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2019 Supreme(Guj) 999
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.M. THAKER, V.P. PATEL, JJ.
G.S.E.C. Limited - Appellant
Versus
A.A.I. Cargo Logistic and Allied Services Co. Ltd. and Ors. - Respondents
Special Civil Application No. 9865 of 2019
Decided On : 26-06-2019
For the Appellant : Mihir Joshi, Senior Counsel and Dipen Desai.
For the Respondents: S.V. Raju, Senior Counsel and Sairica S. Raju.
Headnote:
International Air Cargo Terminal at Ahmedabad Airport – Petition (1) challenges action of respondent, whereby respondent discontinued practice of renewing agreement-allotment without tender process and action, (2) of inviting-initiating competitive bidding for awarding work for operation and maintenance of International Air Cargo Terminal, petitioner opposes said action of respondents and it seeks renewal for 10 years without tender process, by submitting (present petition, petitioner prayed-that this Court should quash and set aside Tender which came to be issued –Held, Petitioner is one of participants in tender process/one of bidders, even otherwise, this aspect would governed by provision in N.I.T tender documents and all bidders including petitioner will get such opportunity and rights as are provided for and available in terms of provisions in N.I.T. tender documents, we also cannot overlook though petitioner appears to addressed letter to respondent seeking such opportunity petitioner has not prayed for such relief in petition – petitioner has failed to make out any ground to convince us to set-aside Notice which respondent has issued for initiating tender process and inviting competitive bidding by inviting bids from interested bidders, to restrain respondent from proceeding further with tender process is not made out, in absence of any provision in agreement and for reasons mentioned above, direction to respondent to renew agreement and extend allotment to petitioner for further period of 10 years also cannot be granted – Petition accepted. (Para 45.6, 45, 46.1)
Facts of the case:
Petition (1) challenges action of respondent, whereby respondent discontinued practice of renewing agreement-allotment without tender process and action, (2) of inviting-initiating competitive bidding for awarding work for operation and maintenance of International Air Cargo Terminal, petitioner opposes said action of respondents and it seeks renewal for 10 years without tender process, by submitting (present petition, petitioner prayed-that this Court should quash and set aside Tender which came to be issued
Findings of the court:
Petitioner is one of participants in tender process/one of bidders, even otherwise, this aspect would governed by provision in N.I.T tender documents and all bidders including petitioner will get such opportunity and rights as are provided for and available in terms of provisions in N.I.T. tender documents, we also cannot overlook though petitioner appears to addressed letter to respondent seeking such opportunity petitioner has not prayed for such relief in petition – petitioner has failed to make out any ground to convince us to set-aside Notice which respondent has issued for initiating tender process and inviting competitive bidding by inviting bids from interested bidders, to restrain respondent from proceeding further with tender process is not made out, in absence of any provision in agreement and for reasons mentioned above, direction to respondent to renew agreement and extend allotment to petitioner for further period of 10 years also cannot be granted
Result: Petition accepted.
JUDGMENT :
K.M. Thaker, J.
1. This petition (1) challenges action of respondent, whereby the respondent discontinued the practice of renewing agreement-allotment without tender process and the action, (2) of inviting-initiating competitive bidding for awarding work for operation and maintenance of International Air Cargo Terminal.
1.1. The petitioner opposes said action of respondents and it seeks renewal for 10 years without tender process.
2. By submitting (on 28-5-2019) present petition, the petitioner has prayed-that this Court should quash and set aside Tender (Notice Inviting Tender, N.I.T. for short) which came to be issued on 1-5-2019.
2.1. By means of said N.I.T. present respondent No. 1, which is 100% owned subsidiary of Airport Authority of India (second respondent), has invited bids for "Operation and Maintenance of International Air Cargo Terminal" at Ahmedabad Airport.
2.2. Under arrangement/agreement with present respondent Nos. 1 and 2 the petitioner has been operating International Air Cargo Terminal at Ahmedabad Airport.
2.3. The period of said arrangement-agreement between the petitioner and the respondents has expired on and from 31-5-2019.
3. In present petition, the petitioner has prayed, inter alia, that:
"25(A) The Hon'ble Court may be pleased to issue writ of mandamus and/or any other appropriate writ, direction and order to quash and set aside tender dated 1-5-2019 for operation and maintenance of the International Air Cargo Terminal at Ahmedabad Airport for a term of 5 years.
(B) The Hon'ble Court may be pleased to issue writ of prohibition and/or any other appropriate writ, direction and order restraining the respondents from issuing process of tender issued on 1-5-2019 for operation and maintenance of the International Air Cargo Terminal Ahmedabad Airport for a term of 5 years.
(C) The Hon'ble Court may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent No. 1 to extend/renew the allotment to the petitioning company for further period of 10 years or for appropriate term as that may be deemed fit by this Hon'ble Court.
(D) Pending hearing and final disposal of the petition, Your Lordships be pleased to restrain the respondents from proceeding further with the process of tender issued on 1-5-2019 for operation and maintenance of the International Air Cargo Terminal at Ahmedabad Airport for a term of 5 years."
3.1. It is pertinent that (a) neither the right of the respondents to invite bids for the said purpose (b) nor any terms of the N.I.T./tender document are challenged by the petitioner.
4. The petitioner is a limited company which initially came to be incorporated in the name and style of Gujarat State Export Corporation Limited wherein the State of Gujarat held 56.6% equity.
4.1. Subsequently, the said share i.e. 56.6% of equity came to be transferred from one hand to another and w.e.f. 8-3-2004, the said holding of 56.6% came to be transferred in favour of the Management of present petitioner.
4.2. The petitioner has claimed that to set up the Air Cargo Terminal erstwhile National Airport Authority/present respondent No. 2 has allotted about 5,000/- sq.mtr. land at the International Airport at Ahmedabad where it has constructed building/s and installed machineries.
4.3. It is also claimed that the arrangement-agreement with erstwhile Gujarat State Export Corporation was, initially entered into and brought into existence in 1979 and since then the arrangement-agreement has been continued by renewing the agreement-allotment.
4.4. Having regard to the fact that the arrangement-agreement would expire and come to end on 31-5-2019, the respondent Nos. 1 and 2, on 1-5-2019, issued Notice Inviting Tender for operation and maintenance of Airport. The last date (according to original schedule) for submissions of bids was 7-
