PSA SICAL TERMINALS LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS Writ Petition has been filed praying for issuance of a writ of mandamus, forbearing the respondents from applying the policy "Two-Terminal-per-Operator cap" to the petitioner, in the matter of developing the 8th berth at the Tuticorin Port as a container terminal and consequently directing the respondents to permit the petitioner to participate in the bidding process for the development of 8th berth at the Tuticorin Port as a container terminal and its operation, management and maintenance on Build, Operate and Transfer (BOT) basis for 30 years in terms of clause 2.3 of the License Agreement, dated 15.07.1998.

(2.) THE case of the petitioner is as under :2.1. It is incorporated as a joint venture company between the Port of Singapore Authority, South India Corporation (Agencies) Limited,, and Nur Investment And Trading PTE Ltd. It entered into the Build, Operate and Transfer License Agreement (Lease Agreement), dated 15.07.1998, with the second respondent, to design, engineer, finance, erect, operate, replace container handling equipment and to maintain and repair the container terminal at Tuticorin Port. Pursuant to the license agreement, it commenced development of the 7th berth as a container terminal at Tuticorin and has been operating and maintaining the same as on date. 2.2. As per Clause 2.3 of the License Agreement, the petitioner is permitted to bid for any other new additional facility or for operating any other berth at the port. 2.3.THE second respondent issued a notice inviting tender in No.E(M) P & M/AEE (M)/F.13/2005 for development of the second container terminal at existing berth No.8 at Tuticorin Port and its operation, management and maintenance on BOT basis for 30 years. THE total value of the work was approximately Rs.150 crores. Eleven prospective bidders, including the petitioner, procured the RFQ documents for developing the 8th berth as the second container terminal. 2.4. In the year 2002, a policy decision was taken by the first respondent to exclude existing operators from participating in the bid for new container terminals. But, in view of Clause 2.3 of the License Agreement, the petitioner was permitted to participate in the bidding process. Apart from the petitioner, four other bidders were also shortlisted. 2.5. In the newspaper "Business Line", dated 07.02.2005, it was reported that the first respondent had introduced the "two terminal-per-operator" cap. THE policy originally restricted the cap to one major port, but the first respondent sought to extend the said proposal to an adjacent major port as well to foster competition. 2.6. THE petitioner, apart from operating the container terminal at 7th berth at Tuticorin Port, is operating the second container terminal at the Chennai Port in the name of Chennai International Terminal Pvt.Ltd. By not furnishing the revised RFP documents, the respondents have effectively prevented the petitioner from participating in the bid for the 8th berth. Hence, this Writ Petition, for the relief stated supra.

(3.) THE contentions of the learned Senior Counsel for the petitioner are three fold. THEy are :