PSA ENNORE PTE. LTD. v. TERMINAL INVESTMENT LTD

Mr.T.S.Sivagnanam, for R.1in W.P.No.16957 & 16958 of 2008) Mr.A.Kalaiselvan, for R.1 & R.3 in(W.P.No.23795 of 2008)COMMON ORDER The petitioners in all these writ petitions questionthe act of the Ennore Port Limited in not shortlisting them for thenext stage of bid that is RFQ stage and some challenging certainclauses in the tender forms.2. The short matrix of the matter as put forth by thepetitioner in W.P.No.17460 of 2008, in its affidavit filed insupport of the petition, in nutshell, is set out here under:-2.1. The petitioner is one of the members of theconsortium by the name of India Terminal Consortium (herein afterreferred as the Consortium). The petitioner consortium members arereputed logistics service providers including International PortOperators. The Consortium members are (i) Terminal InvestmentsLimited, (ii) Samsung C & T Corporation, (iii) ContainerCorporation of India, (iv) The Shipping Corporation of India, (v)Central Warehousing Corporation and (vi) Hind Terminals PrivateLimited.2.2. On 07.03.2008, the first respondent floated Requestfor Qualification (RFQ) for development of Container Terminal atEnnore Port, on Build, Operate and Transfer basis (herein afterreferred as BOT), in order to shortlist competent applicantssubject to national security clearance, who may be subsequentlyinvited to bid for the project. The said RFQ document containsinstructions to applicants and criteria for evaluation and projectprofile was available from the registered office of the firstrespondent upon submission of a demand draft in favour of the firstrespondent towards the cost of Request for Qualification document.The petitioner had paid the sum required by way of demand draft andafter carefully gone through the RFQ document, had raised certainqueries regarding certain terms and conditions of the said documentand submitted written queries to the first respondent. The firstrespondent by its communication dated 04.04.2008 forwarded theamendments to the petitioner to the Request for Qualificationdocument. The first respondent by proceedings dated 04.04.2008,had clarified the petitioner's queries during the pre-applicationconference held on 29.03.2008. Since the petitioner fulfils allthe requirements, had submitted its application dated 19.05.2008for pre-qualification for development of container terminal at https://hcservices.ecourts.gov.in/hcservices/ Ennore Port on BOT basis on 20th May, 2008.2.3. During the opening of the Bid on 20.05.2008, theDirector, Operations of the first respondent read out the pointssecured by each of the Bidders. The petitioner had secured thethird highest Eligibility Points amongst the participants.Thereafter, the first respondent issued a communication dated30.06.2008 to the petitioner informing that the application forpre-qualification submitted by the petitioner had not beenshortlisted for the next stage of bid, i.e., RFP stage as perclause 2.20.1. Thereafter, on 01.07.2008, the first respondentsent another letter clarifying that the communication dated30.06.2008 be read as "this notification is in accordance withclause 2.21.1 of Request for Qualification document", instead of"this notification is in accordance with clause 2.20.1 of Requestfor Qualification document". The petitioner was shocked to receivethe communication dated 30.06.2008 and 01.07.2008, and by replydated 02.07.2008, the petitioner highlighting its points ofsubmission, requested to review the omission of the consortium ofthe petitioner from the eligibility list of candidates for RFPstage. The first respondent has not replied to the communicationdated 02.07.2008 till the filing of the writ petition.2.4. The Chairman representing Shipping Corporation ofIndia, one of the consortium members, met the Chairman cum ManagingDirector of the first respondent and wanted to know how thepetitioner was not shortlisted for the next stage. It has beeninformed to the petitioner that the Power of Attorney issued byContainer Corporation of India was not notarized and therefore, thepetitioner was not shortlisted. In respect of the shortlisting ofthe bidders, except two of them, others are in the 9th, 11th, 14th and15th ranks as per the eligibility points. The first respondentcould have sought for clarifications to facilitate evaluation interms of clause 2.20.1 before coming to any conclusion in respectof pre-qualification. Hence, being aggrieved over the arbitrary,discriminatory, unlawful, unsatisfactory and high handed action bythe officers of the first respondent in disqualifying thepetitioner in the first stage of pre-qualification, the petitionerhas approached this Court by filing the present writ petition. 3.1. The case of the petitioner in W.P.No.16957 of 2008is that the petitioner company is duly incorporated under the lawsof Singapore. It is a 100% subsidiary of PSA India PrivateLimited, which is in turn a 100% subsidiary of PSA InternationalPrivate Limited (herein after referred as PSA International) and ispart of PSA Group. The PSA Group has operations in 28 ports in 16countries across Asia, Europe and America and a global capacity of111 million TEUs and over 66 kilometres of quarry length. Forthree consecutive years since 2005, PSA International has been https://hcservices.ecourts.gov.in/hcservices/ voted "Best Global Container Terminal Operator" at the AsianFreight and Supply Chain Awards.3.2. The petitioner together with ABG InfralogisticsLimited and Schelde Container Terminal Noord N.V., formed aconsortium and submitted an application pursuant to the Request forQualification Document dated March, 2008 in relation to theproposed development of a container terminal on Build OperateTransfer basis (herein after refereed as BOT basis) at Ennore Port.The petitioner is the Lead Member of the Consortium. Thepetitioner submitted application of its experience through aprocess of self assessment i.e., by awarding itself ExperienceScores. Clause 3.5 of the RFQ document provides that thecredentials of eligible applicants were to be measured in terms oftheir total Experience Scores. While so, the petitioner wasshocked to receive the impugned notice dated 30.06.2008 from theEnnore Port, the second respondent in this writ petition that theapplication submitted by the petitioner has not been shortlistedfor the Bid Stage. Though the petitioner sought reasoning as towhy it has not been shortlisted, there is no response. Hence, thepetitioner has to approach this Court challenging the arbitraryrejection of the application of the consortium by the Ennore Port,the second respondent herein.4. The case of the petitioner in W.P.No.17744 of 2008 isthat the petitioner is a public limited company registered underthe Companies Act. The petitioner submitted all the requiredinformation and documents as per the RFQ document. The petitionerranks 6 in terms of experience / technical score. Though thepetitioner was expecting that it would be shortlisted, it wassurprised to receive the proceedings of the Ennore Port, the secondrespondent herein stating that the petitioner had not beenshortlisted for the next stage of Bid Process i.e., RFQ state. Thefirst respondent acted in an arbitrary and unreasonable manner andarbitrarily not included the name of the petitioner as one amongthe shortlisted applicants who are eligible to participate in theBid Process. Hence, challenging the same, the petitioner hasapproached this Court by filing the writ petition.5.1. The case of the petitioner in W.P.No.20409 of 2008is that the petitioner company is incorporated under the CompaniesAct 1956 and it is having current operations in five ports viz.,Kandla, Kolkata, New Mangalore, Paradip and Sikka and is one of thelargest crane rental companies in the country. There are twosubsidiary companies of the petitioner viz., ABG Kandla ContrainerTerminal Limited and ABG Kolkata Container Terminal PrivateLimited. 5.2. The petitioner together with PSA Ennore Limited, https://hcservices.ecourts.gov.in/hcservices/ formed a consortium and submitted an application. The PSA EnnoreLimited, who was the Lead Member of the consortium, has operationsin 28 ports in 16 countries across Asia, etc. Thus, all themembers of the consortium were without doubt candidates withexceptional qualifications and credentials and the petitioner wasextremely confident about its chances that it will be selected forthe RFP state. While so, by proceedings dated 30.06.2008, theEnnore Port Limited, the second respondent herein sent a letter tothe petitioner consortium, PSA Ennore informing that theapplication submitted by it has not been shortlisted for the BidStage. The petitioner sought certain information, but till date,the information has not been furnished. Hence, the petitioner hasto approach this Court by filing the present writ petition.6. The case of the petitioner in W.P.No.23357 of 2008 isthat the petitioner company is incorporated under the laws ofRepublic of Singapore. A consortium consisting of the petitioner,one Mundra Port and Special Economic Zone Limited and one AdaniEnterprises Limited had submitted a bid in response to a tenderfloated by the first respondent. The petitioner consortium has notbeen shortlisted for the next RFP state. No reason whatsoever hasbeen given for the exclusion of the petitioner. The petitionermade a full and complete disclosure of all facts relating to thepetitioner consortium and a rival consortium (PSA Consortium) andrecording that the petitioner consortium and the PSA Consortiumwere not in conflict of interest. Immediately upon receipt ofcommunication dated 30.06.2008 not shortlisting the petitioner, thepetitioner attempted to ascertain from the first respondent on whatbasis the petitioner's proposal had not been shortlisted for thenext stage of Bid. But the first respondent refused to provide anyinformation whatsoever. The petitioner's letter and the notice ofthe Advocate did not evoke any response. Hence, challenging theproceedings dated 30.06.2008, the petitioner has approached thisCourt by filing the present writ petition.7. The petitioner in W.P.No.23795 of 2008 challengescertain clauses in the Guidelines for Pre-Qualification of Biddersfor Public Private Partnership (PPP) Projects, to strike down thesame as arbitrary and unconstitutional and also challenging theletter of the Ennore Port Limited, the second respondent dated30.06.2008 and 01.07.2008 not shortlisting the petitioner.8. The petitioner in W.P.No.23357 of 2008 filed anotherwrit petition in W.P.No.23358 of 2008 for declaration that clause2.2.1 (c) of RFP document is bad in law. Likewise, the petitionerin W.P.No.16957 of 2008 has filed another writ petition inW.P.No.16958 of 2008 to quash the clauses 1.2.1, 2.2.1(c), 3.2.1and 3.2.6 of Model Request for Qualification for PPP Projects dated05.12.2007 and for a direction to the second respondent to amend https://hcservices.ecourts.gov.in/hcservices/ the Request for Qualification document dated March, 2008.9. Separate counter affidavits have been filed on behalfof the respondents in each of the writ petitions.W.P.No.17744 of 20089.1. As far as the counter affidavit filed inW.P.No.17744 of 2008 is concerned, it is the case of therespondents that:(i) the composition of the consortium formed bythe petitioner along with McQuarie Capital, Singaporehad a floating equity ratio between them. As per theRFQ document, Clause No.2.2.3, the equityparticipation of the members of the consortium had tobe a definite defined one and not in a manner asexhibited in the consortium of the petitioner. Havingequity percentage of not less than 51% could meanhaving equity of 99% also by the petitioner and havingequity of not more than 49% could mean having equityof 1% also by McQuarie Capital Singapore Pte. Ltd. Asa result of this, only the petitioner was eligible forevaluation on account of holding at least 26% of theequity of the consortium;(ii) the experience/technical score which wasself assessed by the petitioner could not beconsidered because of the above referred to fact;(iii) at no point of time, at the time of openingof applications on 20.5.2008, it was announced by therepresentative of the respondent that the points whichwere read out were secured by the applicants. It wasmade clear that what was being read out for the sakeof transparency of the bid process was the selfassessed technical score as submitted by theapplicants. The announcement of the self assessedscores were subject to evaluation. The ranking of thepetitioner, as stated by him, is purely his ownconclusion without the respondent concurring with it.(iv) the contention of the petitioner that he wasshortlisted for invalid reasons is denied. Sincetypographical error crept in the communication by thisrespondent, it was rectified vide anothercommunication dated 1.7.2008. https://hcservices.ecourts.gov.in/hcservices/ (v) the technical score derived from theexperience of such a consortium member, who is a FundManager and is not an owner of the fund cannot betaken into account while computing the technical scoreof the consortium. Hence, the self assessed technicalscore of the petitioner consortium could not beconsidered and the petitioner could not be shortlistedfor the next stage of bidding process;(vi) the non-inclusion of the petitionerconsortium has been on account of flawed compositionof consortium. The other consortium member, i.e.,McQuarie Capital Singapore Pte. Ltd., being a fundmanager, its technical score could not be consideredby the respondent;(vii) As per Clause 2.17.4 and 2.21.1 of the RFQdocument, the respondent was not supposed to eitherdivulge the reason for disqualification to theapplicants, or entertain any query or clarificationfrom applicants who fail to qualify;(viii) the respondents have acted with utmostfairness and transparency in accordance with thepolicy guidelines of the Government of India, ascontained in RFQ document and hence, the right of thepetitioner, much less Article 14 of the Constitutionof India, had not been violated. No public interesthas suffered on account of the ground as stated by thepetitioner; and(ix) no right of the petitioner has been violatedsince the respondents have acted in a fair and nondiscriminatory manner.9.2. A reply affidavit had been filed on behalf of thepetitioner wherein the following facts have been set out:(i) in each consortium, there is one lead companyand the bid/application should be in the name of thelead company. The petitioner is the lead company inthe consortium. The petitioner submitted itsapplication for pre-qualification with reference tothe RFQ document dated 7.3.2008 by its applicationdated 19.5.2008. The petitioner submitted all therequired information and documents as per the RFQdocument. The petitioner was ranked in the list readout by the respondent as per the self assessment. Thepetitioner received a communication from the second https://hcservices.ecourts.gov.in/hcservices/ respondent dated 30.6.2008 stating that the petitionerhas not been shortlisted for the next stage of biddingprocess. However, no reason was given in the impugnedorder for not shortlisting the petitioner for the nextstage. In the counter affidavit, the respondents haveset out the reasons for not shortlisting thepetitioner;(ii) it is alleged in the counter that though thepetitioner was eligible for evaluation on account ofholding at least 26% of the equity of the consortium,the other partner of the consortium is ineligible forevaluation on account of not holding at least 26% ofthe equity of the consortium. Secondly, it has beenalleged that the consortium partner McQuaire Capitalis only a Fund Manager and not the owner of the fundand hence, the technical score derived for theexperience of McQuaire Capital cannot be taken intoaccount while computing the technical score of theconsortium. The first reason alleged for rejection ofthe application of the petitioner shows that therespondents have not looked into all the documentssubmitted by the petitioner along with its applicationand applied its mind before rejecting the applicationof the petitioner. Along with the bid document, thepetitioner submitted the Joint Binding Agreement dated29.4.2008. In the said agreement, it has been clearlystated that the petitioner's share holding is 51% andthat of the other consortium member is 49%. Thus, theequity participation of the members of the consortiumis definite and defined. However, the respondents,without referring to the shareholding pattern of thetwo consortium members have wrongly held that theequity participation of the members of the consortiumis not definite and defined. This perverse findingled to arbitrary denial of the right of the petitionerto participate in the financial bid. Thus, theimpugned order has been passed without a properscrutiny of documents submitted by the petitioner;(iii) the financial capacity clause 2.2.2 (B)states that the applicant shall have a minimum networth of Rs.195 crores as at the close of thepreceding financial year. The petitioner who has 51%shareholding along with its consortium partner who has49% shareholding as per the Joint Bidding Agreementfully satisfies the technical capacity and thefinancial capacity as set out in the above clause; https://hcservices.ecourts.gov.in/hcservices/ (iv) In the case of M/s.India TerminalConsortium, the respondents have sought clarificationabout the information which they had alreadysubmitted. But, no such clarification was sought fromthe petitioner regarding the shareholding of thepetitioner and the consortium partner on the basis ofthe information already submitted by the petitioner inthe bid document. Had such a clarification beensought from the petitioner, the petitioner would havesatisfied the technical capacity and financialcapacity as set out in clause 2.2.2, as per the JointBidding Agreement;(v) As regards the other ground of rejection thatthe consortium partner is only a Fund Manager, theconsortium company is a company incorporated inSingapore and a 100% owned subsidiary of MacquarieGroup Limited and the same is evident from itsAnnual/Financial Report 2008. The RFQ issued by thefirst respondent did not also mention that FundManagers, either as a single entity or as a part of agroup of entities, are not eligible to apply for pre-qualification for the project; and(vi) the consortium partner can claim thetechnical experience of MIG and MAp. The MAp and MIGare associates of MSAPL as per the requirements ofclause 2.2.9 of the RFQs of public bids.9.3. A rejoinder was filed by the respondents to thereply affidavit of the petitioner which sets out the followingfacts:(i) the Ennore Port Limited (hereinafter called"the EPL") has decided to develop a Container Terminalwith quay length of 1000 Meters in a straight linewith sufficient back up area through Public PrivatePartnership model on Build – Operate – Transfer (BOT)basis. The EPL, therefore, forwarded relevantdocuments to Public Private Partnership AppraisalCommittee (PPPAC) constituted under the PlanningCommission for obtaining "in-principle" approval fordevelopment of Container Terminal at Ennore Port inDecember, 2006. PPPAC accorded "in-principle"approval in October, 2007. The Department ofExpenditure, Ministry of Finance, Government of India,though their Official Memorandum dated 5.12.2007issued the Guidelines for Pre-Qualification of Biddersfor PPP projects; https://hcservices.ecourts.gov.in/hcservices/ (ii) the EPL has prepared the RFQ document fordevelopment of Container Terminal and forwarded thesame to the Ministry of Shipping, Road Transport andHighways, Government of India for necessary approvalin September, 2007 and the same was approved by theMinistry on 11.2.2008;(iii) a notice inviting tender was published on7.3.2008 for sale of RFQ document. A Pre-Applicationconference was conducted on 29.3.2008 in which tworepresentatives of 55 applicants each participated andraised their queries/doubts. In the meantime, theMinistry of Finance, issued an Official Memorandumdated 25.3.2008 enclosing amendments to the Model RFQdocument. Under the provisions of Clause 2.10 of theRFQ document, EPL issued amendments to the RFQdocument on 4.4.2008 and all the queries of theapplicants were responded. The application due datewas extended from 10.4.2008 to 18.4.2008 and finallyto 30.4.2008. Due to the request made by theapplicants, it was extended till 1300 hours IST on20.5.2008;(iv) The applications were opened at 1400 hourson 20.5.2008 in the presence of the representatives ofthe applicants. The names of the applicants andwhether it was a sinle entity or a consortium wereread out along with the composition of the consortium.Aggregate Technical Capacity, as stated by eachapplicant, was also read out. While making theannouncement regarding Aggregate Technical Capacity,it has been clearly stated that the aggregates were assubmitted by the applicants and unevaluated by therespondents and the Port does not take anyresponsibility for the correctness, genuinity or itsconfirmation to the provisions of the RFQ documents;(v) the respondents have selected an Adviserafter following due process, for advising/helping therespondent in conducting the entire bid process aimedat selecting the BOT Operator, who would be awardedthe contract and would eventually implement theproject. SBI Capital Markets Limited was selected asthe Bid Adviser for the project and for renderingadvice on legal matters concerning the bid process.Mulla & Mulla and Craigie Blunt & Caroe have beenengaged by SBI Caps to act as bid Legal Advisers. Theevaluation of the applications has been done by the https://hcservices.ecourts.gov.in/hcservices/ Bid Adviser, i.e., SBI Capital;(vi) the method of shortlisting the applicationswas to be done with reference to the following:(a) Testing for responsiveness (Clause2.19.1);(b) Verification of Financial Capacity(Clause 3.4); and(c) Computation of Technical Capacity(Clause 3.2).A minimum threshold technical capacity has beenprovided in order to be eligible to apply for theshortlisting as per Clause 2.2.2 (A) of the RFQdocument. Those applicants, who failed to secure thethreshold technical capacity, were consideredineligible for further evaluation for shortlisting asper the said Clause;(vii) Clause 3.5.2 of the RFQ document stipulatesshortlisting of top six applicants based on theirAggregate Technical Capacity. The first stage ofmethod of shortlisting, i.e., test of responsiveness(Clause 2.19.1 of the RFQ document) is ascertained byverifying the documents such as, one original and twocopies of documents (Clause 2.12.2), etc., as putforth in the rejoinder;(viii) the check for "Conflict of Interest" wasperformed in accordance with Clause 2.2.1(c) of theRFQ document. The check on Financial Capacity wasperformed for the applicants who had cleared previoustests of responsiveness and conflict of interest. Asper Clause 2.2.2 (B) of the RFQ document, theapplicant should have an aggregate net worth of Rs.195Crores. Clause 2.2.2 (A) of the RFQ documentenvisages Technical Capacity, i.e., a third stage ofmethod of shortlisting. As per the said clause, theapplicants should have a minimum Threshold TechnicalCapacity of Rs.650 Crores and one-fourth of ThresholdTechnical Capacity should be from projects in Category(1) or Category (3). A project was considered non-eligible if relevant supporting information/documentsfor that project as stipulated under RFQ document werenot submitted; https://hcservices.ecourts.gov.in/hcservices/ (ix) apart from the above criteria for rejection,other factors were also considered for arriving at thetechnical score of the project as per the RFQstipulations. To evaluate the technical score,applicants have to give the details as per Clause 3.3of the RFQ document. After following the aboveprocess, the shortlisting of the applications would bedone as per Clause 3.5 of the RFQ document;(x) the communication that has been sent to thepetitioner informing that they have not beenshortlisted for the next stage of bidding was inaccordance with the provisions of Clause 2.21.1 of theRFQ document. The evaluation carried out by therespondents does not leave any ground for thepetitioner to challenge the notification of its non-shortlisting;(xi) in three places of the RFQ application inAnnexure-I of Appendix-I, the equity distribution isdefined as the petitioner holding not less than 51%and its other consortium member holding not more than49%. Only after perusing the whole of theapplication, the respondents came to know that thepetitioner's consortium has submitted its applicationstating different equity share between the members ofits consortium deliberately in such a manner so thatit could be used for different purpose at a laterstage;(xii) as per Clause 2.20.1 of the RFQ document,the respondents have sole discretion of seekingclarification from the applicants for facilitating theprocess of evaluation. However, clarification cannotbe asked from an applicant so as to enable it torectify the mistake it its application;(xiii) As per the Articles of Association, theconsortium member remains as Fund Manager/Invester insecurity and acts as Financial Adviser. The Articlesof Association of McQuaire Infrastructure Group andMcQuaire Airports, which are claiming experience fromprojects in Categories (1) and (2), as associates ofMcQuaire Group Limited, are not enclosed with theapplication, which should have been submitted as perthe requirement of Clause 2.13.2 of the RFQ document.In the absence of these requirements, the contentionof the petitioner that the consortium member is anasset owner cannot be accepted; https://hcservices.ecourts.gov.in/hcservices/ (xiv) even otherwise, the projects which havebeen cited by the petitioner consortium to gaintechnical score are ineligible for considerationbecause of the following reasons:(a) the petitioner consortium claimedexperience of 17 projects. Five projects by theLead Member and 12 projects by consortiummember. As per Clause 2.2.2, at least one-fourth of the Threshold Technical Capacity shallbe from the eligible projects in Category (1) orCategory (3) specified in Clause 3.2.1.(b) the experience score derived byMcQuaire from two projects out of three projectsunder Category I, are from projects whosecapital cost is less than Rs.65 Crores, and thesame is against Clause 3.2.3 (c) of the RFQdocument;(c) in the third project, though thecapital cost is more than Rs.65 Crores, it isnot supported by Statutory Auditor's Certificateapart from not submitting the Articles ofAssociation of its Associates, which is claimingexperience. Thus, the three project experienceclaimed under Category I goes out ofconsideration leaving alone four projectexperience claimed by the petitioner. (d) Even those four project experienceclaimed by the petitioner could not beconsidered for the reasons that in the first twoprojects there are no certificates from theStatutory Auditor with regard to the revenueappropriated by the Applicant and in theremaining two projects, there is no categoricassertion in the Auditor's Certificatecertifying the total project cost. Therefore,any of the project experience claimed underCategory (1) and Category (2) cannot beconsidered for evaluation; and(xv) in any event, the petitioner cannot be givenany second chance to rectify the mistake of hisapplication; because it could amount to compensatingthe petitioner for his negligent and carelesssubmission of his application. Any isolated relief to https://hcservices.ecourts.gov.in/hcservices/ the petitioner and denial of the same to otherapplicants will amount to unfair treatment to them.9.4. An additional reply affidavit was filed by thepetitioners, setting out the following facts:(i) it is not the case of the petitioner that theself evaluation of the applicants is final. Thepetitioner states that they have submitted all therequired information and documents as per RFQdocument, but due to non application of mind theevaluator has failed to appreciate the scope of thedocuments submitted by the petitioner and arbitrarilydid not evaluate the technical score of McQuaireCapital (Singapore) Pte. Limited; (ii) the equity distribution defined as thepetitioner holding not less than 51% and otherconsortium partner holding not more than 49% is not inconflict with equity distribution defined in JointBidding Agreement, which is legally binding documentagreed upon by both consortium members and singed byauthorized signatories. The equity distribution is inline with the requirements for equity ownership ofmore than 26% for the technical scores of a consortiummember to be taken into account for computation ofAggregate Scores. Hence, McQuarie's technical scoreshave been wrongfully neglected;(iii) with regard to the allegation of therespondents that the petitioner is seekingclarification of RFQ application in order to correctthe fault in the RFQ application, it is submitted thatthere is neither any fault in the application nor thepetitioner is seeking an opportunity to rectify anydefect, but intends to only clarify in the light ofthe documents already submitted;(iv) the allegation of the respondents thatMcQuaire Capital (Singapore) Pte. Limited is a fundmanager/investor in security and a financial advisorand cannot be accepted as an Asset Owner is baseless,as even as per the Memorandum and Articles ofAssociation, they can undertake any financial andother or allied activities in relation to theinvestment of funds for itself, effectively allowingit to be an asset owner. Moreover, Clause 2.13.2nowhere specifies that Associates of applicant/Consortium member need to submit a copy of Memorandum https://hcservices.ecourts.gov.in/hcservices/ and Articles of Associates, and hence, the technicalscores of these projects cannot be rejected on theground of non submission of Memorandum and Articles ofAssociation for associates of applicant; and(v) the application of the petitioner was notproperly evaluated and the rejection of theapplication was for untenable reasons. There is nodeficiency in the application of the petitioner. Therespondent through its evaluation ought to have soughtclarification from the petitioner under Clauses 2.20.1of the RFQ document and in not calling forclarification, the respondent has failed to exercisethe discretion in accordance with law.W.P.No.17460 of 20089.5. In W.P.No.17460 of 2008, a counter affidavit hadbeen filed by the first respondent (EPL), setting out the followingfacts:(i) the rejection of the petitioner was onaccount of non submission of documents as laid down inthe RFQ document. The following defects made therespondents not to shortlist the petitioner:(a) The Power of Attorney furnished byContained Corporation of India and CentralWarehousing Corporation who are members of theConsortium have not been executed in accordancewith procedure laid down by applicable law andthe chartered documents of the executants norunder their common seal.(b) In the responsiveness test, TerminalInvestment Ltd and Container Corporation ofIndia, as a member of the Consortium claimingexperience under Category 1 has not submittedthe required Statutory Auditor's Certificate andthe details of the project as per Appendix I,Annex IV respectively and hence evaluation couldnot be done.(c) Likewise, Samsung C & T Corporation,who is another member of the Consortium and isclaiming experience from Category (3) projectshas not furnished the Statutory Auditor'sCertificate as stipulated. Only one AuditorCertificate for its all the 250 projects https://hcservices.ecourts.gov.in/hcservices/ (Category 3 and Category 4) is given. Therequirements as per the RFQ document asstipulated in Appendix I, Annex IV, is that theApplicant should provide a certificate from theStatutory Auditors/Clients in the format foreach project to verify various facts related toa project like project cost, period of project,share of the applicant, etc and in the absenceof such certificate, the claim of technicalscore by Samsung C&T Corporation was discarded.(d) As per Clause 2.13.2(v) of the RFQdocument, the application submitted by aconsortium should contain a copy of theMemorandum and Articles of Association if theapplicant/consortium member is a body corporate.Terminal Investment Ltd., being a Corporatebody, has not enclosed such a copy.(e) As per Clause 2.13.2 (vi) of the RFQdocument, the copies of applicant's / eachconsortium member's duly audited balance sheetand profit and loss account for the precedingfive years is to be provided. In respect ofTerminal Investment Ltd., no such document hasbeen provided;(ii) the petitioner's contention that the Powerof Attorney given by Container Corporation of Indiawas given by the person who himself is a GazettedOfficer is not correct as the Power of Attorney wassupposed to be accompanied with the supportingdocuments as mentioned in Appendix III;(iii) the respondent was under no obligation toinform the petitioner the ground for itsdisqualification as per Clause 2.17.4 of the RFQdocument. The pre-qualification of applicant would beentirely at the discretion of the respondents. Theapplicants will be deemed to have understood andagreed that no explanation or justification on anyaspect of the bidding process or selection would begiven. The petitioner, who was fully aware of theprovisions of this Clause and had accepted it beforesubmitting the application, cannot question theprovisions of RFQ document at a later date; and(iv) the respondent had taken 37 days to completethe evaluation work which is very reasonable under any https://hcservices.ecourts.gov.in/hcservices/ yardstick. The entire process has been carried outwith utmost transparency and reasonableness by therespondent.The other contentions raised in the counter affidavit are similarto the one made in W.P.No.17744 of 2008.9.6. The petitioner filed a reply affidavit which setsout the following facts:(i) the petitioner had submitted application in15 volumes and complied with the requirement of Clause2.19, i.e., Test of Responsiveness and 2.2.2(A), i.e.,Technical Capacity. There is no statement in thecounter affidavit that the petitioner has notfulfilled the conditions adumbrated in the abovereferred clauses;(ii) the contention of the respondent that therespondent never read out the technical score given bythe petitioner after self-assessment was denied. Thefirst respondent himself read out the points securedby each bidder and the respondent cannot now take adifferent stand; (iii) the rejection of the bid of the petitioneris illegal as the petitioner has not received anyclarification and it is the duty of the respondent toclarify the queries made by the petitioner beforefinalizing the ranking. The respondent has notresponded to the queries raised by the petitioner andeven though the petitioner was qualified for beingshortlisted for pre-qualification and was eligible forparticipation in the bid stage, the petitioner wasdisqualified from the next stage of bidding which wasthe result of the pre-determined mind in order tofavour other bidders;(iv) the Power of Attorney submitted by thepetitioner is in accordance with the tender documents.There is no proper reason given by the respondent asto why the Power of Attorney submitted by thepetitioner was rejected. In Appendix III of RFQ, ithas been stated that the Power of Attorney executedand issued overseas will have to be legalized by theIndian Embassy and Notarised in the Jurisdiction wherethe Power of Attorney is being issued. In this case,the Power of Attorney has been executed in India asper the law applicable in India and hence, https://hcservices.ecourts.gov.in/hcservices/ notarization is not mandatory and Power of Attorneywhich has been executed in India is sufficient and islegally valid;(v) the necessary Statutory Auditor Certificatewas filed by the petitioner along with details as perRFQ document in Volume V. Hence, there is nojustification for the respondents to disqualify thepetitioner from the next stage of bidding on thisground;(vi) the petitioner has submitted one Auditor'sCertificate for all the projects and such AuditorCertificate furnished by the petitioner is a valid oneand in case of any doubt, it is for the respondent tomake necessary verifications and hence, rejection onthis ground is untenable;(vii) as per Clause 2.13.2 (v) of the RFQdocument, the petitioner submitted the Memorandum andArticles of Association of Terminal Investment alongwith RFQ documents. Hence, the rejection of the bidpreferred by the petitioner is not justified;(viii) the petitioner submitted audited balancesheet and profit and loss account of TerminalInvestments Limited along with RFQ documents. Thepetitioner, thus, had complied with the Test ofResponsiveness as defined in Clauses 2.19 and 2.2.2(A);(ix) disqualifying the petitioner from the nextstage of bidding without affording an opportunity tothe petitioner to put forth its clarification isarbitrary as in Appendix III of RFQ, it has beenclearly stated that in the case of a Power of Attorneywhich has been executed and issued overseas, thedocuments will have to be legalized by the IndianEmbassy and Notarized in the jurisdiction where thePower of Attorney is being issued. In the presentcase, the Power of Attorney has been executed in Indiaas per the law applicable in India and hencenotarization is not mandatory for Power of Attorneyexecuted in India; and(x) though the petitioner submitted all therequired documents, the respondents have failed toshortlist the petitioner without considering thedocuments filed by the petitioner in its properperspective and in an unduly haste manner. Therejection of the bid without giving any proper reason https://hcservices.ecourts.gov.in/hcservices/ is violative of principles of natural justice.9.7. A rejoinder has been filed by the first respondentto the reply affidavit of the petitioner, wherein it has beenstated that:(i) the Container Corporation of India, which isthe member of the consortium of the petitioner and isclaiming experience in Category (1) projects have notsubmitted the details of the eligible projects as perAppendix I of Annexure IV and in the absence of sucheligible project details co-relation of the projectwith Statutory Auditor's Certificate cannot beestablished and hence, any claim of experience scorefrom this project without authenticating Auditor'sCertificate will have to be discarded;(ii) the petitioner, who is the lead member ofthe consortium, has submitted only one auditor'scertificate for 18 projects in Category (1) asstipulated in Clause 3.3.3 of RFQ document, instead ofsubmitting Statutory Auditor's Certificate for each ofthe project as per format given in the RFQ document atAnnexure IV of Appendix I;(iii) the consortium member of the petitionersubmitted only one Auditor's Certificate which hasneither the project details not has any informationwith respect to the projects from which experience isbeing claimed and such a certificate cannot serve anypurpose for authenticating the experience score asclaimed by the consortium member of the petitioner;(iv) the Memorandum and Articles of Associationof Terminal Investment Limited were not submitted bythe consortium of the petitioner. The petitioner ismaking misrepresentation of facts by stating that theMemorandum and Articles of Association of TerminalInvestment Limited are placed at Pages 7 to 10 ofVolume 7. The duly audited balance sheet and profitand loss account of the preceding five y ears havealso not been submitted by the Terminal InvestmentLimited, which is the lead member of the consortium;and(v) the Shipping Corporation of India, ContainerCorporation of India, Central Warehousing Corporationdespite being Public Sector Companies hold only 41%equity in the proposed consortium. In that, theContainer Corporation alone is holding 26% of theequity of the petitioner's consortium, and others,viz.,Shipping Corporation of India and CentralWarehousing Corporation are just nominal partnersholding 8% and 7% of equity respectively and with such https://hcservices.ecourts.gov.in/hcservices/ type of equity by PSUs in the petitioner's consortium,the consortium does not become Public SectorUndertakings consortium as the majority equity stillremains in the hands of private sector.W.P.Nos. 16957 and 16958 of 20089.7(a) In W.P.Nos. 16957 and 16958 of 2008 commoncounter affidavit had been filed by the respondents, wherein thefollowing facts have been set out. Apart from the statements madein the other writ petitions, it is stated that the case of thepetitioner could not be short listed on account of the petitioner'sconsortium having 'conflict of interest' with another applicantconsortium led by Mundra Ports & Special Economic Zone Limited(Lead Member), Adani Enterprises Limited and Neptune OrientalLines Limited; as its members. In the case of consortium led bythe petitioner, having 'conflict of interest' with NeptuneOriental Lines Limited, which was a member of the consortium led byMundra Port and Special Economic Zone Limited, the petitioner couldnot be short listed. This fact was found by Ennore Port Limitedon account of declarations made by Neptune Oriental Lines Limited.The petitioner, however, failed to make such a declaration which itwas supposed to do under RFQ document. As per clause 2.2.1(c)(i) ofthe RFQ document, an applicant shall not have a 'conflict ofinterest' with another applicant participating in the biddingprocess. Any applicant found to have a 'conflict of interest' withanother applicant shall have the effect of dis-qualifying of boththe applicants. The short listing process had been atransparent one. There is no room for suspecting the said process. W.P.No.20409 of 20089.8. The counter affidavit filed in W.P.No.20409 of 2008,sets out the following facts:(i) the petitioner is a member of the consortiumwhich has the following composition:PSA Ennore Pte. Ltd...Lead MemberSchelde Container ..MemberTerminal Noord N.V.ABG Infralogistics..Member Limited (ii) the petitioner's consortium submitted itsapplication for shortlisting on 20.5.2008. As perClause 2.2.6 (c) of RFQ document, the petitioner hasdesignated PSA Ennore Pte. Ltd. as its Lead Memberwith all necessary power and authority to do for and https://hcservices.ecourts.gov.in/hcservices/ on behalf of the Consortium, all acts, deeds andthings as may be necessary in connection with theconsortium's bid for the project and its execution;(iii) PSA Ennore Pte. Ltd. as a lead member ofthe petitioner's consortium has already filed two writpetitions, viz., W.P.Nos.16957 and 16958 of 2008against non shortlisting of the consortium for thenext stage of bidding, i.e., RFP Stage. In spite ofthe above writ petitions, the petitioner had filed thepresent independent writ petition for the same relief.The petitioner has no locus standi to approach thisCourt independently. The disqualification of theconsortium has the effect of disqualifying the membersof the consortium as well and there cannot bedifferent reasons for disqualification of theconsortium and its members. Since the lead member ofthe petitioner's consortium has taken a legalrecourse, the petitioner cannot maintain the writpetition independently;(iv) as per the Government of India guidelines,the applicant should have acquired sufficientexperience and capacity in building infrastructureprojects. Such experience score has to be measuredeither from the construction workundertaken/commissioned by him, or from revenues ofBOT/BOLT/BOO projects, or from both during the fiveyears preceding the application due date. In case theapplicant has experience across different categories,the score of each category would be computed as aboveand then aggregated to arrive at the experience score.In the case of a Consortium, the Aggregate ExperienceScore of each of its members, who have an equity shareof at least 26% in such Consortium, shall be summed upfor arriving at the combined Aggregate ExperienceScore of the Consortium. The experience score that ismentioned in the affidavit is only the self assessedexperience score and it need not necessarily be thesame score that would be arrived at after due scrutinyand evaluation of the experience score by followingthe evaluation method; and(v) the non shortlisting of the petitioner'sconsortium was done by the respondent on account ofthe petitioner's consortium having "Conflict ofinterest" with another applicant consortium led byMundra Ports and Special Economic Zone Limited (LeadMember), Adani Enterprises Limited and Neptune https://hcservices.ecourts.gov.in/hcservices/ Oriental Lines Limited, as its members. In the caseof the petitioner's consortium, PSA Ennore Pte. Ltd.was having conflict of interest with Neptune OrientLines Ltd., which was a member of the consortium ledby Mundra Port and Special Economic Zone Limited.This fact came to light on account of declarationsmade by Neptune Oriental Lines Ltd. The petitioner'sconsortium failed to make such a declaration which itwas supposed to do under the RFQ document. As perClause 2.2.1 (c) of the RFQ document, an applicantshall not have a conflict of interest with anotherapplicant participating in the bidding process. Ifthere is a conflicting interest, it will have theeffect of disqualifying both the applicants. Thus,the petitioner consortium's lead Member, PSA EnnorePvt. Ltd. and Neptune Oriental Lines Limited havecommon control shareholder, i.e., Temasek Holdings(Private) Limited which is specified as a conflict ofinterest in Clause 2.2.1 (c)(i) of the RFQ document.W.P.No.23795 of 20089.9. The counter affidavit filed in W.P.No.23795 of 2008sets out the following facts:(i)the petitioner formed a consortium withPortio Management Services Limited and submitted itsapplication for shortlisting qualified applicants forthe bidding process for the development of ContainerTerminal on BOT basis. The petitioner's consortiumwas not shortlisted on account of his failure to meetthe threshold technical capacity as per Clause 2.2.2(A) of the RFQ document and hence, was notshortlisted;(ii) the petitioner consortium claimed experiencefrom 13 projects of Category I. The lead member ofthe consortium, i.e., the petitioner herein has notclaimed any experience from the said 13 projects. Butits member viz., Portia Management Services Ltd., hasclaimed experience from the said projects. Out of 13projects, only one project experience in the BOTproject of Vizag Sea Port Pvt. Ltd. could beconsidered for evaluation. The technical scorearrived from the said project experience is 373.63.Whereas to be eligible for pre-qualification, theapplicant/ petitioner consortium shall fulfill theconditions enshrined in Clause 2.2.2 (A) of the RFQdocument where one of the conditions in sum that thetotal of the project experience should be more thanRs.650/- Crore. The other project experience claimed https://hcservices.ecourts.gov.in/hcservices/ by the petitioner consortium was not considered forevaluation as it has not produced the StatutoryAuditor's Certificate as prescribed in Annexure-IVAppendix-I. In view of the same, the projectexperience claimed by them in other projects becamevalueless. In the absence of the required thresholdtechnical score, the petitioner consortium was notshortlisted for the next stage of bidding. Therefore,the rejection of the application of the petitionerdoes not suffer from any infirmity; and(iii) the petitioner knowing fully well thetender condition participated in it and now after notbeing shortlisted is seeking legal recourse to stallthe tender process by terming the tender condition asarbitrary and illegal. The project is of a greatpublic importance and it would suffer in case of grantof any relief to the petitioner.9.10. The reply affidavit filed by the petitioner setsout the following facts:(i) for the first time, through the counteraffidavit, the respondents have set out the realreason for rejection of the petitioner's bid. Therejection is contrary to the tender terms and it isevident that the documents submitted by the petitionerhave not been perused and evaluated. The evaluationdone by the SBI Capital Markets Limited is whollycontrary to the tender terms which mandates evaluationto be done only by the tender issuing authority andtherefore, the evaluation by a third party vitiatesthe very tender process, rendering the impugned orderliable to be set aside;(ii) the tender originally sets out that in caseduly certified audited financial statements areprovided, a separate certification by auditors inrespect of Clauses 2.2.4 (i) and 2.2.4 (ii) are notrequired for both Technical and FinancialQualification and later it was amended to state thatbalance sheet would be accepted only for technicalcapacity. In case of net worth, the auditorcertificate was required to be submitted; and(iii) as per the above-said clause and theamendment, to prove technical capacity, it is enoughto submit audited balance sheet and accordingly, theconsortium provided balance sheet for the last five https://hcservices.ecourts.gov.in/hcservices/ years. The consortium member claimed eligibleexperience in 13 projects. The second respondent'scounter affidavit however states that non-providing ofstatutory auditor's certificate as the reason forrejection. The said rejection is entirely erroneousfor the reason that a statutory auditor's certificatewas wholly unnecessary for purposes of technicalqualification since Audited Annual Returns wereprovided. The petitioner's consortium has in factclaimed another Rs.7,006 Crores eligibility in variousprojects, which is supported by the Audited BalanceSheet. This figure is arrived at by converting Poundsto Indian Rupees as specified in the tender document.The rejection is, therefore, clearly contrary to theterms of the tender document and the impugned order isliable to be set aside.W.P.Nos.23357 and 23358 of 20089.11. The counter affidavit in W.P.Nos.23357 and 23358 of2008 sets out the following facts:(i) the reason for rejection of the petitioner'sconsortium is because of conflict of interest betweenthe petitioner's consortium and the consortium led byPSA Ennore Pte. Ltd.;(ii) the petitioner's contention in his letterdated 8/10th April, 2008 stating that thepetitioner's consortium and the consortium led by PSAEnnore Pte Ltd. (petitioner in W.P.Nos.16957 and 16958of 2008) are not in conflict of interest, is totallybaseless and false;(iii) non response to the letter of thepetitioner by the respondent cannot mean sharing ofthe same views. It was not appropriate for therespondent to respond to the letter of the petitionerat a time when the petitioner himself had notmentioned the consortium member's name and therespondent was not aware, who is going to submitapplications for pre-qualification. Any response tothe petitioner's letter would have amounted to guidingthe petitioner. The respondent, therefore, acted withutmost fairness by not responding to the petitioner'sletter;(iv) the petitioner was well aware of suchdisqualifying clause in the RFQ document and it was https://hcservices.ecourts.gov.in/hcservices/ aware that it may be attracted by this disqualifyingclause as a result of which it was trying to frame itsown definition of "conflict of interest" through itsletters. The respondent is bound by the policyguidelines of the Government of India and therefore,cannot accept the definition other than the definitiongiven by the Model RFQ document; and(v) it is all the more interest to note that thepetitioner and PSA Ennore Pte. Ltd. who are attractedby this "conflict of interest" have joined together byway of filing of separate writ petitions to get theconflict of interest clause annulled or by getting itredefined so as to exclude these two entities fromgetting attracted by the disqualifying clause of"conflict of interest".COMMON CONTENTIONS RAISED ON BEHALF OF ALL PETITIONERS:-10. The common and collective contentions raised byMr.A.L.Somayaji, Mrs.Nalini Chidambaram, Mr.Aravind Datar,Mr.P.S.Raman, learned Senior Counsels and Mr.R.Balaji, learnedcounsel appearing for the petitioners are:-(a) The impugned orders not shortlisting thepetitioners for the next stage of bid, do not assign anyreason whatsoever and on this ground alone, the impugnedorders are liable to be set aside;(b) Though reasons have been assigned in thecounter affidavits for not shortlisting the petitioners,it will not cure the earlier defect viz., that theimpugned orders do not contain any reasons whatsoever fornot shortlisting the petitioners for the next stage ofbid;(c) The Ennore Port Limited cannot add reasons orimpute reasons in their counter affidavits giving reasonsfor not shortlisting the petitioners for the next stageof bid; (d) The reasons assigned in the counter affidavitswhich are sought to be improved at the time of arguments,shall not be accepted;(e) The impugned orders that have been passed bythe Ennore Port Limited not shortlisting the petitionerswould amount to violative of Article 14 of TheConstitution of India; https://hcservices.ecourts.gov.in/hcservices/ (f) The impugned orders of the Ennore Port Limitedin not pre-qualifying and shortlisting the petitionersare an arbitrary act without application of mind;(g) The petitioners have submitted all the requiredparticulars as per Request for Qualification document(RFQ). However, the Ennore Port Limited withoutconsidering the same has passed the impugned ordersmechanically without applying its mind;(h) Even assuming that the Ennore Port Limited wasnot satisfied with the documents produced by thepetitioners, it could have clarified the same from thepetitioners, which power they derive from Clause 2.20.1of the tender Request for Qualification document ofEnnore Port Limited. The failure to exercise thediscretion vested with the Ennore Port Limited inseeking clarification is not only improper but alsounfair and unreasonable. Even if the discretion isvested with the Ennore Port Limited to reject thetender, it is always subject to judicial review to findout whether the rejection has been made on sound andreasonable grounds especially in a project of thisnature, which is of public interest and importance.(i) The evaluation has not been done by EnnorePort Limited, but the same had been entrusted to SBIcapitals and Mullah & Mullah and Craigie Blunt & Caroe.Even the contention raised on the side of the EnnorePort Limited that the evaluation of score was done by SBIcapitals and Mullah & Mullah and Craigie Blunt & Caroebeing assisted and coordinated by the team of officersnominated by Ennore Port Limited, the same cannot besaid to be the evaluation made by the authority as perRequest for Qualification document of Ennore PortLimited. The Request for Qualification documentspecifically stipulates that the evaluation has to bedone by the authority, which will only mean the EnnorePort Limited and not any other person apart from EnnorePort Limited.(j) The construction of a Port is not an ordinarycontract. It requires more participation that too by thepersons who have got experience in the said field.Hence, not shortlisting the petitioners who have got highexperience in the filed would amount to denying the bestout of such projects thereby the public interest, whichis a paramount important, was not taken intoconsideration. https://hcservices.ecourts.gov.in/hcservices/ SPECIFIC CONTENTIONS RAISED:-11.1. Apart from this common submissions referred to above,each of the learned Senior Counsels / counsel appearing for thepetitioners would canvass the correctness of the reasons stated inthe counter affidavits in each of the writ petitions putting forththe plea that the reasons for rejection of the petitioners' tenderhave been done--(i)without considering the documents that have been filedby the petitioners;(ii)taking only irrelevant factors into considerationleaving relevant factors for consideration;(iii)non-application of mind on the documents that havebeen filed by the petitioners; and(iv)without seeking clarification on the documents filedby the petitioners thereby failed to exercise thediscretion vested with the Ennore Port Limited.11.2. In three writ petitions viz., W.P.Nos.16958, 23795and 23358 of 2008, clauses 1.2.1, 2.2.1 (c), 3.2.1 and 3.2.6 weresought to be quashed as they are bad in law.CONTENTIONS RAISED ON BEHALF OF THE LEARNED ADDITIONAL SOLICITORGENERAL OF INDIA AND THE LEARNED SENIOR CENTRAL GOVERNMENT STANDINGCOUNSEL:-12. On the other hand, learned Additional SolicitorGeneral of India, appearing for the Ennore Port Limited andMr.T.S.Sivagnanam, learned counsel appearing for the CentralGovernment would submit that --(a) The writ petitions are not maintainable inview of the fact that contractual obligations cannotbe enforced by filing writ petitions under Article 226 ofthe Constitution of India.(b) the petitioners are expected to submit therelevant particulars / documents as per Request forQualification document and as per the format required inRequest for Qualification document. While so, thefailure to submit the relevant documents in the relevantformat would disentitle them to participate in thefurther proceedings. They cannot raise a huge cryquestioning the authority of the Ennore Port Limited in https://hcservices.ecourts.gov.in/hcservices/ the given circumstances;(c) the Ennore Port Limited is under no obligationto call for clarification from the petitioners whichdiscretion vests with the Ennore Port Limited. Thefailure to call for the clarification would not renderthe entire process carried out by the Ennore PortLimited vitiated or invalid;(d) The authority has got right to reject thetender of the applicants without assigning any reason,which have been enumerated under clause 2.7.1 Hence thesame cannot be questioned by the persons whoparticipated in the tender process. (e) the petitioners participated in the tenderknowing fully well about the Clauses enumerated thereon.While so, they cannot be heard to raise objections oncertain clauses after they have participated in thetender and after they have not been shortlisted bypassing the impugned orders;(f) though SBI capitals and Mullah & Mullah andCraigie Blunt & Caroe have been entrusted withevaluation, they were assisted and coordinated by the twoofficers, who have been nominated by the Ennore PortLimited and the evaluation had been done collectively bythem which has been ratified by the Board later. Thus,the argument advanced on the side of the petitioners inthis regard is totally incorrect and devoid of merits;(g) in the counter affidavits, reasons have beengiven for each of the case of the writ petitioners whohave not been shortlisted. The reasons enumeratedthereunder will prove the case of the Ennore PortLimited that the petitioners have not been pre-qualifiedand not shortlisted because of their own fault for notsubmitting the relevant documents in the format as perRequest for Qualification document and hence, the EnnorePort Limited cannot be blamed for the same.13. Before considering the rival submissions made inthese writ petitions, first of all it has to be seen the subjectmatter of the project, bidding process, eligibility of theapplicants which is involved in these writ petitions. PROJECT:-The Ennore Port Limited had decided to develop a https://hcservices.ecourts.gov.in/hcservices/ Container Terminal with a quay length of 1000 metres in a straightline with sufficient back up area through private participation onBuild, Operate and Transfer (BOT) basis and had decided to carryout bidding process for selection of the bidders to whom theproject may be awarded. The brief particulars of the project are:-Sl.NoName of the ProjectCapacity(Million TEU)Indicative CapitalCost of Project 1Ennore Port ContainerTerminal1.5Rs.1300 Crores(Rs.13000 Million)The Ennore Port Limited intended to pre-qualify and shortlistsuitable applicants, who would be eligible for participation in theBid Stage, for awarding the project through an open competitivebidding process in accordance with the procedure set out by it.The selected bidder could be of either a company incorporated underthe Companies Act, 1956 or Concessionaire, which shall beresponsible for designing, engineering, financing, procurement,construction, operation and maintenance of the project inaccordance with the provisions of the Concession Agreement to beentered into between the selected bidder and Ennore Port Limited.This scope of work of the project would include design,engineering, finance, construction, operation, maintenance andmarketing, providing of the project facilities and services of aContainer Terminal on Built, Operate and Transfer (BOT) basis for aconcession period of thirty years.BIDDING PROCESS:-The Ennore Port Limited had adopted two stage process(Bidding Process) for selection of bidder for awarding of theproject. The first stage is Qualification Stage and the secondstage is Bid Stage. The first stage of the process involvesqualification of interested parties / consortia, who make anapplication in accordance with the provisions of the Request forQualification document (RFQ). At the end of that stage, theEnnore Port Limited would announce the shortlisting of suitablepre-qualified applicants, who shall be eligible for participationin the second stage of bidding process viz., Bid Stage comprisingthe Request for Proposals (RFP). Guidelines were issued fordisqualification of bidders. In the qualification stage,applicants would be required to furnish information specified inthe Request for Qualification document. Only those applicants thatare pre-qualified and shortlisted by the Ennore Port Limited,shall be invited to submit their bids for the project. In the BidStage, the bidders would be called upon to submit their financialoffers in respect of the project in accordance with Request for https://hcservices.ecourts.gov.in/hcservices/ Proposals and other documents to be provided by the Ennore PortLimited pursuant to the Request for Qualification document. Thebid would be valid for a period of not less than 120 days from thedates specified in the Request for Proposals for submission of thebids.14. Since the second stage of bid viz., Bid Stage had notreached in view of the writ petitions filed, the requirement /details regarding the second stage had not been traversed hereunder.Eligibility of the applicants:-Clause 2.2 deals with the same. Clause 2.2.1 (a):- The applicant for pre-qualification may bea single entity or a group of entities (the Consortium). However,no applicant applying individually or as a member of a Consortiumcan be member of another applicant Consortium.Clause 2.2.1 (b):- An applicant may be natural person,private entity or any combination of them.Clause 2.2.1 (c):- An applicant shall not have a conflict ofinterest that affects the bidding process. What is conflict ofinterest has been enumerated in sub-clauses (i) to (vi) which areas follows:-(i) Such applicant (or any constituent thereof) andany other applicant (or any constituent thereof) havecommon controlling shareholders or other ownershipinterest; provided that this qualification shall notapply in cases where the direct or indirect shareholdingin an applicant or a constituent thereof in the otherapplicant (or any of its constituents) is less than 1% ofits paid up and subscribed capital; or(ii) a constituent of such applicant is also aconstituent of another applicant; or(iii) such applicant receives or has received anydirect or indirect subsidy from any other applicant, orhas provided any such subsidy to any other applicant; or(iv) such applicant has the same legalrepresentative for purposes of this application as anyother applicant; or (v) such applicant has a relationship with anotherapplicant, directly or through common third parties, thatputs them in a position to have access to each others' https://hcservices.ecourts.gov.in/hcservices/ information about, or to influence the application ofeither or each of the other applicant; or(vi) such applicant has participated as aconsultant to the authority in the preparation of anydocuments, design or technical specifications of theproject.2.2.1 (d):- An applicant would be disentitled if the legalfinancial or technical adviser of the authority in relation withthe project is engaged by the applicant in any manner for mattersrelated to or incidental to such project.Clause 2.2.2 speaks about the conditions for eligibilityfor pre-qualification and shortlisting which are- (i) TECHNICAL CAPACITY and (ii) FINANCIAL CAPACIT The other important clauses would be taken into consideration andwould be referred as and when occasion arises henceforth.15. On the basis of the above referred project, thebidding, eligibility of the applicants coupled with thecontentions raised on either side, the following issues emergefor consideration in these writ petitions viz.,(i) Whether the writ petitions filed by thepetitioners are maintainable ?(ii) Whether the authority viz., Ennore PortLimited is obligatory to assign reasons for refusalof the tenders of the applicants thereby notshortlisting them for the next stage of bid.(iii) Whether the discretion to seekclarification by the authority from the applicantsis mandate or qualified ?(iv) Whether entrusting of evaluation by theauthority to S.B.I. Capitals and Mulla and Mullaassisted by the officials of E.P.L would besufficient or whether the authority alone isempowered to evaluate the applications of theapplicants.(v) Whether the reasons for rejection of thepetitioners' tenders without shortlisting them forthe next stage of bid is justifiable, reasonable and https://hcservices.ecourts.gov.in/hcservices/ without arbitrariness ?(vi) Whether clauses 1.2.1, 2.2.1 (c), 3.2.1and 3.2.6 are liable to be quashed as they are badin law ?On the above issues, I will now deal with each one of them hereunder:-16. WHETHER THE WRIT PETITIONS ARE MAINTAINABLE ?16.1 As regards the first question, whether a writ willlie in contractual matters, it has been contended by the learnedSenior Counsels appearing for the petitioners that even incontractual matters, the judicial review is possible whenever thedecision of the authorities conferred with power is violative ofArticle 14 or public element is involved or there exists mala fideor ulterior motive. Even existence of disputed question of factipso facto not a bar to the exercise of the writ jurisdiction bythe High Courts. On the other hand, it has been pointed out by thelearned Additional Solicitor General of India appearing for theEnnore Port Limited that in contractual matters, a writ would notlie and there cannot be any judicial review on such matters. 16.2. Before dealing with the said issue, it would beuseful to consider the pronouncement of the Hon'ble Apex Court andthis Court in various matters. 16.3. In (2006) 10 Supreme Court Cases 236 – NobleResources Ltd., v. State of Orissa and another, Their Lordshipshave held that even in contractual matters, the power of judicialreview is vested to prevent arbitrariness and favouritism.Paragraphs 15, 19, 27, 28 and 29 are usefully extracted hereunder:-" 15. It is trite that if an action on the part ofthe State is violative of the equality clause containedin Article 14 of the Constitution of India, a writpetition would be maintainable even in the contractualfield. A distinction indisputably must be made between amatter which is at the threshold of a contract and abreach of contract; whereas in the former the court’sscrutiny would be more intrusive, in the latter the courtmay not ordinarily exercise its discretionaryjurisdiction of judicial review, unless it is found to beviolative of Article 14 of the Constitution. Whileexercising contractual powers also, the government bodiesmay be subjected to judicial review in order to preventarbitrariness or favouritism on their part. Indisputably, https://hcservices.ecourts.gov.in/hcservices/ inherent limitations exist, but it would not be correctto opine that under no circumstances a writ will lie onlybecause it involves a contractual matter. ...19. On a conspectus of several decisions, a DivisionBench of this Court in ABL International Ltd.1 opinedthat such a writ petition would be maintainable even ifit involves some disputed questions of fact. It wasstated that no decision lays down an absolute rule thatin all cases involving disputed questions of fact, theparty should be relegated to a civil court....27. Contractual matters are, thus, not beyond therealm of judicial review. Its application may, however,be limited.28. Although the terms of the invitation to tendermay not be open to judicial scrutiny, but the courts canscrutinise the award of contract by the Government or itsagencies in exercise of their power of judicial review toprevent arbitrariness or favouritism. (See Directorate ofEducation v. Educomp Datamatics Ltd.) However, the courtmay refuse to exercise its jurisdiction, if it does notinvolve any public interest.29. Although the scope of judicial review or thedevelopment of law in this field has been noticedhereinbefore particularly in the light of the decision ofthis Court in ABL International Ltd. each case, however,must be decided on its own facts. Public interest asnoticed hereinbefore, may be one of the factors toexercise the power of judicial review. In a case where apublic law element is involved, judicial review may bepermissible. (See Binny Ltd. v. V. Sadasivan and G.B.Mahajan v. Jalgaon Municipal Council.)"16.4. In (2007) 8 Supreme Court Cases 1 – RelianceEnergy Ltd. v. Maharashtra State Road Development Corpn. Ltd., thesame view has been taken by the Hon'ble Apex Court. Paragraph 36of the said judgment is extracted here under:-" 36. We find merit in this civil appeal. Standardsapplied by courts in judicial review must be justified byconstitutional principles which govern the properexercise of public power in a democracy. Article 14 of https://hcservices.ecourts.gov.in/hcservices/ the Constitution embodies the principle of “non-discrimination”. However, it is not a free-standingprovision. It has to be read in conjunction with rightsconferred by other articles like Article 21 of theConstitution. The said Article 21 refers to “right tolife”. It includes “opportunity”. In our view, as held inthe latest judgment of the Constitution Bench of nineJudges in I.R. Coelho v. State of T.N., Articles 21/14are the heart of the chapter on fundamental rights. Theycover various aspects of life. “Level playing field” isan important concept while construing Article 19(1)(g) ofthe Constitution. It is this doctrine which is invoked byREL/HDEC in the present case. When Article 19(1)(g)confers fundamental right to carry on business to acompany, it is entitled to invoke the said doctrine of“level playing field”. We may clarify that this doctrineis, however, subject to public interest. In the world ofglobalisation, competition is an important factor to bekept in mind. The doctrine of “level playing field” is animportant doctrine which is embodied in Article 19(1)(g)of the Constitution. This is because the said doctrineprovides space within which equally placed competitorsare allowed to bid so as to subserve the larger publicinterest. “Globalisation”, in essence, is liberalisationof trade. Today India has dismantled licence raj. Theeconomic reforms introduced after 1992 have brought inthe concept of “globalisation”. Decisions or acts whichresult in unequal and discriminatory treatment, wouldviolate the doctrine of “level playing field” embodied inArticle 19(1)(g). Time has come, therefore, to say thatArticle 14 which refers to the principle of “equality”should not be read as a stand alone item but it should beread in conjunction with Article 21 which embodiesseveral aspects of life. There is one more aspect whichneeds to be mentioned in the matter of implementation ofthe aforestated doctrine of “level playing field”.According to Lord Goldsmith, commitment to the “rule oflaw” is the heart of parliamentary democracy. One of theimportant elements of the “rule of law” is legalcertainty. Article 14 applies to government policies andif the policy or act of the Government, even incontractual matters, fails to satisfy the test of“reasonableness”, then such an act or decision would beunconstitutional." 16.5. In (1996) Supreme Court Cases 11 – Tata Cellularv. Union of India, at paragraphs 93 and 94, Their Lordships havelaid certain guidelines while interfering with the contractualmatters and the same are extracted here under:- https://hcservices.ecourts.gov.in/hcservices/ " 93. The duty of the Court is to confine itselfto the question of legality. Its concern should be 1. whether a decision making authority exceeded itspower ? 2. committed an error of law ?3. committed a breach of the rules of naturaljustice?4. reached a decision which no reasonable tribunalwould have reached or 5. abused its power.94. Therefore it is not for the court to determinewhether a particular policy or particular decision takenin the fulfilment of that policy is fair. It is onlyconcerned with the manner in which those decisions havebeen taken. The extend of the duty to act fairly willvary from case to case. Shortly put, the grounds uponwhich an administrative action is subject to control byjudicial review can be classified as under:-(i) Illegality: This means the decision maker mustunderstand correctly the law that regulates his decisionmaking power and must give effect to it.(ii) Irrationality, namely, Wednesbury andreasonableness.(iii) Procedural impropriety." 16.6. In A.I.R. 1979 Supreme Court 1628 – Ramana v.I.A.Authority of India, the Hon'ble Apex Court has held that theState cannot act arbitrarily and enter into relationship with anyperson it likes at its sweet will, but it must be in conformitywith some principles which meets the test of reasons and relevance.It shall satisfy Article 14 of The Constitution of India.Paragraphs 20 and 21 of the said judgment are usefully extractedhere under:-" 20. Now, obviously where a corporation is aninstrumentality or agency of Government, it would, inthe exercise of its power or discretion, be subject tothe same constitutional or public law limitations asGovernment. The rule inhibiting arbitrary action byGovernment which we have discussed above must applyequally where such corporation is dealing with thepublic, whether by way of giving jobs or entering intocontracts or otherwise, and it cannot act arbitrarily https://hcservices.ecourts.gov.in/hcservices/ and enter into relationship with any person it likes atits sweet will, but its action must be in conformity withsome principle which meets the test of reason andrelevance.21. This rule also flows directly from the doctrineof equality embodied in Art. 14. It is now well settledas a result of the decisions of this Court in E.P.RoyappaV.State of Tamil Nadu (1974) 2 SCR 348: (AIR 1974 SC555) and Maneka Gandhi V. Union of India (1978) 1 SCC248; (AIR 1978 SC 597) that Article 14 strikes atarbitrariness in State action and ensures fairness andequality of treatment. It requires that State actionmust not be arbitrary but must be based on some rationaland relevant principle which is non-discriminatory; itmust not be guided by any extraneous or irrelevantconsideration, because that would be denial of equality.The principle of reasonableness and rationality which islegally as well as philosophically an essential elementof equality or non-arbitrariness is projected by Article14 and it must characterise every State action, whetherit be under authority of law or in exercise of executivepower without making of law. The State cannot, therefore,act arbitrarily in entering into relationship,contractual or otherwise with a third party, but itsaction must conform to some standard or norm which isrational and non-discriminatory. This principle wasrecognised and applied by a Bench of this Court presidedover by Ray, C.J., in Erusian Equipment and ChemicalsLtd. V. State of West Bengal (AIR 1975 SC 266) (supra)where the learned Chief Justice pointed out that 'theState can carry on executive function by making a law orwithout making a law. The exercise of such powers andfunctions in trade by the State is subject to Part III ofthe Constitution. Article 14 speaks of equality beforethe law and equal protection of the laws. Equality ofopportunity should apply to matters of public contracts.The State has the right to trade. The State has there theduty to observe equality. An ordinary individual canchoose not to deal with any person. The Governmentcannot choose to exclude persons by discrimination. Theorder of blacklisting has the effect of depriving aperson of equality of opportunity in the matter of publiccontract. A person who is on the approved list isunable to enter into advantageous relations with theGovernment because of the order of black-listing - Acitizen has a right to claim equal treatment to enterinto a contract which may be proper, necessary andessential to his lawful calling- It is true that https://hcservices.ecourts.gov.in/hcservices/ neither the petitioner nor the respondent has any rightto enter into a contract but they are entitled to equaltreatment with others who offer tender or quotations forthe purchase of the goods.' It must, therefore follow asa necessary corollary from the principle of equalityenshrined in Article 14 that though the State isentitled to refuse to enter into relationship with anyone, yet if it does so, it cannot arbitrarily choose anyperson it likes for entering into such relationship anddiscriminate between persons similarly circumstanced,but it must act in conformity with some standard orprinciple which meets the test of reasonableness andnon-discrimination and any departure from such standardor principle would be invalid unless it can be supportedor justified on some rational and non-discriminatoryground."16.7. However, learned Additional Solicitor General ofIndia appearing for the Ennore Port Limited relying on the decisionreported in (2007) 6 Supreme Court Cases 44 – Ram Singh Vijay PalSingh and others v. State of U.P. And others, would submit that thescope of judicial review or interference under Article 226 of TheConstitution of India in respect of policy matters is very limitedand normally the Court shall not interfere in such matter. That isthe matter where the shops, godowns and sheds of the Mandi Samiti,which have been allotted to the writ petitioners thereon, claimedthat they should be sold to them on hire-purchase basis and theycannot be called upon to execute a lease for payment of monthlyrents. The Hon'ble Apex Court considering the said facts andcircumstances of that case, has held that it is purely a matter ofpolicy as the property belongs to the Mandi Samiti and it is forthe Mandi Samiti or Mandi Parishad to have a policy decision inthis regard and the Court cannot examine the correctness orotherwise of the said policy except in a very narrow campus. Inthe present case on hand, since no policy decision is involved, thesaid decision may not have any application to the facts of thepresent case.16.8. Learned Additional Solicitor General of Indiafurther relied on a decision reported in (2002) 2 Supreme CourtCases 333 – Balco Employees' Union (Regd) v. Union of India andothers. That is the case where the Hon'ble Apex Court has heldthat the Court cannot examine relative merits of the differenteconomic policies and cannot strike down a policy merely on theground of another policy would have been fairer and better. In thecase on hand, the policy decision of the Government is not inquestion. Hence, the said judgment also may not have anyapplication to the facts of the present case. https://hcservices.ecourts.gov.in/hcservices/

16.9. In yet another decision that has been relied on bythe learned Additional Solicitor General of India is reported in(2002) 2 Supreme Court Cases 617- Air India Ltd. v. CochinInternational Airport Ltd. The learned Additional SolicitorGeneral of India more relied on paragraph 7 of the said judgment.Paragraph 7 of the said judgment in fact supports the case of thepetitioners rather than the Ennore Port Limited. Paragraph 7 ofthe said judgment is extracted here under:-" 7. The law relating to award of a contract by theState, its corporations and bodies acting asinstrumentalities and agencies of the Government has beensettled by the decision of this Court in Ramana DayaramShetty v. International Airport Authority of India (1979(3) SCC 489), Fertilizer Corporation Kamgar Union(Regd.) v. Union of India (1981 (1) SCC 568), CCE v.Dunlop India Ltd. (1985 (1) SCC 260), Tata Cellular Vs.Union of India (1994 (6) SCC 651), Ramniklal N.Bhuttav. State of Maharashtra (1997 (1) SCC 134) and RaunaqInternational Ltd. v. I.V.R Construction Ltd. (1999 (1)SCC 492). The award of a contract, whether it is by aprivate party or by a public body or the State, isessentially a commercial transaction. In arriving at acommercial decision considerations which are paramountare commercial considerations. The State can choose itsown method to arrive at a decision. It can fix its ownterms of invitation to tender and that is not open tojudicial scrutiny. It can enter into negotiations beforefinally deciding to accept one of the offers made to it.Price need not always be the sole criterion for awardinga contract. It is free to grant any relaxation, for bonafide reasons, if the tender conditions permit such arelaxation. It may not accept the offer even thoughit happens to be the highest or the lowest. But theState, its corporations, instrumentalities and agenciesare bound to adhere to the norms, standards andprocedures laid down by them and cannot depart from themarbitrarily. Though that decision is not amenable tojudicial review, the court can examine the decisionmaking process and interfere if it is found vitiated bymala fides, unreasonableness and arbitrariness. TheState, its corporations, instrumentalities and agencieshave the public duty to be fair to all concerned. Evenwhen some defect is found in the decision-making-processthe court must exercise its discretionary power underArticle 226 with great caution and should exercise itonly in furtherance of public interest and not merely onthe making out of a legal point. The court should alwayskeep the larger public interest in mind in order to https://hcservices.ecourts.gov.in/hcservices/ decide whether its intervention is called for or not.Only when it comes to a conclusion that overwhelmingpublic interest requires interference, the court shouldintervene. "The said judgment clearly indicates that the Court can examine thedecision making process and interfere if it is found vitiated bymala fides, unreasonableness and arbitrariness. Further it hasbeen held that even when some defect is found in the decisionmaking process the court must exercise its discretionary powerunder Article 226 of the Constitution of India with great cautionand should exercise it only in furtherance of public interest andnot merely on the making out a legal point. Thus, if the publicinterest is involved, the Court can definitely interfere with thedecision making as held by the Hon'ble apex Court in the saiddecision. 16.10. Yet another decision relied on by the learnedAdditional Solicitor General of India is reported in (1996) 2Supreme Court Cases 405 – Delhi Science Forum v. Union of India.That is the case where the petitioners in different writ petitionshave questioned the power of the Central Government to grantlicense to different non-government companies to establish andmaintain telecommunication system in the country and validity ofthe procedure adopted by the Central Government for, the said grantof license. In such circumstances, the Hon'ble Apex Court has heldthat the policy of the government cannot be interfered with by theCourt exercising power under Article 226 of the Constitution ofIndia. The said decision also may not be applicable to the factsof the present case since the petitioners are not challenging thepolicy of the Government but only challenging the decision makingof the Ennore Port Limited pursuant to the tender notification.16.11. Thus, the catena of the decisions cited abovewould indicate that interference in the contractual matters ispermissible if decision-making process is illegal, irrational,arbitrary and procedural impropriety. Further, it must meet thetest of reasons and relevance. Thus, this point is held in favourof the writ petitioners.WHETHER THE IMPUGNED ORDERS ARE LIABLE TO BE SET ASIDE FOR NOTASSIGNING REASONS:- 17.1. The submission made on behalf of the petitionersis that the impugned orders of the Ennore Port Limited dated30.06.2008 informing them that their applications have not beenshortlisted for the next stage of bidding i.e., Request forProposals stage without assigning any reason whatsoever, shall beset aside for the sole reason that the same does not disclose the https://hcservices.ecourts.gov.in/hcservices/ reasons for not shortlisting the petitioners. This contentionraised at the instance of the petitioners deserves consideration bythis Court. In such a public importance project, the authoritywhich has considered the petitioners, who are not ordinary persons,should have been put on notice as to why they have not beenconsidered and why their applications have not been shortlisted forthe next stage of bidding. It is expected that the Ennore PortLimited should have assigned reasons thereof, in the impugnedorders. 17.2. In fact in 1978 I SCC 405 -Mohinder Singh Gill andanother v. The Chief Election Commissioner, New Delhi and others,the Hon'ble Apex Court held that reasons ought to be mentioned inthe order itself and it cannot be supplemented by way of affidavitor otherwise. Para 8 of the judgemtn is usefully extracted hereunder:-" 8. The second equally relevant matter is thatwhen a statutory functionary makes an order based oncertain grounds, its validity must be judged by thereasons so mentioned and cannot be supplemented by freshreasons in the shape of affidavit or otherwise.Otherwise, an order bad in the beginning may, by the timeit comes to Court on account of a challenge, getvalidated by additional grounds later brought out. Wemay here draw attention to the observations of Bose, J.in Gordhandas Bhanji:Public orders, publicly made, in exercise of astatutory authority cannot be construed in the light ofexplanations subsequently given by the officer making theorder of what he meant, or of what was in his mind, orwhat he intended to do. Public orders made by publicauthorities are meant to have public effect and areintended to affect the actings and conduct of those towhom they are addressed and must be construed objectivelywith reference to the language used in the order itself."17.3. The learned Additional Solicitor General of Indiaappearing for the Ennore Port Limited would draw my attention tothe judgment reported in (1991) 3 Supreme Court Cases 38 – Union ofIndia and others v. E.G.Nambudiri and would contend that it hasnever been a principle of natural justice that reasons should begiven for decisions. However, even in the said decision, it hasbeen held as follows:-" ... Though the principles of natural justice donot require reasons for decision, there is necessity forgiving reasons in view of the expanding law of judicial https://hcservices.ecourts.gov.in/hcservices/ review to enable the citizens to discover the reasoningbehind the decision. Right to reasons is anindispensable part of a sound system of judicial review.Under our Constitution an administrative decision issubject to judicial review if it affects the right of acitizen, it is therefore desirable that reasons should bestated." 17.4. In yet another decision reported in (2007) 10Supreme Court Cases 712 – Union of India and others v. Jai PrakashSingh and another, the Hon'ble Apex Court has held that reasonsshould be given while making a decision and para 7 of the saidjudgment is usefully extracted here under:-" 7. '11. Reasons introduce clarity in an order.On plainest consideration of justice, the High Courtought to have set forth its reasons, howsoever brief, inits order indicative of an application of its mind, allthe more when its order is amenable to further avenue ofchallenge. The absence of reasons has rendered the HighCourt's judgment not sustainable.12. Even in respect of administrative order LordDenning, M.R. in Breen v. Amalgamated Engg. Unionobserved: (All ER p.1154/1) ' The giving of reasons isone of the fundamentals of good administration. InAlexander Machinery (Dudley) Ltd., v. Crabtree, it wasobserved: Failure to give reasons amounts to denial ofjustice. Reasons are live links between the mind of thedecision-taker to the controversy in question and thedecision or conclusion arrived at. Reasons substitutesubjectivity by objectivity. The emphasis on recordingreasons is that if the decision reveals the 'inscrutableface of the sphinx', it can, by its silence, render itvirtually impossible for the courts to perform theirappellate function or exercise the power of judicialreview in adjudging the validity of the decision. Rightto reason is an indispensable part of a sound judicialsystem, reasons at least sufficient to indicate anapplication of mind to the matter before Court. Anotherrationale is that the affected party can know why thedecision has gone against him. One of the salutaryrequirements of natural justice is spelling out reasonsfor the order made, in other words, a speaking out. The'inscrutable face of a sphinx' is ordinarily incongruouswith a judicial or quasi-judicial performance."17.5. In yet another decision reported in (1990) 3Supreme Court Cases 280 – Star Enterprises v. C.I.D. of Maharashtra https://hcservices.ecourts.gov.in/hcservices/ Ltd., the Hon'ble Apex Court has held that while rejecting thetender, reason shall be recorded for such action. Paragraph 10 ofthe said judgment is usefully extracted here under:-" 10. In recent times, judicial review ofadministration action has become expansive and isbecoming wider day by day. The traditional limitationshave been vanishing and the sphere of judicial scrutinyis being expanded. State activity too is becoming fastpervasive. As the State has descended into thecommercial field and giant public sector undertakingshave grown up, the stake of the public exchequer is alsolarge justifying larger social audit, judicial controland review by opening of the public gaze; thesenecessitate recording of reasons for executive actionsincluding cases of rejection of highest offers. Thatvery often involves large stakes and availability ofreasons for actions on the record assures credibility tothe action; disciplines public conduct and improves theculture of accountability. Looking for reasons insupport of such action provides an opportunity for anobjective review in appropriate cases both by theadministration superior and by the judicial process. Thesubmission of Mr.Dwivedi, therefore, commends itself toour acceptance, namely, that when highest offers of thetype in question are rejected reasons sufficient toindicate the stand of the appropriate authority should bemade available and ordinarily the same should becommunicated to the concerned parties unless there be anyspecific justification not to do so". 17.6. But, however, I am not inclined to set aside theimpugned orders of the Ennore Port Limited on the ground that thesame do not contain reasons since though in the impugned ordersreasons have not been assigned, the reasons are forthcoming throughthe counter affidavits of the Ennore Port Limited. Even if theimpugned orders are set aside and remitted back to the Ennore PortLimited, it would not serve any purpose since the Ennore PortLimited had already set out the reasons for rejection in theircounter affidavits and it would be a futile exercise to ask themnow to give reasons, which have already been set out by the EnnorePort Limited through their counter affidavits. Hence, thecontention raised on the side of the petitioners in this regarddoes not require any consideration at this stage. WHETHER THE ENNORE PORT LIMITED IS JUSTIFIED IN REFUSING TOEXERCISE ITS DISCRETION TO SEEK CLARIFICATION: 18.1. The next contention of the learned Senior Counsels https://hcservices.ecourts.gov.in/hcservices/ appearing for the petitioners is that even assuming that the EnnorePort Limited was not satisfied with the documents produced by thepetitioners or it requires any clarification regarding certainparticulars furnished by the petitioners in their applications, thesame could have been clarified from them, which power they derivefrom Clause 2.20.1 of the Tender Request for Qualification documentof Ennore Port Limited. The failure to exercise the discretionvested with the Ennore Port Limited in seeking clarification is notonly improper but also unfair and unreasonable. If the discretionvested with the Ennore Port Limited had not been exercisedproperly, the same is subject to judicial review especially in aproject of this nature, which is of public interest and importance.18.2. In answer to the said contention, learnedAdditional Solicitor General of India appearing for the Ennore PortLimited submitted that Ennore Port Limited is under no obligationto call for clarification from the petitioner, which discretionvests with the Ennore Port Limited. The failure to call forclarification would not render the entire process carried out bythe Ennore Port Limited vitiated or invalid.18.3. Before dealing with the rival contentions raisedin this regard, it would be useful to extract the relevant Clausein the tender notification. Clause 2.20.1 reads as follows:- " To facilitate evaluation of applications, theauthority may, at its sole discretion, seekclarifications from any applicant regarding itsapplications. Such clarification(s) shall be providedwithin the time specified by the authority for thispurpose. Any request for clarification(s) and allclarification(s) shall be in writing."On the above clause, the learned Senior Counsels appearing for thepetitioners would submit that though it is stated that Ennore PortLimited has got sole discretion in seeking clarification from theapplicants, the discretion has to be exercised reasonably andjustifiably. Ennore Port Limited cannot say that it will not seekclarification even if it entertains doubt regarding the particularssubmitted by the applicants on the ground that it is its discretionto seek clarification or not. Even though, according to thelearned Senior Counsels appearing for the petitioners, the relevantclause reads that the authority may, at its sole discretion, seekclarification from the applicants, it is not an empty formality inintroducing the said clause. The very purpose of incorporating thesaid clause seeking clarification would definitely mean that theEnnore Port Limited, the authority concerned, if it entertains anydoubt regarding the particulars submitted by the applicants, itshall seek clarification from the applicants. https://hcservices.ecourts.gov.in/hcservices/

18.4. However, the learned Additional Solicitor Generalof India appearing for the Ennore Port Limited would submit that itis not necessary always that Ennore Port Limited shall seekclarification from the applicants regarding the particularsfurnished by them in their applications and the discretion isvested with the Ennore Port Limited to seek clarification or not.18.5. While dealing with the said contention, it wouldbe more appropriate to reproduce the next clause viz., 2.20.2.,which reads as follows:-" If an applicant does not provide clarification(s)sought under sub clause 2.20.1 above within theprescribed time, its application shall be liable to berejected. In case the application is not rejected, theauthority may proceed to evaluate the application byconstruing the particulars requiring clarification(s) tothe best of its understanding and the applicant shall bebarred from subsequently questioning such interpretationof the authority. "Thus, Clause 2.20.1 if read with Clause 2.20.2 would make it clearthat though discretion is vested with the authority viz., theEnnore Port Limited to seek clarification(s) from the applicantsregarding the particulars submitted by them in their applications,the discretion has to be exercised fairly, reasonably andjustifiably. Otherwise, there is no point in incorporating clause2.20.1, wherein though it is stated that the discretion is vestedwith the authority in seeking clarification, it further reads thatsuch clarification if sought for, shall be provided within the timestipulated by the authority for the said purpose. Further, thesaid clause reads that such clarification shall be in writing. Notonly that, the next clause viz., 2.20.2 reads that if the applicantdoes not provide clarification(s) sought for, within the prescribedtime, the application shall be liable to be rejected and if notrejected, the authority may proceed to evaluate the application byconstruing the particulars requiring clarification to the best ofits understanding. Further, the said clause reads that theapplicants shall be barred from subsequently questioning suchinterpretation of the authority. Thus, a conjoint reading ofclauses 2.20.1 and 2.20.2 would make it very clear that though theword "discretion" had been employed in clause 2.20.1, the authorityconcerned shall seek clarification whenever it entertains a doubtabout the particulars submitted by the applicants. Otherwise, evenif a minor clarification is required by the Ennore Port Limited,which may not tilt the award of the project itself and which isvery insignificant one, the authority vested with power wouldreject such applications even though they possess all other https://hcservices.ecourts.gov.in/hcservices/ required and important factors in their favour. The project ofthis nature has to be entrusted with a right person, who possessesall necessary factors and the same cannot be thrown out forinsignificant reasons.18.6. Further more, when a discretion is vested with theauthority, it cannot arbitrarily refuse to exercise the same. Itcannot be heard to say by Ennore Port Limited that though it hasgot power to seek clarification, since discretion is vested withit, it will not exercise such discretion. Such attitude can onlybe called as arbitrariness in its action guided by irrelevantconsideration. Therefore, the Ennore Port Limited ought not tohave acted arbitrarily in refusing to seek clarification. EnnorePort Limited ought to have acted fairly and ought to have adopted aprocedure which is "fair play in action". 18.7. It would be appropriate, at this juncture, torely on the judgment of the Hon'ble Apex Court reported in 1986 2SCC 679 - Comptroller and Auditor-General of India v. K.S.Jagannathan,. In paragraphs 19 and 20, the Hon'ble Apex Court hasheld as follows:-19. ... In Halsbury’s Laws of England, 4th Edn.,vol. I, para 89, it is stated that the purpose of anorder of mandamus“is to remedy defects of justice; andaccordingly it will issue, to the end thatjustice may be done, in all cases where thereis a specific legal right and no specific legalremedy for enforcing that right; and it mayissue in cases where, although there is analternative legal remedy, yet that mode ofredress is less convenient, beneficial andeffectual.”20. There is thus no doubt that the High Courts inIndia exercising their jurisdiction under Article 226have the power to issue a writ of mandamus or a writ inthe nature of mandamus or to pass orders and givenecessary directions where the government or a publicauthority has failed to exercise or has wrongly exercisedthe discretion conferred upon it by a statute or a ruleor a policy decision of the government or has exercisedsuch discretion mala fide or on irrelevant considerationsor by ignoring the relevant considerations and materials https://hcservices.ecourts.gov.in/hcservices/ or in such a manner as to frustrate the object ofconferring such discretion or the policy for implementingwhich such discretion has been conferred. In all suchcases and in any other fit and proper case a High Courtcan, in the exercise of its jurisdiction under Article226, issue a writ of mandamus or a writ in the nature ofmandamus or pass orders and give directions to compel theperformance in a proper and lawful manner of thediscretion conferred upon the government or a publicauthority, and in a proper case, in order to preventinjustice resulting to the concerned parties, the courtmay itself pass an order or give directions which thegovernment or the public authority should have passed orgiven had it properly and lawfully exercised itsdiscretion." 18.8. In (1993) I SCC 71 – Foor Corpn. of India v.Kamdhenu Cattle Feed Industries , the Hon'ble Apex Court inparagraph 7 has held as follows:-" 7. In contractual sphere as in all other Stateactions, the State and all its instrumentalities have toconfirm to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is nounfettered discretion in public law: A public authoritypossesses powers only to use them for public good. Thisimposes the duty to act fairly and to adopt a procedurewhich is 'fairplay in action'. Due observance of thisobligation as a part of good administration raises areasonable or legitimate expectation in every citizen tobe treated fairly in his interaction with the State andits instrumentalities, with this element forming anecessary component of the decision-making process in allState actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore,necessary to consider and give due weight to thereasonable or legitimate expectations of the personslikely to be affected by the decision or else thatunfairness in the exercise of the power may amount to anabuse or excess of power apart from affecting the bonafides of the decision in a given case. The decision somade would be exposed to challenge on the ground ofarbitrariness. Rule of law does not completely eliminatediscretion in the exercise of power, as it isunrealistic, but provides for control of its exercise byjudicial review.8. The mere reasonable or legitimate expectation ofa citizen, in such situation, may not by itself be a https://hcservices.ecourts.gov.in/hcservices/ distinct enforceable right, but failure to consider andgive due weight to it may render the decision arbitrary,and this is how the requirement of due consideration of alegitimate expectation forms part of the principle ofnon-arbitrariness, a necessary concomitant of the rule oflaw. Every legitimate expectation is a relevant factorrequiring due consideration in a fair decision-makingprocess. Whether the expectation of the claimant isreasonable or legitimate in the context is a question offact in each case. Whenever the question arises, it isto be determined not according to the claimant'sperception but in larger public interest wherein othermore important considerations may outweigh what wouldotherwise have been the legitimate expectation of theclaimant. A bona fide decision of the public authorityreached in this manner would satisfy the requirement ofnon-arbitrariness and withstand judicial scrutiny. Thedoctrine of legitimate expectation gets assimilated inthe rule of law and operates in our legal system in thismanner and to this extent."18.9. In (2001) 8 SCC 491 - Union of India v. DineshEngineering Corpn., the Hon'ble Apex Court, after extracting apassage in the judgment reported in 1993 1 SCC 445 – SterlingComputers Lt., v. M & N Publications Ltd., has held that eventhough discretion is vested with the authority, the same requiresreasonableness and should not be arbitrary. The same is extractedhere under:-... Mr Iyer, learned Senior Counsel appearing for EDCdrew our attention to a judgment of this Court inSterling Computers Ltd. v. M & N Publications Ltd. whichhas held: (SCC p.455, para 12)“Under some special circumstances a discretion has tobe conceded to the authorities who have to enter intocontract giving them liberty to assess the overallsituation for purpose of taking a decision as to whom thecontract be awarded and at what terms. If the decisionshave been taken in bona fide manner although not strictlyfollowing the norms laid down by the courts, suchdecisions are upheld on the principle laid down byJustice Holmes, that courts while judging theconstitutional validity of executive decisions must grantcertain measure of freedom of ‘play in the joints’ to theexecutive.” https://hcservices.ecourts.gov.in/hcservices/

16. But then as has been held by this Court in thevery same judgment that a public authority even incontractual matters should not have unfettered discretionand in contracts having commercial element even thoughsome extra discretion is to be conceded in suchauthorities, they are bound to follow the normsrecognised by courts while dealing with public property.This requirement is necessary to avoid unreasonable andarbitrary decisions being taken by public authoritieswhose actions are amenable to judicial review. Therefore,merely because the authority has certain elbow roomavailable for use of discretion in accepting offer incontracts, the same will have to be done within the fourcorners of the requirements of law, especially Article 14of the Constitution."18.10. Thus, summing up over this issue, I am of theconsidered opinion that since the discretion has been vested withthe authority to seek clarification from the applicants regardingtheir applications as provided under clause 2.20.1, such discretionshould have been exercised reasonably, where certain clarificationsare required. To say that even though I can seek clarification,since discretion is vested with me to seek clarification or not, Iwill not exercise such discretion, is nothing but arbitrary,irrational and unfair. It is not an unfettered discretion vestedwith the authority. Since the discretion is vested with theauthority, impliedly it means that it must exercise its discretionfairly. 18.11. It is now well settled that the statutory bodywhich is entrusted by statute with a discretion must act fairly.Whether its functions are judicial or quasi-judicial or anadministrative one, it must act fairly. The discretion of astatutory body can never be unfettered. The discretion has to beexercised according to law, which means it shall be guided byrelevant considerations and not by irrelevant one. The Ennore PortLimited cannot claim that it has got unfettered discretion withwhich the Courts have no right to interfere. In contractualmatter, it is an implied term that the discretion should beexercised fairly. Thus, the argument of the learned AdditionalSolicitor General of India that the authority is vested with thediscretion in seeking clarification or not and if it has not soughtfor clarification, the same cannot be questioned, is liable to berejected in toto.WHETHER THE ENTRUSTMENT OF THE EVALUATION PROCESS TO SBI CAPITALSAND MULLA & MULLA AND CRAIGIE BLUNT & CAROE IS JUSTIFIED ? 19.1. It is the case of the petitioners on this count https://hcservices.ecourts.gov.in/hcservices/ that the evaluation has to be done by the authority and it cannotshirk its responsibility to others including SBI Capitals orMulla & Mulla and Craigie Blunt & Caroe. In this connection, thelearned Senior Counsels pointed out clause 2.19.1. which reads that" prior to evaluation of applications, the authority shalldetermine whether such application is responsive to therequirement of the RFQ....Clause 2.20.1. reads that to facilitate evaluation ofapplications, the authority may at its sole discretion, seekclarifications from any applicant...Clause 2.21.1. After the evaluation of applications, theauthority would announce a list of short-listed pre-qualifiedapplicants(Bidders).... 19.2 The above clauses according to the Senior Counselsappearing for the petitioners would indicate that the evaluationhas to be done only by the authority viz., E.P.L. and the samecannot be entrusted to any other third party. However, it issubmitted on behalf of the respondents by the Additional SolicitorGeneral of India that even though the evaluation has been entrustedto SBI Capitals and Mulla & Mulla and Craigie Blunt & Caroe, it isbeing assisted by the officials of Ennore Port Limited activelytaking part in the evaluation and later ratified by the Board andhence it can no longer be said that the authority had entrustedthe matter to the SBI Capitals and Mulla & Mulla and Craigie Blunt& Caroe without any involvement of the officials of the Ennore PortLimited and hence the said contention raised on behalf of thelearned Senior Counsels appearing for the petitioners deserve to berejected. 19.3 While considering the said submissions made in thisregard, I am of the considered view that entrustment of theevaluation process in toto without active participation by theofficials of the Ennore Port Limited would have given room for thepetitioners to raise an objection that the authority viz., EnnorePort Limited had nothing to do with the decision making power ofSBI Capitals and hence the evaluation made by them is liable tobe rejected. However, it has been made very clear on behalf ofthe respondents that though the evaluation process has been trustedto SBI Capitals, the Ennore Port Limited Officials actively hadtaken part in the evaluation which has been ratified by the Boardlater. This statement made on behalf of the respondents need notbe doubted at all.Further, I am of the considered opinion thatentrustment to third parties for evaluation of the applicationsof the applicants so long as the petitioners have not made outany bias against the persons to whom the evaluation process hasbeen entrusted, there cannot be any grievance on the part of the https://hcservices.ecourts.gov.in/hcservices/ petitioners. Hence the ground taken in this regard on behalf ofthe petitioners is liable to be rejected. 20. Now the question that has to be considered is whetherthe rejections made by the first respondent in not shortlistingeach of the petitioners for the next stage of bid as put forth inthe counter affidavit of the first respondent is justified andreasonable ?W.P.No. 17460 of 200820.1. The defaults on the part of the petitioner ,according to the respondents are as follows:-(a) The Power of Attorney furnished byContainer Corporation of India and CentralWarehousing Corporation who are members of theConsortium have not been executed in accordancewith procedure laid down by applicable law andthe chartered documents of the executants norunder their common seal.(b) In the responsiveness test, TerminalInvestment Ltd and Container Corporation ofIndia, as a member of the Consortium claimingexperience under Category 1 has not submittedthe required Statutory Auditor's Certificate andthe details of the project as per Appendix I,Annex IV respectively and hence evaluation couldnot be done.(c) Likewise, Samsung C & T Corporation,who is another member of the Consortium and isclaiming experience from Category (3) projectshas not furnished the Statutory Auditor'sCertificate as stipulated. Only one AuditorCertificate for its all the 250 projects(Category 3 and Category 4) is given. Therequirements as per the RFQ document asstipulated in Appendix I, Annex IV, is that theApplicant should provide a certificate from theStatutory Auditors/Clients in the format foreach project to verify various facts related toa project like project cost, period of project,share of the applicant, etc and in the absenceof such certificate, the claim of technicalscore by Samsung C&T Corporation was discarded.(d) As per Clause 2.13.2(v) of the RFQ https://hcservices.ecourts.gov.in/hcservices/ document, the application submitted by aconsortium should contain a copy of theMemorandum and Articles of Association if theapplicant/consortium member is a body corporate.Terminal Investment Ltd., being a Corporatebody, has not enclosed such a copy.(e) As per Clause 2.13.2 (vi) of the RFQdocument, the copies of applicant's / eachconsortium member's duly audited balance sheetand profit and loss account for the precedingfive years is to be provided. In respect ofTerminal Investment Ltd., no such document hasbeen provided;Thus, according to the first respondent the above defaults hadcreated a situation, where the consortium could not exhibit thethreshold technical capacity which was a primary pre-requisite forbeing eligible for shortlisting, which was the reason for notshortlisting the petitioner. 20.2. By way of reply, the petitioner sought to explainthe same hereinafter mentioned:-(a) With regard to the first ground of rejection, it hasbeen replied by the petitioner that the power of attorneysubmitted by it is in accordance with the tender documents. Thereis no proper reason given by the respondent as to why the power ofattorney submitted by the petitioner was rejected. In AppendixIII of RFQ, it is clearly stated that the power of attorneyexecuted and issued overseas, the documents will have to belegalised by the Indian Embassy and notarised in the jurisdictionwhere the power of attorney is being executed. In the case on handthe power of attorney had been executed in India as per the lawapplicable in India and hence notarisation is not mandatory andthe power of attorney, which has been executed in India issufficient and legally valid. Further, there is no provision oflaw, which in anyway prescribes the submitted power of attorney asillegal voidable, non-binding and non-effective. The power ofattorney submitted by the petitioners is duly executed binding andadmissible in court. 20.3. The first respondent by way of rejoinder to thereply had submitted the following facts:- The power of attorney for appointing the lead member of theconsortium has to be in accordance with the format given atAppendix III. Container Corporation of India and CentralWarehousing Corporation, who are members of the consortium had https://hcservices.ecourts.gov.in/hcservices/ not executed the power of attorney in accordance with theprocedure laid down by the applicable law and the chartereddocuments of the executants nor it is under their common seal.The power of attorney furnished by Container Corporation of Indiaand Central Warehousing Corporation do not have supporting boardresolution authorising the signatories to execute the power ofattorney nor the execution of power of attorney had been doneunder the common seal. Shipping Corporation of India which is alsoa member of the consortium and also a public sector enterprise hadfollowed the procedure as its power of attorney is backed by boardresolution and executed under a common seal. The respondent couldnot consider the power of attorney which was incomplete and whichwas improperly executed. The power of attorney of the twomembers of the consortium of the petitioner were not executed asper the provisions of clause 2.19.1 of the RFQ document. 20.4. Mr.A.L.Somayaji, the learned Senior Counselappearing for the petitioner and Mr.M.Ravindran, the learnedAdditional Solicitor General of India have made elaboratesubmissions on those points. 20.5. Mr.A.L.Somayaji, the learned Senior Counselappearing for the petitioner would submit that the power ofattorney if it is executed at overseas, it should be notarised, butif it is executed in India, it does not require any notarisation. 20.6. Clause 2.19.1.(d) of the RFQ document states thatthe application shall be accompanied by the power of attorney asspecified in Clause 2.2.5 and clause 2.2.6(c). Clause 2.2.5reads as follows:-The Applicant should submit a Power ofAttorney as per the format at Appendix 2,authorising the signatory of the application tocommit the Applicant. Clause 2.2.6(c) reads as follows:- Members of the consortium shall nominateone member as the lead member (the "LeadMember"), who shall have an equity share of atleast 26% in the Consortium. The nomination(s)shall be supported by a Power of Attorney, asper the format at Appendix 3 signed by all theother members of the Consortium.Appendix III is the format of power of attorney for lead memberof a consortium. Thus, though in the counter affidavit it isstated by the first respondent that the power of attorney furnishedby the Container Corporation of India and Central WarehousingCorporation, who are members of the Consortium have not been https://hcservices.ecourts.gov.in/hcservices/ executed in accordance with procedure laid down by applicable law,in the rejoinder it is stated that the power of attorney furnishedby the by the Container Corporation of India and CentralWarehousing Corporation, who are members of the Consortium is notonly in accordance with the procedure laid down by applicable lawbut also do not have supporting board resolution authorising thesignatories to execute the power of attorney nor the execution ofpower of attorney has been done under the common seal. 20.7. As rightly pointed out by Mr.A.L.Somayaji, thelearned Senior Counsel appearing for the petitioner, the power ofattorney requires notarisation, if it is done in overseas, but ifit is executed in India, it does not require so. Even at theend of Appendix III, it is clearly stated that for a Power ofAttorney executed and issued overseas, the document will also haveto be legalised by the Indian Embassy and notarised in thejurisdiction where the Power of Attorney is being issued. Furthermore, the law prevailing in India as of now is that if the powerof attorney if executed in India, it does not require anynotarisation. 20.8. As regards the contention that the ContainerCorporation of India and and Central Warehousing Corporation, whoare the members of the petitioner Consortium do not havesupporting board resolution authorising the signatories toexecute the power of attorney it has to be seen that such a reasonwas not there in the impugned order and not even in the counteraffidavit filed by the first respondent. For the first time, itis sought to be raised by way of rejoinder after reply filed bythe petitioner to the counter affidavit. The respondents cannotadd on reasons after the impugned order or at least after filingof the counter affidavit. This shows that the first respondent isimputing reasons after the impugned order dated 30.6.2008rejecting the tender of the petitioner by not shortlisting it. 20.9. The next ground of rejection is that in theresponsiveness test, Terminal Investment Ltd and ContainerCorporation of India, as a member of the Consortium claimingexperience under Category 1 had not submitted the requiredstatutory auditor's certificate and the details of the project asper Appendix I, Annex IV respectively.20.10. Reply affidavit had been filed for this ground ofrejection which states that the necessary statutory auditorcertificate was filed by the petitioner along with details as perRFQ document in Volume V. Further, the petitioner had compliedwith requirement under Appendix I read with Annexure IV,respectively and hence there is no justification for therespondent to disqualify the petitioner on this ground from https://hcservices.ecourts.gov.in/hcservices/ bidding in the next stage. The auditors are internationalauditors of repute and having audited each one of the projects haverendered single certificate encompassing all the projects. Thus,the question of separate certificate does not arise.20.11. Rejoinder had been filed on behalf of therespondents, wherein it has been stated that the TerminalInvestment Limited and the Container Corporation of India had notsubmitted the statutory auditor certificates for each of theprojects, which was required to be done as per clause 3.3.(Annexure IV of Appendix I) of the RFQ document. Clause 3.3.reads as follows:-3.3 Details of Experience 3.3.1 The applicant should furnish thedetails of Eligible Experience for the past 5(five) years preceding the Application DueDate.3.3.2 The Applicants must provide thenecessary information relating to TechnicalCapacity as per format at Annex-II of Appendix-I3.3.3 The Applicant should furnish therequired information and evidence in supportof its claim of Technical Capacity, as performat at Annex-IV of Appendix-120.12. The learned Senior Counsel appearing for thepetitioner would submit that the particulars of the project givenand non-furnishing of the code number does not make out anysignificance. Since it is very insignificant matter, therejection made on this ground is liable to be set aside. Further,he has submitted that it has to be seen that how many projects andwhat project undertaken makes out the matter instead of code numberwhich is very insignificant. The more required and important isthe eligible project. 20.13. While dealing with the said contention it has tobe seen that in the counter affidavit one of the reason that hasbeen stated is that the Terminal Investment Ltd and ContainerCorporation of India, as a member of the Consortium claimingexperience under Category 1 had not submitted the requiredstatutory auditor's certificate and the details of the project asper Appendix I, Annex IV. After the reply filed by the petitioner,a rejoinder had been filed by the respondents wherein the detailsof the objections had been dealt with. Whether the detailswhich have not been furnished by the petitioner is significantor insignificant has to be considered. Before dealing with thesame, it has to be seen the other reasoning in the saidcategory viz., whether the required statutory auditor certificate https://hcservices.ecourts.gov.in/hcservices/ had been furnished by the petitioner or not. 20.14. On this ground, the learned Senior Counselappearing for the petitioner would submit that the auditorcertificate is not necessary if audited annual financialstatement is given. In this connection it has to be seen that whena query had been raised in this regard, reply had been sent bythe Ennore Port Limited dated 4.4.2008, wherein referring aboutthe queries it states that the amendments issued to the RFQdocument (Annexure-1) had been enclosed. In that amendment tothe tender, Sl. No.8 is relevant for the purpose of the presentissue which is set out hereunder:-82.2.4(i)footnote13"In case duly certifiedaudited annual financialstatements are provided, aseparate certification bystatutory auditors would notbe necessary in respect ofClauses 2.2.4(i) and 2.2.4(ii)""In case duly certifiedaudited annualfinancial statementscontaining the requisitedetails are provided, aseparate certificationby statutory auditorswould not be necessaryin respect of Clause2.2.4(i)20.15. Thus a conjoint reading of Appendix 1 of AnnexureIV and the amendment to the query dated 4.4.2008 of Ennore PortLimited would show that the auditor certificate is not necessary ifthe audited annual financial statements is given by thepetitioner. This leaves the other question whether non-furnishingof the project code is a significant omission or insignificantone. When particulars of the projects had been furnished by thepetitioner, the non-furnishing of the code number alone would notmake out a significant omission which makes the petitionerineligible for not shortlisting. 20.16. The Hon'ble Apex Court in B.S.N. Joshi & SonsLtd., v. Nair Coal Services Ltd. reported in (2006) 11 SCC 548, hasheld as follows:-"61. Law on the similar term has been laid down in PoddarSteel Corpn. v. Ganesh Engg. Works, (1991) 3 SCC 273 in thefollowing terms:6. It is true that in submitting its tenderaccompanied by a cheque of the Union Bank of India andnot of the State Bank clause 6 of the tender notice wasnot obeyed literally, but the question is as to whetherthe said non-compliance deprived the Diesel Locomotiveworks of the authority to accept the bid. As a matter of https://hcservices.ecourts.gov.in/hcservices/ general proposition it cannot be held that an authorityinviting tenders is bound to give effect to every termmentioned in the notice in meticulous detail, and is notentitled to waive even a technical irregularity of littleor no significance. The requirements in a tender noticecan be classified into two categories – those which laydown the essential conditions of eligibility and theothers which are merely ancillary or subsidiary with themain object to be achieved by the condition. In thefirst case the authority issuing the tender may berequired to enforce them rigidly. In the other cases itmust be open to the authority to deviate from and not toinsist upon the strict literal compliance with thecondition in appropriate cases."Thus the second ground of rejection also is not on sound reasons.20.17. The third ground is rejection is that Samsung C &T Corporation, another member of the Consortium which claimsexperience from Category (3) projects had not furnished theStatutory Auditor's Certificate as stipulated. Only one AuditorCertificate for its all the 250 projects had been given. Therequirements as stipulated in Appendix I of Annexure IV has notbeen met with by the petitioner. In answer to that it is statedby the petitioner that one auditor certificate for all theprojects had been submitted by the petitioner and suchcertificate is a valid one and in case of any doubt, therespondents ought to have made necessary verification. 20.18. Mr.A.L.Somayaji, the learned Senior Counselappearing for the petitioner would submit that the format of thecertificate from the statutory auditor regarding BOT projectdoes not stipulate separate certificate and further the entireobject is the experience of the consortium and hence the rejectionis not justified. Appendix I of Annexure IV , which is relevantfor the purpose of deciding the issue reads as follows:-" We further certify that the totalestimated cost of the project as on date ofcommissioning was Rs.... Cr. Of which Rs.... Crof capital expenditure was incurred during thepast five financial years as per year-wisedetails noted below:-As rightly pointed out by the learned Senior Counsel appearing forthe petitioner the format does not a stipulate a separatecertificate for each project. The object of such certificate isto know the experience of the consortium members. Hence therejection on this ground is not justified. https://hcservices.ecourts.gov.in/hcservices/

20.19. Regarding the next ground of rejection, it isalleged by the respondent that the Memorandum and Articles ofAssociation have not been accompanied along with the applicationof the petitioner. However, it is stated on the side of thepetitioner that the Memorandum and Articles of Association had beensent. 20.20. Then the next question that arises is whether therespondents could have asked for Memorandum and Articles ofAssociation from the petitioner before rejecting the bid. I havealready held that the respondent did not exercise the discretionin calling for details which is arbitrary. The Ennore Port Limitedexercising the discretionary power vested under clause 2.20.1ought to have sought for clarification. The failure to encloseMemorandum and Articles of Association may not be very muchsignificant document. Even assuming so, as stated already theEnnore Port Limited could have sought clarification why it wasnot enclosed, especially in the context that it is alleged by thepetitioner that it has enclosed Memorandum and Articles ofAssociation.20.21. The 5th ground of rejection is that as per clause2.13.2(vi) of the RFQ document, the copies of the applicant's/each consortium member's duly audited balance sheet and profit andloss account for the preceding five years is to be provided and thefailure to provide the same is the reason for not shortlisting thepetitioner to the next stage of bid. 20.22. On this ground Mr.A.L.Somayaji, the learnedSenior Counsel appearing for the petitioner would submit that suchparticulars have been furnished by the petitioner. The auditorcertificate and the balance sheet though would not be inaccordance with the Indian format, it is in accordance with theformat prevailing in the said country. Hence the rejection istotally misconceived.20.23. To this Mr.M.Ravindran, the learned AdditionalSolicitor General would submit that the first respondentexpected the auditor certificate and balance sheet in a particularformat, without furnishing the same, the petitioner cannot be heardto say that the auditor certificate though not in Indian format,is in a format prevailing in the said country and the same has tobe accepted. Though the required auditor certificate ought tohave been furnished or on the other hand the Auditor Certificateis not in the format as per RFQ, the Ennore Port Limited could havesought clarification as required under clause 2.20.1. Hence, thisreasoning also requires to be rejected. W.P.No.17744 of 2008 https://hcservices.ecourts.gov.in/hcservices/

21.1.The petitioner in W.P.No.17744 of 2008 was notshortlisted on two counts viz., (i) only the petitioner was eligible for evaluationon account of holding atleast 26% of the equity of theconsortium and the other member of the consortium isineligible for evaluation on account of not holdingatleast 26% of the equity of the consortium;(ii) that the consortium partner McQuarie Capital,Singapore is only a Fund Manager and not the owner of thefund and hence, the technical score derived from theexperience of McQuarie Capital cannot be taken intoaccount while computing the technical score of theconsortium.21.2. Reply affidavit had been filed on behalf of thepetitioner wherein it has been set out that a Joint BiddingAgreement dated 29.04.2008 had been submitted along with theapplication and in the said agreement, it has been clearly statedthat the proposed shareholding of each member in the JV Company isas follows:- Sical Infra Assets Limited (SIAL) – 51 %, McQuarie –49%. Thus, the equity participation of the members of theconsortium is defined and definite. The Ennore Port Limitedwithout referring about the shareholding pattern of the twoconsortium members as set out in the Joint Bid Agreement havewrongly held that the equity participation of the members of theconsortium is not defined and definite. Thus, the said finding isperverse leading to arbitrary denial of the rights of thepetitioner to participate in the financial bid by not pre-qualifying and not shortlisting the petitioner.21.3. As regards the second rejection that theconsortium partner McQuarie Capital is only Fund Manager and notowner of the fund is totally on misconception. In the annexurefiled along with bid document, it could be seen that McQuarieSingapore Private Limited is not a Fund Manager. The principalactivities of McQuarie Capital Singapore Private Limited, a companyincorporated in Singapore and a 100% owned subsidiary of MacquairGroup Limited consists of distribution, dealing and trading ofstocks, shares and bonds and corporate and structured financeadvisory services as is evident from its annual financial report2008. Thus, the technical score of McQuarie Capital SingaporePrivate Limited cannot be nullified on account of it being a FundManager. While computing technical capacity and the net worth ofMcQuarie Capital Singapore Private Limited, who is a consortiummember, the technical capacity and net worth of its associate viz.,McQuarie Infrastructure Group (MIG) would be eligible as provided https://hcservices.ecourts.gov.in/hcservices/ under clause 2.2.9 of the Request for Qualification document.Thus, according to the petitioner, the associate relationshipbetween McQuarie Capital Singapore Private Limited and McQuarieBank Limited (MBL), McQuarie Capital Singapore Private Limited andMcQuarie Infrastructure Group (MIG) and McQuarie Capital SingaporePrivate Limited and McQuarie Airports (MAP) are substantiated byfurnishing the same in the annexures in the bid application.21.4. Additional reply affidavit had been filed onbehalf of the petitioner wherein apart from other things, it hasbeen stated that clause 2.13.2 requires all applicants to submitcopies of Memorandum and Articles of Association, if theapplicant / consortium member is a body corporate and if apartnership then a copy of the partnership deed. It nowherespecifies that associates of the applicant / consortium member needto submit a copy of Memorandum and Articles of Association. Hence,according to the additional reply affidavit, the technical score ofthese projects cannot be rejected on the ground of non-submissionof Memorandum and Articles of Association for associates of theapplicants.21.5. Thus, from the foregoing pleadings of thepetitioner and the Ennore Port Limited, the following conclusionemerges:-(i) In the bid agreement, the shareholdingpattern had been clearly set out by the petitionerwherein it has been stated that SIAL – 51% and McQuarie– 49%. The bid agreement and the underlinedshareholding does not seem to have been considered atthe time of evaluation.(ii) As regards the second reason for notshortlisting the petitioner is concerned, thepetitioner seems to have filed annexure along with thebid document wherein it has been shown that McQuarieCapital Singapore Private Limited is not a Fund Managerand the principal activities of the said company having100% owned subsidiary of Macquair Group Limited. Theassociate relationship between McQuarie CapitalSingapore Private Limited and McQuarie Bank Limited(MBL), McQuarie Infrastructure Group (MIG) andMcQuarie Airports (MAP) seems to have been annexedalong with the bid document submitted by thepetitioner. While so, whether SBI capital and theEnnore Port Limited had taken into account thesefactors while not shortlisting the petitioner is notknown. https://hcservices.ecourts.gov.in/hcservices/ (iii) Further more, the Ennore Port Limitedfailed to seek clarification which has resulted in allconfusion. SBI capitals seems to be under theimpression that the petitioner had not fulfilled therequirements as set out above, which has resulted innot shortlisting the petitioner. The clarificationwould have solved the entire matter in issue and wouldhave benefited to both Ennore Port Limited and thepetitioner in arriving at a just and reasonableconclusion. However, the failure to do so is totallyunjust.(iv) Further more, though two reasons have beenset out in the counter affidavit viz., the consortiumpartner does hot hold atleast 26% equity and that theconsortium partner McQuarie Capital Singapore PrivateLimited is only a Fund Manager, however, in therejoinder, some more reasons have been added viz., thatthe Articles of Association of the McQuarieInfrastructure Group and McQuarie Airports which areclaiming experience from projects in Category 1 and 2as associates of McQuarie Group Limited are notenclosed with the application which should have beensubmitted as per the requirement of clause 2.13.2 ofthe Request for Qualification document. Further, therejoinder sets out that as per clause 2.2.2 atleast onefourth of the threshold technical capability shall befrom the eligible projects in category I or category 3specified in clause 3.2.1. These are the newinventions for rejection in the rejoinder of the EnnorePort Limited. Thus, the Ennore Port Limited while notgiving any reason for rejection or for not shortlistingthe petitioner in the impugned order, has sought togive two reasons in the counter affidavit, which issought to be expanded in the rejoinder. Thus,confusion seems to have writ large at the time ofshortlisting the applicants to the next stage of bid.21.6. In view of the above discussions and findings, thefollowing conclusion could be arrived at:-(a) The failure to shortlist the case of the petitionerto the next stage of bid on the two grounds referred to in thecounter affidavit which have been set out earlier, requiresreconsideration in view of the reply affidavit and theadditional reply affidavit to the rejoinder of Ennore PortLimited.(b) When it is stated on the side of the petitioner that https://hcservices.ecourts.gov.in/hcservices/ the bid agreement and the annexures make out clear that thetechnical capacity of the petitioner had been wronglyunderstood at the time of evaluation, the SBI capitals whoevaluated the entire process has to be informed about thestand taken by the petitioner and on the basis of the same,SBI capitals has to evaluate once again the case of thepetitioner. (c) The failure to seek clarification has resulted in chaoswhich should have been avoided by the Ennore Port Limited.W.P.No.23795 of 200822.1. W.P.No.23795 of 2008 is concerned, it is the caseof the Ennore Port Limited that the petitioner could not beshortlisted on account of its failure to make the thresholdtechnical capacity as per clause 2.2.2 (A) of the Request forQualification document. Further, it has been averred that thepetitioner consortium claimed experience from 13 projects ofcategory-I. But, however, the lead member of the consortium i.e.,the petitioner herein has not claimed any experience from the said13 projects. But, its member viz., Portia Management ServicesLimited has claimed experience from the said projects. Out of the13 projects, only one project experience in the BOT project ofVizag Sea Port Private Limited could be considered for theevaluation. The technical score arrived from the said projectexperience is 373.63, whereas to be eligible for pre-qualification,the petitioner consortium, shall fulfil the conditions enshrined inclause 2.2.2 (A) of the Request for Qualification document whereone of the conditions is that the total project experience shouldbe more than Rs.650 Crores. The other project experience claimedby the petitioner consortium was not considered for evaluation asit has not produced the statutory auditor's certificate asprescribed in Annexure-IV, Appendix-I. In view of the same,project experience claimed by the petitioner in the other projectsbecame valueless. Thus, in the absence of the required thresholdtechnical score, the petitioner consortium was not shortlisted forthe next stage of bid. By pointing out the same, it is averred inthe counter affidavit that the rejection of the application of thepetitioner does not suffer from any infirmity.22.2. Reply affidavit had been filed on behalf of thepetitioner wherein it has been pointed out that while the impugnedorder apparently stated that the rejection was on the ground setforth in paragraphs 2.21.1 of the Request for Qualificationdocument, in reality, as revealed in the counter, it appears tohave been done under clause 2.2.2 (A) of the Request forQualification document. Further, it has been pointed out in thereply affidavit that after amendment of the foot note 13 in clause https://hcservices.ecourts.gov.in/hcservices/

2.2.4(i), to prove technical capacity, it is enough to submitaudited balance sheet and accordingly, the consortium, providedbalance sheet for the last five years. The consortium member hasclaimed eligible experience in 13 projects. However, the counteraffidavit of the Ennore Port Limited states that non-providing ofthe statutory audited certificate is the reason for rejection forrejection. The said rejection is entirely erroneous for the reasonthat a statutory audited certificate was wholly unnecessary for thepurpose of technical qualification since Audited Annual Returnswere provided. The petitioner's consortium has in fact claimedanother Rs.7,006 Crores eligibility in various projects, which issupported by the audited balance sheet. Thus, the rejection,according to the reply affidavit, is clearly contrary to the termsof the tender document and the impugned order is liable to be setaside.22.3. I have considered the submissions made by thelearned counsel appearing for the petitioner and the learnedAdditional Solicitor General of India, appearing for the EnnorePort Limited in this regard.22.4. Certain deficiencies have been pointed out by theauthorities for not shortlisting the petitioner's application whichdoes not form part of the impugned. Further, the ground ofrejection originally set out in the impugned order was that thepetitioner's application could not be shortlisted on the ground setforth in para 2.2.1 of the Request for Qualification document, but,however, in the counter affidavit, it has been stated that therejection was under clause 2.2.2(A) of the Request forQualification document. It is the case of the authorities thatthough the petitioner claimed experience from 13 projects ofCategory-I, it has not claimed any experience from the said 13projects. But, its consortium member viz., Portia ManagementServices Limited has claimed experience in the said projects. Outof 13 projects, only one project experience in the BOT project ofVizag Sea Port Private Limited could be considered for evaluation.Further, in the absence of details in the statutory auditedcertificate, information given by the petitioner has beenconsidered as inadequate. When such a plea has been taken for thefirst time in the counter affidavit, reply affidavit has been filedon behalf of the petitioner stating that when audited balance sheetis furnished as per the amendment to clause 2.2.4 (i), foot noteNo.13, the rejection on the ground of non-production of thestatutory audited certificate is totally erroneous.22.5. Clause 2.2.4 (i) and (ii) and foot note reads asfollows:-" The applicants shall enclose with its https://hcservices.ecourts.gov.in/hcservices/ application, to be submitted as per the format atAppendix-I, complete with its annexures, the following:(i) Certificate(s) from its statutory auditors orthe concerned client(s) stating the payments received orworks commissioned, as the case may be, during the past5 years in respect of the projects specified inparagraph 2.2.2 (A) above. In case a particular job /contract has been jointly executed by the applicant (aspart of consortium), he should further support his claimfor the share in work done for that particular job /contract by producing a certificate from its statutoryauditor or the client; and (ii) Certificate(s) from its statutory auditorsspecifying the networth of the applicant, as at theclose of the preceding financial year, and alsospecifying that the methodology adopted for calculatingsuch net worth conforms to the provisions of this clause2.2.4 (ii). For the purposes of this RFQ, net worth(the "Net Worth") shall mean the sum of subscribed andpaid up equity and free reserves from which shall bededucted the sum of revaluation reserves, miscellaneousexpenditure not written off and accrued liabilities.Foot Note: In case duly certified audited annualfinancial statements are provided, a separatecertification by statutory auditors would not benecessary in respect of clauses 2.2.4 (i) and 2.2.4(ii).The requirement pertaining to the auditor's certificate was amendedand Ennore Port Limited amendment letter dated 04.04.2008 atSl.No.8 reads as follows:-Sl.No.Referenceclause No.Existing provisionsAmended provision to beread as82.2.4(i)foot note13In case duly certifiedaudited annualfinancial statementsare provided, aseparate certificationby statutory auditorswould not be necessaryin respect of clauses2.2.4 (i) and 2.2.4(ii).In case duly certifiedaudited annual financialstatements containingthe requisite detailsare provided, a separatecertification bystatutory auditors wouldnot be necessary inrespect of clause 2.2.4(i).22.6. Thus, when it is the case of the petitioner that https://hcservices.ecourts.gov.in/hcservices/ separate auditor certificate is not necessary in view of thefurnishing of the audited balance sheet through their rejoinderafter coming to know of the ground of rejection made by the firstrespondent, if a clarification had been sought for by theauthorities, it would have solved the entire problem. Thepetitioner could have represented that the required particularshave been given and the authorities could have pointed out thatrequired documents have not been furnished. Further more, thediscretion vested with the authorities seeking clarification hasnot been properly exercised, which resulted in chaos.22.7. Hence, the ground of rejection for notshortlisting the petitioner to the next stage of bid is totallyerroneous and is liable to be set aside.W.P.No.23357 of 200823.1.The defects on the part of the petitioner inW.P.No.23357 of 2008, according to the Ennore Port Limited, is theconflict of interest. According to the Ennore Port Limited, thepetitioner which was a member of the consortium led by Mundra Portand Special Economic Zone Limited was having conflict of interestwith P.S.A. Ennore Private Limited, the petitioner in W.P.No.16957and 16958 of 2008 and hence, it has not been shortlisted for thenext stage of bid. 23.2. Before dealing with the merits in issue which hasbeen raised by the petitioner as well as the Ennore Port Limited,it would be useful to extract clause 2.2.1 (c) of the Request forQualification Document and the same is extracted here under:- 2.2.1 (c):- An application shall not have aconflict of interest (the "Conflict of Interest") thataffects the Bidding Process. Any application found to havea conflict of interest shall be disqualified. An applicantmay be considered to have a conflict of interest that affectthat Bidding Process, if:(i)the applicant, its Member or Associate (or anyconstituent thereof) and any other applicant, its Memberor Associate (or any constituent thereof) have commonscontrolling shareholders or other ownership interest;provided that this disqualification shall not apply incases where the direct or indirect shareholding of anapplicant, its Member or Associate (or any shareholderthereof having a shareholding of more than five percentof the paid up and subscribed share capital of suchapplicant, Member or Associate, as the case may be) inthe other applicant, its Member or Associate is less thanone percent of the paid up and subscribed share capital https://hcservices.ecourts.gov.in/hcservices/ thereof; provided further that this disqualificationshall into apply to a bank, insurance company, pensionfund or a Public Financial Institution referred to insection 4A of the Companies Act, 1956; or(ii) aconstituent of such applicant is also a constituent ofanother applicant; or(iii)such applicant receives or has received any direct orindirect subsidy from any other applicant, or hasprovided any such subsidy to any other applicant; or(iv)such applicant has the same legal representative forpurposes of this application as any other applicant; or(v)such applicant has a relationship with another applicant,directly or through commons third parties, that puts themin a position to have access to each others' informationabout, or to influence the application of either or eachof the other applicant; or(vi)such applicant has participated as a consultant to theauthority in the preparation of any documents, design ortechnical specifications of the project."Clause 2.2.2 (A) of the Request for Qualification documentsubsequent to the amendment issued by the Ennore Port Limited videletter dated 04.04.2008 is usefully extracted here under:-" 2.2.2:- To be eligible for pre-qualification andshortlisting, an applicant shall fulfil the followingconditions of eligibility:-(A) Technical Capacity: For demonstratingtechnical capacity and experience (the "TechnicalCapacity"), the applicant shall, over the past 5 (five)financial years preceding the application due date,have:-(i) Paid for, or received payments for constructionof Eligible Project(s); and / or(ii) paid for development of Eligible Project(s) inCategory 1 and / or Category 2 specified in clause 3.2.1;and / or(iii) collected and appropriated revenues fromEligible Project(s) in Category 1 and / or Category 2specified in Clause 3.2.1, such that the sum total of the https://hcservices.ecourts.gov.in/hcservices/ above is more than Rs.650 Crore (Rupees six hundred fiftyCrore only) (the "Threshold Technical Capability).Provided that atleast one fourth of the ThresholdTechnical Capability shall be from the Eligible Projectsin Category 1 or Category 3 specified in clause 3.2.1". Clause 3.2.1 of the Request for Qualification document readsas follows:-" 3.2.1.:- Subject to the provisions of clause 2.2,the following categories of experience would qualify asTechnical Capacity and eligible experience (the "EligibleExperience") in relation to eligible projects asstipulated in clauses 3.2.3 and 3.2.4 (the "EligibleProjects").Category 1: Project experience on Eligible Projects inPort sector that qualify under clause 3.2.3.Category 2: Project experience on Eligible Projects incore sector that qualify under clause 3.2.3.Category 3: Construction experience on Eligible Projectsin port sector that qualify under clause 3.2.4.Category 4: Construction experience on Eligible Projectsin core sector that qualify under clause3.2.4....."23.3. One of the amendment made was to clause 2.2.1 (c).It sought to include within the scope of clause 2.2.1 (1):"associates" of bidders.23.4. The petitioner seems to have addressed a letterdated 08.04.2008 to the Ennore Port Limited making disclosure ofthe petitioner's consortium and the P.S.A. Consortium and statedthereon that P.S.A. Consortium were not in conflict of interest inthe petitioner consortium. The said letter, according to thepetitioner, was forwarded to the Ennore Port Limited under a coverof a letter dated 10.04.2008. Further, a declaration seems to havebeen made by the petitioner in the Request for Qualificationdocument, which reads " we declare that (a) I/We have examined andhave no reservation to the RFQ document, including any addendum(s)issued by the Authority; (b) I/We do not have any conflict ofinterest in accordance with Clauses 2.2.1(c) and 2.2.1(d) of theRFQ document; please refer attached letter dated 10th April 2008from APL." https://hcservices.ecourts.gov.in/hcservices/

23.5. In ground D and E of the affidavit in support ofthe writ petition, it has been specifically stated as follows:- " D. After the amendment of RFQ on 4th April 2008(which contained the statement in 2.2.1 (c) reading asbelow) in its letter of 8th April 2008, the petitionermade a full and complete disclosure. It was stated inthe letter of 8th April 2008 and brought to the notice ofthe first respondent that:4.Neputue Orient Lines Limited (NOL) – thepetitioner herein – is a Singapore incorporatedcompany listed on the Singapore stock exchange.Currently Temasek Holdings (Private) Limited(Tamasek) has a total of about 67% interest inNOL.5.PSA, a global terminal operator withconcessions in India Ports, is 100% owned byTemasek.It was also expressly stated in the letter of 8th April2008.6. We do not have any knowledge of whether PSA willrespond to the RFQ. To err on the side of caution and inorder to facilitate the qualification process (in casePSA is also one of the applicants), we would like to drawyour attention to the above shareholding structure and tothe fact that, in our view, it does not prevent eitherNOL or PSA to qualify for and independently participatein the bidding process of Ennore.7. Although, technically, Temasek is a commonshareholder of NOL and PSA Corporation, the two entitiesare not linked in any way other than by virtue of theshareholdings by Temasek. We contend that NOL does nothave a conflict of interest in presenting an applicationeven if PSA Corporation were to respond to the RFQ, basedon the following reasons....(i) No Common DirectorsEach entity has its own board of directors, who act inthe best interest of the entity concerned. None of thedirector of NOL is also a director of PSA, and vice versa(ii) No centralised management. https://hcservices.ecourts.gov.in/hcservices/ Temasek's shareholdings in NOL and PSA Corporation areonly passive investments. There is no centralisedmanagement linking NOL and PSA. Neither are there anycentralised planning and control systems such as acentral administration, common HR policies, or a centraltreasury, or any structural or strategic consultationsshared by the two companies. On the contrary, eachentity has its own independent management and control.E. The letter of 8th April 2008 was forwarded to thefirst respondent with a covering letter of 10th April 2008headed:"SUBJECT: REQUEST FOR QUALIFICATION FOR THEDEVELOPMENT OF CONTAINER TERMINAL AT ENNORE PORT ON ABUILD, OPERATE AND TRANSFER BASIS.Dear Sir,At the very outset, we would like to thank you forissuing further amendments to the REQ document andresponding to the queries by us.After receiving the amendment to clause 2.2.1 (c), westill feel that there are some ambiguities which requirefurther clarifications or discussions with EPL. Attachedis the letter from NOL which set out in detail ourposition regarding the said clause. Our position isfurther supported by a legal opinion from Trilegal. Weare also attaching a background on the corporategovernance policy of Temasek Holdings (Private) Ltd.We encountered a similar situation with the Port ofRotterdam recently when NOL and PSA separately tenderedtheir bids for the development of the first containerterminal at Massvlakte 2. The Port of Rotterdam agreedwith our views and did not disqualify NOL and PSA fromtendering the bid. In fact, the consortium formed by NOLwas awarded the contract.In the meantime, while responding to the REQ, NOL will beattaching the same documents with the application.We sincerely hope that Ennore Port Limited shares andadopts our views in case both NOL and PSA separatelyrespond to the RFQ."The reference to the "queries by us" was to the pre-bidmeeting where all bidders were present and where the https://hcservices.ecourts.gov.in/hcservices/ petitioners had raised certain queries which were dulyanswered by the representatives of the RespondentAuthority.The last paragraph in the said letter of 10th April 2008viz.,"We sincerely hope that Ennore Port Ltd., shares andadopts our views in case both NOL and PSA separatelyrespond to the RFQ".was written expressly to elicit a response from theauthority that they did share or adopt these views. Acopy of the letter of 10th April 2008 enclosing the letterof 8th April 2008 was also addressed to the Ministry ofShipping, Road Transport and Highways and the PlanningCommission. The latter because the Planning Commissionis the Authority that sets out guidelines for tenderingprojects which are to be implemented on a Public-Private-Partnership (PPP) basis."As stated above, in the declaration also it has referred about theattached letter dated 08.04.2008 from APL. Thus, the petitionerseems to have pre-disclosed all the relevant facts pertaining toclause 2.2.1 (c) before submitting RFQ document and at the time ofsubmitting RFQ document.23.6. Further, it has been set out in ground 'H' thatthe petitioner and PSA Ennore Private Limited are whollyindependent companies with independent set of Directors and theyhave no common Directors and have been competing in internationalprojects against one and another and not in order to form a cartelfor bidding purpose at all.23.7. It has been further stated in ground 'J' that theshareholders of the petitioner are Lentor Investments PrivateLimited – 39.81% approximately; Temasek Holdings Private Limited –26.08 % approximately and members of the public – 34%. TemasekHoldings Private Limited is not a shareholder in any of the membersof the PSA consortium. Temasek Holdings Private Limited ownsequity in the company which owns equity in PSA Ennore PrivateLimited. 23.8. Thus, an elaborate statement had been made in theaffidavit in support of the writ petition that there is no conflictof interest between the petitioner and the PSA Ennore PrivateLimited, the petitioner in W.P.Nos.16957 and 16959 of 2008.23.9. Counter affidavit had been filed on behalf of the https://hcservices.ecourts.gov.in/hcservices/ Ennore Port Limited and it is stated that rejection of thepetitioner consortium is because of conflict of interest betweenthe petitioner consortium and the consortium led by PSA EnnorePrivate Limited. It is admitted that a letter has been receivedfrom the petitioner dated 8/10th April 2008 stating that thepetitioner consortium and the consortium led by PSA Ennore PrivateLimited are not in conflict of interest. However, it is statedthat "non-response to the letter of the petitioner by the EnnorPort Limited is due to the fact that at the time when thepetitioner itself has not mentioned the consortium members' nameand the Ennore Port Limited was not aware who is going to submitapplication for pre-qualification, any response to the petitioner'sletter would have amounted to guiding the petitioner. Thus, EnnorePort Limited did not reply to the said letter. The petitioner andthe PSA Ennore Port Limited, who are attracted by the conflict ofinterest have joined together by filing separate writ petitions toget the conflict of interest annulled or by getting it redefined soas to exclude these two entities from getting attracted by thedisqualifying clause of conflict of interest.23.10. On the basis of the pleadings extracted above, ithas to be seen whether the failure to shortlist the petitioner onthe ground of conflict of interest is justifiable or not. TheRequest for Qualification document so far as conflict of interestis concerned seems to have been incorporated in order to prevent anapplicant from submitting more than one application in the name ofits other holding companies. Clause 2.4.1 of the Request forQualification document clearly states that an applicant shouldsubmit only one application for shortlisting. Thus, in order toprevent the development of cartelisation or monopoly, it has beenset out in 2.2.1 (c) that an applicant shall not have a conflict ofinterest and if it is found that it has got conflict of interest,it would be disqualified. The object of introducing the saidclause cannot be faulted at all. But, however, it has to be seenwhether the petitioner is having any conflict of interest with PSAEnnore Private Limited, the petitioner in W.P.Nos.16957 and 16958of 2008. The petitioner, in grounds 'H' and 'J' of the affidavitin support of the writ petition has made it very clear that thepetitioner and the PSA Ennore Private Limited are whollyindependent companies with independent set of Directors and havebeen competing in international projects against one another. Theshareholding of the petitioner has also been set out in ground 'J'of the affidavit. Absolutely there is no denial about the same inthe counter affidavit filed by the Ennore Port Limited. Furthermore, when the petitioner even before submitting its application,had disclosed to the authorities in its letter dated 08.04.2008,which has been extracted above, the Ennore Port Limited ought tohave clarified the position to the petitioner. To say that it didnot clarify since it would amount to guiding the petitioner cannot https://hcservices.ecourts.gov.in/hcservices/ be accepted. I have already held above that failure to seekclarification is totally unjust, especially when there is a clausein the Request for Qualification document that the Ennore PortLimited could seek clarification from the applicants. Since I haveelaborately discussed about the same and given a finding in favourof the petitioner, I am not inclined to reiterate the same onceagain.23.11. Yet another aspect that has to be seen is thatwhen the petitioner sought to explain in his affidavit in supportof the writ petition that there is no conflict of interest settingout shareholders of the petitioner and also setting out that thepetitioner and the PSA Ennore private Limited are whollyindependent companies with independent set of Directors, etc.,there is absolutely no denial about the same. Whether thesefactors were considered by the Ennore Port Limited or SBI capitals,which had evaluated the Request for Qualification documents forshortlisting the applicants could not be ascertained. Prima facieit could be concluded that these materials were not either beforethe Ennore Port Limited or the SBI capitals at the time ofevaluation of the applications for shortlisting the applications tothe next bid stage.23.12. The other aspect which has to be borne in mind isthat a mere conflict of interest alone would not disqualify aperson from participating in the bid. Clause 2.2.1 (c) of theRequest for Qualification document clearly says that "an applicantshall not have a conflict of interest that affects the biddingprocess". Thus, even assuming that there is a conflict ofinterest, it must be one which affects the bidding process. To bemore elaborate, every technical non-compliance with the conditionsin sub clauses (i) to (vi) does not ipso facto entail adisqualification. Unless such a conflict of interest affects thebidding process, there cannot be any disqualification on the groundof conflict of interest alone. Further more, as rightly contendedby the learned Senior Counsel appearing for the petitioner thatclause 2.2.1(c) reads that an applicant may be considered to have aconflict of interest that affects the bidding process if subclauses (i) to (vi) are found, which cannot be read as statutes, asthe said sub clauses (i) to (vi) are not water tight compartmentsand the words used thereunder have to be meaningfully construed orinterpreted in a manner which would give commercial sense andmeaning to the ultimate object of the said clause. Further, asrightly contended by the learned Senior Counsel appearing for thepetitioner, the object underlying the disqualificationcontemplated under clause 2.2.1 (c) is that no two bidders shouldbe so connected that their connection results in a situation wherea cartel is formed and / or an unrealistic and / or unfair and /or artificially low bid is submitted. The object further seems to https://hcservices.ecourts.gov.in/hcservices/ be to ensure that the bids which are received are fair and notmanipulated. Even the learned Additional Solicitor General ofIndia appearing for the Ennore Port Limited would submit that theobject of clause 2.2.1(c) is to only ensure that an applicantsubmits only one application for shortlisting and it wouldeffectively prevent an applicant from submitting more than oneapplications in the name of its other holding companies especiallyin the background that clause 2.4.1 of the Request forQualification document states that an applicant should submit onlyone application for shortlisting. Thus, summing up the matter inissue, I am to hold as follows:-(i) The failure to seek clarification from thepetitioner in respect of conflict of interest which hasbeen set forth for rejecting the claim of the petitionerto the next stage of bid, in spite of the clarificationsought for by the petitioner before submitting theapplication, is totally unjust;(ii) The claim of the petitioner that it is nothaving conflict of interest with PSA Ennore Port Limitedas set out in its writ petition could not have beenconsidered by the SBI capitals which has evaluated theapplications since at the time of evaluation, the pointsraised by the petitioner regarding its shareholdings,independent entity without common Directors etc., werenot available for evaluation;(iii) Even as per the language employed in clause2.2.1 (c), the conflict of interest should affect thebidding process. It is nowhere stated that the conflictof interest between the petitioner and PSA Ennore PrivateLimited affected the bidding process. Sub clauses (i) to(vi) to clause 2.2.1(c) could not be construed as rulesin statutes which should be given a strict meaning andimplications. The said clause has to be construed andinterpreted in a manner which will give a commercialsense and meaning so as to ultimately achieve the objectof incorporating the said clause viz., 2.2.1 (c) viz.,the two bidders should not be so connected where there isa possibility of cartelisation or monopoly. Since thesaid clause had been introduced with the object ofpreventing the development of cartelisation or monopoly,the said clause all the more shall be viewed withcommercial sense that the ultimate object for which thesaid clause had been incorporated. W.P.No.23358 of 2008 https://hcservices.ecourts.gov.in/hcservices/

24.1. As regards the challenge in W.P.No.23358 of 2008to clause 2.2.1 (c) of the Request for Qualification document isconcerned, I am not inclined to accept the contention raised inthis regard by the learned Senior Counsel appearing for thepetitioner. The petitioner having taken part in the tender processknowing about the clause therein, cannot be heard to say that thetender clause referred to above is bad in law or unconstitutional.The challenge with regard to that clause has been made only afterthe Ennore Port Limited failed to shortlist them to the next stageof bid.24.2. Learned Additional Solicitor General of Indiaappearing for the Ennore Port Limited relied on the decisionreported in (2001) 2 Supreme Court Cases 451 – W.B.StateElectricity Board v. Patel Engineering Co., and contended thatstrict adherence to bidders is essential and it cannot be branded apedantic approach. A party cannot be allowed to correct an errorappeared in the bid document. However, there is a case where moremistake has crept in while submitting the bid documents, which issought to be rectified and the Hon'ble Apex Court has held that theimpugned order of the Division Bench of Calcutta permitting theparties to correct the bid documents and to consider all the bidsafter correction along with other bids has been set aside. In thegiven case on hand, it is not the case of the petitioners that inthe bid documents submitted by them mistake has crept in for whichthey sought for corrections. Hence, the said judgment may not haveany application to the facts of the present case.24.3. The Hon'ble Apex Court in (2004) 4 Supreme CourtCases 19 – Directorate of Education v. Educomp Datamatics Ltd.,while considering judicial review on the terms and conditionsinviting open tender for leasing of supply, installation andcommissioning of computer systems in various government /government-aided senior secondary, secondary and middle schoolsunder the Directorate of Education, Delhi, commenting theintroduction of a criterion of turnover of Rs.20 Crores to enablethe companies to participate in the tender, had held that "it wasfor the authority to set the terms of tender. The Courts would notinterfere with the terms of the tender notice unless it was shownto be either arbitrary or discriminatory or actuated by malice.While exercising the power of judicial review of the terms of thetender notice, the Court cannot say that the terms of the earliertender notice would serve the purpose sought to be achieved betterthan the terms of tender notice under consideration and orderchange in them, unless it is of the opinion that the terms wereeither arbitrary or discriminatory or actuated by malice. Theprovision of the terms inviting tenders from firms having aturnover of more than Rs.20 Crores has not been shown to be eitherarbitrary or discriminatory or actuated by malice. https://hcservices.ecourts.gov.in/hcservices/

24.4. Again in yet another decision reported in (2007)10 Supreme Court Cases 33 – Puravankara Projects Ltd., v. HotelVenus International and others, the Hon'ble Apex Court has heldthat the principles of natural justice cannot be invoked to amend,alter or vary the expressed terms of the contract between theparties. The Hon'ble Apex Court while holding so, had relied onthe decision reported in (1981) 1 SCC 537 – New Bihar Biri LeavesCo. v. State of Bihar, and paragraphs 31 and 33 are usefullyextracted here under:-" 31. In New Bihar Biri Leaves Co. v. State ofBihar, it was observed at para 48 as follows: (SCC p.558)48. It is a fundamental principle of generalapplication that if a person of his own accord, accepts acontract on certain terms and works out the contract, hecannot be allowed to adhere to and abide by some of theterms of the contract which proved advantageous to himand repudiate the other terms of the same contract whichmight be disadvantageous to him. The maxim is Quiapprobat non reprobat (one who approbates cannotreprobate). This principle, though originally borrowedfrom Scots law, is now firmly embodied in English commonlaw. According to it, a party to an instrument ortransaction cannot take advantage of one part of adocument or transaction and reject the rest. That is tosay, no party can accept and reject the same instrumentor transaction (per Scrutton, L.J., Verschures CreameriesLtd., v. Hull & Netherlands Steamship Co. see DouglasMenzies v. Umphelby, AC at p.232: see also Stroud'sJudicial Dictionary, Vol.I p.169 3rd Edn.)33. Just as the principles of natural justiceensure fair decision where function is quasi-judicial,the doctrine of fairness is evolved to ensure fair actionwhen the function is administrative. But the saidprinciple cannot be invoked to amend, alter or vary theexpressed terms of the contract between the parties." 24.5. Thus, considering the above facts andcircumstances and also considering the law laid down by the Hon'bleApex Court as referred to earlier, the contentions raised regardingthe tender clauses do not require any consideration at all and thesame shall be rejected in toto. W.P.No.16957 of 200825.1. W.P.No.16957 of 2008 is filed challenging theimpugned order dated 30.06.2008 in not shortlisting the petitionerfor the bid stage and consequently directing the Ennore Port https://hcservices.ecourts.gov.in/hcservices/ Limited to reconsider its application. The petitioner has alsofiled W.P.No.16958 of 2008 challenging clause 1.2.1, 2.2.1(c),3.2.1 and 3.2.6 of Request for Qualification document andconsequently directing the Ennore Port Limited to amend the same.25.2. Why the petitioner was not shortlisted, though notstated in the impugned order, as per the counter affidavit, is onaccount of conflict of interest. It is alleged that the petitionerconsortium is having conflict of interest with another applicantconsortium led by Mundra Ports & Special Economic Zone Limited,Adani Enterprises Limited and Neptune Oriental Lines Limited, asits members. In the case of the consortium led by the petitioner,PSA Ennore Private Limited was having conflict of interest withNeptune Orient Lines Limited, which was a member of the consortiumled by Mundra Ports & Special Economic Zone Limited, which came tolight on account of declaration made by Neptune Oriental LinesLimited.25.3. I am not traversing about the conflict of interestby extracting the clauses in the Request for Qualificationdocument in view of the fact that I have already dealt with thoseclauses at length in the writ petitions in W.P.Nos.23357 and 23358of 2008. The discussions and the reasonings which have beenarrived at by me in those writ petitions are applicable to thesewrit petitions also. Both the petitioner in these writ petitionsand the petitioner in W.P.Nos.23357 and 23358 of 2008 are on thesame footing. It is averred by the petitioner that while it istrue that Temasek Holdings Private Limited holds the entire shareholdings of PSA International Private Limited, in turn PSAInternational Private Limited holds the entire shareholdings of thepetitioner, this mere fact does not translate into involvement inthe governance of the petitioner by Temasek. Temasek, it isaverred, is a Corporation owned by Government of Singapore and isin the nature of a financial investor with holdings and interestworld wide. The day to day affairs of the petitioner and otherentities in which Temasek has direct or indirect shareholdings aremanaged and governed by independent boards free of interferencefrom Temasek.25.4. In those circumstances, it is possible that boththe listed entities themselves may not aware of each othersshareholding. In such circumstances, it would have been fair hadthe Ennore Port Limited ascertained the facts from the applicantsincluding the petitioner and provided them opportunity whether aconflict of interest in fact is existed between the applicants.25.5. Thus, summing up the matter in issue, I am to holdas follows:-(i) The failure to seek clarification from the https://hcservices.ecourts.gov.in/hcservices/ petitioner in respect of conflict of interest whichhas been set forth for rejecting the claim of thepetitioner to the next stage of bid, in spite of theclarification sought for by the petitioner beforesubmitting the application is totally unjust;(ii) The claim of the petitioner that it is nothaving conflict of interest with PSA Ennore PortLimited as set out in its writ petition could nothave been considered by the SBI capitals which hasevaluated the applications since at the time ofevaluation, the points raised by the petitionerregarding its shareholdings, independent entitywithout common Directors etc., were not availablefor evaluation;(iii) Even as per the language employed in clause2.2.1 (c), the conflict of interest should affect thebidding process. It is nowhere stated that the conflictof interest between the petitioner and PSA Ennore PrivateLimited affected the bidding process. Sub clauses (i) to(vi) to clause 2.2.1(c) could not be construed as rulesin statutes which should be given a strict meaning andimplications. The said clause has to be construed andinterpreted in a manner which will give a commercialsense and meaning so as to ultimately achieve the objectof incorporating the said clause viz., 2.2.1 (c) viz.,the two bidders should not be so connected where there isa possibility of cartelisation or monopoly. Since thesaid clause had been introduced with the object ofpreventing the development of cartelisation or monopoly,the said clause all the more shall be viewed withcommercial sense that the ultimate object for which thesaid clause had been incorporated.W.P.No.16958 of 200826.1 As regards the challenge in W.P.No.16958 of 2008 toclauses 1.2.1., 2.2.1 (c), 3.2.1 and 3.2.6 is concerned, I am notinclined to accept the contention raised in this regard by thelearned Senior Counsel appearing for the petitioner. Thepetitioner having taken part in the tender process knowing aboutthe clauses therein, cannot be heard to say that the tender clausesreferred to above are vague, illegal and arbitrary. The challengewith regard to those clauses has been made only after the EnnorePort Limited failed to shortlist them to the next stage of bid. Ihave dealt with the challenge of clause 2.2.1(c) in W.P.No.23358 of2008, wherein I have elaborately considered why the challenge ofthe said tender clause 2.2.1(c) is not bad in law in the said writpetition and hence I am not traversing the same in this writ https://hcservices.ecourts.gov.in/hcservices/ petition. Hence, the contentions which have been raisedchallenging those clauses, do not require consideration at all.26.2. As regards the challenge in W.P.No.23795 of 2008 inregard to clauses 1.2.1, 3.2.1, 3.2.6 of RFQ is concerned, sinceI have elaborately dealt with the same in W.P.No. 23358 of 2008 andhas held that the said clauses are not bad in law, I am nottraversing the same once again in this writ petition. Hence, thecontentions which have been raised thereunder challenging thoseclauses do not require any consideration at all. W.P.No.20409 of 200827. The petitioner in W.P.No.20409 of 2008 viz.,ABG Infralogistics Limited is the consortium member along with PSAEnnore Private Limited, the lead member. PSA Ennore PrivateLimited had already filed two writ petitions in W.P.Nos.16957 and16958 of 2008 questioning the failure to shortlist it to the nextstage of bid and also for quashing of certain clauses in theRequest for Qualification document. While so, when one of theconsortium member viz. PSA Ennore Private Limited, a lead memberhas already approached this Court challenging its non-shortlisting,the present writ petition may not be sustainable. Whatever thebenefit that has accorded to the lead member PSA Ennore PrivateLimited may be an advantage to the consortium member, thepetitioner herein. Hence, the prayer in this writ petition doesnot require to be considered.FINAL CONCLUSION:-28. The discussions and the findings arrived at by meabove would lead to the following irresistible conclusion viz., (i) The writ petitions filed by the petitionersquestioning their non-shortlisting are perfectlymaintainable under Article 226 of The Constitution ofIndia as discussed and held in paragraphs 16.1 to 16.11.(ii) Though the Ennore Port Limited is obligatoryto assign reason for refusal of the tenders of theapplicants thereby not shortlisting them for the nextstage of bid, I am not holding it against the Ennore PortLimited since the reasons for the same have been statedin the counter affidavit filed by the Ennore Port Limitedas discussed and held in paragraphs 17.1 to 17.6.(iii) The Ennore Port Limited is not justified inrefusing to exercise its discretion in seekingclarification from the applicants, as held in paragraphs18.1 to 18.10.(iv) The entrustment of evaluation process to SBI https://hcservices.ecourts.gov.in/hcservices/ capitals and Mullah & Mullah and Craigie Blunt & Caroecannot be faulted with, as held in paragraphs 19.1 to19.3.(v) The reasons for rejection of the petitioners'tenders when shortlisting them for the next stage of bidare not justifiable, as held in paragraphs 20.1 to 23.12and 25.1. to 25.5.(vi) Clauses 1.2.1, 2.2.1(c), 3.2.1 and 3.2.6 ofRequest for Qualification document are not bad in law anddo not require to be quashed as held in paragraphs 24.1.to 24.5 and paragraphs 26.1 and 26.2. (vii) In a project of this public nature whichrequires efficient participants, who have got experiencein the Port and its management should have been theprime concern of Ennore Port Limited while shortlistingthe applicants to the next stage of bid. The entireobject should have been to select the best availablepersons for the prestigious project. Since publicinterest is involved in this project, the best talentedperson shall be the paramount consideration.(viii) The Ennore Port Limited seems to have takenirrelevant reasons for not shortlisting the petitioners'tenders. The state largesse while awarding contractshall not act as a private party, but should have seenthat the selection process would not adversely affect thelarger public interest. The Ennore Port Limited seems tohave left out relevant factors and taken into accountirrelevant factors.(xi) Further more, as stated already, theexplanation offered by the petitioners in theiraffidavits and the reply affidavits could not be beforethe SBI capitals, who had made evaluation and in theresult, the impugned orders have been passed notshortlisting them.29. For all the reasons stated above, it would beappropriate to remit the matter for reconsideration by the EnnorePort Limited, who did the evaluation through the SBI capitals withthe assistance of the officials of Ennore Port Limited, who havebeen nominated. Since the project requires urgent consideration,which has to be executed without any delay to cater the end of thepresent situation, I deem it necessary to direct the Ennore PortLimited to direct the SBI capitals to make evaluation after seekingclarification from the petitioners and also after considering the https://hcservices.ecourts.gov.in/hcservices/ points which have been raised by them in these writ petitions. Ihope the entire process would get through within a period of twomonths from the date of receipt of a copy of this order.30.1. In fine, W.P.Nos.17460, 17744, 16957, 23795 (inpart) and 23357 of 2008 are allowed, directing the Ennore PortLimited to reconsider its decision in non-shortlisting them for thenext stage of bid, keeping in mind the discussions made above andthe contentions raised by them in these writ petitions. 30.2. W.P.Nos.16958, 23358 and 20409 of 2008 aredismissed. The challenge of clause 4 in PPP Project and clauses1.2.1, 3.2.1, 3.2.6 of Request for Qualification in W.P.No.23795 of 2008 alone is rejected . No order as to costs. Consequently, connected miscellaneouspetitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sbi/krr To1.The Secretary, Union of India, Ministry of Shipping, Road Transport and Highways, Transport Bhavan, 1 Parliament Street, New Delhi – 110 001.2.The Chairman and MD, Ennore Port Limited, No.23, Rajaji Salai, First Floor, Chennai-43. The DIRECTIRUNION OF INDIA PLAN FINANCE II DIVISIONDEPARTMENT OF EXPENDITURE,MINISTRY OF FINANCE,NORTH BLOCK NEW DELHI-110001. https://hcservices.ecourts.gov.in/hcservices/

4.THE SECRETARYUNION OF INDIA LAW AND JUDICIAL AND JUSTICE DEPT., AAYAKAR BHAVAN, 2ND FLOOR, NEW MARINE LINES, MUMBAI-400 020 5.THE DIRECTOR (OPERATIONS) ENNORE PORT LIMITED, P.T. LEE CHENGALVARAYA NAICKER MAALIGAI, FIRST FLOOR, NO.23, RAJAJI SALAI, CHENNAI-1. 1 CC TO MR. SIVAM SIVANANDRAJ, ADVOCATE, SR. 25803 CCS TO MR. SATHISH PARASARAN, ADVOCATE, SR. 30281 CC TO MR.C. U,A, ADVOCATE, SR. 22687 CCS TO MR.P. CHANDRASEKARAN, SCGSC, SR. 26211 CC TO MR.T.S. SIVAGNANAM, SCGSC, SR. 2593 W.P.Nos.16957, 16958, 17460, 17744, 20409, 23357, 23358 and 23795 of 2008ku (co)KK,KMSRA,SR, GSK 10/2