A concession period extension under a contract requires compliance with specific procedural conditions, and is not automatic despite recommendations from an independent engineer.

JUDGMENT

V. Kameswar Rao, J. (Oral)--The present petition has been filed by the petitioner with the following prayers:

"a) To hold that as an interim measure; the Petitioner shall be entitled to operate the Toll plazas as per the recommendation of Independent Engineer upto 26.08.2023 as per Article-29 of the Concession Agreement determination done by the Independent Engineer vide letter dated 01.08.2018.

b) Allow the Petitioner to operate the toll plazas as per the Concession Agreement dated 06.06.2008 and Tri-partite Agreement dated 16.03.2017.

c) Pass such further order/orders as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

2. It is the case of the petitioner and so contended by Mr. Amit Sibal, learned Senior Counsel appearing for Pink City Expressway Private Limited (hereinafter referred to as `petitioner' and `concessionaire' interchangeably) that the petitioner and the respondent NHAI entered into a Concession Agreement dated June 6, 2008 with regard to widening (six laning) of Gurgaon-Kotputli-Jaipur section of National Highway No.8 from KM 42.70 to KM 273.00 (length of 225.60 km) in the State of Haryana and Rajasthan (`Project Highway', hereinafter) on Build Operate and Transfer (`BOT', for short) basis.

3. The petitioner has completed approximately 96% of the widening of the Project Highway. He states that this aspect has been accepted by the respondent/NHAI. It was also agreed that the concession period shall be extended till August 2023 for recovering the deferred premium. In the month of September 2017, owing to shortage of funds and non completion of the project, a One Time Fund Infusion Scheme (`OTFIS', for short) of Rs.354 Crore was allowed for the completion of the pending works. He stated, it was also agreed by the NHAI that the petitioner has in no way defaulted in executing the above work. A Review Committee of the lenders was constituted and the respondent NHAI with the power to impose and approve sanctions in case of default by the concessionaire/petitioner in getting the above amounts released. According to him, as per Article 29 of the Concession Agreement, the concession is deemed to have been extended, if the actual traffic at the Project Highway has fallen short of the specific target traffic (79,835 PCUs per day) on the target date. The petitioner as well as the respondent NHAI have conducted their respective traffic surveys and have reached the conclusion that the actual traffic has fallen short of the target by more than 2.5% on the target date thereby leading to deemed extension as per Article 29.1.2 of the Concession Agreement. In fact, he stated that actual traffic has fallen short by 14.87% as per the survey conducted by the petitioner. Even as per the survey conducted by the respondent NHAI, the actual traffic has fallen sho