GITA MITTAL, J 1. "A mans greed is like a snake that wants to swallow an elephant".

-a Chinsese proverb which completely sums up the case in hand.

The petitioner, who was awarded a contract for the construction and operation of a project involving a major bridge over the Pingalai river with approaches covering a total stretch of 2.2 km, claims that the Concession Agreement entered into by him in 2004 tantamounts to his having a preferential right of first refusal for award of the contract relating to the project for the four laning of a 66.73 Kms stretch of National Highway-6, being its Talegaon-Amravati KM 100 to KM 166.725 section, in the State of Maharashtra, without participation in the bidding process and completely unmindful of the public interest involved in the matter.

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 st 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 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 14th 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.

4. The work which forms subject matter of the agreement is described in schedule A of the Concession Agreement and is referred to as "the project" therein. The agreement was entered into on behalf of the President of India by the Ministry of Road Transport and Highways (hereinafter referred to as MORT&H) which is responsible for the development and maintenance of national highways in India.

5. Learned senior counsels for all the parties have extensively relied on the terms of the Concession Agreement dated 14th May, 2004, essential terms whereof are as follows :-

"xxxx xxxx 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."

xxxx xxxx xxxx

Definitions & Interpretations :-

"Project" means the project described in Schedule 'A' which the Concessionaire is required to design, engineer, finance, construct, operate, maintain and transfer in accordance with the provisions of this Agreement."

"Project Assets" means all physical and other assets relating to and forming part of the Project including but not limited to (i) rights over the Project Site in the form of license, right of way or otherwise, (ii)tangible assets such as civil works including the foundations, embankments, pavements, road surface, interchanges, bridges, approaches to bridges and flyovers, road overbridges, drainage works, lighting facilities, traffic signals, sign boards, milestones, toll plaza, equipment for the collection of tolls or rel