ADANI PORTS AND SPECIAL ECONOMIC ZONE LIMITED versus THE BOARD OF TRUSTEES OF JAWAHARLAL NEHRU PORT AUTHORITY & ORS

Citation: [2022] 13 S.C.R. 916 · Decided: 05-09-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Disposed off
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 13 S.C.R.
[2022] 13 S.C.R. 916
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ADANI PORTS AND SPECIAL ECONOMIC ZONE LIMITED
v.
THE BOARD OF TRUSTEES OF JAWAHARLAL NEHRU PORT
AUTHORITY & ORS.
(Civil Appeal No. 5878 of 2022)
SEPTEMBER 05, 2022
[M. R. SHAH AND KRISHNA MURARI, JJ.]
Tender: Grievance of appellant/petitioner was that in respect
of two tenders, it was considered disqualified and/or was held
ineligible in view of the termination of the Concession Agreement
by the Visakhapatnam Port Authority – Termination of Concession
Agreement was subject matter of dispute pending before the Arbitral
Tribunal – Held: The issue of termination of Concession Agreement
is at large before the Arbitral Tribunal – There is a broad consensus
between the appellant/petitioner and respondent No. 1 that these
proceedings be disposed of by observing that the termination of the
Concession Agreement by the Visakhapatnam Port Authority shall
not be treated as a disqualification or ineligibility for the purpose
of participating in any other tender issued by any public authorities
in view of the peculiar facts and circumstances and, more
particularly, when the appellant/petitioner has undertaken not to
participate and will have no claims in respect of the above two
tenders – Writ Petition is dismissed as withdrawn with the liberty in
favour of the petitioner to challenge the validity of Clause 2.2.8 of
the RFQ documents or any other identical clauses before the High
Court and as and when such a challenge is made, the same be
decided and disposed of in accordance with law and on its own
merits and uninfluenced by the impugned judgment passed by the
High Court as the validity of Clause 2.2.8 was not the subject matter
before the High Court.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5878
of 2022.
From the Judgment and Order dated 27.06.2022 of the High Court
of Judicature at Bombay in Writ Petition (L) No.14657 of 2022.
With
Writ Petition (C) No. 569 of 2022.
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Dr. A.M.Singhvi, Neeraj Kishan Kaul, Vikram Nankani, Sr. Advs.,
Mahesh Agarwal, Ankur Saigal, Arshit Anand, Ms. Geetika Sharma,
Shashwat Singh, Dhruv Sharma, Siddharth Seem, Nidhiram Sharma, E.
C. Agrawala, Advs. for the Appellant.
Tushar Mehta, SG, Shyam Divan, Mr. Huzefa Ahmadi, Sr. Advs.,
Saket Mone, Ms. Jaikriti S. Jadeja, Abishek Salian, Devansh Shah, Ms.
Prapti Allagh, Ninad Laud, Ms. Ranjeeta Rohatgi, Aditya Pratap Swain,
Avinash Mathews, Ivo D’Costa, Advs. for the Respondents.
The Order of the Court was passed by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 27.06.2022 passed by the High Court of Judicature at
Bombay in Writ Petition No. 14657 of 2022 by which the Division Bench
of the High Court has dismissed the said writ petition with respect to the
Tender No. JNP/TRAFFIC/MCB/PPP/2021/01, the original writ
petitioner – Adani Ports and Special Economic Zone Limited has preferred
the present Civil Appeal No. 5878 of 2022.
1.1 Writ Petition No. 569 of 2022 under Article 32 of the
Constitution of India has been preferred by the petitioner – M/s. Adani
Port and Special Economic Zone Limited seeking following prayers:-
“a.
to declare Petitioner’s disqualification under the Tender as
illegal, wrongful and /or revoke Petitioner’s disqualification
under Tender No. JNP/T/BT/SWB-CB/2021-22/T-03 dated
4.2.2022 (Annexure P-1 );
b.
to issue a Writ of Mandamus or any other writ in the nature
of Mandamus or any other appropriate writ, order or
directions under Article 32 of the Constitution of India to
Respondent No. I and 2: (i) to forthwith withdraw and/or
cancel the impugned communications dated 15.7.2022
(Annexure P-5) (ii) to permit the Petitioner to participate in
the bidding process as provided under Tender No. JNP/T/
BT/SWB-CB/2021-22/T-03 dated 4.2.2022; and (iii) to open
and evaluate the Petitioner’s bid, when submitted, on merits;
c.
to declare Clause 2.2.8 of the RFQ unconstitutional and
ultra vires Article 14 of the Constitution of India and quash
and strike down the same;
XXXXXXXXXX”
ADANI PORTS AND SPECIAL ECONOMIC ZONE LTD. v. THE
BOARD OF TRUSTEES OF J.N.P.A.
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SUPREME COURT REPORTS
[2022] 13 S.C.R.
2. At the outset, it is required to be noted that with respect to the
aforesaid two tenders namely Tender No. JNP/TRAFFIC/MCB/PPP/
2021/01 and Tender No. JNP/T/BT/SWB-CB/2021-22/T-03, the
appellant/petitioner has been considered disqualified and/or ineligible in
view of the terminatio
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