ADANI PORTS AND SPECIAL ECONOMIC ZONE LIMITED versus THE BOARD OF TRUSTEES OF JAWAHARLAL NEHRU PORT AUTHORITY & ORS on 5 September 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 27.06.2022 passed by the High Court of Judicature atBombay in Writ Petition No. 14657 of 2022 by which the Division Benchof the High Court has dismissed the said writ petition with respect to theTender No. JNP/TRAFFIC/MCB/PPP/2021/01, the original writpetitioner – Adani Ports and Special Economic Zone Limited has preferredthe present Civil Appeal No. 5878 of 2022.

1.1 Writ Petition No. 569 of 2022 under Article 32 of theConstitution of India has been preferred by the petitioner – M/s. AdaniPort and Special Economic Zone Limited seeking following prayers:- “a.to declare Petitioner’s disqualification under the Tender asillegal, wrongful and /or revoke Petitioner’s disqualificationunder Tender No. JNP/T/BT/SWB-CB/2021-22/T-03 dated4.2.2022 (Annexure P-1 ); b.to issue a Writ of Mandamus or any other writ in the natureof Mandamus or any other appropriate writ, order ordirections under Article 32 of the Constitution of India toRespondent No. I and 2: (i) to forthwith withdraw and/orcancel the impugned communications dated 15.7.2022(Annexure P-5) (ii) to permit the Petitioner to participate inthe bidding process as provided under Tender No. JNP/T/BT/SWB-CB/2021-22/T-03 dated 4.2.2022; and (iii) to openand evaluate the Petitioner’s bid, when submitted, on merits;

c.to declare Clause 2.2.8 of the RFQ unconstitutional andultra vires Article 14 of the Constitution of India and quashand strike down the same; XXXXXXXXXX”

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A2. At the outset, it is required to be noted that with respect to theaforesaid two tenders namely Tender No. JNP/TRAFFIC/MCB/PPP/2021/01 and Tender No. JNP/T/BT/SWB-CB/2021-22/T-03, theappellant/petitioner has been considered disqualified and/or ineligible inview of the termination of the Concession Agreement dated 01.08.2011pursuant to the termination letter dated 26.12.2020 issued by theBVisakhapatnam Port Authority. While disqualifying the appellant /petitioner,the respondent No. 1 [the Board of Trustees of Jawaharlal Nehru PortAuthority(JNPA)] has relied upon Clause 2.2.8 of the Request forQualification (RFQ) documents.

C3. Dr. A.M. Singhvi, learned Senior Advocate has appeared withShri Neeraj Kishan Kaul, learned Senior Advocate on behalf of theappellant/petitioner. Shri Tushar Mehta, learned Solicitor General hasappeared on behalf of the respondent No.1 – Board of Trustees ofJawaharlal Nehru Port Authority and Shri Shyam Divan and Shri HuzefaAhmadi, learned Senior Advocates have appeared on behalf of theDcontesting respondent namely M/s. J.M. Baxi Ports & Logistics Ltd.

4. Dr. A.M. Singhvi, learned Senior Advocate appearing on behalfof the appellant/petitioner has vehemently submitted that as such therespondent No. 1 first terminated the contract/Concession Agreementdated 01.08.2011 on 21.10.2020 and only thereafter as a counterblast,Ethe Visakhapatnam Port Authority terminated the very said ConcessionAgreement vide letter dated 26.12.2020. It is submitted that thetermination of the Concession Agreement is the subject matter of disputepending before the Arbitral Tribunal. It is submitted that therefore thetermination of the Concession agreement dated 01.08.2011 with theFappellant/petitioner cannot be treated as a disqualification or ineligibilityfor the purpose of participating in any other tender issued by any publicauthorities.

4.1 Dr. Singhvi, learned Senior Advocate has stated at the Barthat in view of the passage of the time and the contract entered into/Ggranted/in process of being granted by the respondent No. 1 with respectto the aforesaid two tenders, the appellant/petitioner does not claim anyright to participate in respect of the aforesaid two tenders. However,has prayed to pass an appropriate order that the termination of theConcession Agreement dated 01.08.2011 by the Visakhapatnam PortAuthority may/shall not be treated as a disqualification/ineligibility forH

the purpose of participating in any other tender issued by the publicauthorities in view of the peculiar facts and circumstances.

4.2 Dr. Singhvi, learned Senior advocate has stated at the Barthat the petitioner withdraws the Writ Petition No. 569 of 2022 with theliberty to challenge the validity of Clause 2.2.8 of the RFQ Documentsor any other identical clauses before the High Court and it may beobserved that the same be decided and disposed of in accordance withlaw and on its own merits and uninfluenced by the impugned judgmentand order passed by the High Court dated 27.06.2022 passed in WritPetition No. 14657 of 2022.

5. Shri Tushar Mehta, learned Solicitor General appearing onbehalf of the respondent No. 1 has stated at the Bar that there is a broadconsensus between the appellant and the respondents to dispose of thepresent proceedings in terms of the prayer made by Dr. Singhvi appearingon behalf of the appellant/petitioner, however, has requested to observethat the termination of the Concession Agreement dated 01.08.2011 bythe Visakhapatnam Port Authority shall not be treated as a disqualificationor ineligibility for the purpose of participating in any other tender issuedby any public authorities, in view of the peculiar facts and circumstancesof the case and that this Court has not expressed anything on the validityof the Clause 2.2.8 of the RFQ documents.

6. Shri Shyam Divan, learned Senior Advocate appearing withShri Huzefa Ahmadi, learned Senior Advocate, appearing on behalf ofthe contesting respondent namely M/s. J.M. Baxi Ports & LogisticsLtd. has stated that as the appellant/petitioner has declared that theappellant/petitioner undertakes not to participate and will have no claimsin respect of the aforesaid two tenders, which is granted/in process ofbeing granted, they have no objection if appropriate order is passed inview of the broad consensus arrived at between the appellant/petitionerand the respondent No. 1 - Board of Trustees of Jawaharlal Nehru PortAuthority.

7. We have heard Dr. A.M. Singhvi, learned Senior Advocateappearing with Shri Neeraj Kishan Kaul, learned Senior Advocate onbehalf of the appellant/petitioner, Shri Tushar Mehta, learned SolicitorGeneral appearing on behalf of the respondent – Board of Trustees ofJawaharlal Nehru Port Authority and Shri Shyam Divan and Shri HuzefaAhmadi, learned Senior Advocates appearing on behalf of the contestingrespondent namely M/s. J.M. Baxi Ports & Logistics Ltd.

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A8. At the outset, it is required to be noted that the appellant/petitioner is disqualified and/or is held ineligible to participate in any tenderissued by the respondent No. 1 and/or any other public authorities inview of the termination of the Concession agreement dated 01.08.2011by the Visakhapatnam Port Authority and for which Clause 2.2.8 of theRFQ documents has been relied upon. However, it is required to beBnoted that it is the case on behalf of the appellant/petitioner that therespondents first terminated the Concession Agreement on 21.10.2020and only thereafter and as a counterblast, the Visakhapatnam PortAuthority terminated the Concession agreement vide termination letterdated 26.12.2020. It is also required to be noted that the termination ofCthe Concession Agreement dated 01.08.2011 is the subject matter ofdispute pending before the Arbitral Tribunal. Therefore, the issue oftermination of Concession Agreement is at large before the ArbitralTribunal. Be that as it may, there is a broad consensus between theappellant/petitioner and the respondent No. 1 that the present proceedingsbe disposed of by observing that the termination of the ConcessionDAgreement dated 01.08.2011 by the Visakhapatnam Port Authority shallnot be treated as a disqualification or ineligibility for the purpose ofparticipating in any other tender issued by any public authorities in viewof the peculiar facts and circumstances and, more particularly, when theappellant/petitioner has undertaken not to participate and will have noEclaims in respect of the above two tenders issued and granted/in processof being granted by the respondents namely, the Board of Trustees ofJawaharlal Nehru Port Authority and M/s. J.M. Baxi Ports & LogisticsLtd., we dispose of the Civil Appeal No. 5878 of 2022 as under:-

(i) That the appellant/petitioner shall have no claims in respectFof the two tenders namely Tender No. JNP/TRAFFIC/MCB/PPP/2021/01 and Tender No. JNP/T/BT/SWB-CB/2021-22/T-03 as undertaken on behalf of the appellant/petitioner;

(ii) That in the peculiar facts and circumstances of the caseGand as agreed between the parties, termination of theConcession Agreement dated 01.08.2011 by VisakhapatnamPort Authority shall not be treated as a disqualification orineligibility of the appellant/petitioner for the purpose ofparticipating in any other tender issued by any publicauthorities in future.H

ADANI PORTS AND SPECIAL ECONOMIC ZONE LTD. v. THEBOARD OF TRUSTEES OF J.N.P.A. [M. R. SHAH, J.]

9. Writ Petition No. 569 of 2022 is dismissed as withdrawn withthe liberty in favour of the petitioner to challenge the validity of Clause2.2.8 of the RFQ documents or any other identical clauses before theHigh Court and as and when such a challenge is made, the same bedecided and disposed of in accordance with law and on its own meritsand uninfluenced by the impugned judgment and order dated 27.06.2022passed by the High Court of Judicature at Bombay in Writ Petition No.14657 of 32022 as the validity of Clause 2.2.8 was not the subject matterbefore the High Court and we have also not examined the validity orotherwise of Clause 2.2.8 of the RFQ documents.

Present Civil Appeal No. 5878 of 2022 and the Writ Petition No.569 of 2022 stand disposed of in terms of the above.

Devika Gujral

Matters disposed of.

(Assisted by : Deepak Panwar, LCRA)

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