Madras High Court
Abg-Lda Bulk Handling Pvt. Ltd vs The Union Of India on 12 January, 2012
Author: Chitra Venkataraman
Bench: Chitra Venkataraman, R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/01/2012 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN and THE HONOURABLE MR.JUSTICE R.KARUPPIAH Writ Appeal (MD)No.1543 of 2011 ABG-LDA Bulk Handling Pvt. Ltd., represented by Mr.Ravi Kishore, Merugumalla, Authorised Representative, having its Registered Office at Ground Floor, Bhupati Chambers, 13, Mathew Road, Mumbai-400 004. .. Appellant Vs. 1.The Union of India, through the Secretary, Ministry of Shipping, Transport Bhavan, 1, Parliament Street, New Delhi-110 001. 2.The Board of Trustees of the V.O.Chidambaranar Port Trust, having its Office at Administrative Office, Tuticorin-628 004. .. Respondents Appeal filed under Clause 15 of the Letters Patent, against the order passed by this Court in W.P.(MD)No.11064 of 2011 on 13.12.2011. !For appellant ... Mr.V.Prakash, Senior Counsel for Mr.C.Muthu Saravanan ^For respondents... Mr.Ravindran, Addl.Solicitor General for Mr.S.Sivasuibramanian for R1 Mr.S.Yashwanth for R2 :JUDGMENT
(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) The present writ appeal arises out of the order of the learned single Judge rejecting the writ petition filed by the appellant, for issuance of a writ of Certiorarified Mandamus to quash the order dated 11.07.2011 and to direct the first respondent to issue RFQ document for the NCB-III Project to the appellant and to allow them to participate in the tender process. While rejecting the writ petition, learned single Judge awarded costs of Rs.25,000/-, giving reasons for the same. Aggrieved over the same, the present writ appeal has been filed.
2.The facts leading to the filing of the writ petition are as follows:
The appellant herein is a company engaged in the business of construction, development, maintenance and operation of terminals / berths at various ports in India. In tune with the policy following liberalisation and globalisation of the economy, the Government of India decided to permit private sector participation as regards various services enlisted under Section 42(1) of the Major Ports Act, 1963, thereby reducing the gestation period for setting up new facilities and to help bringing in the latest technology and improved management techniques. The area of privatisation was considered under the heads of leasing out the existing assets of the Port, construction and operation of container terminals, cranage / handling equipment, leasing of equipment for port handling and leasing of floating crafts from the private sector and dry docking and ship repair facilities. Thus these services are permitted to be rendered by private parties as prescribed under Section 42(3A), subject to the tariff rates determined by the Tariff Authority for major ports. Accordingly, the Central Government issued guidelines for private sector participation in Major Ports dated 26.10.1996. Subsequently, the same was modified and supplemented by circulars dated 1.6.1996, 28.6.2000 and 17.4.2001 for private sector participation in major ports through joint venture and foreign collaboration. Thus these provisions and the circulars laid down the policy on private sector participation in the area of port development. The guidelines issued therein were modified by the first respondent in his letter dated 26.09.2007, followed by Anti-Monopoly Policy for preventing private sector monopoly in major ports.
3. The guidelines issued, left it to the respective ports to identify specific projects for implementation through private sector participation. In Paragraph-4, viz. "Regulatory Framework", it was emphasized that the port should ensure that private investment does not result in the creation of private monopolies and that private facilities are available to all users on equal and competitive terms. In the case of berths constructed or taken on lease by private entrepreneurs, they would be permitted to give priority berthing to their own ships and they would service other ships on a first-come-first-serve basis. Thus, the sum and substance of privatization, both in handling as well as investment, is that, while enhancing the services rendered by the ports, there is no monopoly created solely by reason of a private investment taking place therein. The facilities created thereby are available to all users on equal and competitive terms. Based on the policy thus declared by the Government of India, the Ministry of Shipping, in its Proceedings dated 02.08.2010, informed all the Port Trusts as regards the Private Sector Participation Guidelines, to ensure healthy competition and smooth award of the projects for capacity augmentation at the major Ports. The policy terms read as follows:-
"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.
3. The policy shall be applicable with immediate effect and shall apply to Request for Qualification (RFQs) issued on or after this date.
4. It is also directed that the above provisions may be incorporated by the Major Ports in the Request for Qualification & Request for Proposal to give effect to the policy in relevant cases. "
4. Pursuant to the policy thus declared, the Tuticorin Port Trust, one of the major Ports of the East Coast of India, on 23.06.2009, called for tenders inviting Request for Qualification (RFQ) for the development of North Cargo Berth-II (NCB-II) for handling bulk cargoes at Tuticorin Port on design, build, finance, operate and transfer (DBFOT) basis ("NCB-II Project"). Admittedly, the appellant was awarded the contract for this project and an agreement dated 11.09.2010 was entered into between the appellant and the respondents herein. The bulk cargo dealt with are thermal coal and other bulk cargo. So too, in respect of the second project on upgradation of mechanical handling infrastructure on build, operate and own basis (BOD) in the Tuticorin Port Trust, Berths I to VI and IX were advertised for submission of RFQ. The appellant, in turn, had submitted the same to Respondent No.2. Apart from this, the second respondent also issued a notification on 27.1.2010 for construction of Shallow Draught Berth (SDB) on DBFOT basis. The petitioner had also applied for this. In the above-said tender, the appellant was issued with RFQ and the same are pending. In pursuance of the policy of the Government of India, the second respondent issued an advertisement on 15.02.2011, inviting applications in accordance with RFQ documents for the development of North Cargo Berth-III for handling Bulk Cargoes (Thermal Coal and Rock Phosphate, etc.). In terms of the notice, the appellant is stated to have addressed a letter, enclosing necessary demand draft. It is stated that the representatives of the second respondent had not permitted the appellant to attend the same and handed over a copy of the letter dated 15.04.2011 sent by the second respondent to the appellant through RPAD. The said letter stated that the appellant would not be issued the RFQ documents, in view of the Government of India Anti Monopoly Policy dated 02.08.2010. Since the appellant had been excluded from the pre- application conference on 20.04.2011, the appellant made a joint representation to the first respondent and the Chairman of the second respondent. Considering the urgency of the matter, the appellant moved this Court in W.P.No.5076 of 2011 seeking a Writ of Mandamus to direct respondents-1 and 2 to forthwith issue the requisite RFQ documents to the appellant and to consequently allow the appellant to participate in the tender process for NCB-III Project. The appellant also sought for stay in the said Proceedings. By order dated 28.04.2011, this Court directed Respondent No.1 to consider the representation of the appellant dated 26.04.2011, grant an opportunity of hearing and to pass orders on merits within a period of ten weeks from the date of receipt of a copy of the order. In compliance of the order passed by this Court, the first respondent gave a personal hearing before the Joint Secretary. Thereafter, on 11.07.2011, the appellant received an order from the first respondent, dismissing the appellant's representation. Admittedly, the appellant moved the Delhi High Court by way of writ petition in W.P.No.6396 of 2011 and sought for stay of the tender process. The appellant states that considering the fact that the challenge was to the order of the first respondent which was within the jurisdiction of the Delhi High Court, the writ petition was made before the Delhi High Court. However, the said writ petition was dismissed with liberty to file the same before this Court. In that background, the present writ petition has been filed.
5. On notice, the respondents have filed the counter affidavit before this Court. On hearing both sides, this Court pointed out that the dispute centered on the interpretation to be given to the Anti Monopoly Policy, in particular, with reference to the award of contract as referable to immediate next or geographical next input. Referring to the policy guidelines dated 26.9.2007 and 2.8.2010, stressing on the need for preventing concentration on handling of the same cargo in the same port in one hand, learned single Judge pointed out that these policies, in effect, aimed at preventing private monopoly. After the decision of the Apex Court reported in (2011) 6 CTC 756 (A.P.M. Terminals v. Union of India), the validity of such a policy is no longer res integra. Thus, the issue for consideration before the learned single Judge was as to whether the projects for NCBs-II, III and IV, the projects for the upgradation of mechanical handling infrastructure in Berths I to VI and IX and SDB, are to be sequenced in a particular way or not, with reference to the content of the project. If the projects are one and the same, then the sequence of the projects would go in the chronological order. If both sets of projects are not identical, the sequence to be followed will be independent of each other. Therefore, on going through the content of the tenders, it is clear that the scope of the projects for NCBs-I to IV is entirely different from the scope of the projects for Berths I to VI and IX and Shallow Draught Berth.
6. The projects relating to North Cargo Berths follow a separate sequence such as NCBs-I, II, III and IV. Therefore, a person can participate either in NCBs-I and III or in NCBs-II and IV, but not in continuous sequence. The writ petitioner has bagged a contract for NCB-II and he has been issued with the RFQ for NCB-IV. In case the petitioner bags the contract for NCB-IV and if the respondents are directed by this Court to issue RFQ to the petitioner even for NCB-III, all the 3 berths viz., NCBs-II, III and IV would come completely under the control of the petitioner. This would hit at the root of the very Anti Monopoly Policy issued by the Government of India and upheld by the Apex Court. In the case on hand, there are admittedly four berths viz., NCBs-I, II, III and IV. NCB-I has already been allotted to Neyveli Lignite Corporation. The petitioner has bagged the contract for NCB-II. He has been issued with the RFQ for NCB-IV. Therefore, NCB-II is naturally the alternative bid in so far as the petitioner is concerned. Holding so, this Court rejected the writ petition.
7. On the interpretation of the policy placed by the appellant that the reference to the specific cargo relating to granting of RFQ has to be viewed more by the point of time and not by reason of the proximity of the location, this Court rejected the said plea of the learned counsel for the writ appellant/petitioner, and pointed out that, going by the definition of "specific cargo", in the policy laid down by the State, the phrase "bid for the next terminal and next cargo in the same port" has to be read as having reference to the emphasis on "specific cargo".
8. After narrating the various steps taken by the appellant, learned single Judge pointed out that the reliance placed on the decision of the Apex Court reported in (2011) 6 CTC 756 (A.P.M. Terminals Vs. Union of India), has no relevance to the case on hand, since the case was with reference to the grant of contract for the construction or extension of the container berth. Referring to the policy, learned single Judge pointed out that admittedly, the appellant had participated in the tender award of NCB-II and they were granted the same. It is also admitted by the appellant/petitioner that they have been issued with RFQ in respect of NCB-IV, Berths I to VI as well as construction of Shallow Draught Berth. The non-granting of the contract with reference to NCB-III has to be seen in the context of the policy laid down by the Government of India that in order to avoid any monopolising of the construction as well as the usage, the respondents herein rightly rejected the plea of the appellant/ petitioner. At the same time, the appellant was favoured with RFQ for NCB-IV.
9. Thus the only question is whether the projects for the handling of the projects pertaining to NCB-II, III and IV can be considered for granting it to an applicant as one positioned or alternating between the project for Berths 1 to 6 and 9 and Shallow Draught Berth so as to entitle the appellant to have the contract in respect of NCB-II, III and IV simultaneously. Considering the scope of the projects for NCBs-I to IV and the project for Berths 1 to 6 and 9 and Shallow Draught Berth, learned single Judge pointed out that the scope of the projects in respect of NCBs-I to IV and Berths 1 to 6 and 9 and Shallow Draught Berth are totally different in their content from NCBs-II and III and hence, they have no relevance for the purpose of applying the policy. Learned single Judge pointed out that considering the policy that an 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 and considering the admitted fact that NCBs-II, III and IV are with reference to Dry Bulk Cargo, learned single Judge rejected the plea of the appellant that the proximity on the geographical location of handling the "same cargo" has to have its own weight in the matter of implementing the policy. Aggrieved by the same, the present writ appeal has been filed.
10. Learned Senior Counsel appearing for the appellant / petitioner, while taking us through the policy, submitted that the term "next berth/terminal"
relates only to the next terminal chronologically and not geographically. For the purpose of understanding the policy, what is to be seen is the participation in the successive bids and the positioning of cargo handling may not be a criteria in the matter of understanding the policy dated 02.08.2010. He further submitted that when the said policy had been the subject matter of consideration before the Apex Court in the decision reported in (2011) 6 CTC 756 (A.P.M. Terminals v. Union of India) cited supra, particularly at page No.773 and when the emphasis is on the utilisation wherein a monopoly is created, learned single Judge misdirected himself in applying the policy, rejecting the case of the appellant. With the decision of the Apex Court thus on the policy direction, he submitted that the question of rejecting the appellant's case for NCB-III does not arise. He pointed out that the definition of "specific cargo" and "same cargo" are central to the policy and the execution contemplated therein is with reference to the "next terminal" handling the specific cargo. In other words, the contention is, the emphasis has to be with reference to the sequential bidding and not with reference to the location and "same cargo".
11. Per contra, learned Additional Solicitor General, while referring to the policy dated 02.08.2010, submitted that the intention of the policy is that a berth operator or its associates "in specific cargo operation" or in matter of construction of next terminal handling the same cargo, shall not be allowed to bid for the next terminal/berth for handling of same cargo in the same port. Thus a private berth/terminal operator handling the coal under the general category of bulk on one berth/terminal would not be precluded from bidding for the next terminal, where any other bulk cargo is proposed to be handled. As far as NCB-I is concerned, admittedly, the same was given to Neyveli Lignite Corporation for import. NCB-II was with reference to thermal coal and industrial coal. NCB-III was with reference to Thermal Coal and Rock Phosphate and NCB-IV was with reference to Thermal Coal and Copper Concentrate. Admittedly, all these cargoes fall under dry bulk cargo and even as per the maritime reporter, which has been internationally acknowledged, all these cargoes are understood as dry bulk cargo. Considering the fact that the policy lays emphasis on handling of cargo, the awarding of a contract has to take into consideration which berths are specified for handling the same cargo in the same port. He pointed out that admittedly NCB-II handling thermal coal is given to the appellant. As far as NCBs-III and IV are concerned, as has been already pointed out, they also deal with "dry bulk", in particular, thermal coal. In the circumstances, he submitted that irrespective of the positioning of the terminal, if the same cargo has to be handled in the successive terminals, the same cannot be given to the self-same operator, given the policy of Union of India to decry monopolisation on construction as well as on operation. As far as berths I to VI and IX are concerned, they were all for the upgradation of the machines and mechanical handling infrastructure. The reasons for upgradation have also been given with a view to enable enhanced operation therein. This cannot be compared with NCB-III, which stands on a different footing and is for thermal coal as in NCB-II. Considering the demand therein, the second respondent had decided to go for upgradation of the machines which necessarily would not fit in with the policy that had been declared on 02.08.2010. While liberalising the scheme for private participation, as a general policy, as far as Berths I to VI and IX are concerned, this is more on the construction and operation rather than on handling the goods. Making reference to the decision of the Supreme Court, particularly with reference to the award of contract to PSA Sical Terminals Limited, learned Senior Counsel appearing for the respondents produced before us a sketch which points out the location of various terminals and the one in dispute and pointed out that as the decision of the Apex Court was concerned about the container terminal, rightly, the Apex Court held that the appellant therein would be entitled to an alternate location only dealing with the container terminal. He pointed out that the Shallow Draught Berth dealing with the general cargo handling, cannot be equated with NCBs-I, II, III or IV, which are with reference to dry bulk cargo. Making particular reference to RFQ on Shallow Draught Berth, he pointed out that the specific emphasis therein was with reference to handling of construction materials, which is totally different from dry cargo, dealing with NCBs-II, III and IV. He further pointed out that on the admitted fact that NCB-II was given to the appellant, NCB-III thus dealing with the same goods as what was specified in the policy, the same could not be granted or awarded to the appellant. As far as Shallow Draught Berth is concerned, it being with reference to the general cargo / multipurpose, there were no reservations in the second respondent granting the said contract to the appellant. In the background of the policy, which is of paramount importance in guiding the award of the contract, rightly, learned single Judge rejected the case of the appellant, as there were no merits.
12. Heard learned counsel appearing for both sides and considered the material placed on record.
13. Going by the policy of liberalisation and taking note of the globalisation on the industrial front and the need for extending better facilities to the various stakeholders in making use of the Ports in India, the Government of India laid down the policy of allowing private participation both by way of investment as well as in the operational aspect. In so allowing private participation/investment, the respondents took care to see that there is no monopolisation at any single hand, lest the purpose of the policy itself would be lost. Thus, to maintain healthy competitiveness to get better services to the stakeholders therein, in its regulatory framework, the Government of India emphasized the need for avoiding of private monopolies and that the facilities are made available to all the users on equal and competitive terms. Taking these guidelines, when the Government of India, Ministry of Shipping, issued the Circular with reference to calling for tenders for the construction and operation of the berth by its proceedings dated 02.08.2010, the respondents declared its policy that if there is one private terminal/berth operator in a port for a specific cargo, the operator of that berth or its associates shall not be allowed to bid for the next terminal/berth for handling the same cargo in the same port.
14. Learned Senior Counsel appearing for the appellant laid great emphasis on the words "next terminal / berth" signifying the point of time when RFQ would be called for, for the same cargo. According to him, "next terminal" does not mean the geographical position, but the point of time at which the bid is called for. We do not think such reasoning of the appellant / petitioner could find support either in the policy laid down by the Government of India as a general policy allowing private participation, or in the specific policy dated 02.08.2010. The anti-monopoly circular dated 02.08.2010, defines "specific cargo" to mean (1) container (2) liquid bulk (3) dry bulk or (4) multipurpose/other general cargo. In the context of the definition given to "specific cargo", a reading of the policy along with the definition of "specific cargo" thus, makes it clear that a private operator of a berth, handling specific goods, is not allowed to bid for the terminal handling the "same cargo"
in the same port, meaning thereby that if there are more than one berth which are to deal with a particular cargo which is falling under a particular sub- heading under the definition of "specific cargo", the terminal or berth operator or his associate shall not have the chance to bid for the immediate next terminal handling the same cargo. As already pointed out in the preceding paragraphs, given the fact that the policy aims at promoting competitiveness to give better services to the users, monopolisation on the construction or the operation of a particular terminal handling the same cargo was rightly looked at as having a hampering effect on the good intention of liberalisation or private participation. Thus, justifiably, the respondents took the stand that the emphasis herein is on the handling of specific cargo. In the circumstances, if one reads the policies and definition of "specific cargo" and the reasoning given by the learned single Judge, we have no hesitation in confirming the said view that the emphasis is more on the location of the berth handling the specific cargo and not as to the point of time at which the next terminal is taken up for a bid or RFQ.
15. As already noted, the appellant was awarded the contract in August, 2010 for NCB-II project for handling bulk cargo - thermal coal and other bulk cargoes. The second notification dated 27.01.2010 was for the upgradation of mechanical handling infrastructure at the Tuticorin Port Trust on build, operate and own basis, in respect of copper concentrate, fertilizer, sulphur, coal etc. The RFQ issue is for Berth I to VI and IX. The notification issued again on 27.1.2010 related to construction of Shallow Draught Berth for handling the construction materials at Tuticorin Port on DBFOT basis. The RFQ issued to the petitioner is under process. On 15.2.2011, application for issue of RFQ documents was issued for development of NCB-III for handling bulk cargo on thermal coal, rock phospate on DBFOT basis. On the same day, in respect of development of North Cargo Berth IV for handling bulk cargo thermal coal and copper concentrate, RFQ was issued to and submitted by the petitioner. In the background of the above facts, the reliance placed on the decision of the Apex Court needs to be seen.
16. A reading of the said judgment shows that the same was with reference to construction of container terminal and remodelling the same on BOT basis on licence for a period of thirty years. Jawaharlal Nehru Port Trust (JNPT) floated a tender in 1996 for the development of a new 600 meter quay length container terminal at Navi Mumbai and Nhara Street International Container Terminal (NSICT) was the successful bidder in respect of the said tender. NSICT was to operate the first container terminal on BOT licence. The licence agreement permitted the licensee to participate in any subsequent bid for operation in the container terminal. In 2002, JNPT floated another tender for the second container terminal. The tender documents, however, stated its desire to entrust the development of the bulk terminal to container terminal to a licensee other than the existing operator - NSICT. On a challenge made to this resolution clause, the Bombay High Court dismissed the writ petition. However, NSICT's joint venture company GTI Pvt. Ltd. was permitted to bid in the tender and was awarded the contract. In 2007, the Government of India issued Circular No.12013/2/2003 to alter the policy of 1996 for the development of 330 meter extent of the container berth towards the north of NSICT project as a stand alone project on BOT basis. Circular dated 26.9.2007 decided that the successful bidder of the previous terminal would not be eligible to bid for the next terminal. When JNPT floated the tender for the third container terminal, neither the appellant nor its associates were permitted to participate.
However, ICT was allowed to participate in the tender process for the third container tender. Awaiting finalisation, there was yet another invitation for development of the fourth container terminal, where there was a specific clause to exclude the licensee on the 330 meter stand alone container handling facility. Considering the rejection of permission to participate in the fourth container terminal, in view of the licence agreement Clause 8.31, which restricted the right of the appellant from participating in the fourth container terminal, writ petitions were filed. As against the dismissal of the writ petition, appeal was preferred before the Supreme Court. Along with that, there was yet another transferred case from Madras High Court, wherein, while the tender process for development of berth was pending since 2005, policy decision was taken in 2007 to exclude the existing terminal operator and the same was challenged in the High Court. Thus, on the question as to whether despite the contractual vested right to participate in future tender process for developmental work in the port area, such right could be taken away or curtailed by a policy decision of the Government, came up for consideration. The Apex Court also considered the question as to whether having been debarred from participating in the bid for three containers, the respondent could be denied participation in the fourth terminal.
17. The Apex Court held that considering the need for eliminating monopolisation and encouragement to be given to promote competition, there can be no fault found on this change in the policy. On the question as to whether the contractual rights given under the agreement could be, in any manner, curtailed by a policy decision - a question which arose in the transferred case, the Apex Court pointed out that in the absence of any arbitrariness in effecting such change in the policy and keeping in mind the larger interest of the public, the Central Government was within its power to strike the balance that the control of the port facilities is not concentrated in one private group or consortium. The Apex Court pointed out that it is not as if the right of a licensee to bid for a further container terminal berth had been excluded for the entire period of the licence agreement.
18. Thus, as far as the appellant's case before the Apex Court on appeal from the Bombay High Court was concerned, since the third terminal bid was under
process and as per the revised policy, the appellant having been excluded from one bid on the basis of an existing policy, it cannot be debarred from participating in the next bid, by taking recourse to a different yardstick. Accordingly, the Apex Court directed that the appellant be allowed to participate in the tender process for the fourth container terminal and the decision to the contrary conveyed to the appellant on 29th June 2009, was quashed.
19. As far as the transferred case is concerned, it rejected the claim of the transferee. So holding, the Apex Court pointed out that irrespective of the contents of the agreement between the parties, the policy of the Government being supreme, the grant or rejection of the bid to participate in RFQ, hence, has to be conditioned by the terms of the policy.
20. As far as the present appellant's case before this Court is concerned, as the Apex Court pointed out, the claim of the appellant has to be tested necessarily with reference to the object of the policy of the Government, which, in clear terms, point out that an operator of the berth/terminal in the specific cargo shall not be allowed to bid for the next terminal/berth for handling the same cargo in the same port. If the contention of the appellant that the emphasis to be given to the "same" "specific cargo" has to be with reference to the sequential bid alone, then, the very idea of prevention of monopolisation would practically make the policy intent a paper ideology, which we do not think, goes with the object of bringing in such a policy. In the context of the clear terms of the policy, we have no hesitation in accepting the contention of the respondents that the policy being supreme, the understanding of the same has to go by the plain words used in the policy as disclosed in the policy declaration dated 02.08.2010. Thus we have no hesitation in accepting the plea of the respondents herein that the emphasis in the matter of considering the grant of bid, has to be looked at from the angle of specific goods and not from the point of what the next bid was. Consequently, we have no hesitation in confirming the view of the learned single Judge.
21. As far as the award of cost of Rs.25,000/- is concerned, learned Additional Solicitor General appearing for the respondents did not make any serious dispute to the claim made by the appellant herein. Learned single Judge pointed out three factors for quantifying the costs, which read as follows:-
"(i) after approaching this Court at the earliest point of time and securing an order on 28.04.2011 in W.P.No.5076 of 2011, the petitioner approached the Delhi High Court, challenging the order of the first respondent dated 11.7.2011 on the ground that the subsequent cause of action arose at Delhi. But the same was withdrawn with liberty to come back to this Court and thereafter the present writ petition was filed.
(ii) In view of the orders secured by the petitioner, both in the first writ petition and in this writ petition, the finalisation of the tender process had been successfully delayed by a period of about 7 months.
(iii) The circumstances narrated in paragraphs 11 to 17 warrant the imposition of costs."
22. It is no doubt true that the appellant / petitioner moved this Court earlier seeking a Writ of Mandamus to direct the first respondent to consider the representation. Thereafter, on the order passed, the writ appellant moved the Delhi High Court, which, on being pointed out by the Court, was withdrawn. Thereafter, the present writ petition was filed before this Court. During the pendency of the writ petition in respect of the interim order passed, the appellant moved a petition before the Principal Bench for clarification. When the original order in the interim petition was made in the Madurai Bench of Madras High Court, learned Senior Counsel pointed out that the approach of the appellant before the Principal Bench was only to have a clarification from the very same learned single Judge who passed the interim order. As such, there are no mala fides in the appellant approaching the Delhi High Court challenging the order of the first respondent at the first instance and later on to be withdrawn, to be filed again before this Court. In the process of ventilating the grievance before this Court for a Writ of Mandamus as well as the first respondent after the writ petition filed by the appellant was allowed, the delay of seven months in finalising the tender process is not really one caused by any motive that can be attributed to the appellant. Considering the fact that the respondents have no serious grievance in the cancellation, we have no hesitation in setting aside that portion of the order awarding costs. Except interfering with the costs, we do not find any ground to interfere with the impugned order of the learned single Judge.
23. With the above modification in the order of the learned single Judge, the writ appeal stands dismissed. Consequently, M.P.(MD)Nos.1 and 2 of 2011 are closed. No costs.
KM/gcg To
1.The Secretary to the Government, Union of India, Ministry of Shipping, Transport Bhavan, 1, Parliament Street, New Delhi-110 001.
2.The Board of Trustees of the V.O.Chidambaranar Port Trust, having its Office at Administrative Office, Tuticorin-628 004.