The appointment of the nominee arbitrator of the respondent is in accordance with law, and any reference of the claims from Arbitral Tribunal-2 to Arbitral Tribunal-1 without terminating the mandate of the validly constituted Arbitral Tribunal-2 is impermissible in a petition under Section 11 of the Act of 1996.

JUDGMENT

V. Kameswar Rao, J. The petitioner by way of the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `Act of 1996'), is seeking inter alia, reference of disputes for adjudication to an already constituted Arbitral Tribunal.

2. The petitioner, a company incorporated under the Companies Act, 1956 and the respondent, an autonomous body created through the promulgation of the National Highways Authority of India Act, 1988 entered into a Concession Agreement (hereinafter referred to as `CA') dated June 22, 2010 for development and construction of Bareilly-Sitapur section of National Highway (NH) 24 from KM 262 to KM 413.2 in the State of Uttar Pradesh (hereinafter referred to as `Project Highway') through private participation on Design, Build, Finance, Operate and Transfer (DBFOT) basis. The construction period for the same, which is a Greenfield Project, was 910 days from the `appointed date' and the concession period was 20 years from the appointed date (including construction period). After completion of the construction, the petitioner being the concessionaire is to collect toll to recover its investment.

3. It is stated in the petition that the respondent, vide letter dated December 05, 2011, arbitrarily and unilaterally fixed the appointed date as March 01, 2011 and approved the `financial close' as May 21, 2011. It is the case of the petitioner that the appointed date could have been fixed only when the parties have satisfied certain conditions precedent or there has been an express waiver. The respondent was to handover 80% of the land on or before the appointed date. The respondent was also under an obligation to provide access to such land without any hindrances as per Article 10.3.1 of the CA. It is stated that the delay in handing over land free from encumbrances by the respondent affected the construction work. Thus, the work could not be completed on the Scheduled Project Completion Date i.e., August 26, 2013, for which the respondent is solely and absolutely liable.

4. Various hindrances and obstructions said to have been faced by the petitioner while executing the project are listed as under:

i. Delay in providing vacant and unencumbered land to the concessionaire.

ii. Delay in fixing the appointed date.

iii. Delay in approving requests for extension of time.

iv. Delay in grant of right of way.

v. Suspension of work due to uncertainty in `Change of Scope' works.

vi. Not releasing the performance security.

vii. Delay in obtaining clearances from the Ministry of Environment and Forest.

viii. Delay in cutting down trees by the UP Van Nigam.

ix. Delay in grant of approval for shifting of utilities lying on the project site.

x. Delay in various approvals including toll plaza design.

xi. Change in law.

5. It is submitted that the petitioner, in the interest of the project, has been carrying out maintenance even after surpassing the Scheduled Project Completion Date and had requested the respondent vide letter dated May 05, 2014, to bear the maintenance cost in light of various NHAI circulars. However, the respondent refused the same. However, the applicability of the said circulars when there is delay due to non-availability of unencumbered land, was confirmed by an Independent Engineer vide letter dated May 14, 2015. The petitioner vide letter dated December 18, 2013 informed the respondent that even after the date of the 4th Milestone, the land provided to the petitioner was only 49.042 KM as against the required 156.25 KM. Further the Independent Engineer stated in a letter dated September 04, 2012 that it was the duty of the respondent as per Article 4.12 of the CA to obtain necessary approval from the Department of Forests.

6. On June 25, 2016, the petitioner intimated the respondent that even after a net delay of 1950 days, merely 78% of the land was allotted and requested the respondent to grant reasonable extension for meeting the Scheduled Project Comp