2017 (8) TMI 580 - HC - Indian Laws

Withdrawal of Tender Notice - selection of transporter for providing transport solution for various identified routes for DPD ISO freight containers from the four terminals of JNPT - interpretation of tender conditions - Held that - The position of law with regard to the tender contract and/or such policy decision has been settled through various judgments specifically when it comes to taking administrative and/or executive decision to bring in and/or make policy - the Court needs to consider the facts and the nature of terms and conditions of tender. The tender conditions if are against the provisions of law arbitrary discriminatory illegal and affects the fundamental rights of the Petitioners covering Articles 14 19(1)(g) of the Constitution of India an appropriate writ or directions may be issued by the Court but not otherwise. There is no issue that of the stake holder including the Petitioners importers have appreciated this DPD mechanism. The Government directives therefore required to be implemented in line by JNPT and the Customs and the related stakeholders including the Petitioners/ importers/transporters. The DPD model is stated to be simple and less time consuming. The duration of agreement is three years with a provision to extend the arrangement for a period of two years at negotiable rate terms and conditions on mutual consent. Section 1 provides for the notice inviting tender followed by instructions to bidders the evaluation of bids scope and volume of work. The requirement of minimum truck trailers is in clause (b) from 1.4.2. The provision is made about the operational contract for truck trailors. The volume of work and special terms and conditions of contract have been elaborated in clause (5) and (6). The High level committee is provided to select more number of tenderer in a route. The volume of each route is estimated. The Grievance Redressal Committee is provided in clause 5.8 that will address the issues of stakeholders related to the transport solution. The Committee shall ensure the overall quality of service of the transport solution. Policy decision by any mechanism - Held that - The concept of policy decision may include Executive instructions/instructions also. The effect and use of it only enlightend its utility and usefulness. Any challenge to policy decision without factual document/material is premature. Any policy decision cannot be challenged on presumption and assumption. The policy decision can be changed and modified subject to its practice utility and its use. It is ultimately the State/expert s/ executive decision keeping in mind the interest of people at large rather than private individual or associations rights of doing business. Judicial review is permissible only if such decision is contrary to law and/or breaches constitutional provisions. Some leverage and latitude requires to be given to the State and its authorities for implementation of such policy decision. It is clear therefore considering the preamble and object of policy decision taken at higher level in furtherance of the DPD model to promote the government of India s Make in India and Ease of Doing Business initiatives. The Respondents decision to rerationalise and streamline the implementation of the DPD model at its port is well within the scheme. The DPD model is introduced to bring in a change in the existing clearance framework to meet contemporary needs. The tender is with view to implement the policy decision to promote the manufacturing industry and streamline the processes for import of goods. The Policy is within the power and jurisdiction of Respondents - No breach of law. The Respondents required to allow to proceed with the tender and to implement the same. In case of difficulties and/or issues various mechanisms have been provided. Those mechanisms require to be utilized by all the concerned as and when occasion comes. The halting of such implementation at the instance of the Petitioners therefore is not in the interest of people at large - The impugned tender therefore is not arbitrary unreasonable and cannot be stated to be without any application of mind. All the clauses are required to be read and so also all the connected schemes. Power to change or modify the policy decision in the public interest - Held that - the terms and conditions of the tender and its object and purpose is in the interest of general public. The infringement even if any to some extent as stated by the Petitioners of the private interest of transporters/importers or few importers/transporters cannot prevail over in the public interest so referred in the policy decision and the tender conditions - the transportation policy would be optional and not compulsory is not acceptable. Such optional policy will create confusion chaos and will be uncontrolled and unregulated. The policy decision and its implementation therefore required to be implemented and extended to all the concerned. Unless the decision is concrete and make compulsory it will be difficult to implement and as it is nothing but extension of DPD policy and supported by the customs and all the concerned departments it will not be entail the desire result to achieve the aims and objects of the scheme/policy decision. Its implementation by all is a must. Petition dismissed - decided against petitioner.

Summary

Issues Involved:
1. Legality and jurisdiction of the tender issued by JNPT.
2. Alleged violation of fundamental rights under Article 19(1)(g) and Article 14 of the Constitution of India.
3. Allegations of creating a monopoly through the tender.
4. Consistency and reasonableness of the tender clauses.
5. Urgency and necessity of the tender.

Issue-wise Detailed Analysis:

1. Legality and Jurisdiction of the Tender Issued by JNPT:
The court examined the power and jurisdiction of JNPT under Section 42 of the Major Port Trusts Act, 1963, and relevant sections of the Customs Act. It was concluded that JNPT had the authority to issue the tender to streamline the transportation process within the port premises. The tender aimed to reduce congestion and ensure timely delivery of goods, which falls within the regulatory purview of JNPT.

2. Alleged Violation of Fundamental Rights under Article 19(1)(g) and Article 14 of the Constitution of India:
The petitioners argued that the tender interfered with their right to carry on trade and was discriminatory. The court held that the tender did not violate Article 19(1)(g) as the importers and transporters were still free to conduct their business within the framework of the new policy. The classification and conditions of the tender were found to be reasonable and in line with the objectives of reducing congestion and improving efficiency at the port. The court emphasized that policy decisions, especially those aimed at public interest, should not be interfered with unless they are arbitrary or violate constitutional provisions.

3. Allegations of Creating a Monopoly through the Tender:
The petitioners contended that the tender created a monopoly by selecting a few transporters for specific routes. The court found that the tender process was transparent and designed to select efficient transporters based on fleet size, experience, financial capability, and technological capability. The aim was to streamline operations and reduce dwell time, which justified the selection criteria. The court ruled that this did not amount to creating a monopoly but was a necessary measure to ensure efficient transportation.

4. Consistency and Reasonableness of the Tender Clauses:
The petitioners claimed that the tender clauses were inconsistent and arbitrary. The court reviewed the tender's preamble and objectives, which included reducing transaction costs and time, decongesting the port, and implementing the DPD (Direct Port Delivery) model. The court found that the tender clauses were consistent with these objectives and were designed after extensive consultations with stakeholders. The court held that the tender was reasonable and well within the framework of the declared policy.

5. Urgency and Necessity of the Tender:
The petitioners questioned the urgency of the tender. The court noted that the tender was a part of a larger policy decision to implement the DPD model and promote initiatives like "Make in India" and "Ease of Doing Business." The court found that the urgency was justified to address the increasing congestion and to streamline the transportation process. The tender aimed to ensure that containers were cleared within 48 hours, which was crucial for reducing dwell time and costs.

Conclusion:
The court dismissed both writ petitions, finding that the tender issued by JNPT was legal, within its jurisdiction, and did not violate the fundamental rights of the petitioners. The tender was found to be a reasonable policy decision aimed at improving efficiency and reducing congestion at the port. The court allowed the interim order to continue for two weeks to avoid further delays.