In National Highway Authority of India v. Hindustan Construction Co.

Ltd. OMP (COMM) 153 of 2020, decided on 12.01.2022

“46. One of the principal reasons for the delay in completion of the Project was the
delay in handing over the encumbrance free land. Mr Awasthi had contended that the
Arbitral Tribunal had grossly erred in its finding that there was any fault on the part
of NHAI on account of delay in handing over of the site. He submitted that in terms of
Clause 42.1 of the GCC, NHAI was obliged to handover land as per the schedule
provided therein and there was no dispute that NHAI had done so. However, HCC
had alleged that the land was not free from hindrances. He submitted that the
contract did not provide that NHAI would remove obstructions or hand over
hindrance free land. On the contrary, it was HCC's obligation to remove the
obstruction and hindrances including any encroachment and therefore, the decision
of the Arbitral Tribunal that there was delay on the part of NHAI in providing the
land is, ex facie, erroneous. However, Mr Awasthi conceded that the said issue was
covered against NHAI by a decision of this Court in National Highways Authority of
India v. Patel - KNR (JV) (supra) as upheld by the Division Bench of this Court
in National Highways Authority of India v. Patel - KNR (JV) (supra). Thus, the
decision of the Arbitral Tribunal that NHAI was required to provide hindrance free
land to enable HCC to carry on the work fronts, cannot be faulted.

It is also necessary to note that the decision of the Arbitral Tribunal is based on
construction of the terms of the contract including the 'Instructions to Bidders' and it
is well settled that the matter as to the interpretation of a contract falls within the
jurisdiction of an arbitral tribunal. Thus, unless the interpretation is found to be ex
facie perverse, which no reasonable person could accept, no interference would be
warranted in proceedings under Section 34 of the A&C Act.”
In National Highways Authority of India v. Patel-KNR (JV) FAO (OS)
(COMM) 184/2018, decided on 24.12.2019

“26. Per contra, Dr. George submits that the appellant had admitted before the
Tribunal as well as before the learned Single Judge that the delay was caused due to
failure on part of the appellant. It is further submitted that the respondent was
specifically entitled to be compensated towards the additional costs incurred in light
of Clause 42.2 of the GCC. Counsel also submits that while Clauses 11.2 and 12.1 of
the GCC provide for inspection of the site by the respondent before quoting its rates
for the bid, however, the respondent cannot be expected to foresee a situation in the
future wherein after entering into the contract the appellant fails to provide the site.
It is to provide for precisely such a situation that Clause 42.2 of the GCC has been
added. Reliance is placed on a decision of the Division Bench of this Court in the
case of National Highways Authority of India v. Oriental Structural Engineers Pvt.
Ltd.-Gammon India Ltd. reported at 198(2013) DLT738, wherein the Court upheld
such an entitlement. It is further submitted that Clause 110.1 of the Technical
Specifications will not bar the claim of the respondent because the delay caused due
to the failure of the appellant to acquire land, compensate the land owners, and
failure to provide alternate site falls outside the scope of Clause 110.1. Furthermore,
a conjoint reading of Clause 110.1 and BOQ item 1.02 highlights that the contract
does not bar the respondent from claiming compensation in case of delays which are
not attributable to the respondent, and such bar will only apply in case the delay is
directly attributable to the failure of the respondent to perform coordination work.
Also, Clause 5.2.2 of the Conditions of Particular Application (hereinafter referred to
as the 'COPA') makes it clear that the GCC will prevail over the Technical
Specifications. In terms of BOQ item no. 1.02, the respondent's responsibility was
limited to coordination. Reliance is placed on National Highways Authority of India
v. Bridge & Roof Co. Ltd., 2017 SCC Online Del 7908, NHAI v. Hindustan
Construction Co. Ltd., 2017 (5) Arb. LR 258 (Delhi) (DB) and National Highways
Authority of India v. R.N. Shetty, 2014 (3) ARBLR 46 (Delhi).”

In National Highways Authority of India v. Patel-KNR (JV), OMP

(COMM) 201/2018, decided on 14.05.2018

“18. He further submitted that the delay was not only on account of cutting of trees
and shifting of utilities but also for the reason that NHAI had not completed the
acquisition of the entire site. He submitted that the payment for acquisition of land in
certain stretches had not been made to villagers and, therefore, they had obstructed
any activity on their land. He submitted that, on 01.08.2003, a total stretch of 15.42
kms was not available as the compensation had not been paid. The said land was
made available during the period 01.11.2003 to June, 2004. The acquisition
regarding this stretch was also challenged by the occupants of the said land. He
referred to the decision of a Coordinate Bench of this Court in National Highways
Authority of India v. Bridge & Roof Co. Ltd.: O.M.P. 1203/2013, decided
on  18.04.2017, wherein the Court had declined to interfere in an award upholding
the view that Clause 42.2 of GCC would override Clause 110 of the Technical
Specifications and that mere notional handing over of land on which it was not
possible to execute any works, was not envisaged by the contract. He also referred to
the decision of the Division Bench of this Court in NHAI v. Hindustan Construction
Co. Ltd.: 2017 (5) Arb. LR 258 (Delhi) (DB), wherein the Court had held that the
responsibility of the contractor was limited to coordinating with the service provider
and not to ensure removal of encroachment. He also referred to the decision of a
Coordinate Bench of this Court in National Highways Authority of India v. R.N.
Shetty: 2014 (3) ARBLR 46 (Delhi) in support of his aforesaid contentions.”