Mumbai: The Bombay High Court on Monday dismissed a petition filed by Adani Port and Special Economic Zone (SEZ) Ltd., on May 2, 2022, challenged the ineligibility of its bid for up-gradation of Jawaharlal Nehru Port Container Terminal (JNPCT) through Public Private Partnership (PPP). The Jawaharlal Nehru Port Trust (JNPT) had floated a tender last August which involved a two-stage process for selecting a bidder to award the tender.
A bench of Chief Justice Dipankar Dutta and Justice MS Karnik, finding “no merit” in Adani’s arguments, dismissed the petition costing Rs 5 lakh. It held that “in such disqualification, the JNPT did not act illegally or irrationally or contrary to any process requiring judicial intervention.”
The HC also dismissed the later plea by Adani’s senior advocate Vikram Nankani to maintain status quo. This was opposed by senior advocate Venkatesh Dhond of JNPT.
The HC said, “Since the petitioner has brought an ineligible case for adjudication, it shall bear the cost of this proceeding, which is assessed to be Rs. 5 lakh”. Adani Ports 4.25 lakh had already been deposited in the bidding process, the HC directed JNPT to forfeit the amount and Adani Ports to pay the remaining Rs 75,000 within a month.
The HC noted that since 2011 its subsidiary Adani Vizag Coal Terminal Pvt Ltd (AVCTPL) had a contract with Visakhapatnam Port Trust (VPT) and intended to terminate it to invoke force majeure clause during the pandemic. VPT did not agree, and AVCTPL terminated the concession agreement on 21 October 2020. In November 2020, the dispute went to arbitration which is pending and Adani Ports argued that as a counter blast the VPT terminated the agreement in December 2020, which would be effective after 90 minutes. Day.
It was questioned before the HC that “within what, within the framework of the JNPT’s request for qualification”, the VPT’s December 2020 expiry could be a reason to disqualify Adani Ports in the bidding process for the JNPT.
The JNPT stated that the VPT termination notice attracts disqualification of Adani Ports under clause 2.2.8 in the tender document. The petition before the HC of Adani Ports was to declare the tender clause unconstitutional and its disqualification invalid and nullified. The clause requires that the Bidder ‘nor shall any contract be concluded by any public entity for breach by the applicant, member of the consortium or affiliate.’
The HC, after hearing both the sides at length, held that the JNPT was “the right view that clause 2.2.8 was attracted” and thus disqualified Adani Ports after having qualified earlier.
“As the tendering authority, JNPT has provided terms and conditions on the fulfillment under which it would like to tie up with a bidder who is eligible in terms of RFQ. i) the bidders have been found eligible. Security clearance in respect of one bidder is awaited. Thus, there is substantial competition among the eligible bidders. It is not the case of the petitioner that the terms and conditions of the tender preclude it or any particular bidder. have been prepared for.
The HC judgment said, “It is not only the petitioner must have a clean record, but his associates are also required to keep a clean record. It is the insistence of the JNPT, which this Court, in its writ jurisdiction, tampered with.” can’t.”
The HC said, “The terms and conditions of the RFQ are to govern all potential bidders and even though a particular bidder can apply as a single entity, it does not get the right to consider any of its associates/contracts.” has been terminated by a public authority during the last 3 (three) years. Hence this argument (of Adani Ports) also fails.”
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