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4. The Jawaharlal Nehru Port Bulk Terminal was commissioned on 26th May, 1989, and was designed to handle goods imported in bulk, such as fertilizers, fertilizer raw materials and food grains, with the help of mechanized bulk-handling facilities. With the passage of time, the Central Government found it difficult to maintain the Bulk Terminal and  decided to convert the Bulk Terminal into a Container Terminal and to remodel the same on a Build, Operate and Transfer (BOT) Basis on licence for a period of 30 years. Since 1996, it has been the policy of the Central Government to permit participation/investment by the private sector in utilizing the assets of the Port, construction and creation of additional assets, lease of equipment, pilotage, cargo handling, etc. In fact, guidelines had been issued from time to time by the Ministry of Surface Transport which was to be followed by the Major Ports for private sector participation.

"Clause 1.3 : The port is desirous of entrusting the Project of redevelopment of the bulk terminal to a container terminal, on BOT basis, to another licensee other than the existing Private Terminal Operator (Licensee) at JNPT i.e. Nhava Sheva International Container Terminal (NSICT) Limited or their associates, P&O or the associates, interconnected or sister companies or either of them."

"In the instant case while JNPT is in the process of undertaking the bidding for the development of the 330 metre extension of  container berth towards North of NSICT project as a stand alone project on BOT basis (330 metre extension project) there are two different private BOT operators operating container terminals in JN Port. As a rational and logical consequence of the stand taken earlier it has been decided that the successful bidder of the previous container terminal on BOT basis (Maersk A/S - CONCOR Consortium) and/or their subsidiaries/allied organizations should be excluded from bidding for the 330 metre extension project. This would mean that for the next BOT container terminal in JN Port in future, the successful bidder of the 330 metre extension project would be excluded and so on.

18. Mr. Nariman submitted that on 26th September, 2007, the Union of India issued Circular No. PD-12013/2/2005-JNPT to JNPT indicating that it should invite global competitive bidding for an independent, Stand Alone Container Terminal involving a 330 meter extension of container berth towards the North of JNPT. The said Circular clarified that existing private Container Terminal Operators in JNPT would also be entitled to bid for any project but the JNPT was required to ensure that private investment did not result in the creation of private monopoly and that private facilities were available to all users on equal and competitive terms. Paragraph 5 of the 2007 Policy clearly provided that the successful bidder of the previous Container Terminal on BOT basis and/or their subsidiaries/allied organizations, should be excluded from bidding for the 330 meter extension project. The immediate fall-out of the same would mean that for the next BOT Container Terminal in JN  Port in future, the successful bidder of the 330 meter extension project would be excluded and so on. What was also emphatically stated in paragraph 6 is that it had also been decided that the aforesaid guideline should be followed in all Ports in its true spirit with a view to avoiding monopoly and promoting competition, till such time a formal policy was finalized and notified. The 2007 Policy, therefore, provided that MAERSK S/T CONCOR Consortium and/or their subsidiary/allied organizations would be excluded from bidding for the Third Container Terminal and the successful bidder of the Third Container Terminal would be excluded from bidding for the next project and so on. Hence, a successful bidder would be ineligible to bid for the next but one subsequent tender after the immediate one awarded to it.