# M/S. SOMA ISOLUX NH ONE TOLLWAY PRIVATE LIMITED v. HARISH KUMAR PURI & ORS - **Citation:** [2014] 14 S.C.R. 617 - **Court:** Supreme Court of India - **Decided:** 2014-04-17 - **Case number:** Civil Appeal No. 4611 of 2014 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-soma-isolux-nh-one-tollway-private-limited-v-harish-kumar-puri-ors-29759 - **Pages:** 60 ## Headnote [2014] 14 S.C.R. 617 M/S. SOMA ISOLUX NH ONE TOLLWAY PRIVATE LIMITED v. HARISH KUMAR PURI & ORS. (Civil Appeal No. 4611 of 2014) APRIL 17, 2014 \[GYAN SUDHA MISRA AND PINAKI CHANDRA GHOSE, JJ.] A Constitution of India : C Art. 226 - Writ petition in public interest - National . Highway (NH1) project - Contract between appellantcompany and NHAI to construct certain portion of Highway on built, operate, trade (BOT) mode- Investment to be made by appellant by income generated from toll collection - In D other writ petitions the issue of shifting of Toll Plaza adjudicated and attained finality- Matter again agitated and, while deciding continuance or otherwise of an interim order in a challenge to show cause notice, High Court in effect cancelling the agreement and saddling the appellantE contractor and its director with huge amounts of fine - Held: When Division Bencf];of High Court had already settled the dispute by a speaking judgment permitting the shifting of Toll · Plaza, no legal authority was left with the Chairman, NHAI to issue a letter questioning the shifting - High Court also by F impugned order, ignored the fact that controversy regarding shifting of Toll Plaza although had been set at rest by a judicial verdict of High Court, NHAI still insisted that it cannot permit the shifting when its I.E. (Independent Engineer) had earlier approved of the same and accepted by NHAI in view G of specific clause in the agreement to that effect- High Court has further failed to visualise that the matter with which it was seized was limited to the question as to whether the order by which the show cause notice issued by the NHAI to appellant concessionaire-company was ordered to be kept in abeyance H 617 .. ' 618 SUPREME COURT REPORTS [2014] 14S.C.R. A was fit to be vacated or not and went into the question whether . the appellant-company was fit to continue with:th~ project whichhad been handed over to it by NHAI by virtue ofa valid agreement executed between the parties, primarily on the ground of delay without really entering into the cause of delay B and considering the plea at whose instance the contr13ctua/ obligations had been violated- Impugned directions of High Court are set aside, and appellant is permitted to restore the construction of the balance stretch/area of H/ghway project- · . NHAI is directed to permit the appellant to shift the Toll Plaza · · c as indicated in judgment - Directions .given to appellant to ·· complete entire construction of Highway and report the . progress toNHAI. Res judicata: Constructive res-judicata - Issue of shifting Toll Plaza D decided by single Judge of High Court and decision affirmed in Letters Patent appeal - Matter attained finality ·:C.. Issue raised again - Held: A question or an issue which has been · raised earlier before High Court, adjudicated and on which a final judgment/order was delivered, cannot be allowed to be E raised for the second time as that would be clearly barred by "the principle of constructive res judicata - Therefore, the issue of shifting of Toll Plaza which fi~lly was dismissed was not permissible to be referred for arbitration once on the judicial side permission to shift the Toll Plaza was permitted F by High Court-Arbitration. Contract: Terms of contract- Held: In case of statutory contract, the terms of the statute prevail over the terms of the contract G - But, once the contract is signed by the contracting parties, obviously the contract having assumed the legal authority of a concluded contract would govern the terms and conditions of the contract between the parties who have ~igned it and thereafter it would be binding on the contracting partie~: .··. -, ·_, ·. H • MIS. SOMA ISOLUX NH ONE TOLLWAY PVT. LTD. v 619 HARISH KUMAR PURI A writ petition was filed before the High Court as a A Public Interest Litigation with the object of improving management of traffic on G.T. Road (National Highway No. 1) in the interest of the commuters and the public at l ## Text _Characters 0–39,673 of 126,522. This is a partial read: ask again with offset=39673 for what follows._ [2014] 14 S.C.R. 617 M/S. SOMA ISOLUX NH ONE TOLLWAY PRIVATE LIMITED v. HARISH KUMAR PURI & ORS. (Civil Appeal No. 4611 of 2014) APRIL 17, 2014 \[GYAN SUDHA MISRA AND PINAKI CHANDRA GHOSE, JJ.] A Constitution of India : C Art. 226 - Writ petition in public interest - National . Highway (NH1) project - Contract between appellantcompany and NHAI to construct certain portion of Highway on built, operate, trade (BOT) mode- Investment to be made by appellant by income generated from toll collection - In D other writ petitions the issue of shifting of Toll Plaza adjudicated and attained finality- Matter again agitated and, while deciding continuance or otherwise of an interim order in a challenge to show cause notice, High Court in effect cancelling the agreement and saddling the appellantE contractor and its director with huge amounts of fine - Held: When Division Bencf];of High Court had already settled the dispute by a speaking judgment permitting the shifting of Toll · Plaza, no legal authority was left with the Chairman, NHAI to issue a letter questioning the shifting - High Court also by F impugned order, ignored the fact that controversy regarding shifting of Toll Plaza although had been set at rest by a judicial verdict of High Court, NHAI still insisted that it cannot permit the shifting when its I.E. (Independent Engineer) had earlier approved of the same and accepted by NHAI in view G of specific clause in the agreement to that effect- High Court has further failed to visualise that the matter with which it was seized was limited to the question as to whether the order by which the show cause notice issued by the NHAI to appellant concessionaire-company was ordered to be kept in abeyance H 617 .. ' 618 SUPREME COURT REPORTS [2014] 14S.C.R. A was fit to be vacated or not and went into the question whether . the appellant-company was fit to continue with:th~ project whichhad been handed over to it by NHAI by virtue ofa valid agreement executed between the parties, primarily on the ground of delay without really entering into the cause of delay B and considering the plea at whose instance the contr13ctua/ obligations had been violated- Impugned directions of High Court are set aside, and appellant is permitted to restore the construction of the balance stretch/area of H/ghway project- · . NHAI is directed to permit the appellant to shift the Toll Plaza · · c as indicated in judgment - Directions .given to appellant to ·· complete entire construction of Highway and report the . progress toNHAI. Res judicata: Constructive res-judicata - Issue of shifting Toll Plaza D decided by single Judge of High Court and decision affirmed in Letters Patent appeal - Matter attained finality ·:C.. Issue raised again - Held: A question or an issue which has been · raised earlier before High Court, adjudicated and on which a final judgment/order was delivered, cannot be allowed to be E raised for the second time as that would be clearly barred by "the principle of constructive res judicata - Therefore, the issue of shifting of Toll Plaza which fi~lly was dismissed was not permissible to be referred for arbitration once on the judicial side permission to shift the Toll Plaza was permitted F by High Court-Arbitration. Contract: Terms of contract- Held: In case of statutory contract, the terms of the statute prevail over the terms of the contract G - But, once the contract is signed by the contracting parties, obviously the contract having assumed the legal authority of a concluded contract would govern the terms and conditions of the contract between the parties who have ~igned it and thereafter it would be binding on the contracting partie~: .··. -, ·_, ·. H • MIS. SOMA ISOLUX NH ONE TOLLWAY PVT. LTD. v 619 HARISH KUMAR PURI A writ petition was filed before the High Court as a A Public Interest Litigation with the object of improving management of traffic on G.T. Road (National Highway No. 1) in the interest of the commuters and the public at large. The writ petitioner had lost his son in a road accident in 1996 on the said highway. During the B . pendency of the writ petition, a concession agreement was entered into between the appellant company and respondent authorities to construct, operate and maintain a project namely 6 laning of a part of NH 1 from KM 96.00 to KM 387.100. As regards financing and C investment to Highway Project, the agreement envisaged that the project would be on the basis of build, operate,. trade (BOT), mode, meaning thereby, all investment in the project were to be made by the appellant-company by the income generated from toll collection and no o amount was to be invested/received from the National Highway Authority of India (NHAI). On the contrary, the . appellant-company as per the agreement offered to pay · to the respondent/NHAI premium equal to 20.14% of the total collection of the toll for the first year and this E premium was to be increased by 1% every subsequent year. With regard to relocation of toll from KM 213 to 211.550 as approved by NHAI, CWP no. 21332/2011 was dismissed by the High Courton 25.1.2012. Further CWP. no. 23971/2011 challenging the relocation of toll plaza at F 211 KM - 212 KM was dismissed by the High Court on 1.5.2012. The Letters PatentAppeal was also dismissed by the High Court on 6.12.2012. However, despite the approval granted by the NHAI and the order passed by the High Court, the appellant G was prevented from commencing tolling at located Toll Plaza at 211 KM and 110 KM and this, as claimed by the appellant, resulted in loss of substantial fund that could have been utilized for the construction of the project H 62{) SUPREME COURT REPORTS [2014] 14 S.C.R. A When .the appellant had competed 71% of the project arid the matter of relocation of toll plaza was again agitated before the High court in C.M no 3301/2013 arising outofCWP no.13848/1998, the High Court saddled the appellant-company with a fine of :Rs. 60 crores and Rs. 7 B crores to be paid by the appellant-company and its director, respectively, by the impugned order and directed respondent no. 6, NHAI, to proceed in the matter 'forthwith and take possession of the Highway Project and ensure that collection of toll is deposited in a c separate account. The.High Court further directed that the entire matter relating to the contract, the completion of the work of the Highway, collection of tolls without existence of 6 lanes be enquired into and a report in that regard be submitted. It was further directed that the o Chairman, NHAI would be personally responsible for. ensuring that the work of 6 laning of the Highway was completed. Aggrieved, the concessionaire-company, filed the appeal. E F Allowing the appeal the court HELD: 1.1 It is an admitted position that the schedules and annexures to the Concession Agreement form its integral part and would be in full force and effect as expressly .set out in the body of the Concession Agreement. [Para 36][651-G] 1.2 In Letters Patent Appeal No. 170/2012, the Division Bench of the High Court had approved of the orders of the single Judge permitting shifting of Toll Plaza, and dismissed the LPA upholding the order of the G single Judge allowing shifting the Toll Plaza in view of the clause in the Concession Agreement and the opinion of the Independent Engineer and the NHAI. Neither the NHAI nor the PIL petitioners challenged the judgment and order of the High Court permitting to shift the Toll H MIS. SOMA ISOLUX NH ONE TOLLWAY PVT. LTD. v 621 HARISH KUMAR PURI · Plaza. Thus, the controversy regarding shifting of Toll A Plaza attained finality in view of final adjudication of the dispute by the High Court. [Para 40][654-F-H; 655-A] 1.3 In fact, it is only on 18.3.2013, when a new incumbent took over the charge as Chairman of the NHAI that a letter dated 18.3.2013 was issued wherein the B proposal of the appellant for relocation of Toll Plaza was finally rejected stating therein that in principle, approval dated 9.11.2010 by NHAI was only conditional in nature and at the most was only recommendatory, ignoring that the Independent Engineer, earlier had approved of the C proposal for shifting the Toll Plaza. In fact, the NHAI seems to be completely oblivious of the fact that when the Division Bench of the High Court had already settled the dispute by a speaking judgment and order in CWP . No.21332/2011, CWP No.23971/2011 and LPA No.170/ D 2012 permitting the shifting, no legal authority was left with the Chairman, NHAI to issue a letter questioning the shifting. It is rather strange that NHAI defied the speaking judgment and order of the High Court in contemptuous disregard and it is equally strange that the High Court E also by the impugned order, appears to have ignored the fact that the controversy regarding shifting of Toll Plaza although had been set at rest by a judicial verdict of the High Court, the NHAI still insisted .that it cannot permit the !?hitting when its Independent Engineer had F earlier approved of the same and accepted by NHAI in view of the specific clause in the agreement to that effect [Para 41][655-E-H; 656-A-D] 2.1 In case of statutory contracts, the terms of the statute prevail over the terms of the contract. But once G the contract is signed by the contracting parties obviously the contract having assumed th~ legal authority of a concluded contract would govern the terms and conditions of the contract between the parties H 622 SUPREME COURT REPORTS [2014) 14 S.C.R. A who have signed and thereafter would be binding on the contracting parties. [Para 43][658-B-D] · 2.2 The Concession Agreement having been signed .. by the appellaht-jointventure company and respondent·. No,6-NHAl,'th~·r,ole of the Union of India to express its . B view over and above the terms and conditions of the contract in absence of any statutory violation will not be allowed to prevail as after execution of the contract, it c .D · can only issue the notification i.n this regard. [Para 44] [658q-H] 2.3 Since it is the appellant-joint venture company and respondent No.6-NHAI which alone are the parties between whom the Concession Agreement has been signed and the agreement is not even remotely alleged to be'in violation of some statute ot central Act, the rol~ or the authority of the Union of India to intervene or contest cannot be allowed as it at the most is a proforma respondent in this appeal under the prevailing facts and circumstances. [Para 44][659-8-C] E 2.4Although the High Court has recorded that it did not .intend to traverse the contractual obligations and · liabiliti.es of parties and confined its considerations so as to see whether public interest require that the interim order be extended or vacated, it has indeed done. the same when it directed the NHAI to forthwith take · F possession of the Highway Project which in effect has.· nullified the contract and has gone much further by . directing the NHAI to ensure completion of the project· which in effect meant that the NHAI would have to invite fresh tender for construction of the balance 29% area of G the Highway Project as admittedly NHAI itself cannot undertake the construction. This clearly is nothing short of cancellation of the Concession Agreement and it is a misnomer when the High Court observed that it was not H traversing the contractual obligation ignoring its M/S. SOMAISOLUX NH ONE TOLLWAY PVT. LTD. v 623 HARISH KUMAR PURI devastating effect on the contracting party who had A completed 71% of the project arid had at least the right · to explain whether the delay in concluding the project · . ·could entirely be attributed to the appellant or atleast · some of it could be fastened on the NHAI whi~h had gone to the extent of not only backing out of its earlier opinion B · · but also· conveniently shut its eyes that it was vi9lating .the order of the High Court which had earlier upheld the. right of th~ appellant to shift the toll plaza. [Para 49l ·. [663-E-H; .664·A-B] . . · 2.5 Tile High Court was not justified in recording C · ·· · . that the delay had been caused merely at the instanc.e .. · of t],11La·~.P~llant,130 as. to pass a blanket order for . trahsferting tile execution ofthe projectto NHAI contrary t9 JiW'. ·~ai:eementwherein it was permissible. {or the appe)l~ntt9 ~hift th~ Tol(Plazas and the sanie had also D ·.· . !),en approved by the High Court. [Para 50][664-C-D] . , .... 2.6 The High Court has further Jailed to visualise that the matter.with which it was seized was limited to ttie·question as t9 w'hether the.order by which the show . cause notice issued by the NHAI to the appellant E concessionaire"company was ordered to be. kept in abeyance was fit to be vacated or not as the High Court . was essentially adjudicating the question.whether the NHAI could at all issue a show cause notice to the appellant~company to terminate the contract and while · F the High Court did.not enter into the question whether . the said order was fit to be continued or was fit to be vacated, went into the question wheth~r the appellantcompany was fit to .:ontinue with'the project which had been han<:(ed over to the appellant by the NHAI by virtue G of a valid agreement executed between the parties primarily on the ground of delay without really entering into the cause of delay and considering the plea at whose instance the contractual obligations had been violated. [Para 50][664-D-G] H 624 SUPREME COURT REPORTS [2014] 14 S.C.R. A 2. 7 In fact, even at this stage before this Court, the respondent NHAI has merely contended that the Toll Point/Toll Plaza should not be allowed to be shifted from the point determined earlier and has been asserting that the Toll Plaza should not be shifted from 146 KM to 110 B KM. In fact, NHAI neither before the High Court nor before ·this C~urt even remotely has contended that the contract should be nullified. (Para 51](664-G-H; 665-A]. 3.1 In any event, the question of termination of the Concession Agreement without adjudication could not C arise at all when the High Court was merely considering the application seeking vacation of the stay order to the show cause notice issued by the NHAI. In case, it had· rejected the application, the show cause notice issued by the.NHAI to the appellant could have proceeded. But D the High Court terminated the contract itself for all practical purposes without expr-essly using the expression "termination" when it directed the NHAI to take over the project from the appellant- company and continue with the project and complete it, nullifying the E contra.ct in its entirety. [Para 52](665-F-H; 666-A] 3.2 It is significant to note that the appellant admittedly. has completed 71 per cent of the 291 KM stretch and barely 29 per cent is yet to be construc.ted which is enmeshed in litigation over the question as to F whether the Toll Plaza should be permitted to·be shifted or not. This aspect had not been gone into by the High Court clearly missing that this question had been raised in the PIL before the High Court wherein the NHAI and others were a party wherein the appellant had been G permitted to shift the toll plaza. In spite of the dispute having been settled NHAI did not permit the appellantcompany to shift the Toll Plazas, although it had failed to prefer any appeal against the judgment and order H M/S. SOMA ISOLUX NH ONE TOLLWAY PVT. LTD. v 625 HARISH KUMAR PURI passed by the High Court in CWP No.21332/2011 and A LPA No.170/2012 challenging such permission. {Para 54]{666-E-F; 667-B-C] 3.3 However, while nullifying the contract on the ground of delay, the dispute regarding shifting of Toll Plaza, which was clearly the only contentious issue for B not completing the project, could not have been given a go bye or ignored in any manner by the High Court while taking an undertaking from the appellant and thereafter cancelling the Concession Agreement itself when it admittedly did not traverse the terms and conditions of C the Agreement. [Para 56][667-G-H; 668-A-B] 3.4 Besides, a question or an issue which had been raised earlier before the High Court, adjudicated and on which a final judpment/order was delivered, cannot be 0 allowed to be raised for the second time as that would be clearly barred by the principle of constructive res judicata. Therefore, the issue of shifting of Toll Plaza which finally was dismissed was not permissible to be referred for arbitration once on the judicial side permission to shift the Toll Plaza was permitted by the E High Court by its judgment and order passed in CWP No.21332/2011 and LPA No.170/2012 which had settled the issue regarding shifting of Toll Plaza. [Para 57] {668-B-C; E-F] F 3.5 In fact, it needs to be highlighted that in terms of Article 48.1 of the Concession.Agreement, liberty has 1 been granted to the appellant to decide the locations of Toll Plaza in consultation with the I.E. and the same was finally approved by the I.E. who conveyed his approval G to the change of location as proposed by the appellant and, therefore, the same cannot be allowed. to be rea9itated despite confirmation of the same by the High Court by its judgment and order passed in the writ H 626 SUPREME COURT REPORTS (2014] 14 S.C.R. A petitions and the LPA against ,Which no appeal was preferred either by the NHAI or the PIL petitioner or any other res.pondent. [Para 58][669-B-D] · 3.6 Thus, the stand of the NHAI appears to be clearly illegal and arbitrary and a clear case of an afterthought B taken in the instant proceedings before this Court, as the N.HAI ad idem was in complete agreement with the . appellant as regards its right for relocation of Toll Plazas. The same is recorded and clearly reflected in. the correspondence of various officers of NHAI, minutes of C meeting, stand of Independent Engineer including its stand before the High Court and, therefore, the NHAI cannot be permitted to resile from its stand atthis distant point of time as the affidavits were filed as early as 2011 which finally upheld the location of the Toll Plazas. D (Para 59][669-D-F] . • 3.7 Moreover, based on, in principle, approvals· granted by NHAI and its stand, the lenders continued to di.sburse funds and the appellant continued to invest in the project on the plea that the implementation of the E decision to relocate the Toll Plazas would be done after tht;! decision of the High Cpurt upholding the relocation of Toll Plazas. It is, therefore;. too late in the day for the NHAI to take such specious and uritenable plea with a· view t6 wriggle out of its obligation which cannot be F permitted by this Court. [Para 59][670-A-C] .G H 3.8 It is ·rather chaotic as also jurisdictional error that in spite of several orders passed by three different. ·co-ordinate Benches of the High.Court on the judicial side permitting relocation of the Toll Plazas, the dispute · did not set at rest and the High Court while dealing with the Pll has not even taken note of the fact that it w'as nullifying the Concession Agreement on the ground tPetition? H . . 632 SUPREME COURT REPORTS (2014] 14 S.C.R. A iii Whether a Bench of the High Court which is seized of a particular dispute would be justified in not taking note of the final judgment and order passed earlier· by a co"ordinate Bench settling the said Controversy in view of which no direction could be issued by the B High Court nullifying the contractual rights of the affected party? 4. In order to appreciate and adjudicate the controversy involved and to put the matter in proper perspective certain factual background may be related which disclose that this C appeal by way of special leave petition has its genesis in a writ petition bearing CWP No. 13848/1998 which came to be filed in the High Court of Punjab and Haryana at Chandigarh as a public interest litigation on 25. 7.1998 by the respondent No.1 herein Harish Kumar Puri whose son had died in a road D accident on 14.5.1996 at Pipli Chowk, Kurukshetra due to the criminal negligence alleged on the part of the traffic police posted on the said chowk. In the PIL, the respondent No.1 Mr. Puri prayed for issuance of a writ in the nature of mandamus directing for enforcement of traffic rules and to maintain the E signal system, rumble strips on crossing, first aid units, control over speeding on G. T. Road National Highway No.1 and a further writ or direction holding the State functionaries liable for the criminal negligence on the part of its employees and saddle it with monetary liability. F 5. Interestingly, this writ petition which was filed as a PIL with the laudable object of improving management of traffic on the highway in the interest of the comr:nuters and the public at large over the years metamorphosed into a long drawn litigation alleging breach of contractual obligations between G the appellant-concessionaire company and the r'espondent No. 7 NHAI wherein the respondent Union of India as also the respondent/PIL petitioner in the High Court have jumped into the fray giving rise to several rounds of litigation. In the process it affected the very purpose and object for which the writ petition H MIS. SOMA ISOLUX NH ONE TOLLWAY PVT. LTD. v 633 HARISH KUMAR PURI [GYAN SUDHA MISRA, J.] had been filed as also the construction of the Highway for which A a concession agreement had been executed between the · appellant-concessionaire comp.any and the respondent No.6 NHAI by way of a competitive bidding process during pendency of the PIL as a step towards resolving the issue of management of traffic. B 6. While tracing out the background of the matter, bereft of not so essential factual details, it may be sufficient to state thatthe Division Bench of the High Court issued notice of motion on 1.9.1998 in the writ petition (PIL) which came up before the High Court for consideration from time to time spanning over.· C several years and finally on 11.4.2002, an order was passed by the High Court on 11.4.2002 for impleading the Secretary to the Government of India, Ministry of Road Transport and Highways, New Delhi when the issue camp up regarding nonopening of the railway bridge near Dera Bassi for the general D public. Several years thereafter, notice was also issued to the National Highways Authority of India (NHAI) to appear before the High Court through its authorized representative as on 9.5.2008 a Concession Agreement had been executed between NHAI and the appellant-company since the appellant E succeeded in a competitive bidding process by which it was granted exclusive rights, license and authority to construct, operate and maintain its project namely, six-laning of a part of NH 1 from KM 96.00 to KM 387.100 (approximately 291.10 KM) from Panipat to Jullundur for a period of 15 years. While F awarding the contract, the credentials and track record of the appellant was taken note of which indicated that the appellant Mis Soma lsolux NH One Tollway Pvt. Ltd. is a joint venture company with lsolux Corsan Group which is a multinational company having vast experience of Infrastructure Development G in various part of the world including Europe, South America, Nort.h America and Asia and has successfully developed Highway Projects in various countries including Spain, Mexico, Brazil, India etc. lsolux Corsan Group is the leading European Investor in infrastructure in India 'and Mis Soma Enterprise Ltd. H 634 SUPREME COURT REPORTS [2014] 14 S.C.R. A is a renowned Development Construction firm.and has several Natiqnal Highway Projects in the past.13 years and have completed projects ahead of schedule. It has also undertaken .. and completed projects in other infrastructure sectors like Irrigation Hydro Power and Railways. B 7. The Concession Agreement envisaged reciprocal obligations from various parties including NHAI, the State of Haryana and the State of Punjab. Under Clause 4.1.2 (a) NHAI is/was required to provide right of way and the appellantcompany is/was entitled to demand and collect appropriate C fee commonly known as toll fee from vehicles and persons liable to pay toll fee for using the national highway. The . Concession Agreement was drafted as per the model approved by the Planning Commission of India and the draft concession was in fact circulated with the RFP (Tender · D Document) and, therefore, ne_itherthe appellant-company nor· the NHAI could have changed the contents of the agreement ·pursuant to the award of contract. 8. In so far as the financing and investment to the Highway Project is concerned the agreement envisaged that the E appellantccompany and the NHAI would be on the basis of Build, Operate, Trade (BOT) mode which enumerated that the project being in BOT mode, all investment in the project will have to be made by the appellant-company by the income generated from toll collection and no amount was to be F invested/received from the NHAI. On the contrary, the appellant-company as per the Agreement, offered to pay to the respondent/NHAI premium equal to 20.14 per cent of the total collection of toll for the first year and this premium was to be increased by one per cent every subsequent year. Based G on a detailed analysis of the Concession Agreement. the NHAI thus is not only notfunding any part of the project development cost. it is receiving a significant portion of the revenue collected . as premium by way of collection of toll. However allthe amount collected by way of toll were to be deposited in the ESCROW H . . M/S, SOMA ISOLUX NH ONE TOLLWAY PVT. LTD. v 635 HARISH KUMAR PURI [GYAN SUDHAMISRA, J.) account as a result of which any amount from this account · A cannotbe withdrawn by the appellant without signature from the other contracting party i.e. NHAI. It may further be noted · .. that the agreement between the appellant and respondent/NHAI . acknowledges and confirms the role of lending institutions, . mainly nationalised banks as a major significant holder in B project implementation. All the financial agreement dealing in the administration occurred between lending institutions and the appellant and the financial model for the project had been submitted regarding revenue and approval prior to the commencement of the project. Agreement entered into c between the appellant/company and the NHAI also envisages ·continuous support and co-operation from the respective State Governments of Punjab and Haryana and the Concession Agreement as per Article 47.3 requires the execution of .Tripartite State Support Agreement between NHAI, D Concessionaire and respective State Governments for which support agreements were signed by the State of Punjab on 11.9.2009 and the State of Haryana on 16.9.2009. Asper the agreement six laning was to be retrofitted on the existing fourlane as per standards and specifications which temporarily E · was to put the travelling public to some inconvenience. On 8.9.2008, the Division Bench of the High Court which was seized of the matter passed an order impleading M/s. Himalayan Expressway Limited as respondent No.7 herein and on 11.9.2009 the State Support Agreement mentioned F hereinbefore was executed between the Governor of the State of Punjab, NHAI and the appellant-company regarding the obligations of the Government of Punjab and its continued support. for grant of certain rights and aut.horities for mobilization of resources by the appellant-company. The G agreement visualizes continuous support and co-operation of . the Government of Punjab. 9. In the meantime, the writ petition/Public Interest Litigation which was pending in the High Court during pendency of which the Concession Agreement was executed, continued H 535·. SUPREME COURT REPORTS [2014] 14 S.C.R. A to be taken up by the High Court and various directions came to be passed from time to time by the High Court in course of hearing of the Pl L. · 10. The High Court thereafter vide order dated 2.1.2012 on an oral request impleaded the appellant-company as a party B respondent and issued notice to it on 2.1.2012 to ascertain the progress of the Highway Project. The appellant-company responded to the notice and sought time to file its reply. Thereafter, on 28.1.2012, an affidavit was filed by the Project Chairman, NHAI, Ambala before the Hig~ Court in the pending C PIL info[ming the status of Panipat- Juilundur Section of NH 1 stretch from KM 96.000 to KM 387.100 wherein it was stated that the Concessionaire-appellant company could not achieve the milestone -II on the specified date due to delay in various clearance, tree cutting, utility shifting etc. and further stated D that the scheduled six laning date has been extended to 15.6.2012. In the meantime and in response to the notice, the appellant also had filed affidavit on 12.3.2012 giving details of the progress of the construction on the highway as also the · difficulties and impediments encountered in the construction. E 11. rhe High Court however refused to consider even remotely the reasons for the delay in the progress of the Highway Construction, much less scrutinized it and further failed to examine or even visualise as to why the .appellant/ concessionaire company, which within a period of three years F had constructed 71 % of the highway project had suddenly slowed down for the rest 29% of the project. In the process it further refused to consider whether there were bonafide reasons for the delay on the part of the appellant/ concessionaire com pa fl¥ or the delay was on account of the G impediments created by the NHAI violating the terms and conditions of the Agreement as also ignored even the reasoned judicial orders passed earlier by a co-ordinate Bench of the Punjab and Haryana High Court itself which had permitted the appellant to shift the toll plaza in view of the terms and conditions H · in the Agreement which were conveniently ignored by the NHAI MIS. SOMA ISOLUX NH ONE TOLLWAY PVT. LTD. v 637 HARISH KUMAR PURI [GYAN SUDHArvilSRA, J.] contrary to the opinion of its own Independent Engineer whose A opinion in terms of the Agreement was binding on the NHAI and the same has been upheld by the High Court by several judgments and orders settling the controversy.