TaxTMI 
TaxTMI 
2026 (1) TMI 1660
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....as, Adv. Mr. Mathan Joseph, Adv. Mrs. S. Geetha, Adv. Mr. Chanchal Kumar Ganguli, AOR Mr. Manish Bishnoi, Adv. Ms. Gunjan Sinha Jain, Adv. Ms. Muskaan Gopal, Adv. Mr. Arjun Raghavendra M., Adv. Mr. Dhaval Deshpande, Adv. Mr. Amir Arsiwala, AOR Mr. Divyansh Jain, Adv. Mr. Stephin George, Adv. Mr. Akanksha Jain, Adv. Mr. Apoorv Saini, Adv. Mr. Subhasish Bhowmick, AOR Mr. Deepak Kumar, Adv. Mr. Subhasish Bhowmick, AOR JUDGMENT SANJAY KUMAR, J 1. These civil appeals, sourced in arbitral awards passed under the Arbitration and Conciliation Act, 1996 [For short, the 'Arbitration Act'], seek to raise questions about the interpretation and implementation of two enactments - 'The Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996' [For short, 'the BOCW Act'], and 'The Building and Other Construction Workers' Welfare Cess Act, 1996' [For short, 'the Cess Act']. Prakash Atlanta (JV) filed the first of these appeals, viz., Civil Appeal No. 4513 of 2025, while National Highways Authority of India [For short, 'NHAI'] is the appellant in the other five appeals, viz., Civil Appeal Nos. 5301, 5302, 5304, 5412 and 5416 ....
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.... or under any Central, State or Provincial Act or a Government company, which is owned, controlled or managed by the Central Government. Section 2(1)(a)(iii) states that, in relation to any other establishment which employs building workers, either directly or through a contractor, the Government of the State in which that other establishment is situated would be the appropriate Government. Section 2(1)(c) defines 'Board' to mean a Building and Other Construction Workers' Welfare Board constituted under Section 18(1) thereof. Section 2(1)(d) defines 'Building or other construction work' to include construction, alteration, repairs, maintenance or demolition of, or in relation to, amongst others, roads also. Section 2(1)(i) defines 'employer' inclusively and it reads as follows: '(i) "employer", in relation to an establishment, means the owner thereof, and includes,- (i) in relation to a building or other construction work carried on by or under the authority of any department of the Government, directly without any contractor, the authority specified in this behalf, or where no authority is specified, the head of the department; ....
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....rried out and stipulate that the Secretary of the Board shall maintain such registers as may be prescribed in relation to the building workers who have been registered as beneficiaries. 6. Section 15 of the BOCW Act requires every employer to maintain a register showing the details of employment of beneficiaries employed in the building or other construction work undertaken by him. Section 16 of the BOCW Act pertains to contributions by the building workers who are registered as beneficiaries and stipulates that they must contribute to the fund at the rate per month as prescribed by the State Government, by notification in the Official Gazette, and Section 17 of the BOCW Act provides that failure on the part of the beneficiary to pay his contribution for a continuous period of not less than one year would result in his ceasing to be a beneficiary. 7. Chapter V of the BOCW Act, comprising Sections 18 to 27, deals with the Buildings and Other Construction Workers' Welfare Boards. Section 18 therein deals with constitution of State Welfare Boards. Section 18(1) provides that every State Government shall appoint and constitute a Welfare Board to exercise the powers conferred ....
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....azette, from time to time specify. In exercise of power under Section 3(1) of the Cess Act, the Ministry of Labour, Government of India, issued Notification No. S.O. 2899 dated 26.09.1996, published in the Gazette of India, Extraordinary, dated 12.10.1996, in modification and supersession of Notification dated 17.05.1996, specifying the cess for the purpose of the BOCW Act @ 1 per cent of the cost of construction incurred by an employer. Section 3(2) states that the cess levied under Section 3(1) should be collected from every employer in such manner and at such time, including deduction at source, in relation to a building or other construction work of a Government or of a PSU, etc, as may be prescribed. Section 3(3) states that the cess collected under Section 3(2) shall be paid by the State Government collecting the cess to the Board, after deducting the cost of collection of such cess, not exceeding one per cent of the amount collected. 10. Section 14 of the Cess Act empowers the Central Government to make Rules for carrying out the provisions thereof by notifying the same in the Official Gazette. Pursuant thereto, the Building and Other Construction Workers' Welfare Ces....
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....s payable at the notified rates on the estimated cost of construction: Provided that if the duration of the project is likely to exceed one year, the demand draft may be for the amount of cess payable on cost of construction estimated to be incurred during one year from the date of commencement and further payments of cess due shall be made as per the provisions of sub-rule (2). (5) An employer may pay in advance an amount of cess calculated on the basis of the estimated cost of construction along with the notice of commencement of work under section 46 of the Main Act by a crossed demand draft in favour of the Board and payable at the station at which the Board is located: Provided that if the duration of the project is likely to exceed one year, the demand draft may be for the amount of cess payable on cost of construction estimated to be incurred during one year from the date of such commencement and further payment of cess due shall be made as per the provisions of sub-rule (2). (6) Advance cess paid under sub-rules (3), (4) and (5), shall be adjusted in the final assessment made by the Assessing Officer.' 11. Rule 4(3) above manifests....
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....National Campaign Committee, C.L., Labour vs. Union of India and others [(2009) 3 SCC 269] and directed the State Governments and Union Territories (UTs) which had not framed Rules under Section 62 of the BOCW Act to adopt the Rules already framed by the Delhi Government in that regard. Further directions were issued on 18.01.2010 for implementation of the Acts by such States/UTs without further delay. One such direction was with regard to constitution of Welfare Boards, with adequate full-time staff, by each State/UT within three months. By order dated 10.09.2010, a 3-Judge Bench of this Court observed that time had come to enforce the earlier orders for implementation of the BOCW Act and directed the Central Government to call for the necessary information from the States/UTs concerned and to issue directions for setting up Welfare Boards within eight weeks, in terms of the earlier order dated 18.01.2010. 15. The Central Government was also asked to furnish a status report with regard to implementation of the BOCW Act and the guidelines given in the earlier order dated 18.01.2010. Contempt proceedings were initiated for non-implementation of the directions of this Court in the....
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....lfare Boards and in appointing authorities to give effect to these enactments lays foundation for the present conundrum. The contention of NHAI is that, notwithstanding the delayed constitution of Welfare Boards and lack of effective implementation, both the enactments should be construed to have come into effect on the dates notified, i.e., 01.03.1996 (BOCW Act) and 03.11.1995 (Cess Act) and they cannot, therefore, be taken to be 'subsequent legislation' under its contractual clauses. NHAI would contend that, as the rate of the cess to be collected, i.e., @ one per cent of the cost of construction, was specified by the Central Government as long back as on 26.09.1996, the respondents in its five appeals cannot claim ignorance thereof and they ought to have factored in the same in their price bids while submitting tenders for its works. NHAI would argue that, as per Rule 4 of the Cess Rules, deduction at source was to be effected if the work pertained to a Government or a PSU and, therefore, the cess was deductible irrespective of the constitution of Welfare Boards. NHAI would further argue that, if the Cess Act is to be given effect by linking it to constitution of Welfare....
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....0.8 of the Contract or it shall not in view of the language employed in Clause 34.2 of the said instrument in respect of the National Highways Authority cases; (ii) whether the conclusion arrived at in Dewan Chand Builders and Contractors case correctly states the law or it has to be differently understood for the purpose of applicability of the Act qua the workers and for the purpose of coming into force of the Act as regards deposit or realization.' 20. Thereafter, NKG Infrastructure, Hindustan Construction Co. Ltd. and DIC-NCC (JV) filed their cases in 2017, 2018 and 2019 respectively and they were clubbed with the pending cases of Gammon-Atlanta (JV) and PCL Suncon (JV). In fact, on 20.02.2020, when DIC-NCC (JV)'s case came up for consideration, this Court was informed that identical issues arose for consideration in the matters pertaining to Delhi Metro Rail Corporation Limited and other connected matters and it was directed that all the matters be clubbed for joint hearing. The special leave petition of Prakash Atlanta (JV) then came to be tagged with NHAI's cases. Thereafter, by order dated 26.10.2020, it was observed that NHAI's five cases raised....
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....le laid down in the decisions of this Court, it was clear that the said levy is a fee and not a tax. It was noted that the fund is set apart and appropriated specifically for the performance of a specified purpose; that it is not merged into the public revenues for benefit of the general public, and as such, a nexus between the cess and the purpose for which it is levied is established, satisfying the element of quid pro quo in the scheme. 22. In A. Prabhakara Reddy and Company vs. State of Madhya Pradesh and others [(2016) 1 SCC 600], the appellants therein had entered into contracts with the Government of Madhya Pradesh between December, 2002 and March, 2003. The Madhya Pradesh Building and Other Construction Workers' Welfare Board was constituted only on 09.04.2003, followed by a publication in the Official Gazette on 10.04.2003. The appellants unsuccessfully challenged imposition of the cess liability on them before the High Court. Their argument before this Court, thereafter, was that if demand of cess is made on construction works undertaken or even contemplated on issuance of work orders before constitution of the Welfare Boards, then such demand would amount to makin....
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....elhi Development Authority [(2015) 3 SCC 49], this Court noted that the expression 'public policy of India' in Section 34(2)(b)(ii) of the Arbitration Act was given a wider meaning in Oil & Natural Gas Corporation Ltd. vs. Saw Pipes Ltd.[(2003) 5 SCC 705]. It was held therein that the concept of public policy connotes some matter which concerns public good and public interest. It was observed that what is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time but an arbitral award which, on the face of it, is patently in violation of statutory provisions, cannot be said to be in public interest. It was further observed that such an award is likely to adversely affect the administration of justice. This Court, therefore, held that, in addition to the narrower meaning given to the term 'public policy' by a 3-Judge Bench of this Court in Renusagar Power Co. Ltd. v. General Electric Co. [1994 Supp (1) SCC 644], an arbitral award can be set aside if it is patently illegal. The result was that an arbitral award could be set aside if it was contrary to the fundamental policy of Indian l....
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.... award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be invalid on this score. Once it is found that the arbitrator's approach was not arbitrary or capricious, then he is the last words on facts. 27. As long back as in the year 2006, in McDermott International Inc. vs. Burn Standard Co. Ltd. and others [(2006) 11 SCC 181], this Court affirmed that construction of a contract is within the jurisdiction of the arbitrator and interpretation thereof is a matter for the arbitrator to determine, even if it gives rise to a question of law. This was affirmed in National Highways Authority of India vs. ITD Cementation India Limited [(2015) 14 SCC 21], wherein this Court held that construction of the terms of a contract is primarily for an arbitrator to decide and he is entitled to take the view that he holds to be the correct one, after considering the material and after interpreting the terms of the contract. It was observed that the Court, while considering a challenge to an arbitral award, does not sit in appeal over the findings and decision therein, unless the arbitrator construed the contract in such a way that ....
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....easonable person would; in short, that the arbitrator's view is not a plausible view to take. 30. In Dyna Technologies Private Limited vs. Crompton Greaves Limited [(2019) 20 SCC 1], a 3-Judge Bench of this Court held that an arbitral award should not be interfered with in a casual and cavalier manner, unless the perversity of the award goes to the root of the matter, without there being a possibility of an alternative interpretation that may sustain it. It was held that Section 34 is different in its approach and cannot be equated with normal appellate jurisdiction and that its mandate is to respect the finality of the award and the parties' autonomy to get the dispute adjudicated by an alternative forum as provided by law. This Court cautioned that if Courts were to interfere with awards in the usual course on factual aspects, then the commercial wisdom behind opting for alternative dispute resolution would stand frustrated. 31. In MMTC Limited vs. Vedanta Limited [(2019) 4 SCC 163], this Court observed that the position is well settled that the Court exercising jurisdiction under Section 34 does not sit in appeal over an arbitral award and can interfere on the limi....
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....an the phrase 'in contravention with the policy of Indian law'. This was held to mean that mere contravention of law is not enough to make an award vulnerable and to bring the contravention within the fold of the 'fundamental policy of Indian law', the award must contravene all or any of such fundamental principles that provide a basis for administration of justice and enforcement of law in this country. Further, by way of inexhaustive illustrations, the Bench observed that (a) violation of the principles of natural justice; (b) disregarding orders of superior courts in India or the binding effect of the judgment of a superior court; and (c) violating laws of India linked to public good or public interest could be considered to be in contravention of the fundamental policy of Indian law. The Bench, however, cautioned that, while assessing whether there is a contravention of the fundamental policy of Indian law, the extent of judicial scrutiny must not exceed the limit as set out in Explanation 2 to Section 34(2)(b)(ii). It was further noted that, ordinarily, the terms of the contract should be understood in the way the parties wanted and intended them to be. 34. ....
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....ore, the Cess Act being brought into effect from 03.11.1995 is totally incomprehensible as the BOCW Act was brought into effect only on 01.03.1996. This was clearly a case of putting the cart before the horse! Even thereafter, the Cess Act could not have been given effect in a vacuum before constitution of Welfare Boards under the BOCW Act, as augmenting of 'Welfare Board resources' cannot arise even before such Boards came into existence. This being one aspect, it is the established position that no effective steps were taken either by the Central Government or by the Governments of the States/UTs in this country to implement the provisions of the BOCW Act and the Cess Act until they were prodded to do so, time and again, by this Court, vide its orders in the case filed by the National Campaign Committee. It was only pursuant to the persistent efforts made by this Court that necessary machinery was put in place in different States/UTs on different dates. 36. Though the Central Government issued Notification dated 26.09.1996 stipulating the rate of cess @ one per cent, no steps were taken to monitor the actual implementation of the Acts so as to ensure that the prescribe....
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....the respondents in its appeals. In three of the five cases, i.e., in the contracts relating to Hindustan Construction Co. Ltd., PCL Suncon (JV) and NKG Infrastructure Limited, the BOCW Act and the Cess Act were specifically mentioned amongst the labour legislations that were to be complied with by them (Clause 34.2). However, in the contracts of Gammon-Atlanta (JV) and DIC-NCC (JV), no mention was made of the BOCW Act and the Cess Act. While so, Clause 14.3 and Clause 70.8 ('Subsequent Legislation') in the contract document provided that the time-frame of twenty-eight days before the last date for submission of the bid was crucial to ascertain what should be factored into the prices and rates in the bid offer. In the event a particular aspect was not to be factored into the bid price at that point of time as per the extant legal regime but it came into focus thereafter, due to a change in the scenario, it qualified as 'subsequent legislation' attracting the procedure under Clause 70.8. 39. We may note that NHAI has a prescribed template for its contracts. Volume I thereof pertains to the 'Bidding Document. Clause 14.3 falls in Section I therein, titled 'I....
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....ur legislations that the appellant, being the contractor, would have to abide by. There was neither a clause akin to Clause 14.3 in its contract nor was there a 'subsequent legislation' clause, akin to Clause 70.8. NHAI terminated the contract with the appellant on 14.03.2008. However, disputes had arisen between the parties during the subsistence of the contract and the Dispute Resolution Expert, to whom the matter was referred, held in favour of Prakash Atlanta (JV). 42. Aggrieved thereby, NHAI initiated arbitration proceedings. Significantly, these proceedings were initiated in the year 2002 and went on till June, 2004, but NHAI never raised the issue of the levy and collection of cess under the BOCW Act and the Cess Act during the course of such proceedings. The arbitral tribunal rendered its award on 26.06.2004, dismissing NHAI's claims while accepting the counter-claim of Prakash Atlanta (JV) towards price adjustment for extra items. NHAI's application under Section 34 of the Arbitration Act against the arbitral award dated 26.06.2004 was dismissed, vide order dated 15.12.2011, by a learned Judge of the Delhi High Court in OMP No. 339 of 2004. The appeal fi....
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.... contract. Aggrieved by this judgment, Prakash Atlanta (JV) is before this Court by way of this appeal. 44. In Civil Appeal No. 5301 of 2025 filed by NHAI, the work awarded to NKG Infrastructure Ltd., the respondent therein, was the balance work of constructing a segment of the Lucknow Bypass and the contract was signed on 25.02.2009. Clause 34.2 referred to the BOCW Act and the Cess Act, along with other labour legislations, that the respondent/ contractor had to abide by. Clause 14.3 and Clause 70.8, viz., the 'subsequent legislation' clause were also applicable. NKG Infrastructure Ltd. had submitted its bid for the subject contract on 05.12.2008, more than 28 days prior to the Circular dated 17.02.2010 issued by the Government of Uttar Pradesh, notifying the levy of cess under the BOCW Act and the Cess Act from 04.02.2009. The question that arises is whether the 'subsequent legislation' clause would apply or whether the respondent is to bear the levy of cess, in terms of the Circular dated 17.02.2010 and owing to the inclusion of the BOCW Act and the Cess Act (Clause 34.2). By award dated 24.11.2015, the arbitral tribunal held in favour of the respondent and d....
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....tion' clause. By award dated 24.02.2013, the arbitral tribunal held in favour of the respondent and directed NHAI to reimburse the amount deducted from the respondent's bills towards cess. The arbitral tribunal noted that the welfare measures to be undertaken by the State Government under the BOCW Act could not be made operative till Rules were framed for carrying out the functions under the said Act. Taking note of Rule 5 of the Cess Rules, which required the cess collected to be transferred to the Welfare Board within 30 days of its collection, the arbitral tribunal noted that if any such cess had been levied and collected in the year 2001 when the contract was entered into, as there was no Welfare Board in existence, the cess would have been appropriated to the consolidated fund of the State which is used for public purposes. In that manner, the character of the cess collected would have changed from fee to tax, thereby rendering the Cess Act itself open to challenge. The arbitral tribunal noted that this was the reason why the State Government had decided to levy and collect cess only from 01.08.2007, when the Jharkhand Rules were notified in the Gazette. As the Jharkha....
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....f cess and without the same being in place, the question of such levy and collection did not arise. The arbitral tribunal, accordingly, applied the 'subsequent legislation' clause as the State Government's notification was issued long after the bid related date in terms thereof and, in consequence, constituted 'subsequent legislation' thereunder. The sum of Rs.10,76,959/- was directed to be reimbursed to Hindustan Construction Co. Ltd. along with interest thereon. We find that, in the case of Hindustan Construction Co. Ltd., the NHAI deducted a much larger sum towards cess but only deposited Rs.3,30,000/- with the Welfare Board. The award stood confirmed when a learned Judge of the Delhi High Court rejected the application filed by NHAI under Section 34 of the Arbitration Act on 20.04.2017. NHAI's appeal under Section 37 of the Arbitration Act came to be dismissed on 23.03.2018 by a Division Bench of the Delhi High Court, following the earlier Division Bench decision in the case of Gammon-Atlanta (JV). 47. In Civil Appeal No. 5412 of 2025, NHAI is again the appellant while DIC-NCC (JV) is the respondent. The contract between the parties was in relation....
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....ramed Rules under Section 62 of the BOCW Act on 18.08.2003. It constituted an ad hoc Welfare Board on 18.12.2004 and passed a resolution on 30.01.2006 that Cess Collectors were to deposit with the Welfare Board the cess collected with effect from 18.12.2004. The arbitral tribunal, therefore, concluded that the BOCW Act and the Cess Act became operative in the State of Gujarat only upon such instructions being issued and, therefore, the same could not be made applicable to a contract which was based on DIC-NCC (JV)'s bid submitted on 10.12.2003. The arbitral tribunal noted that upon the insistence of NHAI, DIC-NCC (JV) had furnished a bank guarantee for Rs.3,93,77,776/- towards the cess claimed by NHAI and, accordingly, directed release thereof. It was also noted that, had it been the intention of NHAI that DIC-NCC (JV) was liable to pay cess from December, 2004 itself, i.e., after the contract was entered into between the parties, it would have made deductions right from then but it had failed to do so and it was only on 13.03.2012 that NHAI stated that audit objections had been raised and asked DIC-NCC (JV) to deposit the cess component of over Rs.3,50,00,000/-, failing which ....
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....nder the BOCW Act and the Cess Act. The arbitral tribunal opined that NHAI could not have recovered the cess amount from Gammon-Atlanta (JV) in view of the 'subsequent legislation' clause. The award recorded, in para 14.29.8, that the amount recovered towards cess was Rs.1,04,96,006/-, but only Rs.3,30,225/- therefrom was paid by NHAI to the Welfare Board and NHAI adjusted the recovery in excess thereof against liquidated damages. This action on the part of NHAI was held to be unlawful and the arbitral tribunal directed reimbursement of the deducted amount along with interest. These findings of the arbitral tribunal stood confirmed under Section 34 of the Arbitration Act by a learned Judge of the Delhi High Court on 17.07.2012. Further, NHAI's appeal against the said order came to be dismissed by a Division Bench of the Delhi High Court, vide order dated 14.08.2013, passed in FAO (OS) No. 366 of 2013. Reliance was placed by the Division Bench on the observations of this Court in Dewan Chand Builders (supra), which held to the effect that the BOCW Act and the Cess Act become operative only upon notification of the Rules framed under Section 62 of the BOCW Act. As, in thi....
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....ady in place, the authorities were duty-bound to collect the cess by raising demands in respect of the ongoing construction works and it was not necessary to wait till such building and construction workers were registered under Section 12 of the BOCW Act or till welfare measures were provided to them. Therefore, the constitution of Welfare Boards is the sine qua non for giving effect to the BOCW Act and the Cess Act and the cess in connection therewith could not have been levied or collected before the constitution of such Welfare Boards. 51. In this regard, we find that Gammon-Atlanta (JV) submitted its bid on 17.10.2000 and the Cess Act was notified in the State of Orissa only on 15.12.2008. PCL Suncon (JV) submitted its bid on 14.05.2001 and it was only pursuant to the Rules framed by the Government of Jharkhand, notified on 01.08.2007, that cess was levied under the provisions of the BOCW Act and the Cess Act. PCL Suncon (JV) submitted its bid on 14.05.2001 and its contract was signed on 20.09.2001. Notification of the Rules framed by the Jharkhand Government under Section 62 of the BOCW Act was on 01.08.2007, whereby the provisions of the BOCW Act and the Cess Act were giv....
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....f the Arbitration Act. Once the view taken by the arbitral tribunal is found to be a plausible and possible one on facts and not an unreasonable one, it is not for the Courts, under Sections 34 or 37 of the Arbitration Act, or for this Court to sit in appeal or substitute its view for that of the arbitral tribunal. 53. NHAI would contend that the decision in Dewan Chand Builders (supra) is being misconstrued as that decision pertained to the validity of the BOCW Act and the Cess Act and the date of coming into force thereof was not in issue. It is contended that a stray sentence or observation made in a judgment cannot be taken to be its ratio decidendi. However, the observation made in para 18 of Dewan Chand Builders (supra) was not a stray observation as this aspect had also been considered by the Delhi High Court and this Court affirmed the same. Further, the later decision of this Court in A. Prabhakara Reddy (supra) put it beyond the pale of doubt that constitution of the Welfare Boards was essential to give actual effect to the BOCW Act and the Cess Act. 54. It is further contended on behalf of NHAI that, as there was no 'subsequent legislation' clause in Prakas....
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....of the foreign currency component over and above 85% provided in the formula. Having perused the relevant terms of the contract - Clause No. 72.2 in Section 4, Part 1 of Volume I, titled 'Conditions of contract', along with Clauses 70.3 and 70.4 of the COPA in Section 5 Part 2 of Volume I, the arbitral tribunal noted that the contract provided for payment in two currencies, i.e., Indian Rupees (90%) and Euros (10%). Further, the arbitral tribunal found that the contract provided for price adjustment for both currencies as per the formulae set out in Clause 70.3 of the COPA. Construing these terms, the arbitral tribunal noted that the portion of the work done, that is, 'R' and the portion of 'R' which was payable in foreign currency was set out in the contract. It was noted that the word used was payable 'R' and not adjustable foreign currency ('Rf'). The Tribunal, accordingly, observed that 'Rf' used in the formula is the portion of 'R' payable in foreign currency and not the adjustable one. It was also noted that the contract required the bidder to provide the break-up of total foreign currency component and the contract indi....
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.... a merits-based evaluation of such findings of the arbitral tribunal is beyond the ken of this Court, just as it was beyond the ken of the Courts exercising jurisdiction under Section 34 and 37 of the Arbitration Act. Further, we may note that limited notice was issued in these matters only on the issue of cess payable under the BOCW Act and the Cess Act. It is, therefore, not open to NHAI to enlarge the scope of these matters at this late stage. 58. IA No. 84855 of 2015 was filed for intervention in Civil Appeal No. 5416 of 2025. M/s. Centrodorstroy, the intervener, entered into contracts with NHAI in relation to works to be carried out in Uttar Pradesh in 2001. It claims to have completed the works under contract packages IIC and IIIC on 27.05.2010 and 25.03.2009 respectively. In view of the Government notifying the UP Rules of 2009 with effect from 04.02.2009, NHAI deducted amounts from its bills towards the cess payable under the BOCW Act and the Cess Act. Arbitration proceedings having been initiated, awards were passed on 03.11.2016 and 18.05.2018 in its favour. The amount payable under the awards was released to the intervener under affidavit of undertaking dated 06.03.20....
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.... one, it cannot be substituted merely because an alternate view is possible. Construction and interpretation of a contract and its terms is a matter for the arbitral tribunal to determine. Unless the same is found to be one that no fair-minded or reasonable person would arrive at, it cannot be interfered with. If there are two plausible interpretations of the terms of a contract, then no fault can be found if the arbitrator accepts one such interpretation as against the other. To be in conflict with the public policy of India, the award must contravene the fundamental policy of Indian law, which makes it narrower in its application. (vii) We find that the arbitral awards in NHAI's five appeals turned upon interpretation and construction of identical terms in the contract and as the view taken by the arbitral tribunals was not only a plausible and possible one but also a justified one, on facts, we find no reason to interfere therewith. The awards are not perverse, patently illegal or opposed to the public policy of India. Further, we do not find the awards to be in breach of Section 28(1)(a) of the Arbitration Act. 60. On the above analysis, we find no merit in the ....