1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.3065/2008. (Atlanta Ltd. Vs. Union of India & Another) DATE OF ORDER : October 15th, 2008 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. Vikas Balia for the petitioner. BY THE COURT : Initially this writ petition was filed on 08.05.2008 by the petitioner with the prayer that the petitioner company may be allowed to operate the toll until the approved extended period. So also, it was prayed that if the issuance of fresh notification with regard to extended concessional period is essential, then, appropriate writ may be issued directing respondent No.1 to issue the notification according to the BOT agreement. During the pendency of the writ petition, an application was moved for amendment in the writ petition and the said application for amendment of the writ petition was allowed vide order dated 22.07.2008. After amendment of the writ petition, certain orders which were passed by the respondents were 2 prayed to be quashed and specifically it is prayed that alongwith other orders, communication dated 14.05.2008 (Annex.-4) may be declared illegal and quashed and set aside. Further, it is prayed that the respondent authorities may be restrained from taking any action in furtherance of impugned communication Annex.-25 dated 15.05.2008. These prayers were included in the other prayers so made before amendment of the writ petition. According to facts, inter alia, it is submitted by the petitioner company that the petitioner company is engaged in the construction of roads, bridges, realty, mining work and infrastructure development. The company’s registered head office is at Andheri (E), Mumbai. A tri-partite agreement came to be signed in between Government of India, Government of Rajasthan and petitioner company on 24.07.1996 and a contract was awarded to the petitioner company vide Annex.-1 to the writ petition. On 24.05.1996, an agreement for authorizing collection of fee by concessionaire came to be signed between Chief Engineer, P.W.D. (Road) – I, Jaipur and the petitioner company for the period of concession. The petitioner has placed on record the said concession agreement on 24.07.1996 vide Annex.-2. The main relief claimed in this writ petition by the petitioner company is that a decision was taken by the Steering Group for extension of the period of contract but the respondents have not accepted the same and no orders were passed inspite of clear recommendation made by the Steering 3 Group for extension of the contract upto 2nd June, 2009. As per the petitioner company, the necessary requirement of issuance of the notification has not been made by the respondents which is pending for more than three years. In whole of the writ petition, the main contention of the petitioner company is that although the term of agreement expires on 15.05.2008 but the Steering Group which has jurisdiction to grant extension has although recommended for extension of time but vide communication dated 15.05.2008, Annex.-25, it has been notified by the respondent department that after completion of the concession period, the project may be handed over to the NHAI by the State Government, therefore, after 15.05.2008, i.e. 16.05.2008, the Udaipur by-pass Phase-II constructed on BOT basis and other infrastructure pertaining to this project may be handed over to the NHAI by the State Government. This communication was sent by the Director General (RD) & Special Secretary, Ministry of Shipping, Road Transport and Highways, Government of India to the Principal Secretary, Government of Rajasthan in the Public Works Department and a copy was endorsed to the petitioner company. The prayer of the petitioner is that as per the decision of the Steering Group the extension was to be allowed by the respondents and for which notification was to be issued but illegally in contravention of the provisions of the agreement and decision taken by the steering group the respondents have refused to extend the time though it is recommended by the Steering Group which has jurisdiction to take decision for 4 granting extension of the period. The crux of the claim of the petitioner company is that it is the case for extension was examined by the Steering Group which is a body incorporated in the agreement under para 2.2 but the respondents have not acted upon and no notification has been issued on the basis of the recommendation made by the Steering Group and, straight away, communications Annex.-24 and Annex.-25 were issued by the Ministry of Shipping, Road Transport & Highways. Learned counsel for the petitioner vehemently argued that the Steering Group after due application of mind recommended for extension of the period and number of representations were filed by the petitioner company for granting extension upto 02.06.2009, however, the concession period is not allowed and the respondents refused to issue the revised notification authorizing the toll collection by the petitioner company which is illegal and totally in contravention of the terms and conditions of the agreement. It is, therefore, contended by the learned counsel that the petitioner is entitled to seek direction under Article 226 of the Constitution of India to the respondents for restraining them to take any action in furtherance of the impugned communication Annex.-25 dated 15.05.2008 and to direct the respondents to extend the time for collection of toll tax in proportion to the time during which the petitioner was not allowed to collect the toll tax during the pendency of the writ petition also and further the respondents may be directed to allow the company to operate the toll unit until the approved extension period while issuing the notification 5 with regard to approved concession period according to the BOT agreement. I have considered the arguments and entire pleadings of the case. In this case, admittedly the agreement was signed by the petitioner company and the respondents on 24.07.1996 and work was commenced on 15.09.1996. The concession period was 11 years 8 months and the date of expiry of the concession period was 15.05.2008. However the petitioner is claiming extension of time on the ground that matter was examined by the Steering Group which is incorporated in para 2.2 of the tri- partite agreement, therefore, the respondents are under obligation to accept the decision of the Steering Group. In my opinion, it is a contractual matter and admittedly agreement was signed in between the petitioner company and respondents which is placed on record as Annex.-1 and, in para 2.2, the following provision was made for formation of the Steering Group and certain work was assigned to the Steering Group. Said para 2.2 reads as under : “ 2.2 Steering Group (SG) Steering Group (SG) means a group constituted by Government of India, for the purpose of guiding, monitoring and taking all project level decisions required for smooth implementation of the contract having representatives of Government of Rajasthan, Government of India, and Entrepreneur.” Upon perusal of para 2.2 it is revealed that there is no power or jurisdiction extended to the Steering Group for recommending any extension of the concession period. The only power is 6 given to the Steering Group for guiding, monitoring and taking all project level decisions required for smooth implementation of the project contract having representative of Government of Rajasthan, Government of India and entrepreneur. Therefore, the contention of the petitioner is totally baseless and has no foundation to say that the respondents are under obligation to comply with the decision taken by the Steering Group for extension of the concession period. Similarly, in para 2.10, there is provision for concession period a perusal of which manifestly reveals that the concession period shall mean the period approved by the Government required for collecting fee to recover the total project costs as per Clause 2.9 which will be fixed period of 11 years 8 months which includes 18 months’ construction period. Further, it is provided that this period may be modified or extended in terms of the provisions made in the agreement. It is nowhere provided that the period will be modified or extended as per decision of the Steering Group. Therefore, on this count also, the petitioner is not entitled to seek any direction for compliance of the recommendation made by the Steering Group for extension of the concession period. Similarly, in the contract itself, there is provision of settlement of dispute which is provided in clause 9.1 which reads as under : “In case of any dispute and difference arising at any time, between any of the parties to the contract, such dispute shall be referred to arbitration by a panel of 3 arbitrators out of which one will be appointed by the GOR, one by the entrepreneur and the third by GOI who will act as the Presiding Officer of the Arbitral Tribunal. Majority decision shall prevail. The award given by the arbitral tribunal shall be final 7 and binding on the parties. The place of arbitration shall be Jaipur. The arbitration proceedings shall be held at Jaipur and any dispute arising out of this agreement shall be subject to Jaipur Court’s jurisdiction.” In this view of the matter, upon perusal of the agreement itself, it is obvious that the Steering Group has no jurisdiction to extend the concession period because it is specifically stated that the concession period shall mean the period approved by the Government. In my opinion, therefore, no direction can be given to the respondents for issuing any revised notification as per the recommendation of the Steering Group for extension of the concession period. It is however clear that if any dispute arises the petitioner is required to take recourse to the provisions of clause 9.1 of the tri-partite agreement in which a specific procedure has been provided to raise dispute before the arbitral tribunal. For the reasons mentioned above, there is no force in this writ petition. The writ petition is accordingly dismissed. No order as to costs. (Gopal Krishan Vyas) J. Ojha, a.