APM TERMINALS B.V. versus UNION OF INDIA & ANR.

Citation: [2011] 8 S.C.R. 600 · Decided: 11-05-2011 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Disposed off

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2011] 8 S.C.R. 600 
APM TERMINALS B.V. 
v. 
UNION OF INDIA & ANR. 
(Civil Appeal No. 4270 of 2011) 
MAY 11, 2011 
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.] 
Ports -
Private monopolisation of port activities -
Prevention of - Power of the Central Government to alter 
C its policies for benefit of the public at large - Held: The 
Central Government is within its powers to strike a balance 
with regard to the control of the port facilities so that the 
same does not come to be concentrated in the hands of 
one private group or consortium - A change in policy by 
o the Government can have an overriding effect over private 
treaties between the Government and a private party, if the 
same was in the general public interest and provided such 
change in policy was guided by reason -
The only 
qualifying condition is that such change in policy must be 
E free from arbitrariness, irrationality, bias and malice and 
must be in conformity with the principle of Wednesbury 
reasonableness -
in the instant case, however, as far as 
the appellant is concerned, it is because of certain fortuitous 
circumstances that it came to be excluded from the tender 
F process for the Fourth Container Terminal -
Under the 
revised policy, the appellant was entitled to participate in 
the alternate bids -
The appellant having been excluded 
from participating in the bid for the Third Container Terminal 
on the basis of an existing policy, could not be debarred 
G from participating in the next bid, by taking recourse to a 
different yardstick -
Such a course of action would be 
contrary to public policy - Authorities of the JNPT directed 
to allow the appellant to continue to participate in the tender 
process for the Fourth Container Terminal. 
H 
600 
• 
• 
APM TERMINALS B.V. v. UNION OF INDIA AND ANR. 601 
The appellant-company (APM Terminals BV) filed 
A 
writ petition challenging the validity and propriety of the 
decision taken by the Board of Trustees of Jawaharlal 
Nehru Port Trust (JNPT), to exclude the appellant from 
participating in the tender process for the development 
of the Fourth Container Terminal at the Bombay Port 
B 
through public-private partnership and praying for 
quashing of the said decision with leave to the 
appellant to participate in the tender process in 
accordance with the policy indicated in Circular No. 
PD-12013/2/2005-JNPT dated 26th September, 2007, c 
issued by the Union of India. The further prayer of the 
appellant was to read the provisions of the said Circular 
into the Licence Agreement dated 10th August, 2004, 
executed by the Board of Trustees, JNPT, in favour of 
the appellant, and, consequently, to release the 
0 
appellant from the restrictions contained in Clause 8.31 
of the Licence Agreement (which disqualified the 
appellant from participating in the Tender process 
relating to the Third Container Terminal) and/or to treat 
the same as not binding on the appellant. The 
E 
appellant-company claimed that on account of 
subsequent resolutions adopted by the Board of 
Trustees of JNPT, which had the effect of altering the 
policy with regard to entrustment of operational facilities 
at the port to provide competition and to prevent 
monopolies, the provisions of Clause 8.31 required 
F 
reconsideration 
in the light of the changed 
circumstances. The writ Petition filed by the appellant 
was dismissed by the High Court. 
The question which arose for consideration before 
G 
this Court was as to whether despite the contractual 
right vested In the appellant as well as in the petitioner 
in the connected Transferred cases i.e. PSA Sical 
Terminals Ltd. to participate in future tender processes 
for developmental work within the port area, such right H 
602 
SUPREME COURT REPORTS 
(2011] 8 S.C.R. 
A could be taken away and/or curtailed by a unilateral 
policy decision of the Central Government. The further 
question in the case of the appellant was whether 
having been debarred from participating in the bid for 
the Third Container Terminal in JNPT, it could also be 
B excluded from the bidding process of the Fourth 
Container Terminal. 
Allowing the appeal of APM Terminals BV and 
dismissing the Transfer Cases of PSA Sical Terminals 
C Ltd., the Court 
HELD:1.1. The Bombay High Court had found that 
the appellants were handling container terminals in 
Karachi and Sri Lanka and also at JNP and Chennai, 
thereby exercising control over 48% of the container 
o traffic in India. The High Court he

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