The main legal point established is the need to resolve disputes and facilitate the issuance of PCC without compromising the safety and reliability of the project highway.

1. The Petitioner, in this petition under Section 9 of the Arbitration and Conciliation Act, 1996 (‘Act’), is a consortium company which entered into a Concession Agreement (‘CA’) with the Respondent, the National Highways Authority of India (‘NHAI’) to augment the road from Km 103.000 to Km 29.100 (approximately 132.913 Km) on the Gujarat/Maharashtra Border-Surat-Hazira Port Section of NH-6 in the state of Gujarat by four-laning on design, build, finance, operate and transfer basis. The concession period was 19 years commencing from the appointed date of the project site i.e. 30th October 2010.

2. The CA was executed on 18th May 2009. The scope of the project has been specified in Article 2 of the CA as under:

“2.1 Scope of the Project

The scope of the Project (the "Scope of the Project'') shall mean and include, during the Concession Period:

(a) construction of the Project Highway on the Site set forth in Schedule-A and as specified in Schedule-B together with provision of Project Facilities as specified in Schedule-C, and in conformity with the Specifications and Standards set forth in Schedule-D;

(b) operation and maintenance of the Project Highway in accordance with the provisions of this Agreement; and

(c) performance and fulfillment of all other obligations of the Concessionaire in accordance with the provisions of this Agreement and matters incidental thereto or necessary for the performance of any or all of the obligations of the Concessionaire under this Agreement.

3. Prior to the appointed date, NHAI had to specify certain conditions precedent. Inter alia, in Article 4.1.2 it was stated that:

(a) NHAI shall have provided to the Petitioner, referred to as the ‘Concessionaire’ the Right of Way (‘RoW’) to the site in accordance with Clause 10.3.1 and satisfy the conditions set forth in Clause 10.3.2.

4. Article 3.1.2 obliged or entitled (as the case may be) the Petitioner to:

(a) RoW access and licence to the site;

(b) finance and construct the project highway;

(c) manage, operate and maintain the project highway and regulate the use thereof by third parties;

(d) demand and collect payment and appropriate fee from vehicles and persons liable for payment of fees for using of project highway and

(e) perform all its obligations under the CA.

5. Article 5 specified the obligations of the Concessionaire and Article 6 those of NHAI. Article 10 contained the clauses concerning the RoW. Article 23 concerned the Independent Engineer (‘IE’). Under Article 23.1, NHAI was to appoint a consulting engineering firm from a panel of ten firms or bodies corporate constituted by NHAI substantially in accordance with the consultation criteria set forth in Schedule-P by the Competent Authority.

6. The duties and functions of the IE were set out in Schedule Q. Article 14 specified the clauses relating to the ‘completion certificate’. The test to be conducted on the project highway was to be on dates and times to be determined by the IE in consultation with the Petitioner and in accordance with Schedule 1. The task of the IE was to observe, monitor and review the results of the tests to determine compliance of the project highway with the requisite specifications and the standards. Schedule 1 to the CA set out the tests to be conducted.

7. Schedule B of Annexure 1 to the CA gave a description of the four-laning. Clause 4.1 of Schedule B specified that the project highway shall be widened to four lane dual configuration with paved shoulder with or without Service Roads. The entire road portion shall be 4 lane, while the bridges and other structures shall be 6 lane. Appendix B-1 contained the typical cross sections along with different types of cross sections required to be developed in different segments of the project highway. The typical cross sections drawings were present in B-1 to B-25.

8. As far as specifications and standards were concerned, these were set forth in Annexure 1 to Schedule D. Under Schedule D it was specified that the highway w