M/S.Adani Ports And Special ... vs The Visakhapatnam Port Trust,
2022 Latest Caselaw 4406 AP

     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

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:

"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,

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

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

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