Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5878 OF 2022
Adani Ports and Special Economic Zone Limited …Appellant(s)
Versus
The Board of Trustees of
Jawaharlal Nehru Port Authority & Ors. …Respondent(s)
WITH
WRIT PETITION (C) NO. 569 OF 2022
M/s. Adani Port and
Special Economic Zone Limited …Appellant(s)
Versus
The Board of Trustees of
Jawaharlal Nehru Port Authority & Ors. …Respondent(s)
O R D E R
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 27.06.2022 passed by the High Court of Judicature at
Bombay in Writ Petition No. 14657 of 2022 by which the Division Bench
Signature Not Verified
of the High Court has dismissed the said writ petition with respect to the
Digitally signed by
NIRMALA NEGI
Date: 2022.09.06
17:06:29 IST
Reason:
Tender No. JNP/TRAFFIC/MCB/PPP/2021/01, the original writ petitioner
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– Adani Ports and Special Economic Zone Limited has preferred the
present Civil Appeal No. 5878 of 2022.
1.1 Writ Petition No. 569 of 2022 under Article 32 of the Constitution of
India has been preferred by the petitioner – M/s. Adani Port and Special
Economic Zone Limited seeking following prayers:-
“a. to declare Petitioner's disqualification under the Tender
as illegal, wrongful and /or revoke Petitioner's
disqualification under Tender No. JNP/T/BT/SWB-
CB/2021-22/T-03 dated 4.2.2022 (Annexure P-1 );
b. to issue a Writ of Mandamus or any other writ in the
nature of Mandamus or any other appropriate writ,
order or directions under Article 32 of the Constitution
of India to Respondent No. I and 2: (i) to forthwith
withdraw and/or cancel the impugned communications
dated 15.7.2022 (Annexure P-5) (ii) to permit the
Petitioner to participate in the bidding process as
provided under Tender No. JNP/T/BT/SWB-CB/2021-
22/T-03 dated 4.2.2022; and (iii) to open and evaluate
the Petitioner's bid, when submitted, on merits;
c. to declare Clause 2.2.8 of the RFQ unconstitutional
and ultra vires Article 14 of the Constitution of India
and quash and strike down the same;
XXXXXXXXXX”
2. At the outset, it is required to be noted that with respect to the
aforesaid two tenders namely Tender No.
JNP/TRAFFIC/MCB/PPP/2021/01 and Tender No. JNP/T/BT/SWB-
CB/2021-22/T-03, the appellant/petitioner has been considered
disqualified and/or ineligible in view of the termination of the Concession
Agreement dated 01.08.2011 pursuant to the termination letter dated
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26.12.2020 issued by the Visakhapatnam Port Authority. While
disqualifying the appellant /petitioner, the respondent No. 1 [the Board of
Trustees of Jawaharlal Nehru Port Authority(JNPA)] has relied upon
Clause 2.2.8 of the Request for Qualification (RFQ) documents.
3. Dr. A.M. Singhvi, learned Senior Advocate has appeared with Shri
Neeraj Kishan Kaul, learned Senior Advocate on behalf of the
appellant/petitioner. Shri Tushar Mehta, learned Solicitor General has
appeared on behalf of the respondent No.1 – Board of Trustees of
Jawaharlal Nehru Port Authority and Shri Shyam Divan and Shri Huzefa
Ahmadi, learned Senior Advocates have appeared on behalf of the
contesting respondent namely M/s. J.M. Baxi Ports & Logistics Ltd.
4. Dr. A.M. Singhvi, learned Senior Advocate appearing on behalf of
the appellant/petitioner has vehemently submitted that as such the
respondent No. 1 first terminated the contract/Concession Agreement
dated 01.08.2011 on 21.10.2020 and only thereafter as a counterblast,
the Visakhapatnam Port Authority terminated the very said Concession
Agreement vide letter dated 26.12.2020. It is submitted that the
termination of the Concession Agreement is the subject matter of dispute
pending before the Arbitral Tribunal. It is submitted that therefore the
termination of the Concession agreement dated 01.08.2011 with the
appellant/petitioner cannot be treated as a disqualification or ineligibility
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for the purpose of participating in any other tender issued by any public
authorities.
4.1 Dr. Singhvi, learned Senior Advocate has stated at the Bar that in
view of the passage of the time and the contract entered into/granted/in
process of being granted by the respondent No. 1 with respect to the
aforesaid two tenders, the appellant/petitioner does not claim any right to
participate in respect of the aforesaid two tenders. However, has prayed
to pass an appropriate order that the termination of the Concession
Agreement dated 01.08.2011 by the Visakhapatnam Port Authority
may/shall not be treated as a disqualification/ineligibility for the purpose
of participating in any other tender issued by the public authorities in
view of the peculiar facts and circumstances.
4.2 Dr. Singhvi, learned Senior advocate has stated at the Bar that the
petitioner withdraws the Writ Petition No. 569 of 2022 with the liberty to
challenge the validity of Clause 2.2.8 of the RFQ Documents or any
other identical clauses before the High Court and it may be observed
that the same be decided and disposed of in accordance with law and
on its own merits and uninfluenced by the impugned judgment and order
passed by the High Court dated 27.06.2022 passed in Writ Petition No.
14657 of 2022.
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5. Shri Tushar Mehta, learned Solicitor General appearing on behalf
of the respondent No. 1 has stated at the Bar that there is a broad
consensus between the appellant and the respondents to dispose of the
present proceedings in terms of the prayer made by Dr. Singhvi
appearing on behalf of the appellant/petitioner, however, has requested
to observe that the termination of the Concession Agreement dated
01.08.2011 by the Visakhapatnam Port Authority shall not be treated as
a disqualification or ineligibility for the purpose of participating in any
other tender issued by any public authorities, in view of the peculiar facts
and circumstances of the case and that this Court has not expressed
anything on the validity of the Clause 2.2.8 of the RFQ documents.
6. Shri Shyam Divan, learned Senior Advocate appearing with Shri
Huzefa Ahmadi, learned Senior Advocate, appearing on behalf of the
contesting respondent namely M/s. J.M. Baxi Ports & Logistics Ltd. has
stated that as the appellant/petitioner has declared that the
appellant/petitioner undertakes not to participate and will have no claims
in respect of the aforesaid two tenders, which is granted/in process of
being granted, they have no objection if appropriate order is passed in
view of the broad consensus arrived at between the appellant/petitioner
and the respondent No. 1 - Board of Trustees of Jawaharlal Nehru Port
Authority.
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7. We have heard Dr. A.M. Singhvi, learned Senior Advocate
appearing with Shri Neeraj Kishan Kaul, learned Senior Advocate on
behalf of the appellant/petitioner, Shri Tushar Mehta, learned Solicitor
General appearing on behalf of the respondent – Board of Trustees of
Jawaharlal Nehru Port Authority and Shri Shyam Divan and Shri Huzefa
Ahmadi, learned Senior Advocates appearing on behalf of the contesting
respondent namely M/s. J.M. Baxi Ports & Logistics Ltd.
8. At the outset, it is required to be noted that the appellant/petitioner
is disqualified and/or is held ineligible to participate in any tender issued
by the respondent No. 1 and/or any other public authorities in view of the
termination of the Concession agreement dated 01.08.2011 by the
Visakhapatnam Port Authority and for which Clause 2.2.8 of the RFQ
documents has been relied upon. However, it is required to be noted that
it is the case on behalf of the appellant/petitioner that the respondents
first terminated the Concession Agreement on 21.10.2020 and only
thereafter and as a counterblast, the Visakhapatnam Port Authority
terminated the Concession agreement vide termination letter dated
26.12.2020. It is also required to be noted that the termination of the
Concession Agreement dated 01.08.2011 is the subject matter of
dispute pending before the Arbitral Tribunal. Therefore, the issue of
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termination of Concession Agreement is at large before the Arbitral
Tribunal. Be that as it may, there is a broad consensus between the
appellant/petitioner and the respondent No. 1 that the present
proceedings be disposed of by observing that the termination of the
Concession Agreement dated 01.08.2011 by the Visakhapatnam Port
Authority shall not be treated as a disqualification or ineligibility for the
purpose of participating in any other tender issued by any public
authorities in view of the peculiar facts and circumstances and, more
particularly, when the appellant/petitioner has undertaken not to
participate and will have no claims in respect of the above two tenders
issued and granted/in process of being granted by the respondents
namely, the Board of Trustees of Jawaharlal Nehru Port Authority and
M/s. J.M. Baxi Ports & Logistics Ltd., we dispose of the Civil Appeal No.
5878 of 2022 as under:-
(i) That the appellant/petitioner shall have no claims in respect of
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 case and as
agreed between the parties, termination of the Concession
Agreement dated 01.08.2011 by Visakhapatnam Port Authority
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shall not be treated as a disqualification or ineligibility of the
appellant/petitioner for the purpose of participating in any other
tender issued by any public authorities in future.
9. Writ Petition No. 569 of 2022 is dismissed as withdrawn with the
liberty in favour of the petitioner to challenge the validity of Clause 2.2.8
of the RFQ documents or any other identical clauses before the High
Court and as and when such a challenge is made, the same be decided
and disposed of in accordance with law and on its own merits and
uninfluenced by the impugned judgment and order dated 27.06.2022
passed 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
matter before the High Court and we have also not examined the validity
or otherwise 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.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
SEPTEMBER 05, 2022. [KRISHNA MURARI]
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