JM BAXI PORTS AND LOGISTICS PVT.LTD, MAHARASHTRA vs PARADIP PORT AUTHORITY, PARADIP
- Court
- Odisha High Court
WP(C)/26886/2025
ODHC010683402025
2026:OHC:286-DB
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 26886 of 2025
CNR No. ODHC010683402025
JM Baxi Ports and Logistics Pvt. Ltd. …. Petitioners
and another
-Versus-
Paradip Port Authority and others …. Opposite Parties
Advocates appeared in this case:
For Petitioners : Mr. Saurjya Kanta Padhi, Sr. Advocate
Mr. Baibaswata Panigrahi, Advocate
Ms. S. Sheth, Advocate
For Opposite Parties : Mr. Lalitendu Mishra, Advocate
CORAM:
HON’ BLE THE CHIEF JUSTICE
AND
HON’BLE MR. JUSTICE CHITTARANJAN DASH
J U D G M E N T
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Date of Hearing : 9 September, 2026
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Date of Judgment :10 November, 2026
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HARISH TANDON, CJ.
1. The instant writ petition is filed by the petitioners assailing the
disqualification of petitioner No.1 on the basis of a notification dated
W.P.(C) No.26886 of 2025 Page 1 of 18
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10 September, 2025 and rejection of the application filed by
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petitioner No.1 by issuing a letter dated 10 September, 2025 with
consequential relief to participate in the bid by making its financial
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offer in accordance with the request for qualification (RFQ) dated 10
April, 2025.
2. The aforesaid disqualification is primarily founded upon the
premise that petitioner No.1-company does not meet the pre-
qualification criteria (PQC). The petitioners challenge the said
rejection order as the ground assigned therein is vague and ambiguous
and issued in a mechanical manner. The said disqualification letter
demonstrates a complete lack of consideration, fairness,
reasonableness and is an attempt to eliminate the petitioners from
participating in the RFQ in order to favour some other participants.
3. The writ petition was entertained by this Court and at the time
of considering the prayer for interim order, it was perceived that the
disqualification is presumed to have been founded upon the fact that
petitioner No.1-company is already operating in the Paradip Port and
handling the multipurpose cargo.
W.P.(C) No.26886 of 2025 Page 2 of 18
4. Learned counsel appearing for the Paradip Port categorically
and firmly communicated the foundation of the said decision of
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disqualification under the policy dated 2 August, 2010 issued by the
Ministry of Shipping (Ports Wing), Government of India whereunder a
restriction is imposed upon the existing operator to participate in any
tender issued for operating the berth in the next terminal/berth for
handling the same cargo in the same port. The Court after taking into
consideration the relevant clauses appearing in the RFQ and the said
policy constituting the foundation of the said decision, passed an
interim order restraining the Paradip Port from proceeding any further
on the basis of the RFQ for a period of eight weeks from the said date
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i.e. 25 September, 2025 or until further order and an opportunity was
given to Paradip Port to file counter affidavit within a time stipulated
therein and rejoinder by the petitioners and directed the matter to be
taken up on the date so fixed. Subsequently, the pleadings are filed.
The interim order was extended from time to time. However, in the
interregnum, the Paradip Port, the opposite parties herein challenged
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the said interim order dated 25 September, 2025 before the Supreme
Court of India by filing Special Leave Petition (Civil) Diary No.32610
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of 2026 which came up on 24 August, 2026 and was disposed of
W.P.(C) No.26886 of 2025 Page 3 of 18
without interfering with the said interim order with the request to
dispose of the writ petition expeditiously.
5. It is a specific stand taken by the Paradip Port that the
disqualification is not merely dependent upon the technical, financial
or O&M PQC, but by virtue of Clause 2.26 of the RFQ read with
appendix VIII, namely, “Policy for Preventing Private Sector
Monopoly in Major Ports”. It is averred that the said Clause stipulates
that the policy for preventing private sector monopoly in the Major
Ports shall apply mutatis mutandis to the bidding process and it is open
to the authorities to disqualify any bidder under the said policy. It is
further averred that if there is only one private terminal/berth operator
in a Port for a specific cargo, such operator of that berth or his
associate shall not be allowed to bid for the next terminal/berth for
handling the same cargo in the same Port. A specific stand is taken
that one Paradip International Cargo Terminal Private Limited, an
associate of the petitioners availed exclusively to handle the containers
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between 4 April, 2019 and 3 April, 2024 and, therefore, the
petitioners fall within the mischief of anti-monopoly policy. It is, thus,
contended that there is no infirmity and/or illegality in invoking
W.P.(C) No.26886 of 2025 Page 4 of 18
Clause 2.26 and Appendix-VIII of the tender conditions in
disqualifying from participating in the tender process.
6. On the conspectus of the aforesaid facts, the learned Senior
Advocate for the petitioners submits that the said disqualification
communication does not contain explicit reasons and, therefore, is an
outcome of manifest arbitrary, unlawful and non application of mind.
It is further submitted that the applicability of the anti-monopoly
policy, which appears to be the basis for such disqualification, has
been wrongly applied and the object and the purpose has been
misconstrued. It is fervently submitted that the associate of the
petitioners is only private terminal handling container cargo at Paradip
Port is incorrect as it operates a multipurpose berth for handling clean
cargo which includes containers to a minuscule extent and can be
evident from the counter affidavit filed by the Paradip Port. It is
arduously submitted that the anti-monopoly policy restricts the
participation by the operator for next terminal/berth, if it is operating
the same cargo in the same Port. The expression “specific cargo”
appearing in paragraph 2 of the said policy once defined by giving a
meaning thereof, it has to be understood in such perspective and each
category mentioned in the said definition stands on its own footing.
W.P.(C) No.26886 of 2025 Page 5 of 18
The learned Senior Advocate further submits that the Paradip Port
authorities have failed to take into account the definition of a clean
cargo when undisputedly the said associate is a multipurpose cargo
terminal handling a variety of clean cargo out of which a miniscule
part is a container. It is vociferously submitted that the official website
of the Paradip Port clearly and vividly reflects that it is not a container
terminal and does not have any reference with regard to the facilities
or berth dedicated to container handling and, therefore, the said Port
cannot be said to be a detailed container terminal. In support of the
contention that if the authority did not record an explicit reason or
cogent reason in support of the conclusion, the same is infirm and bad
in law, reliance is placed upon a judgment of the apex Court in M/s.
Star Enterprises and others v. City and Industrial Development
Corporation of Maharashtra Ltd. and others, (1990) 3 SCC 280. It is
further submitted that the stand of the Paradip Port that Clause 2.7.1 of
the RFQ reserves right on the tendering authority to reject or accept
any bid without any reason is contrary to the well established
principles of law relating to a necessity to record reason and placed
reliance upon a judgment of the Supreme Court in Mihan India
Limited v. GMR Airports Limited and others, (2022) 19 SCC 69 .
Apart from the same, the learned Senior Advocate submits that if the
W.P.(C) No.26886 of 2025 Page 6 of 18
Court finds the decision of the authority to be whimsical and arbitrary,
there is no fetter on the part of the writ Court to interfere with such
decision and reliance is placed upon a judgment of the apex Court in
ABCI Infrastructures Private Limited and Union of India and
others, (2025) 6 SCC 813 and Mythri Infrastructure and Mining
India Private Limited v. Managing Director, Odisha Mining
Corporation Limited and another, 2026 SCC OnLine Ori. 1459 . It is,
thus, submitted that the stand of the Paradip Port is not tenable and,
therefore, the order rejecting the bid on such disqualification warrants
interference.
7. Per contra , learned counsel for the Paradip Port submits that
the petitioners’ bid was rendered disqualified under Clause-2.26 read
with Appendix-VIII of the RFQ as it is only private terminal’s berth
operator for handling container and clean cargo. The definition given
to the specific cargo under the said policy is expansive and, therefore,
the Paradip Port does not have only one private terminal for handling
the dry bulk cargo nor have one private terminal for handling liquid
bulk cargo, but have only one private terminal for handling container
cargo which is being operated by the associate of petitioner No.1.
Once the associate has availed exclusive right to handle the containers,
W.P.(C) No.26886 of 2025 Page 7 of 18
it comes within the mischief of the said anti-monopoly policy and,
therefore, the disqualification cannot be said to be infirm and/or
illegal. It is further submitted that the said associate is already
operating a private terminal/berth at Paradip Port and handling
container cargo which would be evident from the concession
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agreement dated 7 March, 2015. It is, thus, submitted that once the
associate is exclusively permitted to operate the container cargo,
which is one of the constituents of the specific cargo, the anti-
monopoly policy is applicable in this regard and there is no wrong in
disqualifying petitioner No.1 from participating in the RFQ. It is
submitted that the writ Court should not interfere on the decision of
the administrative authority, but such interference is restricted to a
decision making process and the moment the Court finds that the
manner in which the decision has been arrived justifies the decision,
no interference is warranted and reliance is placed upon a judgment of
the apex Court in Tata Cellular v. Union of India, (1994) 6 SCC 651.
It is further submitted that unless the decision is manifestly shown to
be mala fide, arbitrary, irrational or intended to favour someone, no
interference should be made and reliance is placed upon a judgment of
the apex Court in Jagdish Mandal v. State of Orissa, (2007) 14 SCC
517 . Learned counsel for the Paradip Port further submits that the
W.P.(C) No.26886 of 2025 Page 8 of 18
author of the tender document is ordinarily the best person to
understand and interpret the scope and the meaning of the different
clauses. In absence of any mala fide, arbitrariness or bias, interference
should not be made in a mechanical manner and reliance is placed
upon a judgment of the apex Court in Afcons Infrastructure Ltd. v.
and
Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818 Silppi
Constructions Contractors v. Union of India, (2020) 16 SCC 489 . It
is, thus, submitted that there is no room for any interference in the
instant writ petition which deserves dismissal and the interim order
granted therein should be vacated.
8. On the conspectus of the aforesaid stands taken before us, it
would be apposite to recapitulate the policy adopted by the Ministry of
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Shipping (Ports Wing), Government of India dated 2 August, 2010
from preventing private sector monopoly in Major Ports. Paragraph 2
of the said policy exposits that if there is one private terminal/berth
operator in a port for a specific cargo, such operator of that berth or his
associates shall not be allowed to bid for next terminal/berth for
handling the same cargo in the same port. The said policy further
defines the word ‘operator’ to include consortium members of the
bidder and also the ‘associates’ to mean a person who controls or is
W.P.(C) No.26886 of 2025 Page 9 of 18
controlled by or is under common control with such
applicant/consortium member. Paragraph 2 of the said policy is
reproduced as under:
“2. Policy
If there is only one private terminal/berth operator
in a port for a specific cargo, the operator of that
berth or his associates shall not be allowed to bid for
the next terminal/berth for handling the same cargo
in the same port.
For the purpose of this policy, the terms
(i) 'Operator' includes consortium members of the
bidder:
(ii) 'Associates' means, in relation to the
Applicant/Consortium member, a person who
controls, is controlled by, or is under common control
with such Applicant/Consortium Member (the
Associate). As used in the definition, the expression
"control" means, with respect to a person which is a
company or corporation, the ownership, directly or
indirectly, or more than 50% (fifty per cent) of the
voting shares of such person, and with respect to a
person which is not a company or corporation, the
power to direct the management and policies of such
person by operation of law.
W.P.(C) No.26886 of 2025 Page 10 of 18
(iii) 'Berth' shall have the same meaning as "Wharf"
given in Section 2 (za) of the MPT Act, 1963.
(iv) 'Specific Cargo' means (i) containers (ii) liquid
bulk, (iii) dry bulk or (iv) multipurpose/other general
cargo.”
9. It appears from the above quoted paragraph that the expression
“specific cargo” is also defined to mean containers, liquid bulk, dry
bulk or multipurpose/other general cargo. It is not in dispute that the
associate company of petitioner No.1 entered into a concession
agreement with the Paradip Port for development of multipurpose
berth to handle clean cargo which includes the containers at Paradip
Port on build, operate and transfer basis. The RFQ was floated for
development of a south container berth as a dedicated container berth
at Paradip Port through PPP model on build, operate and transfer basis
for a period of thirty years. It further envisages that it would be held in
two stage bidding process that is a technical qualification stage and the
financial stage. The prequalification criteria is vividly reflected in
Clause 2.2 of the said RFQ and Clause 2.26, which assumes
significance in the instant case, postulates the prevention of private
sector monopoly in the Major Ports. The said clause is quoted as
under:
W.P.(C) No.26886 of 2025 Page 11 of 18
“2.26 Prevention of Private Sector Monopoly in
Major Ports
Ministry of Ports, Shipping & Waterways,
Government of India vide its letter No. PD-
nd
24018/8/2009-PD.III dated 2 August, 2010 has
issued the policy to be followed by all Major Ports
while awarding projects to private parties through
Public Private Partnership (PPP) route so as to avoid
private sector monopoly in the Major Ports. The
aforesaid policy or any other issued by Government
applicable policy shall apply mutatis mutandis to this
Bidding Process and the Authority shall be entitled to
disqualify any Bidder in accordance with the
aforementioned policy.”
10. The bare look of the language used in the said clause indicates
nd
that the policy dated 2 August, 2010 issued by the Ministry of
Shipping (Ports Wing), Government of India shall be rigorously and
scrupulously followed to eliminate private sector monopoly in the
Major Ports and the said policy would also be extended mutatis
mutandis to the bidding process and the tendering authority may
disqualify any bidder in accordance with the aforesaid policy. Thus,
there is no ambiguity and/or misconception that in the event the
tendering authority perceived any bidder coming under the purview of
W.P.(C) No.26886 of 2025 Page 12 of 18
the said anti-monopoly policy, disqualification is inevitable. The
cumulative effect of Clause 2.26 of the RFQ and paragraph 2 of the
policy manifestly indicate that the private terminal operator is
handling a specific cargo at the Port and is the only private
terminal/berth operator for a specific cargo and the bid is invited for
next terminal/berth for handling the same cargo in the same port.
Though the specific cargo is defined in paragraph 2 of the said policy,
yet the petitioners and the Paradip Port authorities are not ad idem on
its applicability.
11. In order to ascertain the correctness of the stand taken by the
respective parties, few facts emanating from the pleading as well as
the document annexed thereto are required to be recapitulated. The
RFQ was floated by the Paradip Port authority for development of
south container berth (SCB) on BOT basis i.e. build, operate and
transfer basis. The background incorporating in Clause 1.1.1 is
indicative of the fact that the said authority realizes the responsibility
for operation and maintenance of the Port and also to cater the need of
a future growth in traffic. The decision was taken to undertake the
development of SCB for handling containers through PPP on BOT
basis. The invitation was made to all the intending participants who
W.P.(C) No.26886 of 2025 Page 13 of 18
shall be responsible for designing, engineering, financing,
procurement, construction, operation and maintenance of the said
project with all allied facilities and equipments for handling
containers. Thus, it is apparent from the said object engulfed within
the background of such invitation that the authorities intended to set
up the south container berth exclusively for handling the containers
which logically inferred that the port is not otherwise have the facility
to cater the need of the container/berth. Since Clause 2.26 of the RFQ
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imbibes within its fold, the policy dated 2 August, 2010 which
eliminates the private sector monopoly in the major ports, the queries
were raised to the authority at the pre-bid stage, which was replied in
the form of a clarification that the State of Odisha being rich in
mineral resources, several industries which produce finished products
like steel, aluminium ingots etc. have come up in recent years and
many more are being set up. Many finished products required
transportation in safe mode through containers. It is further clarified
that given the proximity, the Paradip Port is in a position to attract
cargos which otherwise is being diverted because of lack of dedicated
container terminal at Paradip. It is, thus, apparent that the Paradip Port
does not have exclusivity for handling the container per se, but mainly
caters the need of a multipurpose berth which handles the clean cargo
W.P.(C) No.26886 of 2025 Page 14 of 18
including the containers. It is all along the specific stand of the
petitioners that the multipurpose berth which it handles though
contains a miniscule part of the container, but cannot receive the
exclusivity to handle the container and, therefore, the multipurpose
cargo having separately incorporated in the specific cargo under the
said policy stand distinct to the container cargo. The clean cargo is
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defined in a concession agreement dated 7 March, 2015 to mean non-
hazardous and dust free cargo including iron and steel products,
aluminum ingots, pig iron, finished fertilizers, food grains, sugar (both
raw and finished), containerized cargo, but excluding hazardous and
dusty cargo like iron ore, thermal coal, chrome ore, chrome
concentrate charge chrome, ferro chrome, silicon manganese ore,
coking coal, hard coke, fertilizer raw materials and other cargo of
similar nature. The very nomenclature of the said concession
agreement is indicative of the fact that the same has been entered into
between the Board of Trustees of Paradip Port Trust and the associate
of petitioner No.1 for development of multipurpose berth to handle
clean cargo including containers at Paradip Port on BOT basis. The
reliance under Clause 12.2 of the said concession agreement by the
Port authority that the concessioning authority was permitted to handle
the container cargo appears to be misplaced. The moment the
W.P.(C) No.26886 of 2025 Page 15 of 18
multipurpose berth includes the variety of the handling of the cargo
even if it includes a container, the Port does not have an exclusive
facility to handle the container cargo. The recourse thereunder does
not appear to be correct.
12. We are conscious of the proposition of law that the author of
the tender document is ordinarily the best person to understand and
interpret the several clauses of the tender and the scope of judicial
review remain in a very limited compass as held in Afcons
Infrastructure Ltd. (supra) and Silppi Constructions Contractors
(supra). Yet, it does not take away the power of judicial review, in the
event, the Court finds that there is a fallacy in ascertaining the
meaning thereof which on the face of it does not invite any different
meaning. In Jagdish Mandal (supra), the apex Court has clearly and
in an unequivocal terms held that if the decision taken by the authority
appears to be mala fide, arbitrary and irrational, there is hardly any
scope of latitude to be given to the authorities and interference
becomes inevitable. We are conscious of the proposition of law laid
down in Tata Cellular (supra) that the Court does not exercise the
power of judicial review over the decision, but the process by which
the decision has been made, being contrary of the same, if the
W.P.(C) No.26886 of 2025 Page 16 of 18
authorities have wrongly interpreted the words and the expression
used in the policy, which is explicit and clear, the very foundation of
the decision disturbs the fabric thereof and the Court may interfere in
exercise of power of judicial review. The anti-monopoly policy dated
nd
2 August, 2010 creates a compete embargo on the operator of one
private terminal/berth handling the specific cargo to bid for the next
terminal/berth for handling the same cargo. The expression “same
cargo” is to be read in juxtaposition with the expression “specific
cargo” which is defined as under:
“(iv) 'Specific Cargo' means (i) containers (ii) liquid
bulk, (iii) dry bulk or (iv) multipurpose/other general
cargo.”
13. The moment the container and the multipurpose or other
general cargos are kept in a distinct category, the ordinary rule of
interpretation presupposes that each definite and distinct species of the
cargo stands on an independent footing. If the stand of the Port
authorities is accepted that the multipurpose cargo not only handles the
clean cargo, but also the container, there was no occasion to categorize
the container cargo differently and separately within the said definition
of “specific cargo”. What could be reasonably gathered from the said
W.P.(C) No.26886 of 2025 Page 17 of 18
policy that if any operator is handling the container cargo exclusively,
he is precluded from participating in any bid for the next terminal/
berth for handling the said container cargo in the same Port.
14. We, thus, do not find the stand taken by the authority in
interpreting the said policy differently. The order impugned in the
instant writ petition disqualifying the petitioner No.1 from submitting
the bid is hereby quashed and set aside. The interim order passed
earlier stands vacated. The authority shall proceed with the RFQ
treating the bid of the petitioner No.1 to be valid so far as it relates to
applicability of the said policy is concerned and all efforts should be
made to complete the tender process at an earliest.
15. The writ petition is, accordingly, disposed of. There shall be
no order as to costs.
I agree.
(Chittaranjan Dash) (Harish Tandon)
Judge Chief Justice
S.K. Guin/PA
Signature Not Verified
Digitally Signed
Signed by: SUBASH KUMAR GUIN
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Nov-2026 17:18:28
W.P.(C) No.26886 of 2025 Page 18 of 18