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2010 Supreme(Bom) 386
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE J. N. PATEL & THE HONOURABLE MR. JUSTICE C.L. PANGARKAR
APM Terminals B.V., a company incorporated under Dutch laws, having their registered office at The Hague
Versus
Union of India, through the Ministry of Shipping having its office at Transport Bhuvan & Another
Writ Petition No. 1551 of 2009
Decided on : 10-03-2010
For the Petitioners:Janak Dwarkadas, Sr. Adv., ith Rahul Narichania i/by Mulla & Mulla & CB & C., Advocates.
For the Respondent:R1, D.J. Khambhatta, ASG., with A.M. Sethana & R2, Rajiv Kumar with Karan Advani Dinesh Pednekar & R.S. Bidkar i/by Advani & Co., Advocates.
Headnote:Tender - Development of container terminal - Petitioner disqualified from participating in tender - Challenged validity of action - Contention Clause 8.31 of license agreement misinterpreted - Contention from respondent petitioner having no right to bid directly or indirectly for construction of container terminal during agreement term vide clause 8.31 of agreement - Petitioner disqualified merely on ground of petitioner being party to agreement - Subsequent changes in public policy not to exonerate petitioner from covenant that provisions will continue to operate - Person once claim contract cannot challenge validity of contract - Decision to disqualify petitioner proper - Interim order extended. - A subsequent change in the public policy with not exonerate the petitioner from the covenant, that the same will continue to operate during the continuance of the contract and there is no provision in the contract that in such a contingency the covenant imposing restraint on the right of the petitioner to bid for future contract will not be applicable nor the circular of 2007 provides for discharging the covenant of restraint in the contract entered into between the parties as per the policy of 1996.
It is a well accepted principle of restraint of trade, if reasonably necessary, shall prevail unless contrary to public policy. It is not the matter of debate that the policy that was in vogue at the time was not in larger public interest and, therefore, it cannot be said, as tried to be contended, that Clause 8.31 of the agreement with JNPT for the development of an existing bulk Terminal at JNPT into a Container Terminal on BOT basis was not part of the contract and was inserted under duress. A person after claiming a contract taking into accounts its term, cannot later be allowed to assail validity of its terms or the rules constituting the terms of the contract by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India. It is now well settled by catena of decisions Orissa State Financial Corporation v. Narsingh Ch. Nayak and others, 2002 DGLS (soft) 276 : 2003 (10) SCC 261 that Court cannot rewrite or replace an existing contract by passing directions under its power of writ jurisdiction. The Additional Solicitor General appearing for the respondents has pointed out that if at all the petitioners find that the terms of the contract require any modification the same cannot be sought in this petition as the agreement itself provides for in house remedy for settlement of disputes and that the appropriate forum for modifying the terms of the contract would be either to go to Civil Court or invoke the arbitration clause in the agreement. (i) State of Orissa and others v. Narain Prasad and others, 1996 DGLS 1342 : 1996 (5) SCC 740 and (ii) Pimpri Chinchwad Municipal Corporation and others v. Gayatri Construction Company and another, 2008 (5) Bom CR 13 (SC) : 2008 DGLS (soft) 912 : 2008 (8) SCC 172.
Therefore, the decision of the respondents to disqualify the petitioner from bidding for the tender by referring to Clause 8.31 of the license agreement just and proper. The same does not call for any interference. Therefore, the petition is dismissed. Rule stands discharged.
25. It is contended by respondent no. 1 that the petitioner has termed the clause 8.31 of the LA signed on 10/8/2004 between GTIPL and JNPT as unfair, arbitrary, unreasonable and wrongful. By putting a permanent bar in future against the petitioner despite the circular of Ministry of Shipping dated 26/9/2007 an excessive restraint is put on the petitioners fundamental rights to carry on trade and business under Article 19 (1) (g) of the Constitution of India. In this connection, it may be stated that the agreement dated 10/8/2004 was signed by the GTIPL with their free will and taking into consideration all the relevant aspects relating to their right to carry on their trade and business. They cannot now claim that the clause 8.31 of the agreement put an excessive restraint on their fundamental right. In so far as the Ministry of Shipping circular dated 26/9/2007 is concerned, it is applicable from a prospective date. It cannot be given an effect from a retrospective date. In this connection, kind attention is invited to the letter No. PD11015/ 2/2006VPT dated 1/10/2008 which was issued to further clarify the instructions contained in the Ministry's letter dated 26/9/2007. In the last para of the letter, the ports have been clearly instructed that the RFQ for projects that will be bidded out in future should be spaced out appropriately as deemed fit. This letter substantiate the fact that the instructions contained in Ministry's letter dated 26/9/2007 are applicable prospectively.
26. It is the contention of respondent no. 1 that the petitioner has not been allowed by the respondent No. 1 & 2 to participate in the bidding process by virtue of the clause 8.31 of the license agreement and the policy between GTIPL and JNPT. The interpretation of that clause is unambiguous. The circular dt. 26/9/2007 does n
