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2. The record of the present case discloses, that on behalf of the MORT&H, the Public Works Department of the Government of Maharashtra had invited tenders for this project from eligible persons of construction, operation and maintenance of a major bridge and its approaches across the Pingalai river in KM 113/800 on the Nagpur-Edlabad Road section of N.H.6 with private sector participation on build, operate and transfer ('BOT') basis. It appears that a Memorandum of Understanding dated 21st February, 2003 (Schedule 'V') was entered into by two companies, Vishvaraj Housing Company Pvt. Ltd. and ADCC Computing and Research Centre Ltd. Pursuant thereto, a consortium formed by them for the purpose of bidding for the project, had submitted a bid for the project.

3. The MORT&H accepted the bid submitted by the said consortium and issued a letter of acceptance dated 4th July, 2003. As per the requirements of the tender/bid, this W.P.(C) No. 13034/2009 page 2 of 121 consortium incorporated the 'concessionaire'-petitioner herein, as a special purpose vehicle to implement the said project on BOT basis. Pursuant to the aforesaid acceptance letter, on 14 th May, 2004, the President of India represented by the Ministry of Road Transport and Highways of the Government of India entered into a 'Concession Agreement' with the VHCPL-ADCC Pingalai Infrastructure Pvt. Ltd. (the petitioner herein), who has been referred to as the 'concessionaire' in the agreement.

"xxxx F. In accordance with the requirements of the said tender/bid submitted by the Consortium, the Consortium has incorporated the Concessionaire as a" special purpose vehicle to implement the Project on BOT basis, and GOI has agreed to grant to the Concessionaire, the Concession (as hereinafter defined) on the terms, conditions and covenants hereinafter set forth in this Agreement."

xxxxx Definitions & Interpretations :-

"(i) Did the consultant of the proposed four-

laning project of NHAI considered the fact that there exists a BOT project awarded by the Ministry, which forms part of the Section; and if they did; what advise was given to NHAI in this regard.

(ii) NHAI did not make any reference to the concessionaire or to the Ministry with regard to this BOT stretch. NHAI may indicate how it is going to deal with this now.

(iii) Since the BOT concessionaire has certain rights (Article 14 of Agreement) under existing concession agreement, NHAI should indicate what will be the status of this right in the new scheme of the project."