1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. MCA (Review) No.1348/2008 in WP No. 392/2008 M/s. Baba Trading Company and another Vs. Vidarbha Chamber of Commerce and Industries Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Mr. M.G. Bhangde, the Senior Counsel with Adv. V.R. Mundra and Adv. M.M. Agnihotri for the applicants. Mr. G.B. Lohiya, Adv. for respondent no.1. Mrs. T.D. Khade, AGP for respondent no.2. Mr. V.G. Wankhade, Adv. for respondents 3 and 4. Coram : B.H. Marlapalle and A.H. Joshi, JJ. Reserved on 25th November, 2008. Pronounced on 1st December, 2008. 1. Heard Mr. M.G. Bhangde, the learned Senior Counsel with Adv. Mr. V.R. Mundra and Adv. Mr. M.M. Agnihotri for the applicants, who were the respondents 4 and 5, in Writ Petition No. 392/2008. 2. The applicants' pray for review and recall of our order dated 20.10.2008, by which, Writ Petition No.392/2008 was disposed off, in terms of the following observations:- 2 “The contract allotted to respondent nos. 4 and 5 by respondent nos. 2 and 3 for the period from 1st October, 2005 to 30th September, 2008 is a subject-matter of challenge in this petition. Admittedly, the tenure of the contract is over on 30th September, 2008 and further extension of three months has been granted thereafter. We, therefore, direct the respondent nos.2 and 3 to invite fresh tenders and finalise a fresh contract effective from 1st January, 2009 as per its rules, but in no case the present contract will be extended beyond 31st December, 2008....” 3. The applicants are aggrieved by our directions to invite fresh tenders and finalise a fresh contract effective from 1st January 2009 and that in no case, the present contract to be extended beyond 31st December, 2008. 3 4. On 30.10.2003, the respondent no.2 issued notice of tender for award of contract granting sole right of transporting parcel courier and allied services in the entire State of Maharashtra. Pre-bid meeting was held on 12.11.2003. However, the contract came to be signed between respondent no.2 and respondent no.4, for the first time, on 19th August, 2005 and it was made effective from 1.10.2005 to 30.9.2008. In the meanwhile, on 11.12.2004 respondent no.2 passed a resolution proposing to extend the period of contract for two more years depending upon the satisfactory service of the Contractor and this recommendation was accepted by the State Government on 14.12.2004. 5. The appointment of respondent no.4 as the sole contractor came to be challenged in Writ Petition No.392/2008 and the petition was filed on or about 23/1/2008. It was contended by the petitioner- Vidarbha Chamber of Commerce and Industries in Writ Petition No.392/2008 that the award of contract to the respondent no.4 was illegal, arbitrary and unconstitutional and against the public interest and 4 the petitioners prayed for quashing of the said contract. It was further pointed out that though the respondent no.4 was allotted the contract, the contract was being, in fact, operated by respondent no.5. 6. By the time, the petition came up before us on 20.10.2008, all the respondents had filed their returns and the original tenure of three years of the impugned contract had expired on 30th September, 2008. We were also informed by the learned counsel for respondents 2 and 3 that on expiry of the original tenure of the contract, it was further extended by three months more. We, therefore, directed to invite fresh tenders and finalise a fresh contract to be signed from 1st January 2009. 7. This review petition has been filed mainly on the ground that prior to passing of our order dated 20.10.2008 disposed off the petition, the Government of Maharashtra had already taken a decision to the effect that the Corporation should extend the applicants' contract by a further period of two years on payment of 10% increase per annum on the original 5 amount of the contract. 8. Mr. Bhangde, arguing for the applicants, therefore, submitted that a decision, which was taken prior to passing of our order was not intimated to the respondents 2 and 3 so also, the State Government did not inform this fact to this Court when the order under review was passed. 9. We, therefore, called for the original file from the Department of Transportation, Government of Maharashtra, and the same has been placed before us, by the learned A.G.P. 10. We have noted from the file placed before us by the learned A.G.P. that on 5.8.2008 the Board of Directors of the respondent no.2 passed a resolution deciding to invite fresh tenders instead of granting further extension to the present applicants in the contract, beyond 30.9.2008. The respondent no.2 forwarded the said resolution to the Department of Transportation, Government of Maharashtra on 14.8.2008. The Transportation Department had accepted the said recommendation in its notings and 6 placed for approval before the Minister of State, who in his written note, observed that as per the clause of contract, there was provision for two years extension on charging 10% more amount on the original contract amount and the said clause was approved by the State Government on 14.12.2004, and the Minister of State, therefore, recommended to extend the period by two years. 11. It is seen that this recommendation was also placed before the Hon'ble Chief Minister. On 20.10.2008 a fresh note was placed before the Minister of State seeking clarification and he approved the extension of two years'. On 21.10.2008 the department processed the order and it was finally communicated to the respondent no.2 vide the letter dated 27.10.2008. 12. It is thus clear that the decision of the State of Maharashtra for extension of the applicants' contract for two more years did not exist on 20.10.2008 and the said decision culminated into a final order on 21.10.2008 and it was intimated to the respondent-Corporation by the letter dated 7 27.10.2008. Thus, the subsequent decision and order passed by the Government after this Court had passed the order, of which review is sought, cannot be the ground or reason to entertain this review petition. 13. Even otherwise, we have noted that neither the State Government nor the respondents-Corporation has challenged our order under review. The applicants claim that they have a vested right for extension on the basis of the terms and conditions of the tender and, therefore, the direction to call for fresh tenders was erroneous. If that be the case, the remedy of the applicants was some where else and not by way of a review petition. 14. Notwithstanding the above findings, Clause 4.2 of the Tender on which, the applicants placed reliance reads as under:- “This contract is operative for a period of 3 years from the date of commencement of the contract i.e., from 1/10.2005 and it can be extended at the discretion of the Licensor for another 2 years subject to satisfactory completion of three years contract period by reciprocal agreement ....” 8 15. It is evident that the extension of two years on satisfactory completion of the original period of 3 years is a matter of discretion of the Licensor i.e. respondent-Corporation and it cannot be accepted that the applicants had a vested right for extension of the contract by two more years. The respondent- Corporation, in support of its resolution to issue a fresh contract stated thus as is clear from the file submitted before us. ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ 9 16. It is evident from the resolution passed by the respondent culminating in the award of the subject contract to the applicant no.1 that the contract was given on experimental basis. The recommendation made by the Minister of State on or about 18.10.2008 for extension of contract for two years did not give any reason as to why the justification given by the respnodent-Corporation, in support of its decision, to invite fresh tenders did not find favour with the Government. On the contrary, we find, from the file placed before us that the applicant no.1 addressed a representation dated 11.8.2008 to the Hon'ble Chief Minister and the same came to be forwarded by a Member of Legislative Assessmbly with recommendations on 12.8.2008 to the Hon'ble Chief Minister. It was obvious that the applicant no.1 had come to know about the resolution passed by the Corporation on 5.8.2008 and he thus started lobbying to get over the said recommondation. 17. We note that the recommendation of the Minister of State does not take into consideration the fact that the extension granted by the respondent- Corporation for a period of 3 months was on the 10 condition that the Contractor will pay 40% additional charges rather than 10% as recommendated by the Minister and obviously the recommendation of the Minister would result in a financial loss to the respondent-corporation. 18. It is apparent that Government did not advert to all these factors or did not appear to have weighed before the Government while Government took the decision to extend the contract by two years in utter disregard to the resolution passed by the Board of Directors of the respondent-Corporation on 5.8.2008. 19. Be that as it may, we have no doubt, in our mind, that this review petition is not tenable and even otherwise, the applicants have not made out any case to review our order dated 20.10.2008. 20. Hence, the review petition must fails at the threshold and the same is hereby rejected. JUDGE JUDGE Ambulkar.