Vipin Sanghi, J.

1. The petitioner-NHAI by this petition under Section 34 of the Arbitration & Conciliation Act, 1996 (the Act) assails the arbitral award dated 04.07.2009 made by a Arbitral Tribunal consisting of three learned Arbitrators, namely, Sh. H.S. Bhatia, Ex-Member (Engg.), International Airports Authority of India; Lieutenant General (Retd.) Prakash Suri, PVSM; and Sh. Prem Nath, Ex-Executive Director, Airports Authority of India; in favour of the petitioner and against the petitioner. The Tribunal primarily considered only one claim. The issue which arose before the Tribunal was "Whether the work of stumps and roots removal and back filling of pits of the trees above 300 mm girth, cut and not forming part of the BOQ of the contract, is incidental to the project or payable separately". The Tribunal has held that the said work is payable separately.

2. The submission of Mr. Sudhir Nandrajog, learned senior counsel for the petitioner, is that the award made by the learned Tribunal is in ignorance of Section 201.1 of the Ministry of Surface Transport (MOST) Instructions. Section 201.1, as amended by the technical specifications, reads as follows:

"201.1 Scope: This work shall consist of cutting, excavating, removing and disposing of all materials such as trees of girth upto 300mm, bushes, shrubs, stumps, roots, grass weeds, rubbish etc. and top soil upto 150mm, which in the opinion of engineer is unsuitable for incorporation in the work including draining out stagnant water if any from the area of roadway, drain, cross drainage structure and other area as specified in the drawing or by Engineer. It shall include necessary excavation by suitable equipment, back filling of pits by suitable soil resulting from uprooting of trees & stumps and making the surface in proper grade by motor grader or any other suitable equipment and compacted by power roller to required compaction complete as per section 300." (underlining added)."

3. Mr. Nandrajog submits that the scope of the work covered by Section 201.1 includes cutting and removal of trees of girth up to 300 mm. He submits that the work of removal and disposal of stumps and roots of the cut trees, irrespective of the size of the girth, is also covered by Section 201.1.

4. Before proceedings further, it would be appropriate to refer to a few relevant facts. The contract was awarded to the respondent on 29.11.2005. On 01.02.2006, the petitioner conveyed that the competent authority of NHAI has accorded in-principle approval to the carrying out of work of cutting and removal of trees, which is not covered under the scope of the main contract and are causing encumbrance and obstruction in the execution of the contractual work, as a separate job. The respondent-contractor was asked to give its concurrence to carry out the work of cutting and removal of trees. It is not in dispute that the trees in respect whereof this correspondence took place, were of girth more than 300 mm and above. On 06.02.2006, the respondent conveyed its concurrence to carry out the said job of cutting and removing trees, subject to, inter alia, the condition that "the valuation indicated do not cover the scope of uprooting/removal of roots and disposing of the same, filling of pits including rolling & compaction, etc. which shall be paid separately as per the mutually agreed rates as a variation order in the main contract agreements.".

5. On 07.02.2006, the petitioner awarded the work of cutting and removal of trees earmarked on both sides of the Highway in question. The petitioner referred to its communication dated 01.02.2006 and the respondent's letter dated 06.02.2006. One of the conditions in this work order was that the trees are to be cut at ground level.

6. The respondent carried out the work of cutting and removal of trees of girth more than 300 mm under the work order dated 07.02.2006. It is not in dispute that the Engineer as well as the Project Director of the NHAI approved provisional payment for