, it  has
 also been submitted that Clause 48.1 of the Concession Agreement put forth
 by the appellant that it has an unfettered right to  decide  locations  of
 Toll Plaza at any three places over  a  stretch  of  291  KM  of  National
 Highway No.1 in complete disregard to the locations mentioned in  Appendix
 I of Schedule  ‘C’  to  the  Concession  Agreement  is  wholly  untenable,
 misconceived and is contrary to the provisions and the overall  scheme  of
 the Concession Agreement.  Such interpretation,  if  accepted,  would  not
 only alter the basic structure of the Concession Agreement but also  would
 subvert the bid process. It  was  further  added  that  changing  the  bid
 parameters subsequent to the award of the project, is not only against the
 public policy, but also unjust to the other unsuccessful bidders and would
 amount to unjust enrichment of the concessionaire at  the  cost  of  local
 public which is not liable to pay such user fee as per the original scheme
 of the Concession Agreement.
 36.        It was still further contended on behalf of the respondent-NHAI
 that the appellant also made  an  attempt  to  read  Clause  48.1  of  the
 Concession Agreement  in  isolation  and  in  complete  disregard  to  its
 schedules and annexures, but the provisions of the contract are to be read
 as a whole and not in isolation. Hence if the definitions of Toll Plaza in
 Clause 48.1 of the Concession Agreement and Clause 2.1 of Schedule ‘C’ are
 to be read together, it broadly covers three aspects.  Firstly,  the  Toll
 Plazas shall not be erected at a distance of 20 KMs and 10  KMs  from  the
 notified urban limits of the respective towns as stated therein. Secondly,
 the Toll Plazas should be situated at  locations  to  be  decided  by  the
 Concessionaire in consultation with  NHAI  and  Independent  Engineer  and
 thirdly the tentative locations of the Toll  Plazas  which  are  given  in
 Appendix I.  Elaborating on this aspect, it was urged that  the  locations
 of Toll Plazas were clarified to bidders and the ambiguity, if any, in the
 locations of the Toll Plaza as  per  the  word  “Tentative”  mentioned  in
 Appendix I of Schedule ‘C’ stood frozen permanently beyond all  doubts  in
 view of the reply given to the pre-bid query. It is an  admitted  position
 that the schedules and annexures to  the  Concession  Agreement  forms  on
 integral part of the Concession Agreement and would be in full  force  and
 effect as expressly set out in  the  body  of  the  Concession  Agreement.
 Relying on this provision, it was submitted that the limited discretion of
 the appellant to decide the locations in view of the words  “Locations  to
 be decided by the Concessionaire” in Clause 48.1, Clause 2.1  of  Schedule
 ‘C’ and mentioning of word “Tentative” in Appendix I of the  Schedule  ‘C’
 was only to overcome any unforeseen site constraints at the time of actual
 construction  of  Toll  Plaza.  The  discretion  available  was  only   to
 marginally modify the location of the Toll Plazas  with  the  approval  of
 Independent Engineer and NHAI.  The said discretion cannot be appended  so
 as to apply to a situation where the appellant is permitted to  shift  the
 location of a Toll Plaza from the pre-determined locations as per Appendix
 I of Schedule ‘C’ of the Concession Agreement and further clarified in the
 reply to the pre-bid meeting, to another point that too at a  distance  of
 36 KMs  so that the appellant can mop up extra revenue.   Adding  further,
 it was contended that in view of Clause 48.1 of the Concession  Agreement,
 Toll Plaza should not be relocated within 20  KMs  and  10  KMs  from  the
 notified  urban  limits  of  the  respective  cities  mentioned   therein.
 Admittedly, the proposed location of Toll Plaza at KM 110 falls  within  a
 distance of 10 KMs of Municipal Limits of Gharonda and within  20  KMs  of
 Municipal Limits of Karnal as well as of Panipat.   In  view  thereof  the
 relocation of Toll Plaza at  KM  110  as  set  up  by  the  appellant,  if
 permitted, would be in complete  violation  of  the  definition  of  ‘Toll
 Plaza’ given in Clause 48.1 and the same should not be permitted  as  that
 would amount to changing the terms agreed into between the parties.
 37.        Extensive arguments were  further  advanced  on  the  point  of
 shifting the location of Toll Plaza and it was contended that locations of
 Toll Plaza were determined even prior to  invitation  of  the  tender  and
 approved by the Cabinet Committee on Economic Affairs.  The  locations  of
 the Toll Plaza were identified as early as at the time of  preparation  of
 the feasibility report of the project and on submission of the feasibility
 report to the Ministry of Road Transport and Highways took transfer of the
 project from  the  Public  Private  Partnership  Appraisal  Committee  and
 subsequent thereto the project was approved by the  Cabinet  Committee  on
 Economic Affairs.  It is only then the bids for the project  were  invited
 with the pre-determined locations of Toll Plazas specifically mentioned in
 the bid documents.  Thus, locations of Toll Plaza  were  approved  by  the
 Government of India keeping in view the various factors involved including
 the total project costs of the project.  In view thereof, the locations of
 the Toll Plaza were final right from inception and are part  of  statutory
 approval.  In view of this, it was submitted that  shifting  of  the  Toll
 Plaza would completely change the bidding parameter and the total  project
 costs, on the basis of which bids were invited from  various  bidders.  In
 support of this, counsel relied upon a decision of this Court  in  Monarch
 Infrastructure   (P)   Ltd.   Vs.   Commissioner,   Ulhasnagar   Municipal
 Corporation, reported in (2000) 5 SCC 287 and submitted that this Court  (
 Supreme Court ) upheld the view that if a term of the  tender  is  delayed
 after the players have entered into arena, it is like change the rules  of
 the game after it had begun, which would be patently unfair to  the  other
 candidates participating in the tender process.
 38.        Learned  counsel  also  submitted  that  the  proposal  seeking
 relocation of Toll Plazas was three  times  rejected  by  the  Independent
 Engineer before its conditional recommendation leading up to the grant  of
 conditional in principal approval.  Giving out the details in this regard,
 it was pointed out that a proposal seeking relocation of the existing Toll
 Plazas was received by the Independent Engineer from  the  appellant  vide
 letter dated 11.3.2010.  The proposal of the appellant was rejected by the
 Independent  Engineer  vide  its  letter  dated  18.3.2013,  2.4.2010  and
 29.5.2010 as the Independent  Engineer  found  the  said  proposal  to  be
 contrary to the provisions of the Concession Agreement.   The  Independent
 Engineer was of considered opinion that the relocation of Toll Plaza would
 amount to change in the scope of  work.   The  Independent   Engineer  had
 rejected the proposal of  the  Concessionaire  on  the  basis  that  these
 proposed locations contradicted the provisions of definition of Toll Plaza
 and Concession Agreement. Therefore,  the  Independent  Engineer  observed
 that he could not decide against the provision of Concession Agreement.
 39.        Learned counsel representing the NHAI although related the past
 history in great detail regarding denial of permission to shift  the  Toll
 Plazas, it could finally notice that the  Independent  Engineer  vide  his
 letter dated 30.6.2010 expressed that it is not in disagreement  with  the
 shifting of Karnal Toll Plaza although it noted that the same would amount
 to change in scope in view of the provisions of the Concession  Agreement.
 But, thereafter the Independent Engineer vide its letter dated  10.07.2010
 finally “opined that the shifting of location of the  Toll  Plaza  may  be
 allowed subject to approval of the competent authority keeping in view the
 various clauses of the Concession Agreement and the  Gazette  Notification
 issued by the Government of India.”  Counsel  for  the  NHAI  however  has
 still harped upon the previous background wherein the Independent Engineer
 had initially expressed some reservations  for  shifting  the  Toll  Plaza
 ignoring that after all opinion and counter opinion  on  the  question  of
 shifting of Toll Plaza, the Independent Engineer finally gave approval for
 shifting of the Toll Plaza vide letter dated 30.6.2010.
 40.        However, the same could not be made effective  as  approval  of
 the Independent Engineer to shift the Toll Plaza gave rise to at least two
 public interest  litigations  referred  to  hereinbefore  challenging  the
 shifting of Toll Plaza whereby the High Court approved of the single Bench
 order permitting  shifting  of  Toll  Plaza  as  the  Division  Bench  had
 dismissed the LPA  upholding  the  order  of  the  single  Bench  allowing
 shifting the Toll Plaza in view of the clause in the Concession  Agreement
 and the opinion of the Independent Engineer and  the  NHAI.   Neither  the
 NHAI nor the PIL petitioners challenged the judgment and order of the High
 Court permitting to shift the Toll Plaza.  One would have inferred that as
 a matter of judicial propriety ingrained in the principle of  constructive
 res judicata and above all rule of law, the controversy regarding shifting
 of Toll Plaza attained finality in  view  of  final  adjudication  of  the
 dispute regarding shifting of Toll Plaza by the High Court of  Punjab  and
 Haryana but it is rather strange and beyond comprehension in view  of  the
 principle of constructive res judicata that the dispute regarding shifting
 of Toll Plaza was still allowed to survive as the appellant filed  another
 writ petition in the High Court of Delhi seeking a writ of mandamus or any
 other appropriate direction permitting it to shift the  Toll  Plaza  which
 writ petition finally was dismissed and rightly so as in any case the same
 could not have been held maintainable.  It is equally interesting to  note
 that in spite of  all  this  exercise  undertaken  regarding  the  dispute
 pertaining to shifting of Toll  Plaza,  an  application  was  filed  under
 Section 9 of the Arbitration and Conciliation Act 1996 for appointment  of
 an Arbitrator to resolve several disputes including shifting of Toll Plaza
 missing out that the dispute  relating  to  shifting  of  Toll  Plaza  had
 already been dealt with on the judicial side by the High Court  of  Punjab
 and Haryana when two writ petitions  and  one  LPA  against  shifting  was
 rejected by the Division Bench of the High Court and yet the NHAI and  the
 appellant/company has been litigating and contesting  the  plea  regarding
 shifting of Toll Plaza.
 41.        In fact, we have noticed that it is only in the year 2013  i.e.
 18.3.2013 when a new incumbent took over the charge  as  Chairman  of  the
 NHAI that a letter dated 18.3.2013 was issued wherein the proposal of  the
 appellant for relocation  of  Toll  Plaza  was  finally  rejected  stating
 therein that the in principle approval dated 9.11.2010 by  NHAI  was  only
 conditional in nature and at the most were only  recommendatory  vide  its
 letter dated 9.11.2010 ignoring that the Independent Engineer, earlier had
 approved of the proposal for shifting the Toll Plaza.  In spite of  these,
 the application is  still  surviving  urging  that  the  matter  regarding
 shifting of Toll Plaza be decided in the arbitration proceedings  and  the
 NHAI should not be allowed to interfere with the decision of the I.E.  and
 approved by the NHAI which earlier had endorsed the  shifting.   In  fact,
 the NHAI seems to be completely  oblivious  of  the  fact  that  when  the
 Division Bench of the Punjab and Haryana High Court  had  already  settled
 the dispute by a speaking judgment and order  in  CWP  No.21332/2011,  CWP
 No.23971/2011 and LPA No.170/2012  permitting  the  shifting,  what  legal
 authority was left with the Chairman, NHAI to issue a  letter  questioning
 the shifting.  It is rather strange  that  an  authority  in  contemptuous
 disregard to a speaking judgment and order  of  the  High  Court  had  the
 audacity to defy the order which had permitted relocation  of  toll  plaza
 and it is equally strange that the  High  Court  also  vide  the  impugned
 order, appears to have ignored the fact  that  the  controversy  regarding
 shifting of Toll Plaza although had been set at rest by a judicial verdict
 of the High  Court, the NHAI still insisted  that  it  cannot  permit  the
 shifting when its I.E. (Independent Engineer) had earlier approved of  the
 same and accepted by NHAI in view of the specific clause in the  agreement
 to that effect.
 42.        In fact, the main contest although is between  the  contracting
 parties/signatories to the Concession Agreement which are the NHAI and the
 appellant  company  and  the  agreement  had  been  signed  and   executed
 incorporating the terms and conditions in the agreement which had approval
 of the Planning Commission and  the  Ministry  of  Economic  Affairs,  the
 respondent No.5 Union of India appeared which was given a notice  by  this
 Court merely  to  facilitate  and  resolve  the  controversy  between  the
 contracting parties and admittedly is not a contracting party itself as it
 is not a signatory to the Concession Agreement.  However, it has  come  up
 in support of the  respondent  No.6  NHAI  which  is  represented  by  the
 Additional Solicitor General Mr. Paras Kuhad.  However,  the  learned  ASG
 Mr. Kuhad on behalf of the Union of India advanced  arguments  limited  to
 the issue of permissibility of change of location of the Toll Plaza within
 the scheme of applicable statutory provisions as also the question  as  to
 the statutory status of the  Central Government in  relation  to  contract
 for development of national highways.  Inter alia it  was  submitted  that
 Section 4 read with Section 8 A(1) of the National Highways Act 1956 makes
 it clear that national highways vest in the Union and by virtue of Section
 8 (A) (1), the power to enter into an agreement for  development  is  also
 vested with the Central Government.  However, there is  no  quarrel  about
 this position and hence is not really required to be gone  into  or  dealt
 with in extenso as this position is not disputed by any of the parties nor
 we have any doubt that the  National  Highways  Authority  is  clearly  an
 authority under the National Highways Act 1956 and it is the power of  the
 Central Government to vest  or  entrust  its  authority  in  the  National
 Highway Authority.  We therefore entirely agree with the  learned  ASG  to
 the extent that it is the Central Government which may from time  to  time
 by notification in  the  official  gazette  vest  in  or  entrust  to  the
 authority such national highway or any stretch thereof as may be specified
 in such notification.  This is clearly the provision also under Section 11
 and Section 15 (2) and (3) of the National Highway  Authorities  Act  1988
 and Section 15 (2) of the said Act clearly lays down that subject  to  the
 provisions of sub-section (1), “the form and manner in which any  contract
 shall be made under  this  Act  shall  be  such  as  may  be  provided  by
 Regulations.”  Sub-section (3) of Section  11  of  the  Act  1988  further
 clearly lays down that no contract which is not  in  accordance  with  the
 provisions of this Act  and  the  regulations  shall  be  binding  on  the
 authority.  Rule 3(2) of the Rules of 1997 framed for collection  of  toll
 fees under the National Highways Authority of India Act 1988 further  lays
 down that no contract which is not in accordance with  the  provisions  of
 this Act and the regulations shall be binding on  the  authority  and  the
 rates of fees and the period of collection shall be decided and  shall  be
 specified  by  notification  in  all  official  gazette  by  the   Central
 Government  having  regard  to  the   expenses   involved   in   building,
 maintenance, management and  operation  of  the  whole  or  part  of  such
 section, interest on the capital invested, reasonable return,  the  volume
 of traffic and period of such agreement.
 43.        Although, the learned ASG  has  cited  several  authorities  to
 establish  the  provisions  incorporated  under  the   National   Highways
 Authority Act, we do not find any difficulty  in  accepting  the  position
 even without the ratio of the authorities relied upon,  that  in  case  of
 statutory contracts, the terms of the statute prevail over  the  terms  of
 the contract.  Therefore, determination of the terms and conditions of the
 contract will no doubt follow the  deliberations,  discussions  and  views
 expressed  by  the  Central  Government  while  drafting  the  contractual
 agreement and the National Highways  Authority  being  an  agency  of  the
 Central Government in terms of the Act itself which   has  to  incorporate
 the terms and conditions which is finally included  in the draft agreement
 of the NHAI.  But once the contract is signed by the  contracting  parties
 obviously the contract having assumed the legal authority of  a  concluded
 contract would govern the terms and conditions of the contract between the
 parties who have signed and thereafter would be binding on the contracting
 parties.  But to contend that even though the  contract  stands  concluded
 after the same has been singed by the contracting parties, the opinion  of
 the Central Government on its administrative side will  prevail  over  the
 terms  and  conditions  of  the  contract  in  absence  of  any  statutory
 violation, would be difficult to accept and it is not even the case in the
 instant matter that the terms and conditions in the Concessional Agreement
 is contrary to some statute or a central legislation so as to strike  down
 the clause in the agreement.
 44.        Therefore, we are of the view  that  the  Concession  Agreement
 having been signed by the appellant – joint venture company and respondent
 No.6 – NHAI, the role of the Union of India to express its view  over  and
 above the terms and conditions of the contract in absence of any statutory
 violation will not be  allowed  to  prevail  as  after  execution  of  the
 contract, it  can  only  issue  the  notification  in  this  regard.   We,
 therefore, do not wish to go further  in  regard  to  the  correctness  or
 otherwise of the contentions urged on behalf of respondent No.6 – Union of
 India as its status under the prevailing facts and situation at  the  most
 can be treated as that of a facilitator and nothing more than  that.   The
 position no doubt would have been otherwise if  the  Concession  Agreement
 suffered from the vice of some  statutory  violation.   Since  it  is  the
 appellant – joint venture company and respondent No.6 – NHAI  which  alone
 are the parties between whom the Concession Agreement has been signed  and
 the agreement is not even remotely alleged to  be  in  violation  of  some
 statute or central Act, the  role  or  the  authority  of  the  U.O.I.  to
 intervene or contest cannot be allowed as the U.O.I.  at  the  most  is  a
 proforma  respondent  in  this  appeal  under  the  prevailing  facts  and
 circumstances.
 45.         However,  the  respondent  No.1  Harish  Kumar  Puri  who  had
 initially filed the public interest litigation in the High Court of Punjab
 and Haryana merely for ensuring safety and security of  the  commuters  on
 the national highway has also entered appearance in  the  matter  and  has
 advanced submissions through the senior counsel Shri P.S. Patwalia and has
 practically supported the stand of the NHAI respondent No.6  as  also  the
 impugned order passed by the High Court which is under challenge  in  this
 appeal.  Learned Senior Counsel Mr. Patwalia representing respondent No.1-
 PIL petitioner, inter-alia submitted that the excuse  of  non-shifting  of
 Toll Plaza by the appellant/company is merely a ploy to justify  its  acts
 of delay in continuing with the project as it has been giving excuses  one
 after another for the delay and every  time  comes  up  with  a  new  lame
 excuse.  According to his averment, the plea  of  leakage  raised  by  the
 appellant in order to shift the Toll Point/Toll Plaza is merely a ruse for
 not  completing  the  project.   It  has  been  submitted  that   no   new
 access/cross roads joining the highway have been built and  the  so-called
 leakage/diversions as alleged by the appellant are the  straight  highways
 and the major roads are  in  existence  for  the  last  many  many  years.
 Respondent No.1- Mr. Puri  has  also  stated  that  huge  sums  are  being
 transferred from the Esrow accounts which should have been  spent  on  the
 project.  It had been  added  that  the  concessionaire  while  submitting
 financial model to the financial institution showed the  project  cost  as
 Rs.4517 crores against the actual project cost of Rs.2747 crores which has
 been done to secure higher borrowing which shows that the  action  of  the
 appellant is not in public interest.   It  was  also  contended  that  the
 dispute regarding shifting of Toll Plaza was not an  issue  raised  before
 the High  Court.  Hence, the appellant should not be  permitted  to  raise
 this question before this Court as the shifting is not at  all  in  public
 interest since the appellant by doing so merely wants to enrich itself  at
 the cost of general public.  It has further been  contended  that  in  the
 event of shifting only a very short stretch of road will be covered  after
 which the commuters will have to cross through  the  Toll  Plaza  and  the
 commuters of Haryana will have to pay a huge toll for the  entire  Haryana
 portion which at present is more than Rs.100/- per vehicle at the  Karnala
 Toll Plaza.  If the Toll Plaza is shifted   close  to  the  Panipat  area,
 people traveling for extremely short distance and turning of  the  highway
 to go to other States like Himachal Pradesh, Uttarakhand and Uttar Pradesh
 via Yamuna Nagar will end up paying toll for the  entire  Haryana  portion
 which will not be used by them.  Similarly,  if  the  Shambhu  Barrier  is
 shifted to the proposed location at Neelokheri, people who will travel for
 a negligible distance of Punjab highway and turn off the highway to go  to
 Banaur and further to Himachal Pradesh and Jammu and Kashmir will  end  up
 paying Toll for the Punjab portion  which  they  will  never  use.   Thus,
 shifting of the Plazas will not be in public interest as toll can only  be
 charged if the commuters are utilizing the facilities of the highway.   It
 cannot be made as a compulsory extract fee so that even if a person who is
 using a very small portion of  the  highway  should  pay  for  the  entire
 stretch of the Highway.  It was finally submitted that the  completion  of
 the 70 per cent of the  highway  as  claimed  by  the  appellant  is  also
 factually incorrect as the highway consists of few phases for  six  laning
 as dotted with incomplete projects, half built flyovers  abundant  service
 lanes.  According to respondent No.1 highway traveling is a nightmare  for
 the traveling public faced with heavy traffic and  ill  maintained  narrow
 diversions.   Respondent  No.1,  therefore,  has  supported  the  impugned
 directions of the High Court by which the NHAI has been permitted to  take
 over the project from the appellant and ensure its  completion  under  its
 supervision.   The  respondent  No.1  has  also  given  figures  of  fatal
 accidents and injuries on NH No.1 falling in the district  of  Kurukshetra
 by which it sought to establish that the commuters are  suffering  heaving
 losses of lives, properties due to negligence and failure on the  part  of
 the appellant-company despite paying heavy but  illegal  toll  at  various
 toll barriers on this road from Panipat to Jullundur.  Thus,  in  sum  and
 substance respondent No.1 has sought to justify the order  passed  by  the
 High Court and submitted that the penal consequences ought to  be  allowed
 to follow and should not be interfered  with  because  of  negligence  and
 apathy on the part of the concessionaire/appellant herein.
 46.        Besides the above, an application  for  intervention  also  was
 filed by one Chander Prakash Kathuria who also has come up in  support  of
 the NHAI and has supported the direction of the High Court  by  which  the
 High Court directed respondent No.6  NHAI  to  forthwith  proceed  in  the
 matter and take possession of the highway and ensure that the work for the
 repair of the highway commenced  within  a  week  and  the  work  for  its
 completion commenced within a month  thereafter.   But,  his  intervention
 application having not been allowed, arguments could not be advanced.   In
 any view, he also has merely supported the stand of  the  respondent  No.1
 and the other contesting respondents NHAI.
 47.        In any case, the High Court  vide  its  impugned  judgment  and
 order has divested the appellant of its contractual authority to  continue
 with the project as the Concession Agreement practically has been annulled
 and rescinded since the NHAI has been clearly directed to  take  over  the
 project from the appellant and ensure that the project is completed  which
 clearly implies that the construction of the Highway for the rest  of  the
 area which is merely 29% of the project will have  to  be  constructed  by
 executing another contract in favour of some other construction company as
 it was  informed  to  us  that  the  NHAI  itself  does  not  execute  the
 construction and will have to entrust the same to a new player/contractor.
  In fact, the erstwhile counsel Mr. Sethi who represented the NHAI earlier
 and was later replaced by Ms. Malhotra had  submitted  before  this  Court
 that a new contractor has already been appointed who is ready to take over
 the highway project for construction of the balance area of 29% where  the
 construction has to be done.  Thus, the  Contractual  Agreement  has  been
 nullified by the High Court although it was observed  by  the  High  Court
 itself that it is not  entering  into  or  touching  upon  the  terms  and
 conditions of the contract.  The High  Court  has  further  imposed  heavy
 penalty/fine of Rs.60 crores and Rs.7 crores respectively on the appellant-
 company and its director holding them exclusively  responsible  for  delay
 and non-completion of construction of  the  highway  between  Panipat  and
 Jullundur without entering into the cause of delay of the project as  also
 without considering whether denial of permission by the NHAI to shift  the
 toll plaza was in violation of the terms of the Agreement and whether  the
 same is not in contemptuous disregard to  the  order  of  the  High  Court
 passed earlier by a co-ordinate  Bench  of  the  High  Court  referred  to
 earlier.
 48.        Learned senior counsel Dr. Abhishek  Manu  Singhvi,  therefore,
 has made detailed  submissions  by  way  of  rejoinder  to  the  arguments
 advanced by the contesting respondent No.6 NHAI which clearly is the  main
 contesting  respondent.   Dr.  Singhvi  while  countering  the   arguments
 advanced by the NHAI and the respondent No.1 Mr.  Harish  Kumar  Puri  has
 focused on the plea that the High Court while passing the  impugned  order
 has clearly ignored the contractual rights and  obligations  contained  in
 the Concession Agreement  dated  9.5.2008  but  ventured  into  the  arena
 without taking  into  account  the  contractual  rights  of  the  parties,
 thereupon nullifying the  terms  of  the  Concession  Agreement.   Learned
 counsel elaborated that the controversy adjudicated by the High Court vide
 the impugned order has emerged out of a public interest  litigation  filed
 in the year 1998 and the Concession Agreement dated 9.5.2008 was  executed
 at a much later stage after  ten  years  in  2008  between  the  appellant
 company and the respondent No.6 NHAI granting exclusive right, license and
 authority to construct, operate and  maintain  the  highway  on  a  Build,
 Operate and Transfer basis (BOT for short) for a period of 15 years.   The
 rights and  obligations  between  the  parties  have  been  determined  by
 incorporating  the  terms  and  conditions  which  are  contained  in  the
 Concession Agreement executed between the appellant and the NHAI  but  the
 High Court has completely  ignored  the  contractual  provisions  and  has
 passed directions  which  has  practically  nullified  the  terms  of  the
 contract.
 49.        Having analyzed the arguments advanced by the counsel  for  the
 contesting parties in the  light  of  the  terms  and  conditions  of  the
 Concession Agreement as also the contents of  the  impugned  judgment  and
 order of the High Court, it is difficult  to  overlook  that  the  Hon’ble
 Judges of the High Court although have recorded that they did  not  intend
 to traverse the contractual obligations and  liabilities  of  parties  and
 confine their considerations as far as the orders passed by the High Court
 is concerned so as to see whether public interest require  that  the  said
 order be extended or vacated, it has indeed done the same when it directed
 the NHAI to forthwith take possession of  the  Highway  Project  which  in
 effect has nullified the contract and has gone much further  by  directing
 the NHAI to ensure completion of the project which in effect mean that the
 NHAI would have to invite fresh tender for construction of the balance 29%
 area of the Highway Project as admittedly NHAI itself cannot undertake the
 construction.  This clearly  is  nothing  short  of  cancellation  of  the
 Concession Agreement and it is  a misnomer when it observed  that  it  was
 not traversing the contractual obligation ignoring its devastating  effect
 on the contracting party who had completed 71% of the project and  had  at
 least the right to explain whether the delay  in  concluding  the  project
 could entirely be attributed to the appellant or at least some of it could
 be fastened on the NHAI which had gone to the extent of not  only  backing
 out of its earlier opinion but also conveniently shut its eyes that it was
 violating the order of the High Court which had earlier upheld  the  right
 of the appellant to shift the toll plaza.
 50.        Thus, the High Court was not justified in  recording  that  the
 delay has been caused merely at the instance of the  appellant  so  as  to
 pass a blanket order for transferring the execution of the project to NHAI
 contrary to the agreement wherein it was permissible for the appellant  to
 shift the Toll Plazas and the same was also approved by the High Court  as
 referred to hereinbefore time and again.  The High Court further seems  to
 have missed the track, perhaps in its enthusiasm,  that  the  matter  with
 which it was seized was limited to the question as to whether the order by
 which  the  show  cause  notice  issued  by  the  NHAI  to  the  appellant
 concessionaire-company was ordered to be kept in abeyance was  fit  to  be
 vacated or not as the High Court was essentially adjudicating the question
 whether the NHAI could at all issue a show cause notice to the  appellant-
 company to terminate the contract and while the High Court did  not  enter
 into the question whether the said order was fit to be  continued  or  was
 fit to be vacated, went into the question  whether  the  appellant-company
 was fit to continue with the project which had been  handed  over  to  the
 appellant by the NHAI by virtue of a valid agreement executed between  the
 parties primarily on the ground of delay without really entering into  the
 cause of delay and considering the plea at whose instance the  contractual
 obligations had been violated.
 51.        In fact, even at this stage before this Court,  the  respondent
 NHAI has merely contended that the Toll Point/Toll  Plaza  should  not  be
 allowed to be shifted from the  point  determined  earlier  and  has  been
 asserting that the Toll Plaza should not be shifted from 146 KM to 110 KM.
  In fact, the respondent No.6 NHAI  neither  before  the  High  Court  nor
 before this Court even remotely had contended that the contract should  be
 nullified although it has contended that shifting of Toll Plaza should not
 be permitted as the same according to their averment is  contrary  to  the
 terms and conditions of the agreement.
 52.        There is yet another feature which catches  attention  but  has
 been missed by the  High  Court  that  when  the  High  Court  itself  had
 prevented the NHAI from proceedings with a show cause notice given to  the
 appellant –concessionaire company and has gone to the extent of passing an
 order for keeping the show cause notice in abeyance and  the  NHAI  itself
 has not contended either before the High Court or before  this  Court  for
 terminating the contract except that it has been opposing the shifting  of
 Toll Plaza, whether the High  Court on its own could do the  same  without
 examining the contractual obligations. Taking the worst case/situation and
 even assuming that the stand of the respondent NHAI were to  be  accepted,
 the appellant at the most could be prevented from shifting the Toll  Plaza
 from a pre-determined point to another point in which case  the  appellant
 might have to continue with the project by not allowing it to  change  the
 location of the Toll Plaza but the same cannot entail the  consequence  of
 final termination without adjudication at least by an arbitrator for which
 there is a clear provision in the Agreement itself.   In  any  event,  the
 question of termination of the Concession Agreement  without  adjudication
 could not arise at all when the High  Court  was  merely  considering  the
 application seeking vacation of the stay order to the  show  cause  notice
 issued by the NHAI.  In case, it had rejected the  application,  the  show
 cause notice issued by the NHAI to the  appellant  could  have  proceeded.
 But the High Court seems to have taken a giant leap forward by terminating
 the contract for  all  practical  purposes  without  expressly  using  the
 expression “termination” when it  directed  the  NHAI  to  take  over  the
 project from the appellant – company and continue  with  the  project  and
 complete it, nullifying the contract in its entirety.
 53.        The High  Court seems to be completely oblivious  of  the  fact
 that it was dealing only with the limited question as to whether the  NHAI
 was correct in issuing show cause notice to the appellant which  the  High
 Court itself by its own order allowed it to be kept in abeyance for  which
 the NHAI respondent No.6 had filed an application for vacating this order.
  Thus, on the other hand, it kept the order of show cause  notice  by  the
 NHAI in abeyance, but when the NHAI came up for vacating the  said  order,
 the High  Court straightway directed the NHAI to  take  over  the  project
 itself from the appellant-company without caring about its impact  on  the
 Agreement which clearly resulted in  its  cancellation.   The  High  Court
 ought to have realised that if it could not  traverse  the  terms  of  the
 Agreement which the High Court itself has observed, it  surely  could  not
 have passed an order which unequivocally had the effect of  canceling  the
 Agreement and that too without any adjudication.
 54.        At  this  juncture,  it  is  difficult  to  overlook  that  the
 appellant admittedly has completed 71 per cent of the 291 KM  stretch  and
 now barely 29 per cent is yet to  be  constructed  which  is  enmeshed  in
 litigation over the question as  to  whether  the  Toll  Plaza  should  be
 permitted to be shifted or not.  This  aspect  as  was  contended  by  the
 respondent No.1, had not been gone into by the High Court clearly  missing
 that this question had been raised  in  the  PIL  before  the  High  Court
 wherein the NHAI & Ors. were  a  party  wherein  the  appellant  had  been
 permitted to shift the toll plaza.  It needs to be highlighted even at the
 cost of repetition that the dispute regarding shifting of Toll  Plaza  was
 earlier raised before the High Court by two separate writ  petitions,  the
 reference of which have been given hereinbefore vide CWP No.21332/2011 and
 CWP No.23971/2011  which  were  filed  by  two  PIL  petitioners  but  the
 petitions were rejected.  In one of the writ petitions as  noted  earlier,
 an LPA was also filed in the High Court but the same was dismissed and the
 dispute regarding shifting obviously attained finality and could not  have
 been urged all over again before the High Court.  It is however  difficult
 to appreciate that in spite of the dispute having been  settled  regarding
 shifting of Toll Plaza by the High  Court  of  Punjab  and  Haryana  which
 clearly  attained  finality,  the  respondent  NHAI  did  not  permit  the
 appellant – company to shift the Toll Plazas, although it  had  failed  to
 prefer any appeal against the judgment and order passed by the High  Court
 in CWP No.21332/2011 and LPA No.170/2012 challenging such permission.
 55.        It is no doubt true that the respondent-Union of India has come
 up to the rescue of the respondent-NHAI when it contended  that  if  terms
 and conditions in the contractual agreement is contrary to a statute,  the
 Union of India would be legally  authorized  to  override  the  terms  and
 conditions  of  the  contractual  agreement.  But  as   already   recorded
 hereinbefore, the facts of the instant matter clearly establishes that  it
 is not even the case of the  respondent  that  the  terms  and  conditions
 incorporated in the Concession Agreement was contrary to  any  statute  or
 central legislation so as to offer a plank to  the  contesting  respondent
 specially NHAI to urge that the provision under the  Concession  Agreement
 had been  overriding a statutory provision of any central  legislation  in
 absence of any fact or  situation  establishing  even  remotely  that  the
 agreement suffered the vice of violating any central statute/legislation.
 56.        Thus, apart from  the  fact  that  the  dispute  regarding  the
 shifting of Toll Plaza had already been  adjudicated  by  the  High  Court
 earlier  on  two  occasions,  the  details  of  which  have   been   given
 hereinbefore and the Concession Agreement not being in  violation  of  any
 legislation of the centre, the dispute regarding shifting  of  Toll  Plaza
 obviously could not have been gone into by the High Court all  over  again
 in the PIL.  But while nullifying the contract on the ground of delay, the
 dispute regarding shifting of  Toll  Plaza  which  was  clearly  the  only
 contentious issue for not completing the  project,  could  not  have  been
 given a go bye or ignored in any manner by the High Court while taking  an
 undertaking from the appellant and thereafter  cancelling  the  Concession
 Agreement itself when  it  admittedly  did  not  traverse  the  terms  and
 conditions of the Agreement.
 57.        Beside the above, it is more than well settled that a  question
 or an  issue  which  has  been  raised  earlier  before  the  High  Court,
 adjudicated on which a  final  judgment/order  was  delivered,  cannot  be
 allowed to be raised for the second time as that would be  clearly  barred
 by the principle of constructive res judicata which is too  well  known  a
 principle to be dealt with herein.  Suffice  it  to  say  that  the  well-
 acknowledged principle and equally well settled legal  position  seems  to
 have been ignored and lost sight of not merely by the respondents  but  by
 the appellant company also which filed a writ petition in the  High  Court
 of Delhi raising the issue of shifting of Toll  Plaza  which  finally  was
 dismissed since the High Court of Punjab and  Haryana  had  already  dealt
 with it as also by filing an application for referring the dispute to  the
 Arbitrator under the Arbitration and  Conciliation  Act,  1996  completely
 overlooking that at least this part was not permissible to be referred for
 arbitration once on the judicial side permission to shift the  Toll  Plaza
 was permitted by the High Court of Punjab and Haryana  vide  its  judgment
 and order passed in  CWP  No.21332/2011  and  LPA  No.170/2012  which  had
 settled the issue regarding shifting of Toll Plaza.
 58.        Besides the aforesaid  legal  protection  which  the  appellant
 enjoyed on account of the judgment and order in its favour  given  by  the
 High Court, the terms and conditions in the  Concession  Agreement  itself
 regarding shifting of Toll Plaza was approved by the NHAI which  permitted
 that the Toll Plaza could be shifted  provided  the  Independent  Engineer
 appointed by the NHAI approved  of  the  same.  No  doubt,  initially  the
 Independent  Engineer  (I.E.  for  short)  initially   expressed   certain
 reservations regarding the relocation of  the  Toll  Plazas  vide  letters
 dated 18.3.2010, 2.4.2010 and 29.5.2010 but subsequently  the  Independent
 Engineer, Project Director and CGM NHAI in their recommendations  recorded
 their view  that  the  location  of  two  Toll  Plazas  is  for  different
 facilities provided to the public and, therefore, there is no  reservation
 locating Toll Plaza at KM 110. In fact, it needs to be highlighted that in
 terms of Article 48.1  of  the  Concession  Agreement,  liberty  has  been
 granted to the  appellant  to  decide  the  locations  of  Toll  Plaza  in
 consultation with the I.E. and the same was finally approved by  the  I.E.
 M/s. Louis Berger who conveyed his approval to the change of  location  as
 proposed by the appellant and hence the same cannot be allowed to  be  re-
 agitated despite confirmation of the same  by  the  High  Court  vide  its
 judgment and order passed in the writ petitions and the LPA against  which
 no appeal was preferred either by the NHAI or the PIL  petitioner  or  any
 other concerned respondents.
 59.        Thus, the stand of the NHAI appears to be clearly  illegal  and
 arbitrary and a clear case of  an  after  thought  taken  in  the  present
 proceedings before this  Court  as  the  NHAI  ad  idem  was  in  complete
 agreement with the appellant as regard its right for  relocation  of  Toll
 Plazas.  The same is recorded and clearly reflected in the  correspondence
 of various officers of NHAI, minutes  of  meeting,  stand  of  Independent
 Engineer including its stand before the High Court of Punjab  and  Haryana
 and hence the NHAI cannot be permitted to resile from its  stand  at  this
 distant point of time as the affidavits were filed as early as 2011  which
 finally upheld the  location of the Toll Plazas.   The  correspondence  on
 record further belies the stand now taken by the NHAI as various  officers
 of NHAI  were  of  the  same  view  that  relocation  of  Toll  Plazas  is
 permissible under the Agreement and the change in stand  happened  in  the
 meeting held for the first time on 21.3.2013  when  the  present  Chairman
 took the stand that relocation is impermissible and the  decision  not  to
 permit relocation of Toll Plazas was taken as late as on 3.5.2013 which is
 not   merely   highhanded   and    illegal    but    contrary    to    the
 judgment and order of the High Court which permitted relocation  vide  its
 reasoned judgment and orders as already  referred  to  hereinbefore  which
 were never challenged and hence attained finality.  Moreover, based on the
 in principle approvals granted by NHAI and the stand of NHAI, the  lenders
 continued to disburse funds and the appellant continued to invest  in  the
 project on the plea that the implementation of the  decision  to  relocate
 the Toll Plazas would be done after the decision  of  the  High  Court  of
 Punjab and Haryana  upholding  the  relocation  of  Toll  Plazas.   It  is
 therefore too late in the day for the  NHAI  to  take  such  specious  and
 untenable plea with a view to wriggle out of its obligation  which  cannot
 be permitted by this Court.
 60.        In fact, this Court was informed that the officers of the  NHAI
 which had approved of the shifting of Toll Plazas are facing  departmental
 action which  has  been  initiated  against  Rajeev  Kumar  Koundal,  S.S.
 Geharwar and S.I. Patel.  But the stand of the NHAI appears to be  clearly
 an     afterthought     and     an     attempt     to     justify      its
 irrational/arbitrary/conflicting stand with regard to the  rights  of  the
 appellants for deciding the location of Toll Plazas under  the  Concession
 Agreement and the approvals granted by NHAI under the said agreement.  The
 alleged action initiated by the NHAI, therefore, cannot justify its  stand
 taken before this Court for the first  time  nor  can  it  permit  to  act
 contrary to the terms of Concession Agreement ignoring the  orders  passed
 by the High Court on the judicial side in two  PIL  petitions  which  were
 filed challenging the order for relocation of Toll Plazas.
 61.        It is rather chaotic as also jurisdictional error that in spite
 of several orders passed by three different  co-ordinate  Benches  of  the
 High Court on the judicial side permitting relocation of the Toll  Plazas,
 the dispute did not set at rest and the High Court while dealing with  the
 PIL has not even taken note of the fact that  if  it  was  nullifying  the
 Concession Agreement on  the  ground  of  delay  of  the  project  without
 entering into the rights and obligations of  the  Concessionaire-appellant
 and Respondent No.6 NHAI ignoring  that  the  NHAI  could  not  have  been
 permitted to get away from the onus of delaying the project when it failed
 to honour its contractual obligation.
 62.        The entire  exercise  of  the  High  Court  while  passing  the
 overzealous directions giving a go by to the rights and obligations  under
 the Concession Agreement and the orders passed by  the  High  Court  while
 dealing with limited issue in the PIL as to whether a show cause notice by
 the NHAI was justified or not could not have  refused  to  scrutinize  the
 reasons for the delay on the ground that it  was  not  entering  into  the
 terms and conditions of the contractual agreement  and  yet  went  to  the
 extent of nullifying the agreement oblivious of its consequence  that  the
 impugned direction of the High Court clearly resulted in  cancellation  of
 the agreement itself.
 63.        It is further difficult to overlook that over 71  per  cent  of
 the Highway Project having been admittedly  completed  by  the  appellant-
 Concessionaire, it would delay the  project  without  reason  and  is  not
 sincere in its attempt to complete  it  as  delaying  the  project  cannot
 possibly benefit the appellant-Concessionaire since the  income  would  be
 generated by the appellant only when the Toll Plaza is constructed and the
 revenue from toll at present is being deposited in the ESCROW account.  It
 further cannot be overlooked that the NHAI is not funding the  project  in
 any manner as the agreement is in the  nature  of  BOT  mode  which  means
 Build, Operate and Trade  (‘BOT’  for  short)  and  the  appellant  cannot
 generate profit without undertaking  the  construction  further.   It  is,
 therefore, pertinent to take note of the fact that the  project  being  in
 BOT mode, all investment in the project has to be made  by  the  appellant
 and no amount is received from NHAI.  It may further  be  noted  that  the
 agreement between the appellant and respondent No. 6 NHAI acknowledges and
 confirms the role of lending institutions, mainly nationalized banks as  a
 major significant holder in project  implementation.   All  the  financing
 agreement  dealing  with  the  administration  occurred  between   lending
 institutions and the petitioner as well as the  financial  model  for  the
 project has been submitted that their revenue and approval  prior  to  the
 commencement  of  the  project.   The  appellant-Concessionaire  therefore
 states that it is committed to the completion  of  the  project  asserting
 that its endeavour is to complete the six laning  works  at  the  earliest
 since it is not a gainer in any manner if the project is at a stand  still
 and the appellant also would gain only if the project is started.
 64.        Consequent upon the aforesaid  analysis of  the  background  of
 the matter and the  sequence of events arising out of  a  Public  Interest
 Litigation which led to the execution  of a Concession Agreement  creating
 contractual relationship between   the  appellant   Concessionaire-company
 and the respondent No. 5 NHAI, it is  manifest that  the  High  Court  has
 issued over zealous  directions  which has resulted  into termination   of
 the concession  agreement itself when it  directed   the  respondent  No.5
 NHAI  to take over the project from the appellant and ensure  the  balance
 construction of the highway project by itself.   Although, the High  Court
 has observed that it  was  not entering into  the arena of the contractual
 terms  and conditions of the agreement,  it  has  clearly  nullified   and
 terminated the contract itself when  it directed  the NHAI  to  take  over
 the project from the appellant-company overlooking  the  bonafide  of  the
 appellant-company  which  has  already  completed  major  portion  of  the
 construction which is 71 per cent of the total area  of 291 KMs  and  only
 29 per cent is to be constructed further, when a dispute arose between the
 appellant-company and the respondent NHAI in regard to  shifting  of   the
 Toll Plaza from KM 146 to KM 110 and KM 212 to KM 211 and the NHAI for the
 first time in 2013 reneged from its consent to permit shifting contrary to
 the terms of the agreement.  However, in course of  oral  argument  before
 this court, the respondent NHAI had yielded  and did not seriously dispute
 the shifting  from KM 212  to KM 211 and rightly so  as  the  shifting  is
 hardly at a distance of 1KM from KM 212 to KM 211 at  Shambhu  Toll  Plaza
 which is negligible and the shifting has already taken place as  discussed
 hereinbefore.  But, the respondent No.5 NHAI has raised serious objections
 in regard to shifting  of the Toll Plaza from KMs  146  to  KM  110  which
 appears  to have been done for the first time in the year  2013  when  the
 new incumbent    took over as Chairman of the NHAI ignoring the fact  that
 the Independent Engineer in terms of the agreement had granted approval to
 the same way back  on  30.6.2010.   In  addition,  the  dispute  regarding
 shifting of Toll Plaza had already been settled by the High Court when  it
 permitted the            appellant  to shift the Toll  Plaza  to  KMs  110
 against which NHAI did not  file any appeal challenging  the order of  the
 High Court. Thus, in spite of the fact that the dispute regarding shifting
 of toll plaza had attained  finality by virtue of  a  series  of  judicial
 verdict, the newly appointed Chairman, NHAI for the  first  time  in  2013
 restrained the appellant-company   from shifting  the Toll  Plaza  to  KMs
 110 and  this clearly  resulted into  putting  the  entire  project  to  a
 standstill since the project was to be financed by way of Build,  Operate,
 Trade mode (BOT mode) and affected financing of the project and the matter
 got enmeshed into a series of litigations related  hereinbefore.  But  the
 High Court refused to go into this dispute stating that it does  not  want
 to go into the terms and conditions  of  the  contract  and  directed  for
 undertaking from  the  appellant  attributing  the  entire  delay  to  the
 appellant-company for non performance and finally terminated the  contract
 when it directed the respondent NHAI to take  back  the project  from  the
 appellant.  Assuming the High Court did it in public interest  to expedite
  the construction of the  highway, it  is  more  than  obvious  that  this
 direction of the High Court cannot possibly and practically  expedite  the
 construction   as  admittedly  the  NHAI  itself  do  not   undertake  any
 construction work of the highway which clearly implies that it  will  have
 to issue a fresh tender for  construction  of  the  balance  area  of  the
 project which is bound to result into  greater delay of the project  apart
 from the  fact  that the dispute  between the  appellant-company  and  the
 NHAI would still survive and finally a 3rd party being  a  new  player  is
 bound to get entangled giving rise to further legal complications  in  the
 whole process.
 65.        In addition to this it is difficult to overlook that  the  High
 Court  was merely seized with the limited issue in the pending PIL  as  to
 whether the  Show Cause Notice issued  by  the  NHAI   to  the  appellant-
 company which was  ordered to be kept  in abeyance by order  of  the  High
 Court itself, was fit to be  vacated   on  an  application  filed  by  the
 respondent NHAI,  but while doing so the High Court took a leap much   way
 ahead by cancelling the agreement itself for non performance ignoring  the
 main issue as to whether   the Show Cause Notice issued  by the NHAI   was
 fit to be sustained or the order keeping it in  abeyance  was  fit  to  be
 vacated and straightway  concluded that the appellant-company had  delayed
 the project completely overlooking that  the  contractual   violation  had
 been done by the NHAI when it  declined to permit  shifting  of  the  Toll
 Plaza from KMs 146 to KM 110 in spite of the reasoned orders of  the  High
 Court to that effect against which no appeal was filed either by the  NHAI
 or the PIL petitioner or any other concerned party.  It is  no doubt  true
 that   in  a  public   interest  litigation   the  court   at  times   may
 forego/overlook the  technicalities  coming in the way of  issuance of any
 direction which may conflict or jeopardise the public interest.   But  the
 same cannot be allowed to reach to the  extent or affect  the  contractual
 agreement itself which reduces  a  valid  and  a  legal  document  into  a
 worthless piece of paper or a waste paper which  clearly  means  that  the
 relationship  between  the  parties  although  were  to  be  governed  and
 supported by a valid legal document, the same  would finally turn  out  to
 be a document having no  legal significance in spite of  its  validity  in
 the eye of law.  If this were to be permitted, it is bound to  lead  to  a
 chaotic  situation affecting the very fabric of  the  rule  of  law  which
 cannot be allowed to  prevail over a valid and legally supported  document
 conferring certain rights on the person or entity possessing it.
 66.        As a consequence and fall out of the above position, we deem it
  just and appropriate  to set aside  the impugned directions of  the  High
 Court, and   permit the appellant to restore  the  construction   of   the
 balance stretch/area of  the highway project by further directing the NHAI
 to permit the appellant to shift the Toll Plaza from  KM 146 to any  point
 between KMs 110 and KMs 117 with concurrence  of  the  NHAI.   The   exact
 point of construction of Toll Plaza between KMs 110  to KMs 117 shall thus
 be  decided  by  the  NHAI   holding   mutual    consultation   with   the
 appellant/concessionaire in the light of the approval already  granted  by
 the Independent Engineer in terms of the Agreement  which  also  had  been
 approved by the High Court earlier.  However, we take  note  of  the  fact
 that  the High Court  although  by  its  order  referred  to  hereinbefore
 permitted shifting  of the Toll Plaza in dispute  to point KM 110, we have
 noticed that the distance  between KMs 96 where Toll Plaza of  L  &  T  is
 existing and the proposed toll plaza at KMs 110 would be at a distance  of
 only 14 KMs which may not be in the interest of the  commuting public and,
 therefore,  we direct that the shifting although may not be  permitted  at
 KMs 110, it may be allowed to be  shifted  at any point   between KMs  110
 and KMs 117 in consultation and with concurrence of the NHAI.  In fact, we
  could have   directed the appellant to shift the Toll Plaza  even  beyond
 117, KMs but we have been informed that  beyond KM 117 the area is thickly
 populated  and would not be practically possible  to   set  up   the  Toll
 Plaza  beyond KMs 117.
 67.         Therefore, and in order to facilitate and expedite  completion
 of the Highway Project, we direct the respondent NHAI to  permit  shifting
 of  Toll  Plaza  from  146  to  anywhere  between  KMs  110  and  KMs  117
 expeditiously  but not later than a period of  two months from the date of
 this order during which period the required legal formality  of  notifying
 the area for construction of the Toll Plaza shall also be complied with by
 the NHAI by getting it notified through the Competent Authority and making
 the land available free from all encumbrance.   The  appellant  thereafter
 shall forthwith restart the construction  including  setting  up  of  Toll
 Plaza at the agreed point and continue with construction of the  remaining
 area of the Highway Project and shall complete the entire construction  of
 the  Highway  on  or  before   31st  of  March  2015  failing  which   the
 appellant/concessionaire company shall be liable for penal consequences to
 be determined by the NHAI in terms of the Concession Agreement.
 68.         The appellant/concessionaire company is  further  directed  to
 report/update the progress/development of the construction  to   the  NHAI
 referred to in the Concession Agreement  after every three months from the
 date of  compliance  of the required statutory  notification  for shifting
 of Toll Plaza  at the instance of  the NHAI and   the   Ministry  of  Road
 Transport and Highways/any other  competent  authority.      However,   we
 make it explicitly clear that no dispute shall be  allowed  to  be  raised
 further by any of the parties  before any court which may impede  or  slow
 down the progress of completion of the Highway Project  as  this   measure
 most certainly would not be in the interest of  the  Highway  Project  and
 consequently not in public interest in any  manner.    However,  the  main
 contesting parties i.e. the appellant-Concessionaire Company and the  NHAI
 would be at liberty to  seek  such other or further  direction  from  this
 Court in case there is   bona fide need to resort to such  an  eventuality
 in regard to the Highway Project referred to  in  the  Agreement.      The
 appeal  accordingly is allowed  but  in    the  circumstances   leave  the
 parties  to  bear  the costs on their own.
                                                              …………………………….J.
            (Gyan Sudha Misra)




                                                              …………………………….J.
                                                     (Pinaki Chandra Ghose )


 New Delhi,
 April 17, 2014
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