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3. Shri Tushar Mehta, learned Solicitor General appearing on behalf of the appellant – NHSRCL has submitted that the present matter pertains to the tender floated for works in Package C8, which is a part of various other packages being finalized for the implementation of Mumbai-Ahmedabad High Speed Rail popularly known as Bullet Train Project. It is submitted that the Mumbai-Ahmedabad Project is a fully foreign funded project, which was envisaged when the Japanese and the Indian Governments entered into a Memorandum of Understanding, pursuant to which it was agreed that the said project would be fully funded by the Concessional Official Development Assistance Loan of over Rs.80,000/- crores by the Japan International Cooperation Agency (JICA). It is submitted that thus, the Bullet Train Project is a Foreign Sovereign Funded Contract distinct from Contracts Funded from Consolidated Fund of India. It is submitted that as per the Memorandum of Corporation, and when the said project is fully funded by JICA for an amount of Rs.1 lakh crore with a very negligible rate of interest and by providing repayment in installments of 27 years and above, as per the Memorandum of Corporation, the process of bidding and the subsequent decisions are to be vetted by JICA. It is submitted that the content of the bidding documents was based on JICA’s Standard Bidding Documents (SBD) as well as JICA’s procurement guidelines and the same form an integral part of the loan agreement. It is submitted that in the present case, JICA appointed JICC as consultant.

2. It is submitted that the High Court has erred in concluding that such opportunity was discriminatory.

3.24 It is further submitted by learned Solicitor General that if the impugned judgment and order passed by the High Court in these circumstances is interfered by this Court, the same would have a cascading effect. It will not only affect the fundings to the National projects by the foreign country/foreign agency, it would further delay the MEGA project like Bullet Train Project. It is submitted that pursuant to the impugned judgment and order, the Package C8 has been delayed which has a cascading effect on implementation of other packages and thus eventually delaying the entire project. It is submitted that halting of work of C8 Package which concerns the construction of depot at Sabarmati will have a cascading effect on another linked package, package D2 which pertains to the design, construction, installation, testing and commissioning of Sabarmati Depot consisting of workshop, inspection shed, maintenance facilities and associated works. It is submitted that the Bullet Train Project is of national importance and the appellant/Government /Union Government’s ultimate object is catering to aspirations of the people of India. It is submitted that the total cost of the Bullet Train Project is Rs.1,08,000 crores and the substantial amount with the concessional rate of interest is to be funded by JICA and, therefore, the project is a foreign funded project due to the relations between the developed country and developing country. It is submitted that therefore any delay in such a project due to frivolous litigation and baseless challenges to the tendering clauses may render the project commercially and transactionally unviable as it may affect the willingness of the investor/financing State to go ahead with the project. 3.25 Making above submissions and relying upon above decisions, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court.

6.3 The present matter pertains to the tender floated for works in Package C8, which is a part of various other Packages being finalized for the implementation of the Mumbai-Ahmedabad High Speed Rail popularly known as Bullet Train Project. It cannot be disputed that the Bullet Train Project is very important and National project. The Bullet Train Project is a fully foreign funded project, which was envisaged when the Japanese and Indian Governments entered into a Memorandum of Understanding, pursuant to which it was agreed that the said project would be fully funded by a Concessional Official Development Assistance (ODA) loan of Rs.1 lakh crores by the Japan International Cooperation Agency. It appears that before the loan agreement was entered into, a Memorandum of Understanding / Agreement was entered into between the two Prime Ministers - Japan and the India, which provided how the project would be financed and operated. From the Memorandum of Understanding, it appears that the loan was on diplomatic consideration and was based on Republic of India’s position in commodity of nations due to which a huge loan was granted to India with provisions of:- (i) technology transfer (which is unavailable in India);

(ii) Indian Human resource training/development by Japan International Cooperation Agency and its consultant for operation of the said projects; and (iii) provision to ‘Make in India’ the bullet train which would be operating under the said project. That thereafter a discussion was held between the JICA and the Ministry of Railways, Government of India on 26.09.2016 and the discussion was recorded on various aspects including the project objectives, selection of the consultant(s), implementation schedule, Products (Draft and final documents for adoption by the Ministry of Railways), which included:- (1) Technical specifications and standards, as required for the project (excluding those prepared under the Follow-up Study); (2) Basic Design Documents including drawings and Design Basis Reports necessary for bidding or implementation of the Project; (3) Standard Design Documents including drawings and Design Basis Reports necessary for bidding or implementation of the Project; (4) Detailed Design Documents including drawings and Design Basis Reports necessary for bidding or implementation of the Project; (5) Bidding Documents, including Prequalification Documents (hereinafter referred to as “Bidding Documents”); (6) General Arrangements Drawings (hereinafter referred to as “GAD"); (7) Cost Estimate of the Project; (8) Construction Standards; and (9) Updated Resettlement Action Pion, Environment Impact Assessment and Environmental Management Plan which were prepared under the Joint F/S. 6.4 A detailed discussion took place with respect to the role of JICA, Consultant (JICC) and the Ministry of Railways. The relevant clauses of the record of discussion for General Consultancy (excluding supervision) of the Bullet Train Project between JICA and Ministry of Railways are as under:-