JUDGMENT

Altamas Kabir, J.

1. Leave granted in SLP (C) No. 13893 of 2010, which is being heard along with Transferred Case (Civil) Nos. 36-37 of 2010. While the appeal has been filed by APM Terminals B.V. against the decision of the High Court, dismissing its writ petition, challenging the decision of the Board of Trustees for the Jawaharlal Nehru Port Trust to exclude the Appellant from participating in the tender process for the development of the Fourth Container Terminal at the Bombay Port through public-private partnership, the transfer petitions have been filed by PSA Sical Terminals Ltd. for transfer of Writ Petition Nos. 19851 and 19384 of 2010 pending before the Madras High Court, to this Court. As the questions involved in the writ petitions pending before the Madras High Court were the same as those raised in the appeal filed by APM Terminals B.V., we had directed the transfer petitions to be heard along with SLP(C) No. 13893 of 2010, out of which the present appeal arises.

2. In the appeal, the Appellant has challenged the validity and propriety of the decision taken by the Board of Trustees of the Jawaharlal Nehru Port Trust, hereinafter referred to as the "JNPT", to exclude the Appellant from participating in the tender process for the Fourth Container Terminal under the JNPT, through public-private partnership, and praying for quashing of the said decision with leave to the Appellant to participate in the tender process in accordance with the policy indicated in Circular No. PD-12013/2/2005-JNPT dated 26th September, 2007, issued by the Union of India. The further prayer of the Appellant was to read the provisions of the said Circular into the Licence Agreement dated 10th August, 2004, executed between the Appellant and JNPT, and, consequently, to release the Appellant from the restrictions contained in Clause 8.31 of the Licence Agreement and/or to treat the same as not binding on the Appellant. Clause 8.31 of the Licence Agreement which was executed by the Board of Trustees, JNPT, in favour of the Appellant, provides as follows:

8.31 The Licensee acknowledges and agrees that it shall forego the right to bid for either directly or indirectly, including being a Management Contractor through any associate company, whether such company is registered in India or any other country, or any company in which the Licensee has a shareholding for the Additional Facilities or existing facilities during the term of this Agreement. The Licensee also agrees that in the event of it or its parent company taking over/acquiring/amalgamating/merging with the licensee or the parent company to whom the Additional Facilities are awarded it shall be obliged to divest its stake in one of the two licenses to a third entity not linked to the Licensee within 6 months from the date of such change in control failing which it shall be deemed to be a Licensee Event of Default. The Licensee also agrees that in the event of it or its parent company being taken over/acquired/amalgamated/merged by another licensee operating container facilities at JNPT it shall be obliged to divest the License to a third entity not linked to the Licensee within 6 months from the date of such change in control failing which it shall be deemed to be a Licensee Event of Default. The Licensee acknowledges, agrees and accepts the above as essence of this Agreement and the Licence granted to the Licensee.

3. Before the High Court, on behalf of the Appellant Company, it was claimed that on account of subsequent resolutions adopted by the Board of Trustees of JNPT, which had the effect of altering the policy with regard to entrustment of operational facilities at the port to provide competition and to prevent monopolies, the provisions of Clause 8.31 would have to be reconsidered in the light of the changed circumstances. Before proceeding any further it will be worthwhile to briefly indicate the background in which the present is has arisen.

4. The Jawaharlal Nehru Port Bulk