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

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.