1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9104 OF 2004 M/s.Konark Infrastructure Pvt.Ltd. ...Petitioner vs. 1.State of Maharashtra & anr. ...Respondents. --- Mr.Y.S.Jahagirdar with M.S.Karnik, for Petitioner. Mr.Vijay Patil, for Respondent no.2. Mr.S.K.Chincholikar, A.G.P. For Respondent no.1. CORAM: D.K.DESHMUKH & N.D.DESHPANDE, JJ. DATED: 4th June, 2008. P.C.:- 1. By this petition, the petitioner challenges the order passed by the Commissioner, Ulhasnagar Municipal Corporation, dated 21.9.2004. The relevant facts are that the petitioner was granted a contract to recover octroi on behalf of the Municipal Corporation till 31.3.2000. Thereafter, fresh offers 2 were invited for awarding contract for subsequent period from 1.4.2000 onwards. In that regard, writ petition no.1663 of 2000 was filed in this Court by one Konark Infrastructure Pvt.Ltd. challenging the action of the Corporation. That writ petition was disposed of by this Court by its judgment dated 31.3.2000 in the following terms:- “14. In the circumstances we pass the following order:- (i)The Award of the contract for collection of octroi to the 3 Respondent for the year 2000-2001 shall stand quashed and per aside; (ii) The Municipal Corporation will be at liberty to issue a fresh advertisement inviting tenders for the purposes of awarding the contract for collection of octroi on terms and conditions which would be prescribed by the Municipal Corporation; (iii) the aforesaid process should be completed within a period of four weeks from today. (iv) In the interim period, some 3 arrangement will have to be made for the purpose of collecting octroi since the existing contract which is being held by the Petitioner has to come to an end on 31.3.2000. Until the Municipal Corporation awards a fresh contract in pursuance of the aforesaid direction's, the corporation will be at liberty to permit the existing contractor to collect octroi on behalf of the Municipal Corporation on the existing terms and conditions. If, however, the fresh bids which are to be invited by the Municipal Corporation result in the award of the contract at a rate higher than the rate previous year 1999-2000, the existing contractor shall pay to the Municipal Corporation the difference in the amount so realized pro rata during the interim period that he will operate the contract after 31.3.2000 and until a fresh contract is awarded. (v) Writ petition no.2663 of 2000 shall stand disposed of accordingly with no 4 order as to costs. In view of the orders passed in the aforesaid petition, no further orders are called for in the companion petition (W.P.Stamp No.10917 of 2000) which shall stand disposed of accordingly with no order as to costs.” This Court set aside the award of contract made by the Corporation for the year 2000-2001 and directed the Corporation to invite new bids. In the meantime, this Court directed that the Corporation may continue the petitioner as a contractor to collect octroi on its behalf for the period from 1.4.2000 till the fresh contract is granted pursuant to fresh bids to be submitted. The petitioner was to pay at the existing rate initially, but was liable to pay difference if the fresh contract is granted at higher rate. The order of this Court was challenged before the Supreme Court. The Supreme court on 17.4.2000 made an interim order. That interim order reads as under:- “Interim arrangement made by the High court shall continue until further orders subject to the modification that Respondent no.3 (IN 5 SLP(C)/Pet.6298/2000) is allowed to continue the contract, subject to the payment of the Highest bid amount that has been offered. It is open to the first respondent to take steps for calling for orders as directed by the High Court but shall not finalise it until further orders. Liberty to file additional documents, if any.” Thus, the Supreme Court modified the order made by this court which was to operate during the interim period viz. clause 14(iv) of the order of the High Court quoted above. The Supreme Court directed that in the interregnum the petitioner shall pay to the Corporation at the rate which is offered by the highest tenderer. It is common ground that at that time the higher rate offered by the tenderer was Rs.40,41,40,500/-. The matter before the Supreme Court was finally disposed of by the Supreme Court by its order dated 8.5.2000. The Supreme Court did not disturb the order of this Court setting aside the contract awarded by the Corporation. The Supreme Court also did not disturb the order passed by this Court inviting fresh bids. It appears that when the matter was heard by the Supreme Court, fresh bids 6 were already received, they were opened and it was found that the highest bid offered is Rs.41,51,00,000/-. M/s.Monarch Infrastructure (P) Ltd. offered to pay Rs.42,00,00,000/-, therefore, the Supreme Court directed that the bid of M/s.Monarch Infrastructure (P) Ltd. should be accepted and the Supreme Court in terms stated that the Supreme Court is upholding the order made by this Court. It appears that the contract pursuant to fresh bid was given to the aforesaid party and that party started operating from 12.5.2000. Thus, the question arose as to at what rate payment is to be made by the petitioner for the period from 1.4.2000 till 11.5.2000. It appears that initially the Corporation demanded payment assuming that the higher offer is of Rs.40,41,40,500/-. It is common ground that when payment was demanded at that rate, the petitioner made the payment. Subsequently a revised demand was raised by the Corporation and now, according to the Corporation, the petitioner was liable to pay at the rate of Rs.42,00,00,000/- being higher offer which was accepted before the Supreme Court pursuant to the fresh bids invited in view of the order of this Court. That demand was challenged in this Court. Ultimately, this Court by order dated 23.8.2004 7 directed the Commissioner of the Corporation to decide the question as to whether the petitioner has to make payment for the period from 1.4.2000 till 11.5.2000 at the rate of Rs.40,41,40,500/- or at the rate of Rs.42,00,00,000/-. The Commissioner decided that question by his order dated 21.9.2004 and held that the petitioner is liable to pay at the rate of Rs.42,00,00,000/-. It is this order which is challenged in the petition. 2. The learned Counsel appearing for petitioner submits that the order contained in paragraph 14(iv) of the order of this Court was modified by the Supreme Court by its interim order dated 17.4.2000, therefore, despite the final order of the Supreme Court the interim order continues to govern the period during which the petitioner operated viz. from 1.4.2000 till 11.5.2000. The learned Counsel also pointed out that the Corporation had moved the Supreme Court seeking clarification in that regard and the Supreme Court disposed of the application of the Corporation by its order dated 5.1.2001. The Supreme Court by way of clarification recorded last part of the final order dated 8.5.2000. 8 3. The learned Counsel appearing for Corporation on the other hand submits that the order passed by this court in writ petition referred to above has been confirmed by the Supreme Court by its final order and therefore, the directions issued by this Court which were to operate during interregnum also stands confirmed by the Supreme Court and according to that directions the petitioner was liable to pay at the rate at which the tender is accepted by the Corporation submitted pursuant to the order of the High Court. The learned Counsel further submits that the offer of M/s.Monarch Infrastructure (P) Ltd. of Rs.42 crores which was directed to be accepted by the Supreme Court was submitted pursuant to the judgment of the High Court and therefore, the petitioner is liable to pay at the rate of Rs.42 crores. 4. Now in the light of these rival submissions if the record of the case is perused, it becomes clear that so far as the period from 1.4.2000 till the Corporation awards the Contract pursuant to the fresh bids is concerned, this Court directed that “the Corporation will be at liberty to permit the existing contractor to collect octroi on behalf of 9 the municipal corporation on existing terms and conditions.” It, therefore, means that from 1.4.2000 the petitioner was liable to pay to the Corporation at the rate at which he was paying before 1.4.2000. Then this Court observed “If, however, the fresh bids which are to be invited by the Municipal Corporation result in the award of the contract at a rate higher than the rate previous year 1999-2000, the existing contractor shall pay to the Municipal Corporation the difference in the amount so realized pro rata during the interim period that he will operate the contract after after 31.3.2000 and until a fresh contract is awarded.” Thus, according to this order the petitioner was liable to pay difference between the rate at which he was paying and the rate at which, as a result of fresh bid, the contract would be awarded. No doubt that the order was modified by the Supreme Court by its interim order dated 17.4.2000 and the Supreme Court according to the modified order directed the petitioner to make payment not at the rate at which he was paying upto 31.3.2000 but at the rate of Rs.40,41,40,500/- which was the highest offer made at that juncture. This is an interim order made by the Supreme Court. This order will normally merge in the final order made by the Supreme Court. Perusal 10 of the final order made by the Supreme Court shows that the Supreme Court has not specifically referred either to the directions given by this Court which was to operate during interregnum or to its interim order dated 17.4.2000. The Supreme Court in terms says “We dispose the appeals by upholding the order made by the High Court and by giving further directions as stated above.” Now the Supreme Court in terms upheld the order made by this Court. Perusal of the order made by this Court shows that (i) the contract awarded by the Corporation is set aside; (ii) the Corporation was directed to invite fresh bids; (iii) in the interregnum the petitioner was permitted to operate as indicated above initially at existing rate and thereafter was to pay the rate offered by the highest bidder. The Supreme Court has, in terms, upheld all the three directions and has also given further direction. The further direction is that the Corporation is directed to accept the offer made by M/s.Morarch Infrastructure Pvt.Ltd. of Rs.42 crores. Therefore, we find that the learned Counsel appearing for respondent- Corporation is justified in saying that by the final order the Supreme Court has confirmed the order passed by this Court in toto including the order made 11 by this Court which was to operate during the interregnum, and therefore, the interim order made by the Supreme Court dated 17.4.2000 will not operate after the disposal of the appeal by the Supreme Court and therefore, the petitioner would be liable to pay for the interregnum period i.e. From 1.4.2000 till 11.5.2000 at the rate at which the tender of the higher bidder has been accepted by the Supreme Court i.e. Rs.42 crores. and that is what has been held by the Commissioner also and therefore, we do not find any substance in the petition. 5. In the result therefore, the petition is disposed of. Rule discharged. No order as to costs. 6. At the request of the petitioner, the operation of the interim order is continued for a period of twelve weeks from today. The petitioner, however, shall continue to keep the bank guarantee current during that period. (D.K.DESHMUKH, J.) 12 (N.D.DESHPANDE,J.) ---