Procedural orders of an Arbitral Tribunal do not constitute an arbitral award under the Arbitration and Conciliation Act, 1996, and cannot be challenged under Section 34.

ORDER

1. This petition impugns an order dated 16 August 2022 passed by the Arbitral Tribunal rejecting an application made by the petitioner for impleadment of the State of Uttar Pradesh as a party in the ongoing arbitration proceedings. The petition terms the aforesaid order as being an "interim award" and purports to have been preferred under Section 34 of the Arbitration and Conciliation Act, 1996 [the Act]. In order to appreciate the challenge which stands raised, it would be pertinent to notice the following essential facts.

2. The dispute inter partes emanates from a Concession Agreement [C.A.] dated 23 December 2005 executed between the petitioner, the National Highways Authorities of India [NHAI] and the respondent and relates to a project for improvement, operation and maintenance, including strengthening and widening of an existing 2-Lane Road from KM 488.270 to KM 413.200 section of NH-24 and for its conversion into a 4 lane-dual carriageway. The aforenoted stretch falls within the territorial boundaries of the State of U.P. From the record it transpires that apart from the C.A. signed by the petitioner and the respondent here on 23 December 2005, a Tripartite Agreement came to be executed between the State of U.P., NHAI and the respondent on 29 November 2006. This shall be referred to in the latter parts of this decision as the State Support Agreement [SSA].

3. The record would reflect that pursuant to the reference of disputes to arbitration and with such process having been initiated on 14 April 2018, pleadings were completed on 26 July 2019. An affidavit of evidence was filed on behalf of the claimant on 28 June 2021. The application for impleadment thereafter came to be filed on or about May 2022. In the aforesaid application, NHAI referred to the various obligations which stood placed upon the State of U.P. under the SSA and appears to have urged that since the obligations of the said State Government were inextricably intertwined with the rights and obligations of parties stipulated in the C.A., its presence before the Arbitral Tribunal as a necessary party was imperative.

4. It was contended that Claim No. 6 pertained to the respondent seeking an extension of the concession period due to construction of competing roads. The aforesaid claim came to be raised on the allegation that two competing roads, namely, the Noida to Agra Expressway and Agra to Lucknow Expressway had come to be opened in December 2015. The respondent/claimant asserted that on account of the construction and opening of the aforesaid competing facilities, the claimant could not achieve the revenues estimated at the time of financial closure. It had accordingly prayed for the grant of an extension of the concession period in light of the aforesaid claim.

5. NHAI, on the other hand, contended before the Arbitral Tribunal that notwithstanding and without prejudice to its contention that the aforesaid facility was not a competing road, since the same had been constructed and built by the Government of U.P., any finding that the Arbitral Tribunal may come to render on the aforesaid issue would, in the absence of the State of U.P., also have an impact on any separate arbitration that may be initiated between the claimant/concessionaire, NHAI and the State of U.P. It was asserted that in such a situation the specter of conflicting findings coming to be rendered could not be discounted. It was in the aforesaid backdrop that a prayer was made for implead