IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
W.A No. 300 of 2022 and W.P. No.6425 of 2022
(Proceedings through physical mode)
W.A No. 300 of 2022:
M/s. Adani Ports and Special Economic zone Limited,
Having its registered office at Adani Corporate House,
Shantigram, Near Vaishno Devi Circle, S.G. Highway,
Khodiyar, Ahmedabad-382 421, represented by
Its Authorized Signatory Mr. Arjun Doshi. ..Appellant
Versus
The Visakhapatnam Port Trust,
Represented by its Senior Deputy Materials Manager,
Mechanical and Electrical Engineering Department,
„Administrative Office Building, Port Area,
Visakhapatnam - 530 035, Andhra Pradesh
and another. ..Respondents
Counsel for the Appellant : Mr. Dammalapati Srinivas, Senior Counsel assisted by Mr. Avinash Desai Counsel for Respondent No.1 : Mr. P. Sri Raghu Ram, Senior Counsel assisted by Mr. Raviteja Padiri, Standing Counsel W.P No. 6425 of 2022 Adani Ports and Special Economic Zone Limited, Having its registered office at Adani Corporate House, Shantigram, Near Vaishno Devi Circle, S.G. Highway, Khodiyar, Ahmedabad-382 421, represented by Its Authorized Signatory Mr. Arjun Doshi. ..Petitioner Versus The Visakhapatnam Port Trust, Represented by its Chairman, Port Area, Visakhapatnam - 530 035, Andhra Pradesh and another. ..Respondents Counsel for the Petitioner : Mr. Dammalapati Srinivas, Senior Counsel assisted by Mr. Avinash Desai Counsel for Respondent Nos.1&2 : Mr. P. Sri Raghu Ram, Senior Counsel assisted by Mr. Raviteja Padiri, Standing Counsel 2 COMMON JUDGMENT (ORAL) Dt: 22.07.2022 (per Prashant Kumar Mishra, CJ) In W.A. No.300 of 2022, the issue is in relation to the Request For Qualification (in short, "RFQ") issued by the Visakhapatnam Port Trust (in short, "VPT") for mechanization of WQ-7 & WQ-8 Berths through PPP mode on DBFOT basis at VPT.
2. In W.P. No.6425 of 2022, the RFQ document was issued for Mechanization of EQ-7 Berth through PPP mode at VPT on DBFOT basis.
3. In both the tender processes, the writ petitioner has been disqualified at the threshold as it was not found eligible under clause 2.2.8 of the tender document. While in the first matter, challenge to the said rejection has been negatived by the learned single Judge, in the second matter, the issue is still to be considered by this Court.
4. Admittedly, one of the contentions raised before this Court is that under clause 1.2.1 of the tender document, the VPT has prescribed that the guidelines issued by the Government of India (available at Appendix-V of the tender document) for qualification of bidders seeking to acquire stakes in any public sector enterprise through the process of divestment, shall apply mutatis mutandis to this bidding process, and the authorities shall be entitled to disqualify an applicant in accordance with the aforesaid guidelines at any stage of the bidding process. The said guidelines available at Appendix-V of the tender document prescribe that before disqualifying a concern, a show cause notice why it should not be disqualified should be issued to it and it would be given an opportunity to explain its position. Similarly, clause 2.2.8 of the tender document provides that:
3"2.2.8: An Applicant including any Consortium Member or Associate should, in the last 3(three) years, have neither failed to perform on any contract, as evidenced by imposition of a penalty by an arbitral or judicial authority or a judicial pronouncement or arbitration award against the Applicant, Consortium Member or Associate, as the case may be, nor has been expelled from any project or contract by any public entity nor have had any contract terminated by any public entity for breach by such Applicant, Consortium Member or Associate. Provided, however, that where an Applicant claims that its disqualification arising on account of any cause or event specified in this Clause 2.2.8 is such that it does not reflect (a) any malfeasance on its part in relation to such cause or event; (b) any wilful default or patent breach of the material terms of the relevant contract; (c) any fraud, deceit or misrepresentation in relation to such contract; or
(d) any rescinding or abandoning of such contract, it may make a representation to this effect to the Authority for seeking a waiver from the disqualification hereunder and the Authority may, in its sole discretion and for reasons to be recorded in writing, grant such waiver if it is satisfied with the grounds of such representation and is further satisfied that such waiver is not in any manner likely to cause a material adverse impact on the Bidding Process or on the implementation of the Project."
5. Both the matters were taken up for analogous hearing by us and the arguments on behalf of the appellant/writ petitioner were concluded on the previous date of hearing. Today, when the matters are taken up for further arguments, Mr. P. Sri Raghu Ram, learned Senior Counsel appearing for the VPT, after advancing some arguments on merits, fairly submitted that the appellant/writ petitioner has not approached the authorities to satisfy that the basis for its disqualification i.e., termination of an earlier tender does not involve a) any malfeasance on its part in relation to such cause or event; b) any wilful default or patent breach of the material terms of the relevant contract; c) any fraud, 4 deceit or misrepresentation in relation to such contract or d) any rescinding or abandoning of such contract. According to him, clause 2.2.8 provides for an opportunity to the bidder to move a representation to this effect to the authority for seeking a waiver from disqualification and the authority may, in its sole discretion and for reasons to be recorded in writing, grant such waiver if it is satisfied with the grounds of such representation and is further satisfied that such waiver is not in any manner likely to cause a material adverse impact on the bidding process or on the implementation of the project. According to him, the VPT is still ready to consider any representation submitted by the appellant/writ petitioner, so that an objective decision can be taken by the VPT on the anvil of the requisite contained in para 2.2.8 of the tender notification.
6. Mr. Dammalapati Srinivas, learned Senior Counsel appearing for the appellant/writ petitioner in both the matters, would submit, on instructions, that the appellant/writ petitioner is willing to make a representation before the concerned authority of the VPT to satisfy that it is a fit case for waiver from disqualification arising out of termination of concession agreement by the VPT in favour of the appellant/writ petitioner subsidiary - M/s.Adani Vizag Coal Terminal Private Ltd (AVCTPL). Mr. Dammalapati Srinivas would express his apprehension that the present proceedings, particularly, the order passed by the writ court, which is under challenge in the writ appeal, may come in the way of the appellant/writ petitioner or in the way of the authorities to consider the issue in an impartial manner without being influenced by these proceedings, and therefore, suitable observation may be made in that regard.
7. Considering the submissions, we observe that the appellant/writ petitioner is at liberty to make a representation before the concerned 5 authority of the VPT, as indicated above, and while considering the said representation, the VPT shall consider the matter afresh without being influenced by its earlier decision dated 05.01.2022 or any of the findings or observations made by the learned single Judge in the order dated 03.03.2022, which is under challenge in the writ appeal. Needless to say, it will be open for the appellant/writ petitioner to avail the remedies in accordance with law, depending upon the outcome of the representation. All the legal issues raised in the writ appeal shall remain open for consideration in appropriate proceedings. To this extent, the findings recorded by the learned single Judge in the order passed in W.P.No.455 of 2022 are set aside and the said writ petition as well as the present writ appeal and W.P. No.6425 of 2022 shall stand disposed of in the above stated terms.
8. No costs. Pending miscellaneous applications, if any, shall stand closed.
PRASHANT KUMAR MISHRA, CJ NINALA JAYASURYA, J GM 6 HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE & HON'BLE MR. JUSTICE NINALA JAYASURYA W.A No. 300 of 2022 and W.P. No.6425 of 2022 (per Prashant Kumar Mishra, CJ) Dt: 22.07.2022 GM