The main legal point established in the judgment is that the right to seek extension of the concession period was vested in the concessionaire alone, and the senior lenders did not have the independent right to seek a writ for extension based on the express terms of the Concession Agreement.

JUDGMENT :

1. This writ petition has been preferred by IDBI Bank on behalf of the senior lenders constituting a consortium of banks which had extended credit facilities to the second respondent. The writ petitioner prays for the following reliefs: -

“a) Issue a writ in the nature of Mandamus, or any other appropriate writ, order or direction, thereby, directing the Respondent No. 1 (NHAI)to give its administrative approval for extension of the Concession Period till at least August 26, 2023 (a total period of 28 months and 24 days commencing the expiry of the original Concession Period) in accordance with Article 29 of the Concession Agreement dated July 06, 2008 as per the assessment done by the Independent Engineer vide letter dated August 01, 2018; b) Issue a writ in the nature of Mandamus, or any other appropriate writ, order or direction, thereby, directing the Respondent No. 1 (NHAI) to give its administrative approval for extension of the Concession Period in accordance with Article 34 of the Concession Agreement dated July 06, 2008 for a period of 63, 94 days and 364 days for Covid 19 and Kisan andolan respectively; c) Issue a writ in the nature of Mandamus, or any other appropriate writ, order or direction, thereby, directing the Respondent No. 1 (NHAI) to give its administrative approval for extension of the Concession Period in accordance with Article 35 of the Concession Agreement dated July 06, 2008 for a total period of 10 years and 2 months (approximately) from the expiry of the original Concession Period; d) Pass any other order or direction requiring the Respondent No. 1 to fulfil its obligations under the Concession Agreement dated July 06, 2008 and/or any other obligations qua the Senior Lenders which are required to be fulfilled and/or would aid in completion of the Project and extend its cooperation for achieving the same; e) Issue a writ in the nature of Mandamus, or any other appropriate writ, order or direction, thereby, quashing the letter dated April 29, 2022 issued by Respondent No. 1 (NHAI), refusing to grant extension of the Concession Period and deeming the Concession Period to expire on June 02, 2022; f) In the alternative to prayers (a) to (d) hereinabove, classify the Project as a Stuck Project under the office memorandum dated March 9, 20 19, and direct NHAI to pay full and final payment as settlement to the Senior Lenders in terms of the aforesaid notification; and g) Pending hearing and final disposal of the present Writ Petition, pass an order or direction extending the Concession Period to beyond June 02, 2022 and/or pass an order directing that the Concession Period shall not expire on June 02, 2022;”

2. The dispute itself arises out of a Concession Agreement executed by the first respondent – NHAI for the six-laning of the Gurgaon – Kotputli - Jaipur section of National Highway No. 8 passing through the States of Haryana and Rajasthan. The second respondent was the chosen concessionaire. Undisputedly, the concession period as reserved under the Agreement was to run upto 02 April 2021. It was thereafter extended upto 02 June 2022. By an order of 29 April 2022, the NHAI has negatived the request of the concessionaire for extension of the concession period after 02 June 2022. The NHAI in terms of that letter has further held out that its communication of 10 December 2020 is final. It would be further pertinent to note that respondent Nos. 2 has also instituted a petition under Section 9 of the Arbitration and Conciliation Act, 1996 which stands numbered as O.M.P. (I) (Comm.) 166/2022. Although the petitioner here is arrayed as respondent No. 2 in those proceedings, Mr. Sethi, learned Senior Counsel appearing in support of the present writ petition, has contended that the reliefs which are claimed in the present petition cannot possibly be urged or sought by the petitioner in those proceedings.

3. When the writ petition was initially taken up for consideration, Mr. Tripathi, learned Senior Coun