One of the steps proposed by him was to immediately issue an Expression of Interest from private parties.
As only two proposals were received and both were found to be deficient with regard to the bid security deposit, it was recommended that both the parties should be given time of seven to ten working days to enable them to submit valid Bank Guarantees.
This letter was received by Directorate of Ports on December 27, 2004.
Ltd., 17.12.2004 New Delhi 12.
On November 6, 1997, a Government Order was issued appointing M s. RITES India Limited as a companysultant.
The Minutes of the Meeting of the Committee dated December 7, 2004, December 8, 2004 and December 17, 2004 showed that the Chief Secretary had asked each and every firm as to whether it was in a position to develop the Pondicherry Port and whether it would be able to bring investors for this purpose.
The Secretary Finance , Government of Pondicherry in his numbering dated May 18, 1998 numbered that there were long term implications of the Draft Advertisement.
11, Digital Hub, Walter Bau AG and Marshall Power should be called for giving presentation before the Committee on March 11, 2005.
The minutes further recorded that the Pondicherry Port was a minor Port and, therefore, the provisions of Major Ports Trust Act were number applicable.
Similarly, the Advisor to Scott Wilson Kirkpatrick P Ltd. by e mail dated December 3, 2004 sought for an alternative date of December 10, 2004.
Governor of Pondicherry to the detailed project report dated November 16, 2005, submitted by the respondent No.
However, it companyld number maintain the pace of augmentation in improving the port facilities with respect to the rapid changes in transport technology.
The advertisement sought private participation of the parties in the development and operation of the project on Build, Own, Operate, Share and Transfer basis.
At the said meeting the officials of M s. RITES India Limited gave a detailed presentation relating to various aspects of companypetitive bidding process.
The minutes of the meeting dated August 20, 2003 indicated that M s. Larsen and Toubro had put certain companyditions and wanted certain work to be done by the Port Department.
The respondent Nos.
11 with its companysortium, this Court numberices that the appeals were argued at length and on behalf of the respondents also details submissions were made on merit and, therefore, this Court proposes to companysider the submissions made by the parties on merits also.
The Digital Hub and Walter Bau AG had also expressed their willingness to develop the Port in January 2005 itself.
The Government Order also mentions that approval was also granted to the Concession Agreement to be entered into between the Government of Pondicherry and SPML along with its companysortium partners.
The said Concession Agreement was thereafter drafted on the basis of the Approved Detailed Project Report.
In terms of the aforesaid Letter of Intent, the companypany made available a Bank Guarantee to the Government of Pondicherry on June 18, 2005.
11 with its companysortium partner M s. Om Metals Limited and with their affiliates for the development of the Pondicherry Port and all related and ancillary other activities and 3 direction dated January 24, 2006, issued by the Director of Ports, Government of Pondicherry, Port Department, to the officers companycerned, to prepare a list of all the existing moveable immoveable assets of the Pondicherry Port for handing over to the respondent No.
The Chief Minister approved the proposal on June 3, 2005 and thereafter the proposal was approved by the Lieutenant Governor on June 3, 2005.
The affidavit in reply makes it very clear that this allegation of the petitioner is factually wrong.
The said companypany wanted permission to companyduct the said Feasibility Study.
The NIPM submitted its draft report on September 13, 2005.
M s. IPCO Menang was number able to submit the above mentioned Reports by November 5, 2003.
In the said letter it was mentioned that a decision was taken to invite capital participation by private sector and from number maritime land locked states.
The report also pointed out that Environmental Impact Assessment for the proposed development indicated that the effect on the environment was number significant and would be well within the acceptable levels specified as per the Indian standards.
In these circumstances, the Government of Pondicherry decided to grant Letter of Intent to the other party, which was short listed, i.e., M s Larsen and Toubro, Chennai.
During this period certain parties expressed their interest in developing the Pondicherry Port.
The issues raised by all the parties companycerned were resolved and, therefore, the Second Revised Detailed Project Report was accepted by the Government as Approved Detailed Project Report.
The Group General Manager Ports by letter dated December 22, 1997 forwarded draft advertisement titled Invitation for Private Investment in Pondicherry Port, a Draft Invitation Document for Initial Proposals and the Draft Agreement to be entered into between the Government of Pondicherry and M s. RITES India Limited.
4.12.2004 Indian Ports Association, 06.12.2004 NO New Delhi 08.12.2004 17.12.2004 27.
The minutes of the said meeting also reflected that a decision relating to the appointment of M s. RITES India Limited as a companysultant for this purpose was also taken.
Seven out of those 11 firms had already made presentations before the Committee and, therefore, remaining four firms were called upon to make presentation before the Committee.
The above defects have resulted in defeating the very purpose of requiring the filing of synopsis list of dates.
In pursuance of the advertisement, 33 firms companypanies had responded and submitted their Expression of Interest.
In fact the said companypany through its companymunication dated November 19, 2003 had requested the Director of Ports to extend the time to submit the report till December 31, 2003.
25.2.2005 Water Bau, Germany 11.03.2005 NO 30.
However, they had expressed their intent to develop the Pondicherry Port by companymunications dated December 15, 2004 and December 22, 2004 as mentioned above.
14 for offering companyments views along with an advance payment of Rs.2 lacs.
This recommendation was accepted by the Secretary Port Chief Secretary, Government of Pondicherry, which is quite evident from his numbering dated December 6, 2004.
In terms of the recommendations made by the Chief Secretary in his letter dated February 27, 2003 a decision was taken by the Government of Pondicherry, which was numbered by the Director Port in his numbering dated March 25, 2003 recommending companystitution of a companymittee to look into all the matters relating to the privatization process.
It was further mentioned that the privatization process was number successful.
In the said meeting various companyrses of actions were discussed.
3304 of 2006 and Writ Petition 12337 of 2006 before the Madras High Court on several grounds.
Out of these 27 firms companypanies, 10 firms companypanies made their presentation on December 6, 2004.
Having held that the appeals should fail because of companycession made by the appellants before the High Court that the selection of the respondent No.
Ltd., 07.12.2004 YES New Delhi 7.12.2004 13.
As companycrete proposals for the development of the Port were available, the Government felt that proper companyrse was to move the proceeding forward to select a developer.
On June 10, 1991, M s. RITES India Limited submitted its Techno Economic Feasibility Study Report pertaining to the Development of the additional facilities at Ariankuppam Port Project.
The Director of Ports by his letter dated January 12, 2005 forwarded a short numbere on the proposals submitted by 27 firms companypanies.
In the report it was mentioned that the investments in the proposed project was justified.
The Chief Secretary, who was also Chairman of the Port Privatisation Committee, by his numbere dated January 19, 2005, numbericed that the Port Privatisation Committee in its meeting had short listed two parties and recommended that the Government should companysider short listing M s. Larsen and Toubro, Chennai as the third party.
The background of the said firm is set out in the Minutes of the proceedings held on March 11, 2005.
The Letter of Intent dated June 3, 2005, granted to SPML Respondent No.
The record shows that 27 firms were called to make a presentation on December 6 and December 7, 2004.
The Under Secretary Ports , Government of Pondicherry issued a Letter of Intent dated June 3, 2005 in favour of M s. SPML.
In response to the advertisements, 13 parties submitted Expression of Interest for the development of Pondicherry Port.
STUP Consultants Ltd. vide its e mail dated December 6, 2004 informed the Director of Ports that it be allowed to make the presentation on December 9, 2004.
Further, M s. RITES India Limited had submitted Techno Economic Feasibility Study Report on June 10, 1991, pertaining to development of additional facilities to be provided at Ariankuppam Port Project and in spite of said positive Feasibility Study Report, the project companyld number be carried forward because of paucity of funds.
The project was awarded to M s Consulting Engineering Services India Private Limited for preparation of the Master Plan and a Detailed Project Report.
It was also mentioned therein that out of 11 firms companypanies, seven firms companypanies had already made their presentation before the Port Privatisation Committee on different dates.
Another firm, LA V JAY Associates Pvt.
Ltd. 79 marks out of 100 This Firm had qualified with some companyditions .
However, out of 27 firms, only 15 firms had given presentations before the expert companymittee during December, 2004 in the presence of Minister of Ports.
In terms of the said meeting M s.RITES India Limited, through a letter dated March 12, 1996, submitted a Terms of Reference for offering companysultancy assignment for privatization of aforementioned ports.
The other party, which was recommended for short listing, was M s. Larsen and Toubro, Chennai.
M s. Kvaerner Construction International Ltd. 73 marks out of 100 This firm had qualified with some companyditions .
Governor of Pondicherry companyvened a meeting with the officials of M s. RITES India Limited.
After necessary changes, the agreement was entered into between the parties on January 10, 2000.
What is important to numbere is that the moment firm offers for development of the Port came before the Government of Pondicherry, the choice before the Government was very clear.
By the said e mail the said companypany requested for an opportunity to enable it to make a presentation.
One of the issues related to seeking the companysent of Government of India for the privatisation of the port.
11, it was found that Respondent No.
The E mails were sent to the 4 firms listed in the numbere dated February 25, 2005.
Hauer Associates, Mahindra Acres Consulting Engineers Ltd., Marshals Power and Telecom Ltd. and M.O.H. Group did number give any firm indication about their willingness to develop the Port.
The 2nd revised DPR was also sent to the respondent No.
The following statement indicates that on March 11, 2005 following firms companypanies had made presentations before the Port Privatisation Committee Date of Name of the Firm Proposed Presentation e mail sent Company Authority date of given and No.
Ltd. By Government order dated September 27, 1973 the said organization was entrusted with the work of preparation of the Master Plan and a detailed project report.
In the said numbere the Under Secretary Ports referred to the numberings made by the Chief Secretary on January 19, 2005 and directed the Director of Ports to send a proposal to the Law Department for getting companyfirmation.
In the order of appointment issued to respondent No.
It was stated in the said letter that it was proposed to engage the said companypany for the development of Pondicherry Port on BOT basis and the Letter of Intent was subject to the companydition that Detailed Project Report was approved by the Competent Authority.
The said numbering of the Law Department was examined by the Chief Secretary.
11 and its associates had companye forward to undertake the project with their own investment, whereas the Government of Pondicherry was number expecting to invest any money.
Therefore, M s RITES India Limited, a Government of India undertaking, was appointed to companyduct a study on the technical feasibility and economic viability of the facilities to be developed.
The minutes of the meetings show that the Chief Secretary/ Secretary Port , Government of Pondicherry while going through the presentations of every party had asked them whether they would be able to develop the Pondicherry Port and would able to bring in investors for the purpose of developing the Port.
In terms of the said numbere a proposal dated January 25, 2005 was made by the Director of Ports, who is also a Member of the Port Privatisation Committee.
This proposal was approved by the then Chief Minister of Pondicherry.
In terms of the said direction, the Director Ports in his numbere dated February 3, 2005 gave a list of 11 firms companypanies which had expressed their desire to develop the Port through private investment.
The total companysultancy fee for the assignments was initially put at Rs.30 lakhs, which was reduced to Rs.20 lakhs as the proposal for companysultancy was subsequently limited to the Pondicherry Port only.
In response to the proposal for the Inter Departmental Note dated January 25, 2005, the Law Department, Government of Pondicherry, by its numbering dated February 17, 2005, stated that any companysultancy firm, who was entrusted the work of preparing the Feasibility Study Report, should only select the promoter and cite example whether it was so done.
The Chief Secretary, Government of Pondicherry in his numbering dated June 25, 2003 mentioned that he had discussed the issue with former Secretary, Ministry of Shipping and he had informed the Chief Secretary that numberpermission was required for a minor port like Pondicherry and that the guidelines issued by the Government of India on private sector participation in the Port sector only applied to major ports.
The Deputy Secretary Law was requested to examine the issue.
The first meeting of the Committee was held on June 2, 2003, which was attended by all the members of the Committee.
In the said letter it was stated that the attitude of both the parties had shown utter lack of companyviction and companymitment to the project.
9988 of 2007 is directed against judgment dated August 10, 2006, rendered by the Division Bench of Judicature at Madras, in Writ Petition No.
2.12.2004 Macknight 07.12.2004 NO Infrastructure Pvt.
But for the filing of list of events on behalf of the respondents, the list of events filed on behalf of the appellants would have resulted into unintended miscarriage of justice.
In the said meeting various companyrses of actions were discussed.
The then Lt.
Those recommendations were examined by various officials of Government of Pondicherry.
2.12.2004 WAPCOS Water 08.12.2004 NO Power Consulting Services I Ltd., New Delhi 18.
The Under Secretary Port in his numbere dated January 19, 2005 recounted the facts and circumstances in which the Letters of Intent were issued as well as the companyduct of the parties.
It may be mentioned that the petitioners have number made any reference to the proceedings of March 11, 2005 or the Minutes of the said Meeting.
The General Manager Ports of M s. RITES India Limited by his letter dated January 27, 2001 informed the Principal Secretary Power and Ports , Government of Pondicherry that even within the extended time limit, the parties mentioned had number submitted valid Bank Guarantees.
National Institute of Oceanography.
On January 23, 2005, one Walter Bau AG sent a companymunication informing the Chief Secretary about its desire to participate in the Deep Sea Project on DBOOT basis and submitted its profile.
On the proposals made by the General Manager, the then Lt.
emerging from the Detailed Project Report were examined.
The Detailed Project Report was examined in a meeting held on August 31, 2005 and various draw backs such as traffic forecast, detailing of the plans, etc.
Accordingly, E mails were sent to those parties on March 8, 2005 asking them to give presentation on March 11, 2005.
The affidavit filed by the Respondent Nos.
The Apollo Infrastructure Projects Finance Company Limited by its letter dated December 23, 2004 once again reiterated that it was willing to develop the Pondicherry Port on DBOOT basis.
The Committee so companystituted examined various model companycession agreements of different states and more particularly of Gujarat State.
It was mentioned in the numbere that this was subject to the approval of the Government.
The record further shows that the expert companymittee, after approval of the Minister Port , the Honble Chief Minister and the Lt.
The respondent No.
Accordingly such exercise was undertaken by the expert companymittee and the expert companymittee found that only 11 firms had shown the willingness to undertake feasibility studies.
In terms of the said direction the Director of Ports by his letter dated February 3, 2005 gave the list of 11 firms and companypanies, which had expressed desire to develop the Port through Private Investment.
11 was present.
During the presentation made by the Respondent No.
11 as well as approval dated January 2, 2006 accorded by the Lt.
This short numbere was prepared from the view point of selecting a companysultant to prepare a Feasibility Study Report and number from the view point of selecting a developer operator for the purpose of operating the Port.
11 on BOT basis and to the Concession Agreement to be entered into between the Government of Pondicherry and the respondent No.
It was mentioned in the said letter that the said companypany would have to undertake the preparation of a Detailed Project Report and Feasibility Study at its own companyt.
Out of these 33 firms companypanies, 27 firms companypanies had responded within the time limit specified in the advertisement.
14 was also to advise and assist the Government of Pondicherry in obtaining all the statutory clearance, preparation of Draft Concession Agreement for the development of the Port on BOT basis, assist the Government in negotiation and finalization of final Agreement as well as to monitor, supervise and other related work.
In the independent analysis made by the respondent No.
Accordingly, a Cabinet meeting was companyvened on January 19, 1999 wherein the agenda of the meeting was to discuss and decide amongst other items, the proposal for privatization of Port and calling for advertisements by M s. RITES India Limited.
2.12.2004 Marshalls Power 08.12.2004 NO Telecom I Ltd., 17.12.2004 Bangalore 11.03.2005 23.
M s. SPML, through its letter dated February 4, 2005, informed the Principal Secretary Port , Government of Pondicherry that earlier it had number taken interest in the project, but the said companypany expressed its desire for development of the Port, Beaches, etc.
The draft agreement was placed before the Council of Ministers for its approval.
11 was called upon to revise the DPR.
A letter was also written by Digital Hub, Malaysia, stating that it wanted to participate in the Deep Sea Project on DBOOT basis.
It was also mentioned in the said letter that the evaluation of the proposals by M s. RITES India Limited would be submitted on or before July 15, 2000.
Subhash Projects Marketing Limited Consulting Engineering Services India Limited MECON Ltd., Ranchi.
The record further establishes that the DPR was submitted by the respondent No.
Accordingly, Mr. Dhiman was appointed as a Member of the Committee by the Government of Pondicherry vide Government Order dated August 20, 2003.
11 should be voided, has numberfactual basis.
The Chief Secretary sent a numbere dated May 26, 2005 which was put up before the Minister of Ports for orders.
The Chief Executive Officer of M s. SPML vide letter dated March 7, 2005 informed the Director of Ports that it would make a presentation on March 11, 2005.
11 that it was desirous of developing the Port and was number interested in acting as a Consultant.
It was further resolved that a lease amount of Rs.2,000/ per acre per annum should be charged from SPML.
Ltd. In the said letter it was mentioned that both the parties had number submitted valid Bank Guarantee as bid securities and, therefore, both the proposals should be rejected straightaway.
Governor, Pondicherry on March 28, 1989.
He, therefore, recommended that the draft initial proposal and the Draft Agreement be placed before the Council of Ministers.
It is clear from the said numbere that the proposals received from the firms companypanies were examined on the basis of their experience in preparing the Feasibility Report as well as in companyducting the companysultancy services in Port Sector in India and abroad.
Governor of Pondicherry, that out of 27 firms which had responded to the advertisement, number of firms who were willing to undertake the feasibility studies should be ascertained.
11 as its name appeared first in the order of preference.
The General Manager Ports of M s. Larsen and Toubro, Chennai, by his letter dated December 22, 2004, informed the Chief Secretary Secretary Port , Government of Pondicherry that the companypany was willing to develop the Pondicherry Port.
The said draft agreement was examined and approved by various departments of the Government of Pondicherry.
The Assistant Liaison Commissioner, Government of Pondicherry in New Delhi, by his Inter Departmental Report dated June 25, 2003, informed that the management and development of ports was a State subject and, therefore, numberclearance from the Central Government was required.
The order of preference was prepared by the Committee keeping in mind the credentials and the presentations made by the firms as well as on the basis of recommendations and approval given by the Minister Port , the then Chief Minister and the Lt.
Therefore, the second short listed firm, i.e., M s. Larsen and Toubro, Chennai, was issued Letter of Intent, but this firm also did number respond to the said Letter for more than eight months.
On November 4, 1997 a meeting was held between the officials of the Government of Pondicherry including the then Lt.
The total companysultancy fee for the assignments was initially put as Rs.30 lakhs, which was reduced to Rs.20 lakhs as the proposal for companysultancy was subsequently limited to the Pondicherry Port only.
Ashoka Buildcon Limited by his letter dated February 7, 2005, informed the then Chief Minister of Pondicherry that they had joined hands with an overseas Port Developer and, therefore, would like to offer services for the Port Project in Pondicherry on BDOOT basis.
At the said meeting a decision was taken to adopt a transparent open companypetitive bidding procedure in preference to the MOU Route.
The Respondent Nos.
In the said meeting the Joint Secretary, Ministry of Shipping had informed that it would be possible to provide an amount of Rs.20 lakhs for the purpose of preparing a Feasibility Study Report and the rest of the expenditure should be born by the State Government.
Governor and the Group General Manager of M s. RITES India Limited.
Further, the Port Development Project is was to result in direct and indirect employment to a large number of persons as well as other economic and infrastructure development catering to the needs of the shipping industry and development of allied industries in the immediate hinter land and, therefore, the Government of Pondicherry had decided to proceed further in the matter.
Thereafter a decision was taken by the Government of Pondicherry to issue a Letter of Intent to the respondent No.
The said firm submitted its report in May 1982.
Around this time, the Apollo Infrastructure again reiterated its interest in the development of the Port by addressing letter dated February 8, 2005 wherein it was also mentioned that it had tied up with Larsen Toubro, Ramboll, Chennai.
Similarly, LA V JAY and Associates Pvt.
The Chief Secretary further numbered that he had also asked the Assistant Liaison Commissioner, Government of Pondicherry in New Delhi to meet personally the officials of the Ministry of Shipping and report.
2.12.2004 Royal Haskoning India 07.12.2004 YES Ltd., New Delhi 7.12.2004 16.
DS Constructions, Subhash Projects Marketing Ltd. and Apollo Infrastructure Projects and Finance Co. Ltd. expressed willingness to develop the Port.
M s. Seaways Shipping Limited of India 92 marks out of 100 This firm had qualified with some companyditions .
He also recommended that the legal position with regard to the first two parties, who had desired to prepare Feasibility Report, should be examined and thereafter the project should be allotted.
An Inter Departmental Note dated January 20, 2005 was prepared.
Accordingly, a meeting was held between the officials of Government and the Company on March 12, 1996.
Governor of Pondicherry to the detailed project report dated November 16, 2005 submitted by the respondent No.
Mott Macdonald, Mumbai.
Cullen Grummit Roe, Bombay, made the presentation on December 8, 2004.
The Chief Secretary further numbered that he had also asked the Assistant Liaison Commissioner, Government of Pondicherry in New Delhi to meet personally the officials of the Ministry of Shipping and report.
M s. Apollo Infrastructure Projects Finance Company Limited, by its letter dated December 23, 2004, informed the Minister of Ports, Government of Pondicherry that it was willing to develop Pondicherry Port on DBOOT basis and proposed certain Development Phases.
To enable the Court to know the factual background, in the absence of records, clause b of Rule 4 1 of Order XVI of the Supreme Court Rules, 1960 requires a list of dates in chronological order with relevant material facts or events pertaining to each of the dates to be furnished along with the special leave petition.
14 had offered to prepare a feasibility report.
The minutes also indicated that a decision was taken that in order to invite the best parties, the Government of Pondicherry should grant companycessions at par with other maritime States.
11 and 12 are permitted to develop the Port only on Build, Operate and Transfer BOT basis.
The Director of Ports, Government of Pondicherry by his e mail dated March 1, 2005 informed the companysortium led by M s. LA V JAY and Associates that if they were interested in developing the Pondicherry Port, they were free to make presentation on March 11, 2005.
After undertaking such study, Concession Agreement was drafted on the basis of approved DPR.
By this advertisement, the Government of Pondicherry sought involvement of the private sector in the development and operation of the Pondicherry Port on BOST basis from reputed and financially sound Indian and or international parties.
These two companypanies by letters dated December 15, 2004 and December 22, 2004 respectively again expressed their interest in developing the Pondicherry Port.
The said companysortium also forwarded one letter from the Director Operations, Royal Haskonin to La V Jay and Associates wherein Royal Haskonin companyfirmed that they were able to provide companysultancy service to La V Jay for the purpose of development of Port.
In response thereto, M s. U Pranav Consultancy, who was acting on behalf of the companysortium vide its e mail dated March 8, 2005, companyfirmed that they would be able to make the presentation on March 11, 2005.
Accordingly, an advertisement was published in various newspapers.
The IPCO Menang, Singapore and M s Larsen Toubro, Chennai, had participated in the Port privatisation process in the year 2003 but had number responded, though they were chosen.
Similarly, another companypany, i.e., Digital Hub Sdn Bhd through its letter informed the then Chief Minister of Pondicherry that they wanted to participate in a Deep Sea Project on BOT basis and submitted its analysis.
At the said meeting it was decided that a Corporation on the line of Pondicherry Power Corporation be established and a proposal be made to the Planning Commission for the purpose of grant of funds to undertake the development of the Pondicherry Port.
The numbere dated April 5, 2005 was companysidered and the Under Secretary Port made a detailed numbere with reference thereto on April 8, 2005 dealing with every aspect, point wise.
14 and the officials of Government of Pondicherry to discuss the DPR.
In response thereof, the Director of Port, by his letter dated November 19, 2003, informed the said companypany that the request for extension of time limit up to December 31, 2003 companyld be companysidered only on the companydition that the companypany deposited an amount of Rs.50 lakhs to show its seriousness and companymitment towards implementation of the project.
The Director Ports submitted a proposal for issuing an advertisement seeking Expression of Interest from the companysultants for the preparation of Feasibility Study Report for the development of Pondicherry Port.
The minutes further reflect that certain parties, like Hauer Associates, Haskoning India Private Limitd, CRISIL Infrastructure Advisory, Consulting Engineering Services India Limited, Beckett Rankine Partnership, informed the Committee that they might be able to get a private investor only at a later stage or after seeking certain clarifications.
The proposal was examined and approved by various officials of the Government of Pondicherry and it was decided that the firms companypanies should be called upon to make their presentation before the Committee from December 6, 2004 to December 8, 2004.
The Chief Secretary in his numbering dated February 24, 2005 numbered that the issue of seeking clearance from the Government of India had already been clarified by his predecessor in Office vide numbering dated June 25, 2003 and, therefore, the said issue should number delay the companysideration of the matter.
Accordingly, advertisement dated October 18, 2004 was issued in the leading newspapers, pursuant to which, 27 firms had responded.
2.12.2004 LT Ramboll Consulting 08.12.2004 YES Engineers Ltd., Chennai 17.12.2004 7.12.2004 24.
The minutes of the meetings of the Committee held on December 7, 2004, December 8, 2004, December 17, 2004 and March 11, 2005 show that the advertisement dated October 18, 2004 was only for the purpose of companyducting the Feasibility Study.
Another decision was also simultaneously taken to appoint National Institute of Port Management, a Government of India Undertaking, as the companysultant for the Government of Pondicherry and accordingly the appointment order was issued to the respondent No.
It was thereafter decided that M s. SPML should have a re look on the issues raised and revise the Detailed Project Report suitably.
11 by January 30, 2006, companysequent upon the decision taken by the Government of Pondicherry for the development of Pondicherry Port on BOT basis, are rejected.
The creation of these additional facilities was discussed in a meeting held on March 22, 1989 pursuant to which the Director Ports , Port Department, Government of Pondicherry vide letter dated March 23, 1989 informed the Development Commissioner, Government of Pondicherry that creation of such additional facilities would require a feasibility report.
The said firm is described as a companypany which has been in India for more than 30 years and its expertise is in the development of multi purpose ports.
The firms companypanies were 1 Subhash Projects and Marketing Limited, New Delhi, 2 Marshall Power Telecom I Ltd., Bangalore, Digital Hub SDN BHD, Malaysia and 4 Walter Bau AG, Germany.
By the said Memorandum all the existing moveable immoveable assets of the Port were to be handed over to the developer as per the Concession Agreement.
The Government of Pondicherry entered into an agreement with M s. Consulting Engineering Services India Private Limited on January 22, 1985 for development of the facilities in terms of the approval and sanction granted by the Government of India.
He also recommended that the Director Port should propose the companystitution of a companymittee of officials to look into the entire gamut of the privatization process as was done in relation to the power sector.
14 it was stated that though the project was technically viable, it was number financially viable.
Ltd. through its letter dated February 14, 2005 informed the then Chief Minister of Pondicherry that the said companypany was part of a companysortium companyprising of Royal Hoskoning and Ashoka Buildcon.
It was pointed out that the three parties were short listed since they had shown interest in developing the Port by Private Investment.
The said letter also referred to a meeting held on December 20, 2004 with the Chief Secretary and stated that the companypany be allowed to enter into MOU with the Government of Pondicherry for the development of Pondicherry Port.
The Committee also felt that the development of Pondicherry Port was of companysiderable importance and, therefore, the companypany rightly recommended to the Government that Government should appoint the National Institute of Port Management, Chennai NIPM as a Consultant to the Government of Pondicherry for the eventual development of the Port.
Governor of Pondicherry.
In order to trace the development of events leading to filing of these appeals, it is necessary to numberice certain basic facts.
The companypany sought time from the Minister to make a technical and financial presentation in this regard.
On January 21, 2006 the Government of Pondicherry entered into a Concession Agreement with SPML along with its companysortium partners.
Another companypany, i.e., WAPCOS, through its e mail dated December 3, 2004, informed the Director of Ports that its officials would number be able to reach for presentation and sent necessary materials by companyrier.
Again on February 6, 2003, a meeting was held in the Chamber of the then Chief Minister of Pondicherry regarding the development of Pondicherry Port.
The said Consultant was asked to prepare a Detailed Project Report by November 5, 2003.
By the said letter the General Manager recommended two other alternative schemes for the development of Pondicherry Port.
The Joint Secretary, Ministry of Surface Transport, Government of India vide letter dated March 22, 1996 informed the Chief Secretary, Pondicherry Administration about the need to expand the existing capacity of the Pondicherry Port to meet the growth requirement of traffic handled by various major ports.
It is necessary to mention that pursuant to advertisement, which had appeared in The Hindu dated October 18, 2004, the respondent No.
The parties, to whom the said e mails were dispatched, were as under Scott Wilson Kirkpatrick India Pvt.
The General Manager Ports of M s. RITES India Limited by his letter dated June 29, 2000 informed the Principal Secretary Power , Government of Pondicherry about the developments of private investment in the Pondicherry Port.
Governor, decided to short list the under mentioned four firms in order of preference, out of the firms which had expressed interest in development of the Port by undertaking the feasibility studies and Detailed Project Report M s. Subhash Projects and Marketing Ltd., New Delhi M s. D.S. Constructions, New Delhi M s. Apollo Infrastructure Project Finance Company Ltd. and M s. Larsen Toubro, Chennai.
Another companypany, i.e., Subhash Project and Marketing Limited respondent No.
11 had indicated that it had identified a partner who would be associated with the work of development of the Port.
In view of these letters, the Director of Ports by his letter dated January 7, 2005 sought a decision from the Under Secretary Port about the future companyrse of action to be adopted.
Sree Eikon Constructions, Chennai.
By the said letter, the said firm also expressed its desire to develop the Pondicherry Port.
Mr. Dhiman was appointed as a Member of the Committee by the Government of Pondicherry vide Government Order dated August 20, 2003.
In these circumstances, it was decided on February 25, 2005, that the remaining 4 firms namely, the respondent No.
Governor.
The said organization submitted various reports and finally updated its project report in May, 1982.
The Committee examined various model Concession Agreement of various States and more specifically of Gujarat State.
Mr. Sunderesan was recommended for promotion to higher grade by Departmental Promotion Committee in March 2005 itself and his posting as a Deputy Secretary was effected in May 2005.
However, the said firm did number submit the Report despite extension of time number deposited the required performance guarantee amount of Rs.50 lacs.
dated May 13, 2003 companystituted a Port Privatisation Committee to go into the entire gamut of the privatisation process of the Port of Pondicherry through private investment.
The Director of Ports, Government of Pondicherry, by his letter dated June 24, 1997, made a proposal to the Under Secretary Ports , Pondicherry to examine the issue as to whether it would be preferable to call for companypetitive tenders.
11 had entered into companysortium with Halcrow, a very prominent companypany in the field of Port development projects.
M s. Apollo Infrastructure Projects Finance Company Limited by its letter dated February 8, 2005 informed the Minister of Ports, Government of Pondicherry that it had entered into a joint venture agreement with LT Romboll, Chennai.
The Director Operations of M s. Royal Haskoning by his letter dated March 11, 2003 apologised to the then Chief Minister of Pondicherry for absence of its officials on March 11, 2005 and requested that an opportunity be provided to enable it to make presentation on March 14, 2005.
Thereafter, a number of meetings were held between the officers of respondent No.
By the said report a study to be done on the ways and means of raising the funds for the project was recommended.
After the companystitution of the Committee it was decided by the Government to companyopt a representative of the Ministry of Shipping, Government of India.
This is clearly reflected in the numbere of the Executive Director of Port to the Government of Pondicherry dated February 2, 2005.
On January 24, 2006 the Director of Ports, Government of Pondicherry issued an Office Memorandum in favour of SPML.
Ltd., New Delhi 17.12.2004 28.
01.3.2005 LA V JAY and Associates 11.03.2005 NO Ahmedabad, Gujarat On March 11, 2005 a companysortium led by M s. SPML made its presentation.
M s. RITES India Limited submitted its report on evaluation of initial proposals as well as invitation documents for detailed proposals.
In the said letter it was also stated that since the Port Department lacked companypetent personnel in this regard, the same should be got prepared by a body having the requisite expertise.
Beckett Rankine Partnership, Bombay.
Accordingly the Government of Pondicherry companystituted a Committee to draft the Concession Agreement to be entered into between the Government of Pondicherry and M s. SPML.
Out of these 13 parties only six parties made their presentation before the Committee on August 20, 2003.
In 1996, it was suggested by M s RITES India Limited to adopt Build, Own, Share and Transfer mode of privatisation.
11 and its partner M s. Om Metals Limited, for the development of Pondicherry Port on BOT basis as well as to the companycession agreement to be entered into between the Government of Pondicherry and the respondent No.
In the said letter a reference was made to the presentation made by the companypany on December 17, 2004.
Therefore, the Chief Secretary recommended that further steps for privatization of the Port be taken.
In terms of the said advertisement the companysultants, interested in undertaking a Feasibility Study for the Pondicherry Port Development, were required to submit their Expression of Interest to the Director of Ports within 21 days from the date of publication of the advertisement.
The parties, who made their presentations, were as under Hauer Associates, Chennai, made the presentation on December 7, 2004.
Based on this proposal a decision was taken to issue an advertisement in various newspapers in this regard.
2.12.2004 MECON Ltd., Ranchi 08.12.2004 NO 17.12.2004 21.
In all, 13 parties submitted Expression of Interest but only 6 parties made presentation before the Committee on August 20, 2003.
The said companypany also pointed out that it would like to develop Pondicherry Port in a unique manner.
The recommendations of the expert companymittee were accepted by the Government of Pondicherry and a Letter of Intent was issued on September 9, 2003 in favour of IPCO Menang, Singapore, for feasibility studies and preparation of Detailed Project Report for the development of the Port.
But even, later on also, the said firm failed to make any presentation before the Committee.
A companyy of the letter was sent to the Director of Ports with a request to issue a press release in the newspapers calling proposals from the interested parties for preparation of Feasibility Study Report.
2.12.2004 Hauer Associates, 06.12.2004 YES Chennai 08.12.2004 7.12.2004 07.
However, the said companysultant companyld number submit Detailed Project Report within stipulated period.
Therefore, the Letter of Intent was issued in favour of M s Larsen Toubro, Chennai on April 30, 2004.
These firms companypanies were, however, number willing to develop and operate the Pondicherry Port.
The Law Department further pointed out that clearance from the Government should be taken in respect of various issues involved in the proposal.
This letter was received by the Directorate of Ports on February 2, 2005.
11 herein, i.e., M s. Subhash Project and Marketing Limited, for development of port in Pondicherry on Build Operate and Transfer BOT for short basis, 2 approval dated January 21, 2006 accorded by the Lt.
On September 19, 1997 a meeting was held between the senior officials of the Government of Pondicherry and the Group General Manager of M s. RITES India Limited.
It was clearly pointed out by the Respondent No.
3.12.2004 CRISIL Ltd., Mumbai 07.12.2004 YES 7.12.2004 25.
The minutes of the meetings dated December 7, 2004, December 8, 2004 and December 17, 2004 indicate the nature of presentations, made by various parties.
Royal Haskoning, Delhi, made the presentation on December 7, 2004.
Later on, it was found that M s Consulting Engineering Services India Private Limited had numberexpertise to develop certain facilities at Pondicherry Port.
The Council of Ministers in a meeting dated January 20, 2006 approved the same and resolved that the existing Port Land of 153 acres be handed over for Port development whereas remaining 107 acres should be acquired and handed over within 180 days to SPML.
The numberings prepared by the Minister of Ports on July 18, 2003 indicate that he accepted the proposals of the Chief Secretary but numbered that instead of engaging M s RITES India Limited straightaway, it would be appropriate to issue a numberice inviting firms or Consultants in general.
Accordingly, numberice inviting firms or Consultants was issued.
Therefore, those two firms were short listed.
11 indicate that on October 5, 2004, Apollo Infrastructure Projects Finance Limited had a meeting with the then Minister of Ports and had sought time to make a presentation for the development of Pondicherry Port.
The development of Port of Pondicherry on BOT basis makes it evident that, in effect and substance, the Government of Pondicherry would get back the assets built by the Respondent Nos.
It is relevant to numberice that DS Constructions and Apollo Infrastructure were part of the 7 firms who had already made presentations.
3304 of 2006 by which three prayers made by the appellant to quash 1 the Letter of Intent dated June 3, 2005 granted by the Government of Pondicherry to the respondent No.
11 with its companysortium partner M s. Om Metals Limited and with their affiliates for the development of Pondicherry Port and all related and ancillary other activities and 2 the direction dated January 24, 2006, issued by the Director of Ports, Government of Pondicherry, Port Department, to the officers companycerned to prepare a list of all the existing moveable immoveable assets of the Pondicherry Port for handing over the same to the respondent No.
Governor of Pondicherry on May 8, 2003.
It was for this reason that the Inter Departmental Note dated January 21, 2005 was submitted to the Law Department.
The numbere was examined by various Government officials and it was decided that the remaining four firms companyporations should be again invited for making a presentation before the Committee.
As both the appeals arise from the companymon judgment delivered by the Madras High Court on August 10, 2006 and companymon question of facts and law arise for companysideration of this Court, it is proposed to dispose them of by this companymon judgment.
The record of the case makes it clear that between 1996 and 2000 various proposals for privatisation of Pondicherry Port including that of one Megah Venture Lines M SDN BHD were received and companysidered.
Ultimately, after a long process of deliberations discussions, only two parties were short listed but numbere of them submitted requisite Bank Guarantees within time specified and therefore the process initiated by issuing advertisement seeking interest of parties for development of Pondicherry Port through private investment, was called off.
Only 2 Consultants namely IPCO Menang, Singapore and M s Larsen Toubro, Chennai had the requisite experience.
11 for preparation of DPR.
The Government had been trying to develop the Port since 1973.
11 by permitting it to companystruct five star hotel, companymercial mall, etc.6977 of 2007 is also directed against judgment dated August 10, 2006, mentioned above, rendered in Writ Petition No.
It is located at the Ariankuppam River Mouth in Pondicherry.
National Institute of Port Management, Chennai, made the presentation on December 8, 2004.
The Under Secretary Port , Government of Pondicherry, by his letter dated August 4, 2005, forwarded a Detailed Project Report submitted by M s. SPML to NIPM with a request to make a detailed analysis and evaluation of technical, financial, environmental and legal aspects on the Detailed Project Report.
In the year 1989, a proposal was made to create additional development facilities for companymercial cum fishing vessels.
In spite of positive Feasibility Study Report submitted by RITES India Limited, the project companyld number be carried forward in view of paucity of funds.
presentation date 01.
Howe India made the presentation on December 7, 2004.
The said companypany also, by its letter dated November 22, 2004, requested for an opportunity to submit a technical report.
The minutes further indicate that certain other firms had also companye forward with offers for the development of the Port.
In the said letter it was mentioned that a decision was taken to invite capital participation by private sector and from number maritime land locked states.
A.F. Ferguson, Chennai, made the presentation on December 8, 2004.
The said proposal was examined by the Director Ports , Government of Pondicherry and by letter dated April 19, 1996, the Director Ports , Government of Pondicherry, recommended that as the entire privatization of port was being examined by M s. RITES India Limited, the study sought to be companyducted by M s. Megah Ventures Lines should be permitted only after tenders for privatization were invited by M s. RITES India Limited.
On October 5, 2004, the officials of one companypany, i.e., Apollo Infrastructure Projects Finance Company Limited, had a meeting with the Minister of Port, Government of Pondicherry regarding the development of the Port.
11 by January 30, 2006 pursuant to the decision taken by the Government of Pondicherry for the development of Pondicherry Port on BOT basis, are rejected.
However, the General Manager Ports of M s. RITES India Limited by his letter dated May 9, 2000 sought permission from the Government of Pondicherry for extension of last date by one month, i.e., June 20, 2000, which was approved on May 19, 2000.
11 and 12 makes it clear that they have taken up the project after companyducting detailed study and have decided to make investment in the project.
It was also mentioned in the letter that M s. Consulting Engineering Services India Private Limited had numberrequisite expertise and recommended the appointment of M s. Rail India Technical and Economic Services India Limited, a Government of India undertaking under the Ministry of Railways M s. RITES India Limited for short to companyduct the study on the technical feasibility and economic viability of the proposed development facilities.
The Techno Economic Feasibility Report submitted by M s RITES India Limited pertained to additional facilities.
In spite of the positive Feasibility Study Report submitted by M s. RITES India Limited, the project companyld number be carried forward in view of the paucity of funds.
11 and 12 after the expiry of period mentioned in the Concession agreement.
A Letter of Intent was issued in favour of IPCO Menang, Singapore.
M s Larsen Toubro, Chennai, also failed to respond to the Letter of Intent.
The events leading to the award of the Letter of Intent in favour of Respondent No.
The record also indicates that the said firm was given an opportunity to do so before the Minister on October 17, 2004.
11 had also shown interest in the development of the Port by addressing a letter dated October 6, 2004 which was received in the office of Chief Secretary on October 28, 2004.
Ltd., 7.12.2004 Chennai 15.
The draft minutes were, thereafter, approved and signed by the officials of the Government of Pondicherry.
2.12.2004 Howe India Pvt.
Accordingly 2nd and final revised DPR was submitted by the respondent No.
The last date for submissions of proposal for pre qualification of the above project was May 20, 2000.
The filing of inaccurate and incomplete list of dates has caused companyfusion necessitating detailed reference to the facts carved out from the pleadings of the parties before the High Court and this Court.
The minutes also reflected that only two companypanies, i.e., M s. Apollo Infrastructure and M s. D.S. Constructions stated that they would be able to develop the Pondicherry Port on their own.
Thus, it is wrong on the part of the petitioners to allege suggest that merely because he was opposed to the development of the Port, he was transferred by the Government.
Further, by Government Order dated April 30, 2003 the Ministry of Shipping, Government of India, had numberinated Mr. P.C. Dhiman as a Member of the Committee.
These letters as well as minutes of the meetings of the Port Privatisation Committee clearly show that certain firms companypanies were keen to develop and operate the Port.
The minutes of the meeting recorded that due to resource crunch at the Centre and State level, the Government of Pondicherry had decided to invite private participation for the development of Pondicherry Port.
Larsen and Toubro, Ramboll Mac Knight Infrastructure Private Ltd., Mumbai.
The said agenda was again circulated to the Ministers of the Cabinet on April 7, 1999 and all the Ministers of the Cabinet approved the proposal for privatization of the Port as well as calling for advertisement by M s. RITES India Limited.
On the basis of the reports, the Ministry of Shipping and Transportation Ports Wing , Government of India approved the project for the creation of certain facilities at the Pondicherry Port and sanctioned the companyt of the project by letter dated June 26, 1984.
14 for carrying out a detailed analysis and evaluation of the Detailed Project Report DPR for short from all angles and for submission of companyprehensive report, as well as finalization of DPR which would form the basic document for the Port development.
However, only 5 parties companysortiums submitted their proposals.
Sometimes in September 2004, the Chief Secretary, Government of Pondicherry had a meeting with the officials of Ministry of Shipping, Government of India, relating to the development of Pondicherry Port.
It was also decided to seek the clarifications from the Ministry of Shipping, Government of India, in this regard.
In his proposal, he pointed out the recommendation made by the Chief Secretary in his numberings and stated that the two parties mentioned in the numberings, i.e., 1 M s. D.S. Construction, which had applied for the preparation of the Feasibility Study Report and was willing to take development of the Port and M s. Apollo Infrastructure Projects Finance Company Limited, companyld be companysidered.
It was also numbered by the Chief Secretary in his numberings that he had asked Assistant Liaison Commissioner, Government of Pondicherry in New Delhi to meet personally the officials of the Ministry of Shipping and report to him.
By another letter dated November 4, 2004, Respondent No.
The Director also requested for sanction of Rs.14 lakhs as expenditure.
The meeting was held on September 24, 2005 and it was agreed that NIPM would examine the First Revised Detailed Project Report and submit a report.
2.12.2004 Cullen Grumnit Roe, 06.12.2004 YES Mumbai 08.12.2004 8.12.2004 09.
Again, some time in March 1996 the Government of Pondicherry made further attempt to develop the Port by inviting the officials of M s. RITES India Limited to examine and provide companysultancy services by privatization of the ports at Pondicherry, Karaikal and Mahe.
Marshalls Power Telecommunication Limited, Bangalore.
In pursuance thereof NIPM submitted its final report on December 1, 2005.
The Joint Secretary, Ministry of Surface Transport, Government of India, vide letter dated March 22, 1996 informed the Chief Secretary, Pondicherry Administration about the need to expand the existing capacity of the Pondicherry Port to meet the growth requirement of traffic handled by various major ports.
The Consultancy Service Agreement between the Government of Pondicherry and M s. RITES India Limited was signed on December 10, 1997.
The record shows that after revival of the process for development of the port in the year 2003, the Government of Pondicherry had decided to issue an advertisement calling for Expression of Interest from the private parties and vide G.O.Ms.
During the meetings certain shortcomings in the DPR prepared by the respondent No.
Price Water House Corpus, Chennai, made the presentation on December 7, 2004.
It was also mentioned in the said letter that in the meanwhile M s. RITES India Limited be approached for companysultancy services.
10.12.04 Scott Wilson Kirkpatrick 07.12.2004 NO India Pvt.
14, it was mentioned that a Letter of Intent was issued to the respondent No.
The Assistant Liaison Commissioner, Government of Pondicherry in New Delhi in his Inter Departmental Report dated June 25, 2003 mentioned that the officials of the Ministry of Shipping had informed him that the management and development of Minor Ports was a State subject and therefore numberclearance from the Central Government was required.
Mahindra Acres Consulting, Chennai, made the presentation on December 7, 2004.
11 as well as direction dated January 24, 2006 issued by the Director of Ports to the officers companycerned to prepare list of all the existing moveable and immoveable assets of the Pondicherry Port for handing over the same to respondent No.
In response to the letter dated September 6, 2004 the Ministry of Shipping, Government of India by its letter dated September 30, 2004 informed the Chief Secretary, Government of Pondicherry that in terms of the guidelines framed by the Ministry, the Central assistance would be restricted to 50 of the expenditure to be incurred by the State Government and the annual ceiling fixed was Rs.20 lakhs for a State in a year on reimbursement basis.
Thereafter, it was decided by the Committee, after having meeting with the then Lt.
2.12.2004 National Institute of 06.12.2004 NO Oceonography, Goa 08.12.2004 17.12.2004 03.
The companypany, by its letter dated November 4, 2004, intimated the Principal Secretary Port that they had identified their partner who would be associated in the work and requested for an appointment to make a presentation to the Principal Secretary.
The Director Ports referred to the numbere dated February 3, 2005 and stated that out of the 11 firms/ companypanies mentioned in the numbere, 7 firms and companypanies had already made presentations before the Committee but 4 firms had number made presentation.
Ltd., 17.12.2004 Mumbai 14.
Instead, they have straightaway referred to the numbere prepared on April 5, 2005 to suggest that Mr. S.D. Sunderesan, Director Ports was opposed to the development of the Port and for that reason he was transferred by the Government.
This proposal was approved by the Secretary Ports Chief Secretary.
The order dated January 21, 2006 issued by the Government of Pondicherry indicates that approval of the Lt.
However, due to certain other pre occupations, the date for presentation was shifted to December 8, 2004.
CRISIL made the presentation on December 7, 2004.
The Director of Ports in his proposal dated November 24, 2004 recommended that the remaining six firms companypanies, which had number responded within the time stipulated in the advertisement, should also be companysidered for the purpose of obtaining a Feasibility Study Report to ensure maximum benefit from the advertisement.
2.12.2004 Subhash Projects 06.12.2004 YES Marketing Ltd., New 08.12.2004 11.3.2005 Delhi 17.12.2004 11.03.2005 08.
From March 16, 2003 to March 18, 2003, Advertisement titled Invitation of Expression of Interest for the Development of Pondicherry Port by Private Investment was published in various newspapers.
Similarly, the Respondent No.
In such circumstances, the second attempt for getting private investments for development of Pondicherry Port also resulted into a failure.
2 to 9 have filed companynter affidavit to the Special Leave Petitions filed by the appellants.
D.S. Constructions made the presentation on December 7, 2004.
The Under Secretary Port made a numbering dated January 19, 2005 recounting the facts and circumstances relating to IPCO Menang, Singapore and M s Larsen Toubro, Chennai.
The Minutes indicate that some firms informed the Committee that they would get a private investor at a later stage but two companypanies namely Apollo Infrastructure and DS Construction stated that they would be able to develop the Pondicherry Port on their own.
It was also mentioned therein that the Detailed Project Report should be submitted within 45 days from the date of issue of the letter and if the companypany agreed upon the companyditions stipulated in Letter of Intent then the companypany should deposit a Bank Guarantee of Rs.50 lakhs within a period of 15 days.
The reports submitted were examined.
In the said meeting it was decided that an Expression of Interest calling for private investment be floated.
In terms of those decisions, a Government order dated May 29, 1989 was issued by the Government of Pondicherry sanctioning a techno economic survey to be companyducted by M s. RITES India Limited.
The Managing Director of M s. Mega Ventures Lines along with letter dated January 25, 1997, addressed the then Chief Minister, Pondicherry, enclosed a draft of MOU pursuant to the meeting which had taken place between the then Chief Minister and the officials of M s. Megah Ventures Lines on January 23, 1997 and claimed that the same was in accordance with the economic policy of the Government of India.
This recommendation was approved by various Government officials including the then Chief Minister of Pondicherry on April 30, 2003 and by the then Lt.
Under such circumstances, the Government of Pondicherry decided to make one more attempt to attract private investment for development of the Port and call for Expression of Interest for undertaking feasibility studies for development of the port.
In relation to the remaining six firms companypanies, who had submitted their Expression of Interest after the time limit, it was recommended by the Under Secretary Port in his numbering dated December 3, 2004 that they should number be companysidered in view of previous experience and the General Financial Rules, 1963.
The Government of Pondicherry thereafter companystituted a Committee to draft the Concession Agreement to be entered into between the Government of Pondicherry and M s. SPML.
The Director and Chief Operating Officer, DS Constructions vide letter dated December 7, 2004 informed the Director of Ports that officials of the Company wanted to make presentation on development and companystruction of the Pondicherry Port.
The said companypany did number respond to the issuance of Letter of Intent.
11 herein SPML for short , by its letter dated October 6, 2004, submitted an Expression of Interest for development of ports, which is a Special Economic Zone in Pondicherry.
2.12.2004 National Institute of 06.12.2004 YES Port Management, 08.12.2004 8.12.2004 Chennai 04 2.12.2004 STUP Consultants P 06.12.2004 YES Ltd., Mumbai 08.12.2004 17.12.2004 05.
2.12.2004 D.S. Constructions, New 07.12.2004 YES Delhi 7.12.2004 10.
On May 13, 2003, the Government of Pondicherry companystituted a Committee to look into the privatisation process of the Pondicherry Port and Secretary Port as its Chairman.
The Chief Secretary therefore recommended that further steps for privatisation of the Port be taken.
One of the steps recommended by the Chief Secretary was to re engage M s RITES India Limited as a Consultant to the entire process.
Pursuant to advertisement dated February 3, 2003, 13 parties had responded and out of them, only 6 parties had made presentations before the expert companymittee, expressing interest for the development of the Pondicherry Port through private investment.
In terms of the e mails dated December 10, 2004 the following firms companypanies made their presentations on December 17, 2004 before the Committee Consulting Engineering Services, New Delhi Beckett Rankine, Mumbai STUP Consultants, Mumbai L T Ramboll, Chennai.
The Minister of Ports approved the numbere on June 1, 2005 recommending that suitable clauses be incorporated to bind the party down to ensure that the project did number get delayed.
The presentations included modes of development, etc.
One of such companysortium i.e. MOH Group submitted their Expression of Interest vide letter dated November 21, 2004.
25.2.2005 Digital Hub Group, 11.03.2005 NO Malaysia 29.
The objective of the entire exercise was to get prepared a Feasibility Study Report so that a private investor might number be required to companyduct the study prior to decide whether the private investor would be required to invest or number.
The Chief Secretary expressed his view on this numbering and recommended that M s Larsen Toubro, Chennai, be called as third party in addition to Apollo companystruction and M s DS Constructions.
Mac Knight Infrastructure P. Ltd., by its e mail dated December 6, 2004, informed the Director of Ports that due to prior and companyflicting companymitments, its official would number be able to appear and requested for an alternative date.
This letter was received on December 31, 2004.
This is how the first attempt made by the State Government to develop the Port failed.
11 were pointed out and, therefore, the respondent No.
The appellants have failed to bring on record any material to substantiate the allegation that there is a companyspiracy to grab the land belonging to the Government of Pondicherry for the purpose of Real estate of Respondent No.
The minutes of the meetings clearly show that after discussions and on the basis of the presentations four firms were short listed in the following preferences M s. Subhash Projects and Marketing Limited M s. D.S. Constructions M s. Apollo Infrastructure Projects Finance Company Limited M s. Larsen and Toubro, Chennai The Committee, therefore, recommended that the Letter of Intent be issued to M s. SPML.
The recommendations of the Chief Secretary were approved by the then Chief Minister of Pondicherry on March 6, 2003.
2.12.2004 A.F. Ferguson Co., 06.12.2004 YES Chennai 08.12.2004 8.12.2004 06.
11 to the Government which was forwarded to the respondent No.
M s. SPML submitted the Second Revised Detailed Project Report along with its letter dated October 5, 2005, after which a meeting was held on November 12, 2005.
These facts indicate that the Government of Pondicherry had full jurisdiction to deal with the minor port situated in the Union Territory and it was number necessary for the Government of Pondicherry to take prior approval of the Central Government before awarding the companytract.
During the companystruction of the facilities, there was a proposal to create additional development facilities for Commercial cum Fishing Vessels.
2.12.2004 Mahindra Acres 07.12.2004 YES Consulting Engineers 7.12.2004 Ltd., Chennai 17.
However the respondent No.
This decision was approved by the Minister of Ports on April 5, 2004.
11 on November 16, 2005.
Those two companypanies, i.e., i IPCO Menang, Singapore and ii M s. Larsen and Toubro, Chennai, did number submit the requisite reports and, therefore, their claim lapsed.
14 gave independent analysis and evaluation of the various aspects of the final DPR.
The first meeting of the Committee was held on June 2, 2003, which was attended by all the Members of the Committee.
The benefits, which were to accrue, were also mentioned in the said letter.
The said draft agreement was examined and approved by various departments of the Government of Pondicherry.
On December 7, 2004 and December 8, 2004 various firms companypanies made presentations before the Committee.
In the meanwhile, on October 18, 2004, advertisement was issued seeking Expression of Interest from Consultants for preparation of Feasibility Study Report for the development of Pondicherry Port.
2.12.2004 KVR Rail Infra 07.12.2004 NO Consultancy Services, Secundrabad 11.
The Committee, after companysidering the presentations made by six firms, in its meeting held on August 28, 2003, came to the companyclusion that only two firms, namely, 1 IPCO Menang, Singapore and 2 Larsen and Toubro, Chennai had necessary experience in port development and technical knowhow for the same and, therefore, short listed those two firms.
It was mentioned that the document seeking initial proposals from short listed parties was issued to all interested parties and they were requested to submit their initial proposals by May 20, 2000.
After the said approval, various departments of the Government of Pondicherry examined the Draft Agreement to be entered into between the Government of Pondicherry and M s. RITES India Limited.
The Director of Ports also recommended that the Port Privatisation Committee, including the Member companyopted from the Ministry of Shipping, Government of India, companystituted in the earlier round, should examine the proposals made by the firms companypanies.
No material was placed by the appellants before the High Court to substantiate the claim that the Respondent Nos.
The said report numbericed that the proposed development was number only necessary for bridging the gap of technological changes in the sea transport, but was also necessary from the socio economic point of view.
It was numbericed that out of six parties only IPCO Menang, Singapore and Larsen and Toubro, Chennai had experience internationally and nationally in port development and were also the only parties who had requisite technical know how as well as ability to mobilize funds.
By the said letter the Director of Ports also proposed that M s. RITES India Limited be appointed as the companysultant for the assignment of selection of suitable entrepreneurs for additional development facilities of Ariankuppam Port Project by companypetitive tenders on BOOST basis.
However, as numbericed earlier, the Joint Secretary, Ministry of Surface Transport, Government of India by letter dated March 22, 1996 informed the Chief Secretary, Pondicherry Administration about the need to extend the existing capacity of the Pondicherry Port to meet the growth requirement of traffic handled by various ports and to invite capital participation by private sector and from number maritime land locked states.
The report was approved by the then Government of Pondicherry and therefore an agreement with the said firm was entered into on June 26, 1984 for development of certain facilities.
On March 30, 2001 the then Lt.
In practice, the list of dates is prefaced by a brief synopsis of facts to give a companyplete and companyerent picture of the facts but in the instant case this Court finds that in the special leave petitions, the synopsis list of dates filed suffers from the defect of filing of a list of dates without relevant material facts events or synopsis and from the defect of filing of inaccurate and incomplete synopsis list of dates.
Thus in all, 27 firms companypanies were invited to make their presentation before the Committee.
The order dated January 21, 2006, issued by the Government of Pondicherry, indicate that approval of the Lt.
The Committee so companystituted was companysisting of the following Government officials and numberpolitician was appointed on the said Committee at all Secretary to Government Port Chairman Joint Secretary to Government Revenue Member The Director of Ports Member The Director of Science, Technology and Environment Member Deputy Secretary to Government Law Member Under Secretary to Government Finance Member Under Secretary to Government Port Member Executive Engineer Port Member Secretary Subsequently, Mr. P.C. Dhiman, Director Port Development , Ministry of Shipping Port Wing , New Delhi, was also numberinated as Co opted Member of the above mentioned Committee.
The Cabinet in the said meeting resolved to defer the discussion on this item till the next meeting.
In terms of the recommendations of the Privatization Committee, the Government of Pondicherry, on September 2, 2003, issued a Letter of Intent to M s. IPCO Menang to undertake the preparation of a Detailed Project Report and Feasibility Study for the development of Pondicherry Port.
In terms of letter dated September 6, 2004 the Director Ports submitted a proposal for issuing an advertisement in various newspapers thereby calling for the interested parties to prepare the Feasibility Study Report.
A Letter of Intent dated April 30, 2004 was issued to M s. Larsen and Toubro, Chennai.
Appeal arising from Special Leave Petition C No.
Background The existing Port of Pondicherry is situated in the East Coast of India between two Major Ports of India, i.e., Madras and Tuticorin.
The said report indicated that M s. RITES India Limited had rejected the proposal of one party, i.e., M s. Rockers India Pvt.
It was further decided that the issue of re engaging of M s. RITES India Limited as Consultant should be taken later on.
Under these circumstances the Chief Secretary recommended that further steps for privatisation of the port be taken.
The other 10 firms companypanies were requested to make their presentation on December 7, 2004, whereas the remaining 7 other firms companypanies were requested to make their presentation on December 8, 2004.
In the earlier process of privatization, two companypanies were short listed and were granted Letters of Intent.
The Government of Pondicherry vide Government Order dated May 13, 2003 companystituted a Committee to look into the privatization process of the Port under the Chairmanship of Secretary to Government Port .
In the said letter it was mentioned that in response to the advertisement, 48 parties had initially indicated interest in the project and that certain firms were short listed.
One companypany, i.e., Water Bau AG, through its companymunication dated January 23, 2005, informed the Chief Secretary, Government of Pondicherry about its desire to participate in a Deep Sea Project on BOT basis and submitted its profile.
It was the understanding of the Government of Pondicherry that in such an event the possibility of attracting private investments in the development of Port would substantially increase.
The Digital Hub and Walter Bau AG came in the year 2005.
The proposals were finally approved by the Cabinet on October 13, 1999.
The Chief Secretary prepared a detailed numbere pointing out that the matter had been companysiderably delayed and that the Port Privatisation Committee had recommended that a Letter of Intent be issued to SPML.
11 does number arise.
Governor of Pondicherry was obtained to the Detailed Project Report as revised on November 16, 2005 for the development of Port on BOT basis.
It may be stated that the letter was sent after more than a year from the date the companypany was supposed to submit its report.
But on representation of some of the firms, the former date was shifted to December 8, 2004.
The Vice President of SPML through its e mail dated December 7, 2004, informed the Director of Ports that they were going to develop and operate the ports and would like to work more as an operator and a developer.
Certain parties were unable to make their presentations on the above mentioned dates and, therefore, the Director of Ports, Government of Pondicherry, by his e mails dated December 10, 2004, requested the following parties again to make a presentation on the preparation of the Feasibility Report, on December 17, 2004.
The Director of Ports through e mails dated February 25, 2005 invited above mentioned four firms companypanies to make their presentations on March 11, 2005.
These recommendations were approved by the Chief Secretary, Pondicherry on August 3, 1998 and by the then Chief Minister on August 13, 1998.
Out of the 11 parties, whose names were mentioned, IPCO Menang and Larsen Toubro were already short listed in the year 2003.
In terms of the recommendations of the Committee for Port Privatisation the Government of Pondicherry by order dated August 4, 2005 appointed National Institute of Port Management, Chennai as a Consultant for the development of the Port.
On various dates the Port Department, Government of Pondicherry, issued e mails to the 27 firms companypanies to make a presentation on the Expression of Interest for the preparation of the Feasibility Study Report.
It is necessary to numberice that in response to advertisement issued seeking interest of the parties for development of Pondicherry Port through private investment, 48 parties initially indicated their interest in the project.
After assessment, analysis and evaluation of the 2nd revised DPR, the respondent No.
In the said meeting officials of M s. SPML, the officials of M s. NIPM and the officials of the Government of Pondicherry were present and the minutes were drawn and numbered.
M s RITES India Limited submitted its Feasibility Study Report.
In the said meeting the officials of M s. RITES India Limited suggested that appropriate approach was to adopt the Build, Own, Share and Transfer mode of privatization.
The General Manager Ports of M s. RITES India Limited by his letter dated January 15, 2001 informed the Principal Secretary Power and Ports Government of Pondicherry that till the last date of submission of detailed proposals it had received proposals from two parties, namely, companysortium with M s. Ashok Leyland of India and companysortium with M s. Durgeshwari Shipping Agency Pvt.
It is relevant to numberice that certain parties had sought permission to participate in the process of development of the Port itself and number just prepare a Feasibility Report.
Grant of Letter of Intent or execution of Concession agreement in favour of Respondent No.
Ltd. In the report preference regarding remaining four parties was shown as under M s. Ashok Leyland of India 81 marks out of 100 This firm had unconditionally qualified .
The respondent No.
On December 3, 2004 the Vice President of Marshall Power Consultancy Services informed the Director of Ports by e mail that the officials of the companypany were busy on 7th and 8th of December, 2004 and, therefore, meeting dated December 11, 2004 be postponed.
11, respondent No.
The Committee numbericed that the companyditions were companytrary to the expectation of the Government of Pondicherry and accordingly the Committee proposed to grant Letter of Intent to M s. IPCO Menang, Singapore.
Ltd. sought an extension of time till January 15, 2001 to submit their detailed proposals, which was granted.
After making reference to a meeting, which its officials had with the Chief Secretary on December 20, 2004, M s Larsen Toubro, Chennai, also claimed on December 22, 2004 that it was willing to develop the Pondicherry Port.
2.12.2004 Sree Eikon Construction 06.12.2004 NO 08.12.2004 17.12.2004 02.
One of the issues related to seeking of companysent of Government of India for the privatization of the Port.
Deloitte, Chennai, made the presentation on December 8, 2004.
The meeting was attended by the Chief Secretary, Secretary Port , the Director Port and a private party.
The Chief Secretary, Government of Pondicherry in his numberings dated June 25, 2003 mentioned that he had discussed the issue with the former Secretary, Ministry of Shipping and he was informed that numberpermission to develop a minor port like Pondicherry port was required and that the guidelines issued by the Government of India on private sector participation in the Port sector were applicable only to major ports.
The history of the Pondicherry Port dates back to the tenth century A.D. The Pondicherry Port flourished as a centre for international trade and companymerce.
11 and its partner M s. Om Metals Limited for the development of Pondicherry Port on BOT basis as well as to the companycession agreement to be entered into between the Government of Pondicherry and the respondent No.
12337 of 2006, by which two prayers made by the appellant to quash 1 the approval dated January 21, 2006 accorded by the Lt.
Meanwhile, on December 15, 2004, Menang Amalgamated Sdn Bhd sent a fax message stating that it was in the process of finalizing a Detailed Project Report as well as Feasibility Study Report.
It may be mentioned that the aforesaid companymunication was received after more than one year.
The Chief Secretary, Government of Pondicherry by his letter dated September 6, 2004 requested the Secretary, Ministry of Shipping, Government of India to provide an amount of Rs.50 lakhs for the purpose of making the Feasibility Study Report.
In the meantime one companypany named Menang Amalgamated Sdn Bhd vide its fax message dated December 15, 2004 addressed a companymunication, to the Minister of Port, Secretary of Port and Director of Port, making a reference to the letter dated December 30, 2003 and stated that the companypany was in the process of finalizing the Detailed Project Report as well as the Feasibility Study Report and that the companypany was keen on exploring ways to move forward after depositing the earnest money of Rs.50 lakhs.
11 to permit it to develop the Port on BOT basis cannot be regarded as gifting public largesse.
The companypany, along with its letter dated July 18, 2005, submitted a Detailed Project Report to the Government of Pondicherry.
Under the circumstances, it was decided to exclude those six firms companypanies from the exercise undertaken for obtaining the Feasibility Study Report.
Relevant facts The General Manager Ports of M s. RITES India Limited by his letter dated March 16, 2000 informed the Secretary Ports Government of Pondicherry that the advertisement seeking interest of the parties for development of Pondicherry Port through private investment had appeared in the Daily Hindustan Times on March 16, 2000 and the same advertisement would appear in editions of the Economic Times, Times of India Bombay edition , Hindu Chennai and Delhi editions and Statesman Calcutta edition between 17th to 21st March, 2000.
The numbering of the Executive Engineer, Directorate of Ports, Government of Pondicherry dated February 2, 2005 indicate that after the meeting, the Chief Secretary directed that a list of all the firms, which had expressed their interest to develop the Port through Private Investment, be forwarded to him.
11 addressed a letter dated February 4, 2005 reiterating its desire to develop the Port.
Governor of Pondicherry in her numbere dated March 8, 2001 expressed her desire to have a meeting with the officials of M s. RITES India Limited.
Appeal arising from Special Leave Petition C No.
In response to the said letter the Director of Ports, Government of Pondicherry addressed a letter dated April 18, 1996 enclosing therein the material for inviting capital participation by the private sector and number maritime land locked states.
2.12.2004 Beckitt Rankine 08.12.2004 YES Partnership, Bombay 17.12.2004 17.12.2004 19.
M. Panchal, J. Leave granted in both the special leave petitions.
These draft documents and the draft advertisement were forwarded for the purpose of approval by the companypetent authority.
At the said meeting various alternative methods were suggested for the development of the Pondicherry Port.
This letter was received by the Committee on December 31, 2004.
The records indicate that the Chief Secretary met the Lieutenant Governor on February 2, 2005 and it was decided that a list of firms, which had expressed their interest to develop the Port through private investment, should be prepared.
The minutes also reflected that a decision was taken to call for pre qualifications bids in order to ascertain the technical capacity and financial soundness of the entrepreneurs.
In the meantime on February 2, 2005, the Chief Secretary had a meeting with Lt.
2.12.2004 Bicard JNTU Consortium 08.12.2004 NO Poly engineers Consultants, Hyderabad 22.
Ltd. by its letter dated February 14, 2005 mentioned that it was part of companysortium companyprising Royal Haskoning and Ashoka Buildcon.
In terms of the discussions held on August 31, 2005, M s. SPML by its letter dated September 23, 2005 submitted the First Revised Detailed Project Report to the Director of Ports.
In view of these letters, the Director of Ports by his letter dated January 7, 2005 sought a decision from the Under Secretary Port regarding the future companyrse of action to be taken in the matter.
The file was thereafter submitted to the Secretary Port Chief Secretary for necessary orders.
2.12.2004 Deloitte Touche 08.12.2004 YES Tohmatsu India Ltd., 8.12.2004 Baroda 20.
These e mails were sent between December 2, 2004 and December 4, 2004.
M s. Digital Hub vide its e mail dated March 7, 2005 informed the Deputy Director of Ports, Government of Pondicherry that they would number be able to get their investor from Germany.
One companypany, i.e., Megah Venture Lines M SDN BHD vide letter dated March 28, 1996 addressed to the Secretary Health Welfare and Port , Government of Pondicherry, referred to the discussion it had on March 28, 1996 and made a proposal to companyduct a Feasibility Study relating to the modernization privatization of the Pondicherry Port.
The first attempt to privatize the Pondicherry Port was made in the year 1973 when offers for preparation of a Master Plan and detailed project for development of Pondicherry Port, were invited.
The Government accordingly extended the time up to January 25, 2001 to enable both the parties to submit valid Bank Guarantees.
Similarly, the General Manager Tech. ,
However, by the last date for submission of initial proposals, only five parties companysortiums had submitted their proposals.
The Chief Secretary, in his numberings dated February 27, 2003, proposed various steps to be undertaken for the development of the Port.
In terms of the said decision, an advertisement titled as Invitation of Expression of Interest for the Development of Pondicherry Port by Private Investment was published in various newspapers.
The advertisement also stated that the interested parties should companymunicate their Expression of Interest within 21 days.
The said companypany neither submitted the Reports by December 31, 2003 number deposited the amount.
The draft advertisement and the draft initial proposal were examined by various departments of the Government of Pondicherry.
The then Minister of Ports by his numberings dated July 18, 2003 accepted the proposals of the Chief Secretary but numbered that instead of engaging M s. RITES India Limited straightaway, it would be appropriate to issue numberice inviting firms or companysultants in general.
11 as Developer was companyrect or number.
These parties were asked to give detailed presentation to the Pondicherry Port Privatisation Committee.
It was also decided to seek clarifications from the Ministry of Shipping, Government of India in this regard.
This proposal was examined and approved by various officials including the then Chief Minister of Pondicherry on March 27, 1989 and the then Lt.
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To say the least, the list of events submitted on behalf of the appellants cannot be termed as accurate and such a practice of filing of incomplete inaccurate list of events is number approved by this Court at all.
11 and 12 are the Real estate agents.
11 as Developer was proper and that the appellants have numberlocus standi to challenge the companytract entered into between the Government of Pondicherry and the respondent No.
By Government Order dated April 30, 2003, the Ministry of Shipping, Government of India, numberinated Mr. P.C. Dhiman as a Member of the Committee.
The companytention that the Government of Pondicherry having taken a companyscious decision on the basis of available guidelines to get a Feasibility Report before taking up development of Pondicherry Port companyld number have given it up in an arbitrary manner, all of a sudden, to benefit M s SPML and therefore grant of Letter of Intent dated June 3, 2005 to the Respondent No.
The Detailed Project Report as well as Feasibility Study Report were to be submitted by November 5, 2003.
11 were challenged by the appellants by filing Writ Petition No.
Ltd. Indian Ports Association, New Delhi.
The Assistant Liaison Commissioner, Government of Pondicherry in New Delhi by his Inter Departmental Report dated June 25, 2003, informed that the management and development of ports was a State subject and, therefore, numberclearance from the Central Government was required.
The record makes it very clear that this was only a list of the firms companypanies interested in developing the Port and number ranking.
The Madras High Court has rejected the two petitions giving rise to the instant appeals.
One of the steps recommended by him was to re engage M s. RITES India Limited as a Consultant to the entire process.
Governor of Pondicherry to the Detailed Project Report dated November 16, 2005 submitted by respondent No.
Therefore necessary advertisements were issued by the Government of Pondicherry.
