Orissa High Court
Jm Baxi Ports And Logistics Pvt vs Paradip Port Authority And Others .... ... on 25 September, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.26886 of 2025
JM Baxi Ports and Logistics Pvt. .... Petitioners
Ltd. and another
Mr. Sourjya Kanta Padhi, Senior Advocate
Mr. Ashok Kumar Parija, Senior Advocate assisted by
M/s. Baibaswata Panigrahi, N. Jain, S. Sheth, A. Bhat, N.
Dasondi, S. Sharma and S. Mohapatra, Advocates
-versus-
Paradip Port Authority and others .... Opposite Parties
Mr. Lalitendu Mishra, Advocate
CORAM:
THE HON'BLE THE CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 25.09.2025
02. W.P.(C) No.26886 of 2025 and I.A. No.16922 of 2025
1. The instant writ petition is filed assailing the decision of
the authority in declaring the pre-bid submitted by the petitioner
no.1-Company as disqualified as it does not meet the Pre-
Qualification Criteria (PQC). Simultaneously, while
communicating the decision of disqualification, it contains an
advisory that in the event any clarification is required, a contact can
be made to the Tender Inviting Committee.
2. The challenge is primarily founded upon non-
communication of the reasons, which would be evident from the
documents of communication annexed to the instant writ petition.
However, the learned Senior Advocate appearing for the petitioners
submits that though the disqualification of the petitioners to
participate in the tender process has not been precisely and lucidly
indicated therein, it is presumed that the said disqualification is
made as the petitioner no.1-company is already operating in the
Paradip Port to handle the multipurpose cargo.
3. We invited the attention of learned counsel appearing for
the Paradip Port and the instruction received by him conveys the
foundation of the decision pertaining to disqualification of the
petitioners to be under the policy dated 2nd August, 2010 issued by
the Ministry of Shipping (Ports Wing), Government of India,
wherein a restriction is imposed upon the existing operator to
participate in any tender issued for operating the berth in the next
terminal/berth for handling the same cargo in the same port.
3.1. It is arduously submitted by the learned counsel
appearing for the Paradip Port that clause-2.26 of Request for
Qualification (RFQ) makes the said policy dated 2nd August, 2010
to apply in order to eradicate any monopoly in the operator to
operate in the major ports. He thus submits that the petitioner no.1-
company is an existing operator at Paradip Port, Clause-2.26 of
RFQ creates a brindle in making the petitioner no.1-compnany
eligible to participate in the next tender with an intent to avoid
monopoly thereat.
3.2. The shelter is also taken into Clause-2.7.1. of the RFQ that it
conferred an unfettered power into the authorities either to accept or
reject any application without assigning any reasons therefor and
after the rejection of a bid, it is within the discretion of the
authorities, whether to continue with all the eligible bidders to
submit the fresh bids. According to him, the cumulative effect of
the aforesaid clauses are pointer to inescapable stand that the
moment the authorities decided to disqualify the bid submitted by
the petitioners taking shelter under the said policy or the clauses
contained in the RFQ, it is not open for the Court to interfere.
4. According to the learned Senior Counsel appearing for the
petitioners, the policy which in fact is a guiding factor in the instant
case has been misinterpreted by the authorities. According to him,
the restrictions imposed in the said policy relate to ineligibility of
the operator to offer the bid who is handling the same cargo in the
same port and, therefore, does not expand its horizon in a situation
where the bid is in respect of a different cargo within the same port.
According to him, the expression "specific cargo" appearing in
Clause-2 of the said policy is defined to mean (i) containers (ii)
liquid bulk, (iii) dry bulk or (iv) multipurpose/other general cargo
and, therefore, the multipurpose cargo is distinct and different from
the "container" cargo.
4.1. He further submits that the Corrigendum-I, which
contains the replies to the queries raised in relation to the RFQ,
clearly indicates that the Paradip Port has multipurpose berth and
engaged in handling the containers cargo to a limited extent. It
would further reveal therefrom that all the major ports, like Haldia,
Kolkata in the north, and Visakhapatnam, Krishnapatnam,
Kattupalli and Chennai in the south have a dedicated container
handling terminals, but Paradip Port has not prioritized the
development of exclusive container handling terminals/berthing
facilities. According to him, such disclosure has conveyed the
impeccable situation that the Paradip Port has a multipurpose berth
and handles the containers in a restricted manner. According to
him, the license to operate issued to the petitioners is to handle the
multipurpose cargo and is not issued to exclusively handle the
container cargo and, therefore, the authorities are not justified in
applying clause-2 of the Policy dated 2nd August, 2010.
5. On the conspectus of the aforesaid facts, let us examine,
whether any prima facie case is made out for passing any interim
order at this stage. At the very outset, we must record that so far as
reliance upon the clauses and documents annexed to the writ
petition, are not disputed by the learned counsel appearing for the
Paradip Port. In fact, the petitioners rely upon the terms and
conditions embodied in the said RFQ and interpreted those clauses
in the manner as perceived from their vision; on the other hand, the
learned counsel for the Paradip Port has interpreted the same and
identical clause in a different manner.
6. As indicated above, a policy dated 2nd August, 2010
framed by the Government of India has its applicability in view of
clause 2.26 of the RFQ and thus becomes an integral part of the
tender documents. It is no doubt true that in order to irradicate any
monopoly in one operator, the restriction is imposed in the said
policy by preventing the operator in a port handling the specific
cargo, to participate in the subsequent tender process for the next
terminal/berth for handling the same cargo in the same port.
6.1. The said clause-2 of the policy dated 2nd August, 2010 is
reproduced as under:-
"2.Policy
If there is only one private terminal/berth operator in a
port for a specific cargo, the operator of that berth or his
associates shall not be allowed to bid for the next
terminal/berth for handling the same cargo in the same
port.
For the purpose of this policy, the terms.
(i) 'Operator' includes consortium members of the
bidder;
(ii) 'Associates' means, in relation to the
Applicant/Consortium member, a person who
controls, is controlled by, or is under common
control with such Applicant/Consortium
Member (the Associate). As used in the
definition, the expression "control" means, with
respect to a person which is a company or
corporation, the ownership, directly or
indirectly, or more than 50% (fifty per cent) of
the voting shares of such person, and with
respect to a person which is not a company or
corporation, the power to direct the
management and policies of such person by
operation of law.
(iii) 'Berth' shall have the same meaning as
"Wharf" given in Section 2(za) of the MPT Act,
1963.
(iv) 'Specific Cargo' means (i) containers (ii) liquid
bulk, (iii) dry bulk or (iv) multipurpose/other
general cargo."
7. What could be gathered from the bare reading of the said
clause-2 of the policy that the existing operator is prevented from
participating in the bid for the next terminal/berth for handling the
same cargo in the same port. There is a reference of the expression
"the specific cargo" within the said clause, which is defined in the
sub-clause(iv) of clause-2. The said definition creates an
compartmentalization of four categories of the specific cargo and
container category is distinct and different from the multipurpose
category of cargo. Once the categorization has been made, each
category stands firmly on its own though all such categories are
engulfed within the broader meaning of specific cargo. The
corrigendum subsequently issued by the authority being the
repository of the replies to the queries made in respect of RFQ is a
manifestation of the fact that the Paradip Port did not have an
exclusive berth to handle the container, but has a multipurpose
berth and the handling of the container is miniscule in comparison
to other.
8. It has not prioritized the exclusive container handling
terminal or berth facilities like the others and the instant RFQ was
published inviting the applications from the operators to handle the
exclusive containers cargo. It is inconceivable that the port having
no exclusive container berth and operating as a multipurpose berth,
shall create the disqualification in an operator handling the
multipurpose cargo to participate in the tender process floated for
the container cargo.
9. An interesting point is taken at this stage by the learned
counsel appearing for the Paradip Port that the Court should
forebear from interfering with the decision of the authorities an
applicability and/or understanding all the clauses contained in the
RFQ and once the authorities have taken a stand, the interference in
exercise of judicial review is unwarranted.
10. We have no quarrel to the broad proposition of law in
this regard. But none of the judgments have unequivocally held that
in every situation and/or eventuality, the writ Court cannot interfere
with the administrative action, even if there is a manifest
arbitrariness, irrationality, unreasonablity and perversity seen in the
action of the authorities. We are conscious that if language used in
the document is susceptible to assign two meanings or two
interpretations, one taken by the authorities does not invite any
interference; even if the Court feels that the other interpretation
should have been conveniently adopted. However, if the language
used in the document is unambiguous and does not invite any other
interpretation and if the authority has interpreted the same in a
different manner, there is no inhibition created in the writ Court to
interfere.
11. Clause-2 of the policy dated 2nd August, 2010, as quoted
hereinabove, is unambiguous and does not invite more than one
interpretation from its plain language and the meaningful reading
thereof. The authorities appear to have been grappled between the
several clauses of the RFQ and the applicability of the policy and
interpreted the same in such manner which does not appear from
the plain and simple usage of words in clause-2 of the said policy.
12. We, thus, find a prima facie case having made out, we,
therefore, restrain the Paradip Port authorities from proceeding any
further on the basis of the said RFQ for a period of eight weeks
from date or until further orders. The opposite parties-Paradip Port
authorities are directed to file counter affidavit within one week
after reopening of this Court following the ensuing vacation;
rejoinder affidavit if any may be filed by the petitioners within one
week from the date of service of copy of the counter affidavit.
13. List this matter on 27th October, 2025.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
MRS/Laxmikant
Signed by: LAXMIKANT MOHAPATRA
Designation: Senior Stenographer
Reason: Authentication
Location: high Court of Orissa, Cuttack
Date: 29-Sep-2025 14:57:53
