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* IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 664/2022 & CM APPLs. 49591/2022& 49592/2022 RELIANCE INFRASTRUCTURE LIMITED & ANR...... Appellants Through: Mr. Jaideep Gupta, Senior Advocate with Mr. Mahesh Agarwal, Ms. Megha Mehta, Mr. Pranjit Bhattacharya and Ms. Rachita, Advocates.

versus NATIONAL HIGHWAYS AUTHORITY OF INDIA &

ORS. ..... Respondents Through: Ms. Maninder Acharya, Senior Advocate with Ms. Madhu Sweta, Ms. Shivangi, Ms. Astha Dhawan and Ms. Niharika Singh, Advocates for respondent no. 1.

Mr. Asheesh Jain, CGSC with Mr. Gaurav Kumar, Ms. Ankita Kedia, Advocates with Mr. Sravan Kumar, GP for respondent no. 2.

Mr. Ashim Sood with Mr. Abhijram Jha, Ms. Sayobani Basu, Mr. Akash Raj and Mr. Kuber Bajaj, Advocates for respondent no. 3.

Reserved on: 23rd August, 2023 % Date of Decision: 13^th September, 2023 CORAM:

HON'BLE MR. JUSTICE MANMOHAN HON'BLE MS. JUSTICE MINI PUSHKARNA

J U D G M E N T

MINI PUSHKARNA, J:

1. The present appeal has been preferred against the impugned order dated 07^th September, 2022 passed by the learned Single Judge in W.P. (C)

Signature Not Verified Digitally Signed By:CHARU LPA 664/2022 Page 1 of 13 No. 11966/2021. By way of the impugned order, the writ petition filed on behalf of appellants herein was dismissed as non-maintainable on the basis that since appellant no. 1 herein had already divested its share holding in the respondent no. 3, any claims arising out of the Concession Agreement dated 16^th July, 2010 ought to be pursued by respondent no. 3 and not by the appellant no. 1, as it no longer had any right as a share holder to pursue such claims.

2. Facts in brief leading to the present appeal are as follows: Respondent no. 1/ National Highways Authority of India (NHAI) invited proposals vide its Request for Qualification (“RFQ”) dated 11^th March, 2008 for selection of bidders to undertake the Design, Construction, Development, Finance, Operation and Maintenance of six laning of Delhi-Agra Section of National Highway (NH-2).

3. Appellant no. 1 submitted its bid in response to RFQ, which was accepted by respondent no. 1 vide Letter of Acceptance (LOA) dated 19^th May, 2010. Subsequent to the LOA dated 19^th May, 2010, appellant no. 1 incorporated a Special Purpose Vehicle (SPV) i.e., DA Toll Road Pvt. Ltd. (“DATR”)/respondent no. 3, as limited liability company for the project, and requested the respondent no. 1 to accept respondent no. 3 as the Concessionaire entity which shall undertake and perform the obligations and exercise the rights of the selected bidder under the LOA for executing the project. Accordingly, on 16^th July, 2010 the respondent no. 1 and respondent no. 3 entered into a Concession Agreement with respect to the project.

4. Respondent no. 1/NHAI issued a Circular dated 29^th January 2014 permitting substitution of existing Concessionaire/Consortium Member of SPV in a harmonious manner in ongoing and completed national highway projects subject to the condition that NHAI shall stand fully discharged of Signature Not Verified Digitally Signed By:CHARU LPA 664/2022 Page 2 of 13 any claims whatsoever by the existing concessionaire, amongst other conditions.

5. Respondent no. 1 also issued a policy Circular dated 02^nd June, 2017 to constitute a panel of independent experts and setting up of Conciliation and Settlement Committees as a Conciliation and Settlement Mechanism for Contractual Disputes in Contract Agreements with the Contractors/Concessioners/Consultants in respect of respondent no. 1’s projects.

6. In view of the Circular dated 29^th January, 2014 of NHAI permitting substitution of existing concessionaire, appellant no. 1, respondent no. 3 and Cube Highways and Infrastructure Pvt. Ltd. (“Cube Highways”) entered into Share Purchase Agreement on 14^th March, 2019 to replace the shareholders of DATR/respondent no. 3 Concessionaire with Cube Highways, subject to necessary harmonious substitution approval from NHAI/respondent no. 1. By its letter dated 05^th September, 2019, respondent no