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2022 Supreme(SC) 1616
SUPREME COURT OF INDIA
M.R. Shah, Krishna Murari, JJ.
Adani Ports And Special Economic Zone Limited – Appellant
Versus
The Board of Trustees of Jawaharlal Nehru Port Authority & Ors. – Respondents
Civil Appeal No. 5878 of 2022 with Writ Petition (C) No. 569 of 2022
Decided On : 05-09-2022
Dr. A.M.Singhvi, Sr. Advocate, Mr. Neeraj Kishan Kaul, Sr. Advocate, Mr. Vikram Nankani, Sr. Advocate, Mr. Mahesh Agarwal, Advocate, Mr. Ankur Saigal, Advocate, Mr. Arshit Anand, Advocate, Ms. Geetika Sharma, Advocate, Mr. Shashwat Singh, Advocate, Mr. Dhruv Sharma, Advocate, Mr. Siddharth Seem, Advocate, Mr. Nidhiram Sharma, Advocate, Mr. E. C. Agrawala, Advocate, For the Appellant / Mr. Tushar Mehta, SG, Mr. Saket Mone,Advocate, Ms. Jaikriti S. Jadeja, Advocate, Mr. Abishek Salian, Advocate, Mr. Devansh Shah, Advocate, Ms. Prapti Allagh, Advocate, Mr. Shyam Divan, Sr. Advocate, Mr. Huzefa Ahmadi, Sr. Advocate, Mr. Ninad Laud, Advocate, Ms. Ranjeeta Rohatgi, Advocate, Mr. Aditya Pratap Swain, Advocate, Mr. Avinash Mathews, Advocate, Mr. Ivo D’Costa, Advocate, For the Respondent.
The termination of the Concession Agreement shall not disqualify the appellant/petitioner for participating in future tenders issued by public authorities.
Headnote:
Disqualification - Termination of Concession Agreement - Clause 2.2.8 of RFQ Documents - [Tender No. JNP/TRAFFIC/MCB/PPP/2021/01, Tender No. JNP/T/BT/SWB-CB/2021-22/T-03] - The court discussed the disqualification of the appellant/petitioner due to the termination of the Concession Agreement and the reliance on Clause 2.2.8 of the RFQ documents. The parties reached a consensus that the termination of the Concession Agreement shall not disqualify the appellant/petitioner for participating in future tenders issued by public authorities.
Fact of the Case:
The appellant/petitioner was disqualified from participating in two tenders due to the termination of the Concession Agreement and the reliance on Clause 2.2.8 of the RFQ documents. The parties reached a consensus that the termination of the Concession Agreement shall not disqualify the appellant/petitioner for participating in future tenders issued by public authorities.
Finding of the Court:
The court disposed of the Civil Appeal and Writ Petition, stating that the appellant/petitioner shall have no claims in respect of the two tenders and that the termination of the Concession Agreement shall not disqualify the appellant/petitioner for participating in future tenders issued by public authorities.
Issues: Disqualification of the appellant/petitioner from participating in tenders due to the termination of the Concession Agreement and the reliance on Clause 2.2.8 of the RFQ documents.
Ratio Decidendi: The termination of the Concession Agreement shall not disqualify the appellant/petitioner for participating in future tenders issued by public authorities.
Final Decision: The Civil Appeal and Writ Petition were disposed of, with the appellant/petitioner having no claims in respect of the two tenders and the termination of the Concession Agreement not disqualifying the appellant/petitioner for participating in future tenders issued by public authorities.
ORDER
M.R. Shah, J. - 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 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 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;
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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 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 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
