TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 1553
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.... Kakinada Seaports Limited, M/s Bothra Shipping Service Pvt. Ltd.,M/s MBG Commodities Pvt. Ltd., (hereinafter referred to as the second consortium) Respondent Nos. 1-3 herein, was allowed and the High Court held that the consortium of the appellants JSW Infrastructure Limited and South West Port Limited, (hereinafter referred to as the first consortium) was not entitled to take part in the bid and, therefore, the acceptance of its bid was also held to be illegal and set aside. 3. The facts necessary for decision of these appeals are that the Paradip Port Trust, issued Request For Qualification (RFQ) on 31.10.2015 inviting global invitations for Mechanisation of EQ-1-2 and EQ-3 berths at Paradip Port Trust of 30 MTPS Capacity on BOT basis u....
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.... (i) containers, (ii) liquid, (iii)dry bulk. Letter of Award was issued in favour of the appellant of the first Consortium by the Paradip Port Trust on 29.02.2016. 4. Aggrieved by this action, the second consortium filed a writ petition before the Orissa High Court. The submission of unsuccessful bidders was that since the first consortium was already operating a berth for dry cargo it could not have submitted its application to bid for the berth in question which is also admittedly meant for dry cargo. It was contended that as per the policy quoted above, if a private operator is operating a berth he cannot be allowed to bid for the next berth for handling the same cargo in the same port. This contention of the original writ petitioners w....
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....Corporation, a Public Sector Undertaking, 5 are being run by private operators and one was being run by the appellant. Letter of Award for another berth was issued in favour of the first consortium, which is the subject matter of dispute. He submitted that the purpose of this clause is to avoid monopoly and the judgment of the High Court is erroneous because it does not do away with the monopoly but only restricts a private operator from bidding in the next successive berth for the same type of cargo. Dr. A.M. Singhvi, learned senior counsel appearing on behalf of Paradip Port Trust submitted that the employer i.e., Paradip Port Trust is best qualified to interpret the terms and meaning of the terms of the tender and the High Court should n....
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....document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable." This view has consistently held the field and was recently reiterated in Central Coal Fields Limited and Another vs. SLL-SML (Joint Venture Consortium and Others (2016) 8 SCC 622). 8. On a bare reading of the Policy Clause some weightage and meaning has to be given not only to the word "next" as done by the High Court but also to the words "only one private operator" appearing in the opening part of the Clause. The words "only one private operator" cannot be treated as surplusage. The entire clause has to be read as a whole in the context of the purpose of the policy which is to avoid and restrict monopoly. In our opinion, t....
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....usually have the necessary expertise to correct such technical decisions.; (iv) the employer must have play in the joints i.e., necessary freedom to take administrative decisions within certain boundaries. 10. In Jagdish Mandal vs. State of Orissa (2007) 14 SCC 517 this Court held that evaluation of tenders and awarding contracts are essentially commercial functions and if the decision is bonafide and taken in the public interest the superior courts should refrain from exercising their power of judicial review. In the present case there are no allegations of mala fides and the appellant consortium has offered better revenue sharing to the employer. 11. In Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Anr. 2016 SCC On....
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....la fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court...." The view taken in Afcons (supra) was followed in Monte Carlo Ltd. Vs. NTPC Ltd. 2016 SCC Online SC 1149 . Thus it is apparent that in contractual matters, the Writ Courts should not interfere unless the decision taken is totally arbitrary, perverse or mala fide. 12. Strong reliance has been placed on behalf of the second consortium on the judgment rendered in APM Terminals B.V. vs. Union of India and Another (2011) 6 SCC 756 . We are of the considered view that the said judgment cannot be applied to the present case because in that case this court considered the clauses of the contract. The policy which ....