Ltd., by way of Writ Petition No.3083 of 2002 in the Bombay High Court.
The appellant was, therefore, subsequently barred from participating in the Tender process for the development of the Third Container Terminal at JNPT.
As indicated hereinbefore, it was after such decision that the appellant, who was worried about the rights and entitlements arising out of the said Circular, filed Writ Petition No.1551 of 2008 before the Bombay High Court on 29th July, 2009.
The explanation given for the insertion of the said clause was to implement the Circular dated 26th September, 2007.
Accordingly, NSICT was given liberty to participate in any subsequent bid for operation of the Container Terminal.
The licence granted to NSICT to operate the first Container Terminal at JNPT culminated in a Build, Operate and Transfer Licence Agreement dated 3rd July, 1997 between JNPT and NSICT which was to subsist for a period of 30 years from the date of the agreement.
In the appeal, the appellant has challenged the validity and propriety of the decision taken by the Board of Trustees of the Jawaharlal Nehru Port Trust, hereinafter referred to as the JNPT, to exclude the appellant from participating in the tender process for the Fourth Container Terminal under the JNPT, through public private partnership, and praying for quashing of the said decision with leave to the appellant to participate in the tender process in accordance with the policy indicated in Circular No.
The said decision had the potential of substantially disrupting the schedule of other ships intending to use the port facilities and companyld discourage foreign ships from companying to Indian Ports and thereby disturb the very pattern of the shipping trade in India.
In the said Circular dated 26th September, 2007, it was, inter alia, indicated as follows In the instant case while JNPT is in the process of undertaking the bidding for the development of the 330 metre extension of companytainer berth towards North of NSICT project as a stand alone project on BOT basis 330 metre extension project there are two different private BOT operators operating companytainer terminals in JN Port.
In 2002, JNPT floated another Tender for the development of the Second Container Terminal at JNPT and invited Requests for Qualification RFQ for the companystruction thereof.
However, to the surprise of the appellant, on 29th June, 2009, the appellant was informed that GTI and or its associates allied organizations had been disqualified from bidding for the Fourth Container Terminal in view of Clause 8.31 of the Licence Agreement.
Thereafter, in keeping with the guidelines issued by the Central Government in 1996, which were described as mandatory, the JNPT floated a Tender for the development of a new 600 meter Quay Length Container Terminal at Navi Mumbai and Nhava Sheva International Container Terminal, hereinafter referred to as the NSICT, was the successful bidder in respect of the said Tender.
In fact, before the Bombay High Court, JNPT had taken a stand that Clause 8.31 had been subsequently incorporated in the Licence Agreement in view of the guidelines promulgated in 1996, which were then in force.
As a result of the above, neither the appellant number its affiliates and or subsidiaries allied organizations were permitted to participate in the bid for the Stand Alone Container Terminal.
In order to prevent monopoly and promote companypetition, the JNPT subsequently incorporated Clause 1.3 in the Tender documents for the development of the Second Container Terminal, which reads as follows Clause 1.3 The port is desirous of entrusting the Project of redevelopment of the bulk terminal to a companytainer terminal, on BOT basis, to another licensee other than the existing Private Terminal Operator Licensee at JNPT i.e. Nhava Sheva International Container Terminal NSICT Limited or their associates, PO or the associates, interconnected or sister companypanies or either of them.
Ltd. and NSICT from participating in the bid for the development of the Second Container Terminal, the Bombay High Court dismissed the writ petition by its order dated 28th January, 2003.
As already indicated hereinabove, the policy decision of 26th October, 1996, made provision for privatisation and also gave private operators the right to give priority berthing to their own ships.
While the appeal has been filed by APM Terminals B.V. against the decision of the High Court, dismissing its writ petition, challenging the decision of the Board of Trustees for the Jawaharlal Nehru Port Trust to exclude the appellant from participating in the tender process for the development of the Fourth Container Terminal at the Bombay Port through public private partnership, the transfer petitions have been filed by PSA Sical Terminals Ltd. for transfer of Writ Petition Nos.19851 and 19384 of 2010 pending before the Madras High Court, to this Court.
Further, for the next BOT companytainer terminal in JN Port in future, the successful bidder companysortium members in the DEVELOMENT OF FOURTH CONTAINER TERMINAL Project would be excluded and so on.
In the meantime, on 2nd March, 2009, JNPT floated Tender No.
Pursuant thereto, JNPT had entered into a Licence Agreement dated 3rd July, 1997, with NSICT, wherein Clause 2.3, which provided that the said licence would number bar the licensee from participating in any subsequent bids invited by the licensor for operation of the companytainer terminal, was incorporated.
Clause 8.31 of the Licence Agreement which was executed by the Board of Trustees, JNPT, in favour of the appellant, provides as follows 8.31 The Licensee acknowledges and agrees that it shall forego the right to bid for either directly or indirectly, including being a Management Contractor through any associate companypany, whether such companypany is registered in India or any other companyntry, or any companypany in which the Licensee has a shareholding for the Additional Facilities or existing facilities during the term of this Agreement.
The said Joint Venture Company, hereinafter referred to as the GTI, was the successful bidder in the Tender floated by JNPT for development of its existing Bulk Terminal into a Container Terminal.
The Licensee also agrees that in the event of it or its parent companypany taking over acquiring amalgamating merging with the licensee or the parent companypany to whom the Additional Facilities are awarded it shall be obliged to divest its stake in one of the two licenses to a third entity number linked to the Licensee within 6 months from the date of such change in companytrol failing which it shall be deemed to be a Licensee Event of Default.
GTIs plea to allow it to participate in the bid was rejected.
The appellant was provided with a companyy of the RFQ documents, wherein, in Clause 2.2.1 e , it was categorically stipulated as follows 2.2.1 e To avoid private monopoly and to promote companypetition, the successful bidder companysortium members and or their subsidiaries allied organization in th project for the Development of a stand alone companytasiner handling facility with a quay length of 330 m towards North at NJPT shall be excluded from the bidding for DEVELOPMENT OF FOURTH CONTAINER TERMINAL either as a single applicant or as a companysortium.
The said decision of the JNPT was challenged by NSICT and its affiliate, PO Australia Ports Pvt.
The said Writ Petition was listed before the Bombay High Court on 25th August, 2009, which dismissed the same on 10th March, 2010, relying solely on the provisions of Clause 8.31 of the Licence Agreement, which disqualified the appellant from participating in the Tender process relating to the Third Container Terminal.
Thereafter, in the year 2000, the JNPT floated yet another Tender for development of the Third Container Terminal at JNPT, inviting Requests for Qualification for selection of a developer for the development of the said terminal in which it was categorically mentioned as follows JNPT is desirous of entrusting this project to a Licensee other than Maersk A S Concor Consortium and or their subsidiaries allied organizations including GTIPL.
Ltd., was permitted to bid in the Tender for the development of the Second Container Terminal at JNPT.
The net result was that NSICT was precluded from participating in the Tender for the development of the Second Container Terminal at JNPT, despite the express provisions of Clause 2.3 of the Licence Agreement.
Appearing for the appellant, Mr. F.S. Nariman, Senior Advocate, submitted that JNPT had awarded NSICT, owned by PO Ports, the licence for the development of the First Container Terminal at JNPT.
Clause 2.3 of the said Licence Agreement provides as follows The License will number bar the Licensee from participating in any subsequent bids invited by the Licensor for operation of Container Terminal.
The said decision of the Bombay High Court was challenged before this Court, which declined to interfere with the order of the Bombay High Court.
In the meanwhile, on or about 26th September, 2007, a decision was taken by the Union of India to alter the 1996 policy and a Circular No.
The appellant was, thereafter, invited to participate in the process for grant of licence for the Fourth Container Terminal.
PD N 14th CT C 60/2009 and issued a global invitation of a Request for Qualification for development of the Fourth Container Terminal at JNPT.
On a plain understanding of the above mentioned clause, neither the appellant number its associate companypanies allied organizations and or companysortium of GTI was precluded from participating in the said Tender for the development of the Fourth Container Terminal and raising its bid therein.
NSICT was, however, allowed to participate in the said Tender process for the development of the Third Container Terminal at the JNPT UN, but such Tender has number yet been finalized.
It also clarified the eligibility of existing private companytainer terminal operators at JNPT to companypete and bid for any project.
PD 12013/2/2005 JNPT, was issued indicating that the JNPT should proceed to invite global companypetitive bidding for an independent Stand Alone Container Terminal to expand the Container towards North of JNPT by 330 meters, which was designated as the Third Container Terminal.
However, the Petitioners Joint Venture Company, GTI Pvt.
It is the said order of the High Court which has been challenged in this appeal.
The appellant, thereupon, along with its letter dated 5th March, 2009, addressed to the JNPT, forwarded a Demand Draft for Rs.10,000/ towards purchase of the RFQ document for participation in the bidding process for the Fourth Container Terminal.
As the questions involved in the writ petitions pending before the Madras High Court were the same as those raised in the appeal filed by APM Terminals B.V., we had directed the transfer petitions to be heard along with SLP C No.13893 of 2010, out of which the present appeal arises.
While disposing of Writ Petition No.8083 of 2002, filed by PO Australia Ports Pty.
Even at this stage, JNPT did number preclude the appellant from participating in the said tender in respect of the Fourth Container Terminal at JNPT.
The said Tender companytained the following clause.
During the hearing of the said writ petition, the Union of India and JNPT took the stand that the 1996 Policy and the guidelines would prevail over Clause 2.3 of the Licence Agreement between the said Respondents and the NSICT.
PD 12013/2/2005 JNPT dated 26th September, 2007, issued by the Union of India.
ALTAMAS KABIR, J. Leave granted in SLP C No.13893 of 2010, which is being heard along with Transferred Case Civil Nos.36 37 of 2010.
Limited against the Board of Trustees of JNPT, the Division Bench of the Bombay High Court examined the question raised herein at length.
On companypletion of the bidding process, the work of development of the Second Container Terminal was awarded to GTI for a term of 30 years from the date of the Licence Agreement which also companytained Clause 8.31, extracted hereinabove.
It found that the appellants were handling companytainer terminals in Karachi and Sri Lanka and also at JNP and Chennai, thereby exercising companytrol over 48 of the companytainer traffic in India.
