2022:BHC-AS:9724 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 361 of 2022 WITH INTERIM APPLICATION NO. 2527 OF 2022 IN APPEAL FROM ORDER NO. 361 OF 2022 Mystical Techplast Pvt. Ltd, thru Deepak .. Appellant Shamu Kharat Versus The Maharashtra State Road Development .. Respondent Corporation Ltd thru its Managing Director, …

Mr. Surel S. Shah with Saurabh Butala for the appellant.

Dr.Milind Sathe, Sr. Advocate with Mr.Arun Siwach, Ms.Priyanka Mitra with Mr.Karan Gandhi i/b Cyril Amarchand Mangaldas for the respondent.

CORAM: BHARATI DANGRE, J.

DATED : 25th APRIL, 2022 JUDGMENT:-

1 The question that arises in the present Appeal is whether a condition stipulated in the letter of acceptance to the effect that a lease agreement will be executed only after the Government approval of Model Lease Agreement, with conditions regarding subleasing etc. and stipulation of signing of the lease agreement on compliance of the said condition, would amount to a ‘Concluded Contract’. Another ancillary point which need an appreciation in the Appeal, is whether absence of condition in the tender document to the effect that the lease agreement shall be subject to sanction of the State Government, would cease to have it’s contingent effect.

2 Heard Advocate Surel S Shah for the applicant and Sr.

counsel Dr. Milind Sathe for the respondent.

With the assistance of the respective counsel, I have perused the Memo of Appeal as well as the documents appended thereto, including the document of RFP (Request For Proposal) as well as the copy of the plaint, written statement and the impugned order.

3 The Maharashtra State Road Development Corporation (MSRDC), an undertaking of the Government, issued a Request for Proposal to bidders, inviting submission of ‘proposal’ for the lease of tender plots at Sanjgaon under Khalapur, Tahsil, District Raigiad, Yashwantrao Chavan Express Way (YCEW) in the background that Mumbai-Pune corridor, a part of National Highway NH-4 was identified to be one of the congested National Highway corridor, and in order to decongest, it was developed as a part of “National Expressway System” which facilitated safeguard and faster employment of traffic and savings in fuel.

While developing the express way, MSRDC had acquired pockets of land along with the expressway for the carriage way and for support facilities like stone quarries, water resources, project offices, storage of materials and equipments etc. The MSRDC, therefore, proposed to develop the tender plots at Sanjgaon under Khalapur Tahsil of Raigad District in Environmentally Sensitive manner for commercialization proceeds to be utilized by MSRDC for maintenance of the YCEW – a public project.

4 The MSRDC proposed to offer it’s tender plots of land for development through competitive bidding process. The tender notices published, set out the scope of the tender and provide instructions to the bidders to ensure a non-discriminatory and transparent bidding process to be conducted in an objective manner.

The tender document contemplated lease of the tendered plots at Sanjgaon for long lease of 80 years and the bid process contemplated the activities taken up MSRDC, leading upto the selection of successful bidder.

The ‘tender document’ defined certain terms and a few of them which are relevant, need a reproduction :-

“Contract” shall mean and include terms and conditions of RFP, Letter of Acceptance, the Offer/Bid, the Agreement and mutually accepted conditions in authorized correspondence exchanged with the bidder by the Corporation and any other document forming part of contract”.

Letter of Acceptance (LOA) shall mean the letter issued by MSRDC to the Successful Bidder stating that the latter has been short listed as the Successful Bidder and can sign the Lease Agreement.

Lease Agreement means the agreement to be entered between MSRDC and the Successful bidder on the subject matter for the leasing of the land parcel by MSRDC to the Successful bid