IMPORTANT POINTS
Words used in documents cannot be treated to be surplusage or superfluous or redundant. They must be given some meaning and weightage.
If the first berth for a specific cargo is awarded in favour of one private operator then he cannot be permitted to bid for the next berth for the same type of cargo. However, once there are more than one private operators operating in the port then any one of them can be permitted to bid even for successive berths.
Superior Courts must act with restraint in contractual matters.

JUDGMENT :

Deepak Gupta, J.

Leave granted.

2. These two Civil Appeals are directed against the judgment of the Division Bench of the Orissa High Court dated 14th July, 2016, whereby Writ Petition No.4895 of 2016, filed by the consortium comprising of M/s Kakinada Seaports Limited, M/s Bothra Shipping Service Pvt. Ltd., M/s MBG Commodities Pvt. Ltd., (hereinafter referred to as the second consortium) Respondent Nos. 1-3 herein, was allowed and the High Court held that the consortium of the appellants JSW Infrastructure Limited and South West Port Limited, (hereinafter referred to as the first consortium) was not entitled to take part in the bid and, therefore, the acceptance of its bid was also held to be illegal and set aside.

3. The facts necessary for decision of these appeals are that the Paradip Port Trust, issued Request For Qualification (RFQ) on 31.10.2015 inviting global invitations for Mechanisation of EQ-1-2 and EQ-3 berths at Paradip Port Trust of 30 MTPS Capacity on BOT basis under PPP mode for concession period of Thirty (30) years. It is not disputed that in response to the said RFQ, 4 parties including the first and second consortium, submitted their bids. All the four parties were duly qualified and were asked to participate in the next stage of bid, that is, Request For Proposal (RFP) and submit their offers with regard to revenue sharing. Only two parties, i.e., the first consortium and the second consortium submitted the RFP. The bid quoted by the first consortium was 31.70% as against 28.70% bid quoted by the second consortium. Since the first consortium were the highest bidders their proposal was recommended for acceptance by the tender committee of the Paradip Port Trust on 26.02.2016. At this stage, on 27.02.16 the second consortium submitted objections to the consideration of the application of the first consortium on the ground that in terms of the Policy Clause against creation of monopoly the appellants were not entitled to take part in this entire bidding process since they were already operating one berth for dry cargo. The Clause which is subject matter of interpretation reads as follows :-

“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.”

It would also be pertinent to mention that specific cargo in this very Policy has been defined to be (i) containers, (ii) liquid, (iii) dry bulk. Letter of Award was issued in favour of the appellant of the first Consortium by the Paradip Port Trust on 29.02.2016.

4. Aggrieved by this action, the second consortium filed a writ petition before the Orissa High Court. The submission of unsuccessful bidders was that since the first consortium was already operating a berth for dry cargo it could not have submitted its application to bid for the berth in question which is also admittedly meant for dry cargo. It was contended that as per the policy quoted above, if a private operator is operating a berth he cannot be allowed to bid for the next berth for handling the same cargo in the same port. This contention of the original writ petitioners was accepted by the Orissa High Court which interpreted the Policy clause by holding that the word “next” in the Clause indicated that a private operator cannot take part or bid for next successive berth for the same cargo. The High Court, therefore, held that the application for the first consortium JSW Infrastructure Limited, was wrongly considered and consequently set aside the award of Letter of Award in favour of the first consortium and further directed that the Paradip Port Trust may either accept the single remaining bid of the second consortium of Respondent Nos. 1-3 after negotiating the price which should not be less than the price offered by the consortium of JSW Infrastructure, or it may invite fresh bids for the berth in question.

5. Agg