ADANI PORTS AND SPECIAL ECONOMIC ZONE LIMITEDversusTHE BOARD OF TRUSTEES OF JAWAHARLAL NEHRU PORT AUTHORITY & ORS

916                      [2022]REPORTS
               SUPREME COURT   13 S.C.R. 916              [2022] 13 S.C.R.


A      ADANI PORTS AND SPECIAL ECONOMIC ZONE LIMITED
                                       v.
      THE BOARD OF TRUSTEES OF JAWAHARLAL NEHRU PORT
                     AUTHORITY & ORS.
                        (Civil Appeal No. 5878 of 2022)
B
                            SEPTEMBER 05, 2022
               [M. R. SHAH AND KRISHNA MURARI, JJ.]
             Tender: Grievance of appellant/petitioner was that in respect
      of two tenders, it was considered disqualified and/or was held
C     ineligible in view of the termination of the Concession Agreement
      by the Visakhapatnam Port Authority – Termination of Concession
      Agreement was subject matter of dispute pending before the Arbitral
      Tribunal – Held: The issue of termination of Concession Agreement
      is at large before the Arbitral Tribunal – There is a broad consensus
      between the appellant/petitioner and respondent No. 1 that these
D
      proceedings be disposed of by observing that the termination of the
      Concession Agreement 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
E     particularly, when the appellant/petitioner has undertaken not to
      participate and will have no claims in respect of the above two
      tenders – Writ Petition is dismissed as withdrawn with the liberty in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
F
      decided and disposed of in accordance with law and on its own
      merits and uninfluenced by the impugned judgment passed by the
      High Court as the validity of Clause 2.2.8 was not the subject matter
      before the High Court.
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5878
G     of 2022.
            From the Judgment and Order dated 27.06.2022 of the High Court
      of Judicature at Bombay in Writ Petition (L) No.14657 of 2022.
            With
H           Writ Petition (C) No. 569 of 2022.
                                      916
ADANI PORTS AND SPECIAL ECONOMIC ZONE LTD. v. THE                             917
          BOARD OF TRUSTEES OF J.N.P.A.

      Dr. A.M.Singhvi, Neeraj Kishan Kaul, Vikram Nankani, Sr. Advs.,         A
Mahesh Agarwal, Ankur Saigal, Arshit Anand, Ms. Geetika Sharma,
Shashwat Singh, Dhruv Sharma, Siddharth Seem, Nidhiram Sharma, E.
C. Agrawala, Advs. for the Appellant.
       Tushar Mehta, SG, Shyam Divan, Mr. Huzefa Ahmadi, Sr. Advs.,
Saket Mone, Ms. Jaikriti S. Jadeja, Abishek Salian, Devansh Shah, Ms.         B
Prapti Allagh, Ninad Laud, Ms. Ranjeeta Rohatgi, Aditya Pratap Swain,
Avinash Mathews, Ivo D’Costa, Advs. for the Respondents.
      The Order of the Court was passed by
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment       C
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
of the High Court has dismissed the said writ petition with respect to the
Tender No. JNP/TRAFFIC/MCB/PPP/2021/01, the original writ
petitioner – Adani Ports and Special Economic Zone Limited has preferred      D
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     E
             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
                                                                              F
             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         G
             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”                                     H
918             SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A            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 26.12.2020 issued by the
B
      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.

C           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
D     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,
E     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
F     appellant/petitioner cannot be treated as a disqualification or ineligibility
      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/
G     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
H
ADANI PORTS AND SPECIAL ECONOMIC ZONE LTD. v. THE                              919
   BOARD OF TRUSTEES OF J.N.P.A. [M. R. SHAH, J.]

the purpose of participating in any other tender issued by the public          A
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             B
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.
       5. Shri Tushar Mehta, learned Solicitor General appearing on            C
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    D
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             E
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        F
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.
      7. We have heard Dr. A.M. Singhvi, learned Senior Advocate               G
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.                        H
920                 SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A            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
B
      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
C     the Concession Agreement dated 01.08.2011 is the subject matter of
      dispute pending before the Arbitral Tribunal. Therefore, the issue of
      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
D     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
E     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
F                     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
G                     and as agreed between the parties, termination of the
                      Concession Agreement dated 01.08.2011 by Visakhapatnam
                      Port Authority 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.
H
ADANI PORTS AND SPECIAL ECONOMIC ZONE LTD. v. THE                               921
   BOARD OF TRUSTEES OF J.N.P.A. [M. R. SHAH, J.]

       9. Writ Petition No. 569 of 2022 is dismissed as withdrawn with          A
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
                                                                                B
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.                            C


Devika Gujral                                            Matters disposed of.
(Assisted by : Deepak Panwar, LCRA)


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