APM TERMINALS B.V. Vs UNION OF INDIA
Bench: ALTAMAS KABIR,CYRIAC JOSEPH, , ,
Case number: C.A. No.-004270-004270 / 2011
Diary number: 13534 / 2010
Advocates: ANUPAM LAL DAS Vs
AJAY SHARMA
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4270 OF 2011 (Arising out of S.L.P.(C)No.13893 of 2010)
APM TERMINALS B.V. … APPELLANT
Vs.
UNION OF INDIA & ANR. … RESPONDENTS
WITH T.C.(CIVIL) NOS.36-37 OF 2010
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted in SLP(C)No.13893 of 2010, which
is being heard along with Transferred Case (Civil)
Nos.36-37 of 2010. While the appeal has been filed
by APM Terminals B.V. against the decision of the
High Court, dismissing its writ petition,
challenging the decision of the Board of Trustees
for the Jawaharlal Nehru Port Trust to exclude the
appellant from participating in the tender process
for the development of the Fourth Container
Terminal at the Bombay Port through public-private
partnership, the transfer petitions have been filed
by PSA Sical Terminals Ltd. for transfer of Writ
Petition Nos.19851 and 19384 of 2010 pending before
the Madras High Court, to this Court. As the
questions involved in the writ petitions pending
before the Madras High Court were the same as those
raised in the appeal filed by APM Terminals B.V.,
we had directed the transfer petitions to be heard
along with SLP(C)No.13893 of 2010, out of which the
present appeal arises.
2
2. In the appeal, the appellant has challenged the
validity and propriety of the decision taken by the
Board of Trustees of the Jawaharlal Nehru Port
Trust, hereinafter referred to as the “JNPT”, to
exclude the appellant from participating in the
tender process for the Fourth Container Terminal
under the JNPT, through public-private partnership,
and praying for quashing of the said decision with
leave to the appellant to participate in the tender
process in accordance with the policy indicated in
Circular No. PD-12013/2/2005-JNPT dated 26th
September, 2007, issued by the Union of India. The
further prayer of the appellant was to read the
provisions of the said Circular into the Licence
Agreement dated 10th August, 2004, executed between
the appellant and JNPT, and, consequently, to
release the appellant from the restrictions
contained in Clause 8.31 of the Licence Agreement
and/or to treat the same as not binding on the
appellant. Clause 8.31 of the Licence Agreement
3
which was executed by the Board of Trustees, JNPT,
in favour of the appellant, provides as follows :
“8.31 The Licensee acknowledges and agrees that it shall forego the right to bid for either directly or indirectly, including being a Management Contractor through any associate company, whether such company is registered in India or any other country, or any company in which the Licensee has a shareholding for the Additional Facilities or existing facilities during the term of this Agreement. The Licensee also agrees that in the event of it or its parent company taking over/acquiring/amalgamating/merging with the licensee or the parent company to whom the Additional Facilities are awarded it shall be obliged to divest its stake in one of the two licenses to a third entity not linked to the Licensee within 6 months from the date of such change in control failing which it shall be deemed to be a Licensee Event of Default. The Licensee also agrees that in the event of it or its parent company being taken over/acquired/amalgamated/merged by another licensee operating container facilities at JNPT it shall be obliged to divest the License to a third entity not linked to the Licensee within 6 months from the date of such change in control failing which it shall be deemed to be a Licensee Event of Default. The Licensee acknowledges, agrees and accepts the above as essence of this Agreement and the Licence granted to the Licensee.”
4
3. Before the High Court, on behalf of the
appellant Company, it was claimed that on account
of subsequent resolutions adopted by the Board of
Trustees of JNPT, which had the effect of altering
the policy with regard to entrustment of
operational facilities at the port to provide
competition and to prevent monopolies, the
provisions of Clause 8.31 would have to be
reconsidered in the light of the changed
circumstances. Before proceeding any further it
will be worthwhile to briefly indicate the
background in which the present lis has arisen.
4. The Jawaharlal Nehru Port Bulk Terminal was
commissioned on 26th May, 1989, and was designed to
handle goods imported in bulk, such as fertilizers,
fertilizer raw materials and food grains, with the
help of mechanized bulk-handling facilities. With
the passage of time, the Central Government found
it difficult to maintain the Bulk Terminal and
5
decided to convert the Bulk Terminal into a
Container Terminal and to remodel the same on a
Build, Operate and Transfer (BOT) Basis on licence
for a period of 30 years. Since 1996, it has been
the policy of the Central Government to permit
participation/investment by the private sector in
utilizing the assets of the Port, construction and
creation of additional assets, lease of equipment,
pilotage, cargo handling, etc. In fact, guidelines
had been issued from time to time by the Ministry
of Surface Transport which was to be followed by
the Major Ports for private sector participation.
In pursuance of such policy, the Central Government
introduced the process of privatization, subject
however, to the regulatory role of the JNPT.
Within the regulatory frame-work it was made clear
that the Port authorities should ensure that
private investment did not result in the creation
of private monopolies and that private facilities
were available to all users on equal and
6
competitive terms.
5. The appellant is a Company incorporated under
the laws of the Netherlands. Together with the
Container Corporation of India Limited it formed a
Joint Venture Company under the name and style of
“Gateway Terminals India Pvt. Ltd.” registered
under the Companies Act, 1956. The said Joint
Venture Company, hereinafter referred to as the
“GTI”, was the successful bidder in the Tender
floated by JNPT for development of its existing
Bulk Terminal into a Container Terminal.
Thereafter, in keeping with the guidelines issued by
the Central Government in 1996, which were
described as mandatory, the JNPT floated a Tender
for the development of a new 600 meter Quay Length
Container Terminal at Navi Mumbai and Nhava Sheva
International Container Terminal, hereinafter
referred to as the “NSICT”, was the successful
bidder in respect of the said Tender. The licence
7
granted to NSICT to operate the first Container
Terminal at JNPT culminated in a Build, Operate and
Transfer Licence Agreement dated 3rd July, 1997
between JNPT and NSICT which was to subsist for a
period of 30 years from the date of the agreement.
Clause 2.3 of the said Licence Agreement provides
as follows :
“The License will not bar the Licensee from participating in any subsequent bids invited by the Licensor for operation of Container Terminal.”
6. Accordingly, NSICT was given liberty to
participate in any subsequent bid for operation of
the Container Terminal.
7. In 2002, JNPT floated another Tender for the
development of the Second Container Terminal at
JNPT and invited Requests for Qualification (RFQ)
for the construction thereof. In order to prevent
monopoly and promote competition, the JNPT
subsequently incorporated Clause 1.3 in the Tender
8
documents for the development of the Second
Container Terminal, which reads as follows :
“Clause 1.3 : The port is desirous of entrusting the Project of redevelopment of the bulk terminal to a container terminal, on BOT basis, to another licensee other than the existing Private Terminal Operator (Licensee) at JNPT i.e. Nhava Sheva International Container Terminal (NSICT) Limited or their associates, P&O or the associates, interconnected or sister companies or either of them.”
8. The net result was that NSICT was precluded
from participating in the Tender for the
development of the Second Container Terminal at
JNPT, despite the express provisions of Clause 2.3
of the Licence Agreement.
9. The said decision of the JNPT was challenged by
NSICT and its affiliate, P&O Australia Ports Pvt.
Ltd., by way of Writ Petition No.3083 of 2002 in
the Bombay High Court. During the hearing of the
said writ petition, the Union of India and JNPT
took the stand that the 1996 Policy and the
9
guidelines would prevail over Clause 2.3 of the
Licence Agreement between the said Respondents and
the NSICT. Upholding the decision of the
Respondents to exclude P&O Australia Ports Pvt.
Ltd. and NSICT from participating in the bid for
the development of the Second Container Terminal,
the Bombay High Court dismissed the writ petition
by its order dated 28th January, 2003. The said
decision of the Bombay High Court was challenged
before this Court, which declined to interfere with
the order of the Bombay High Court. However, the
Petitioner’s Joint Venture Company, GTI Pvt. Ltd.,
was permitted to bid in the Tender for the
development of the Second Container Terminal at
JNPT. On completion of the bidding process, the
work of development of the Second Container
Terminal was awarded to GTI for a term of 30 years
from the date of the Licence Agreement which also
contained Clause 8.31, extracted hereinabove. In
fact, before the Bombay High Court, JNPT had taken
10
a stand that Clause 8.31 had been subsequently
incorporated in the Licence Agreement in view of
the guidelines promulgated in 1996, which were then
in force.
10. In the meanwhile, on or about 26th September,
2007, a decision was taken by the Union of India to
alter the 1996 policy and a Circular No.PD-
12013/2/2005-JNPT, was issued indicating that the
JNPT should proceed to invite global competitive
bidding for an independent “Stand Alone” Container
Terminal to expand the Container towards North of
JNPT by 330 meters, which was designated as the
Third Container Terminal. It also clarified the
eligibility of existing private container terminal
operators at JNPT to compete and bid for any
project. In the said Circular dated 26th September,
2007, it was, inter alia, indicated as follows :
“In the instant case while JNPT is in the process of undertaking the bidding for the development of the 330 metre extension of
11
container berth towards North of NSICT project as a stand alone project on BOT basis (330 metre extension project) there are two different private BOT operators operating container terminals in JN Port. As a rational and logical consequence of the stand taken earlier it has been decided that the successful bidder of the previous container terminal on BOT basis (Maersk A/S – CONCOR Consortium) and/or their subsidiaries/allied organizations should be excluded from bidding for the 330 metre extension project. This would mean that for the next BOT container terminal in JN Port in future, the successful bidder of the 330 metre extension project would be excluded and so on.
It has also been decided that the above convention shall be followed in all Ports in its true spirit with a view to avoid monopoly and promote competition till such time a formal Policy is finalized and notified.”
11. As a result of the above, neither the appellant
nor its affiliates and/or subsidiaries/allied
organizations were permitted to participate in the
bid for the Stand Alone Container Terminal.
Thereafter, in the year 2000, the JNPT floated yet
another Tender for development of the Third
12
Container Terminal at JNPT, inviting Requests for
Qualification for selection of a developer for the
development of the said terminal in which it was
categorically mentioned as follows:
“JNPT is desirous of entrusting this project to a Licensee other than Maersk A/S-Concor Consortium and/or their subsidiaries/allied organizations including GTIPL.”
12. The explanation given for the insertion of the
said clause was to implement the Circular dated 26th
September, 2007. GTI’s plea to allow it to
participate in the bid was rejected. The appellant
was, therefore, subsequently barred from
participating in the Tender process for the
development of the Third Container Terminal at
JNPT. NSICT was, however, allowed to participate
in the said Tender process for the development of
the Third Container Terminal at the JNPT UN, but
such Tender has not yet been finalized.
13
13. In the meantime, on 2nd March, 2009, JNPT
floated Tender No. PD/N-14th CT/C-60/2009 and issued
a global invitation of a Request for Qualification
for development of the Fourth Container Terminal at
JNPT. The said Tender contained the following
clause.
“The successful bidder/consortium members and/or their subsidiaries/allied organiza- tions in the project for the development of a Stand Alone Container Handling Facility with a key length of 330 meters towards North at JNPT was to be excluded from the bidding in respect of Fourth Container Terminal either as a single applicant or as a consortium.”
14. On a plain understanding of the above mentioned
clause, neither the appellant nor its associate
companies/allied organizations and/or consortium of
GTI was precluded from participating in the said
Tender for the development of the Fourth Container
Terminal and raising its bid therein. The
appellant, thereupon, along with its letter dated
5th March, 2009, addressed to the JNPT, forwarded a
14
Demand Draft for Rs.10,000/- towards purchase of
the RFQ document for participation in the bidding
process for the Fourth Container Terminal. The
appellant was provided with a copy of the RFQ
documents, wherein, in Clause 2.2.1(e), it was
categorically stipulated as follows :
“2.2.1(e) To avoid private monopoly and to promote competition, the successful bidder/consortium members and/or their subsidiaries/allied organization in th project for the “Development of a stand alone contasiner handling facility with a quay length of 330-m towards North at NJPT” shall be excluded from the bidding for DEVELOPMENT OF FOURTH CONTAINER TERMINAL either as a single applicant or as a consortium. Further, for the next BOT container terminal in JN Port in future, the successful bidder/consortium members in the DEVELOMENT OF FOURTH CONTAINER TERMINAL Project would be excluded and so on.”
15. Even at this stage, JNPT did not preclude the
appellant from participating in the said tender in
respect of the Fourth Container Terminal at JNPT.
The appellant was, thereafter, invited to
15
participate in the process for grant of licence for
the Fourth Container Terminal. However, to the
surprise of the appellant, on 29th June, 2009, the
appellant was informed that GTI and/or its
associates/allied organizations had been
disqualified from bidding for the Fourth Container
Terminal in view of Clause 8.31 of the Licence
Agreement. As indicated hereinbefore, it was after
such decision that the appellant, who was worried
about the rights and entitlements arising out of
the said Circular, filed Writ Petition No.1551 of
2008 before the Bombay High Court on 29th July,
2009. The said Writ Petition was listed before the
Bombay High Court on 25th August, 2009, which
dismissed the same on 10th March, 2010, relying
solely on the provisions of Clause 8.31 of the
Licence Agreement, which disqualified the appellant
from participating in the Tender process relating
to the Third Container Terminal.
16
16. It is the said order of the High Court which
has been challenged in this appeal.
17. Appearing for the appellant, Mr. F.S. Nariman,
Senior Advocate, submitted that JNPT had awarded
NSICT, owned by P&O Ports, the licence for the
development of the First Container Terminal at
JNPT. Pursuant thereto, JNPT had entered into a
Licence Agreement dated 3rd July, 1997, with NSICT,
wherein Clause 2.3, which provided that the said
licence would not bar the licensee from
participating in any subsequent bids invited by the
licensor for operation of the container terminal,
was incorporated. Mr. Nariman submitted that
despite the 1996 Policy, which aimed at preventing
monopoly and promoting competition, the Licence
Agreement dated 3rd July, 1997, permitted NSICT to
participate in the subsequent bids invited by the
JNPT for operation of the Container Terminal.
17
18. Mr. Nariman submitted that on 26th September,
2007, the Union of India issued Circular No.
PD-12013/2/2005-JNPT to JNPT indicating that it
should invite global competitive bidding for an
independent, Stand Alone Container Terminal
involving a 330 meter extension of container berth
towards the North of JNPT. The said Circular
clarified that existing private Container Terminal
Operators in JNPT would also be entitled to bid for
any project but the JNPT was required to ensure
that private investment did not result in the
creation of private monopoly and that private
facilities were available to all users on equal and
competitive terms. Paragraph 5 of the 2007 Policy
clearly provided that the successful bidder of the
previous Container Terminal on BOT basis and/or
their subsidiaries/allied organizations, should be
excluded from bidding for the 330 meter extension
project. The immediate fall-out of the same would
mean that for the next BOT Container Terminal in JN
18
Port in future, the successful bidder of the 330
meter extension project would be excluded and so
on. What was also emphatically stated in paragraph
6 is that it had also been decided that the
aforesaid guideline should be followed in all Ports
in its true spirit with a view to avoiding monopoly
and promoting competition, till such time a formal
policy was finalized and notified. The 2007
Policy, therefore, provided that MAERSK S/T CONCOR
Consortium and/or their subsidiary/allied
organizations would be excluded from bidding for
the Third Container Terminal and the successful
bidder of the Third Container Terminal would be
excluded from bidding for the next project and so
on. Hence, a successful bidder would be ineligible
to bid for the next but one subsequent tender after
the immediate one awarded to it.
19. Mr. Nariman submitted that in accordance with
the guidelines contained in the 2007 Policy, the
19
appellant was specifically barred from
participating in the tender process for the
development of the Third Container Terminal at
JNPT. NSICT who was the successful bidder for the
first container was allowed to participate in the
tender process for the development of the Third
Container Terminal at JNPT, though the said tender
is yet to be finalised.
20. Certain problems arose when on 2nd March, 2009,
JNPT floated Tender No. PPD/M-1/4TH CT/C-60/2009 and
issued a global invitation for Request for
Qualification for development of the Fourth
Container Terminal at JNPT, which contained a
clause to the effect that the successful
bidder/consortium members and/or their
subsidiaries/allied organizations in the project
for the development of a “Stand Alone Container
handling facility with a Quay length of 330 meter
towards North at JNPT should be excluded from the
20
bidding for the development of the Fourth Container
Terminal either as a single applicant or as a
Consortium.
21. Mr. Nariman submitted that the Request for
Qualification excludes only the successful
bidder for the Third Container Terminal (which
is yet to be awarded) from bidding at the
tender for the development of the Fourth
Container Terminal. Consequently, the appellant
and/or its Associate Company/allied
organizations and/or consortium of GTI were not
precluded from participating in the tender for
the development of the Fourth Container
Terminal having been precluded from bidding for
the “Stand Alone” Container Terminal, in
accordance with the 2007 Policy. It was at
this stage that JNPT wrote to the appellant on
29th June, 2009, indicating that it has been
decided not to allow GTI Pvt. Ltd. and/or its
21
associates to participate in the bidding for
the Fourth Container Terminal. Mr. Nariman
further submitted that inspite of the decision
in NSICT’s case, wherein the Union of India had
relied on the 1996 Policy, it subsequently
changed its stand on the strength of the 2007
Policy indicating that having regard to Clause
8.31 of the Agreement the appellant was barred
from bidding for the Fourth Container Terminal.
22. It was submitted that the stand of JNPT was
clearly wrong, arbitrary and discriminatory.
It was further submitted that the apprehension
of the JNPT in regard to creation of monopoly
was erroneous and unrealistic since monopoly
means the power to determine one’s own prices.
In the case of Ports, the prices for various
Port Services are determined by the Tariff
Authority for the Major Ports (TAMP) and
periodically operators are required to submit
22
their proposed prices to TAMP and cannot charge
more than the TAMP approved prices for any of
their services. It was urged that without the
power to fix one’s own price, the question of
monopoly did not arise.
23. Mr. Nariman submitted that the problem has
arisen on account of the fact that the tender for
the Third Container Terminal is yet to be
finalised, and, in the meantime the tender for the
Fourth Container Terminal was floated.
Consequently, the Fourth tender was treated by the
concerned Respondents to be the tender for the
Third Container Terminal which meant that the
appellant Company stood disqualified from
participating in the said tender also, since under
the 2007 Policy it could only participate in the
next but one subsequent tender after the one
awarded to it, thereby suffering double prejudice
on account of no fault on its part. Mr. Nariman
23
submitted that to debar the appellant Company from
participating in both the Third as well as the
Fourth Container Terminals was not justified and it
should be allowed to participate in the Fourth
tender in accordance with Clause 2.3 of its Licence
Agreement. Furthermore, if the stand taken on
behalf of the Respondent was to be accepted,
despite the supersession of the 1996 Policy by the
2007 Policy, the appellant would also be barred
from participating in future tenders for 30 years
by virtue of Clause 8.31 of the Licence Agreement,
which would only have the effect of reducing the
extent of competition which is, in fact, the object
of the 2007 Policy of the Union of India.
24. Mr. Nariman also contended that Clause 8.31 of
the Licence Agreement had been imposed upon the
appellant based on the principles of public policy
and keeping in mind the then prevailing Policy of
the Government of India, i.e., the 1996 Policy and
24
not out of the free will of the parties. In any
event, Clause 8.31 of the Licence Agreement would
have to be read with the 2007 Policy and could not
be read in isolation.
25. Mr. Nariman urged that when the tender for the
Second Container Terminal was floated by the
Respondent No.2, it relied heavily on the 1996
Policy to prevent NSICT from bidding at the said
tender. When NSICT challenged the said decision by
filing a writ petition in the Bombay High Court,
the Respondents successfully urged before the Court
in the said Writ Petition that the 1996 Policy
would prevail over Clause 2.3 of the NSICT
contract. On the other hand, as stated
hereinbefore, in Writ Petition No.1551 of 2009
filed by the appellant, the Respondents took a
contrary stand by contending that Clause 8.31 of
the Licence Agreement would prevail over the 2007
Policy.
25
26. Mr. Nariman lastly contended that by allowing
the appellant to raise the technical bid and to
participate in the pre-bid meeting for the
development of the Fourth Container Terminal, the
Respondents had given the appellant cause for
legitimate expectation of being eligible to bid for
and be awarded the contract. Mr. Nariman submitted
that the Respondents had acted in a manner
engineered to preclude the appellant from
participating in the tender for the development of
the Fourth Container Terminal at JNPT.
27. Appearing for the Petitioner, PSA Sical
Terminals Ltd., in Transferred Case Nos.36-37 of
2010, learned Senior Counsel, Ms. Nalini
Chidambaram urged that, although, there was a good
deal of similarity in the issues raised in the
Special Leave Petition filed by APM Terminals B.V.
and the Transferred Cases filed by PSA Sical
Terminals Ltd., the substantial question in the
26
Transferred cases was whether a contractual right
could be superseded by a general policy decision
under Section 111 of the Major Port Trusts Act,
1963, without any legislation. In other words, in
the facts of this case, could the Petitioner with
whom a Licence Agreement had been signed on 15th
July, 1998, by the Respondent No.2, Tuticorin Port
Trust, with the previous sanction of the Central
Government under Section 42(3) of the Major Port
Trusts Act, 1963, be prevented from participating
in the tender for additional facilities in the
Tuticorin Port, by virtue of a policy decision
taken in the teeth of the provisions of the Licence
Agreement which vested the Licensee with the right
to participate in future tenders.
28. Ms. Chidambaram urged that after the policy of
liberalization adopted by the Central Government,
the Port Trusts permitted private operators to
operate Container Terminals on a Build, Operate and
27
Transfer basis, through a process of tender. PSA
Sical participated in the Tender invited by the
Tuticorin Port Trust in 1997 for operating the
Seventh Berth at Tuticorin, which was the First
Container Terminal and was granted licence to
operate the said Berth for 30 years. During the
subsistence of the guidelines issued by the
Government of India on 28th October, 1996, the
Tuticorin Port Trust entered into a Licence
Agreement with the Petitioner on 15th July, 1998, to
operate the Seventh berth and specifically granting
a right to the Petitioner to participate in any
subsequent bids invited by the said Trust for
operation of additional facilities in the same port
under Clauses 2.3 and 6.2.3 of the Licence
Agreement. For the sake of convenience, the said
two clauses in the Licence Agreement are reproduced
hereinbelow :
“2.3 License Period
28
The Licence Period shall be for the period of 30 years (including the time taken for the erection of container handling equipments at the Container Terminal) commencing from the Date of Award of License.
The license will not bar the licensee from participating in any subsequent bids invited by the licensor for development, designing, engineering, constructing, equipping, maintaining and operating any berth or related facility at the port”.
“6.2.3
The Licensor agrees that it shall not commission additional berths for handling containers until the traffic potential does not appear to exceed 90% of the maximum volume 1, 25,000 TEUs. Provided however that the Licensor shall always consider future expansions of the container berths to reasonably match the market demands and allow the Licensee to participate in its operation without any discrimination. This condition shall be applicable only within the port limits of the Licensor as notified under Indian Ports Act, 1908 and Major Port Trusts Act, 1963.”
29. Ms. Chidambaram submitted that it would,
therefore, be evident from the above clauses that
notwithstanding the 1996 guidelines, while
29
executing the Licence Agreement, the Tuticorin Port
Trust consciously granted the Petitioner a specific
right to bid in Tenders for future development in
the same port and did not consider that the same
would result in the creation of a private monopoly.
30. It was submitted that at about the same time,
the issue relating to the disqualification of Nhava
Sheva International Container Terminal (NSICT),
which was operating the Container Terminal at the
JNPT and its Associate or interconnected or sister
companies, including P&O Ports, from participating
in the bid for the re-development of the Bulk
Terminal into a Container Terminal at JNPT was
taken up for consideration by the Bombay High
Court. In the said matter, the JNPT took the
stand that since P&O Ports was controlling 48% of
the Container traffic in India and was operating
the existing private Container Terminals at
Jawaharlal Nehru Port Trust and Chennai, a policy
30
decision had been taken by the Port Trusts of the
JNPT to debar an existing operator from bidding for
the next Container Terminal with the object of
avoiding concentration of control in one party and
to increase competition and efficiency in the
public interest. The said proposal was forwarded
to the Central Government which approved the same
vide its letter dated 11th November, 2002.
31. Ms. Chidambaram submitted that since P&O Ports
and its associates were controlling 48% of the
Container business in India, the Bombay High Court
upheld the policy of the Central Government aimed
at preventing monopolisation of the container
business in India by a private party. Ms.
Chidambaram submitted that the appeal filed by P&O
Ports before this Court was also dismissed, with
this Court upholding the comprehensive guidelines
that were issued by the Government of India,
Ministry of Surface Transport on 26th October, 1996.
31
Ms. Chidambaram, however, urged that the P&O Ports’
case was decided on facts which were specific to
P&O Ports and could not, therefore, be treated as a
precedent for the Petitioner’s case. However, the
question as to whether a policy decision could
supersede the contractual right was not considered
by the Bombay High Court or by this Court.
32. Ms. Chidambaram submitted that on 31st May,
2005, the Tuticorin Port Trust invited Tenders for
development of Berth No.8 into a Container Terminal
and permitted the Petitioner to participate in the
tender process. The tender process remained
incomplete for over four years and in 2007 a draft
policy was formulated to promote inter port and
intra port competition in which it was stipulated
as follows :-
“Wherever the second terminal is to be set up at the same major port, or first terminal in an adjacent major port e.g. JN Port and Mumbai, Chennai and Ennore Ports, the existing terminal operator would be
32
excluded to ensure competition. If there are a minimum of two private operators in any major port, no restriction would be placed on the existing operators to bid for the subsequent terminal, subject to the condition that a single private operator will not be allowed to operate more than two terminals at the same Major Port including terminals at adjacent major port.”
33. Further to the aforesaid approved policy, the
Government of India wrote to the Tuticorin Port
Trust that it had been decided to debar the
existing operator, the Petitioner herein, who was
operating the first Private Terminal, from the
bidding process for the second Container Terminal
at Tuticorin Port in line with the aforesaid policy
decision. The Petitioner was, therefore, denied
permission from further participation in the tender
for the 8th Berth on account of the aforesaid
policy, notwithstanding the specific provision in
the Licence Agreement permitting the Petitioner to
participate in subsequent Tenders.
33
34. The Petitioner challenged the aforesaid
decision denying permission to the Petitioner from
participating in the bid for the 8th Berth in Writ
Petition No.9746 of 2009. The learned Single Judge
dismissed the Writ Petition relying on the decision
in the P&O Ports case. In the Writ Appeal No.996
of 2009 filed by the Petitioner against the
decision of the learned Single Judge of the Madras
High Court, it was submitted on behalf of the Union
of India that the need for having a second Private
Container Terminal had been reassessed and that it
had been decided to scrap the project at the RFP
stage itself. The Petitioner’s writ appeal was,
therefore, dismissed as infructuous.
35. Subsequently, the Union of India issued a new
policy guideline under Section 111 of the Major
Port Trusts Act, 1963, on 2nd August, 2010, and
immediately thereafter on 4th August, 2010, the
Tuticorin Port Trust floated re-tender for the 8th
34
Berth and restrained the Petitioner from
participating therein in keeping with the new
policy guidelines. Ms. Chidambaram submitted that
the 2010 Policy provided that if there was one
private Container/Berth Operator in a Port for a
specific cargo, the Operator of that Berth or his
Associates would not be allowed to bid for the next
Terminal/Berth for handling the same cargo in the
same Port. Ms. Chidambaram submitted that the
Petitioner was informed of the said decision of the
Tuticorin Port Trust by its letter dated 21st
August, 2010.
36. Aggrieved by the aforesaid decision to debar
the Petitioner from participating in the bidding
process for the 8th Berth/Container Terminal, the
Petitioner filed Writ Petition Nos.19384 of 2010
and 19851 of 2010, inter alia, for a direction upon
the Respondents to permit the Petitioner to
participate in the bid process for the development
35
of the 8th Berth at Tuticorin Port as a Container
Terminal and for a further direction upon the
authorities of the Tuticorin Port Trust to provide
the Request for Qualification documents and to
quash the decision not to provide the same.
37. In the background of the aforesaid facts, Ms.
Chidambaram contended that a right given to a
contractor could be nullified only by a legislation
specifically indicating that the agreement stood
nullified and not by a general policy decision.
Ms. Chidambaram submitted that while the 1996
Policy categorically indicated that the Port should
ensure that private investment did not result in
the creation of private monopolies, in the Licence
Agreement with the petitioner Clauses 2.3 and 6.2.3
were included giving the Petitioner a right to
participate in the bid for additional Container
Terminals in the same Port.
36
38. Ms. Chidambaram submitted that a draft Policy
was prepared by the Central Government on 10th
February, 2005, to promote inter port and intra
port competition, but the said Policy was never
notified and remained a draft. However, based on
the draft Policy, the Tuticorin Port Trust invited
tenders for the 8th Berth/Container Terminal at
Tuticorin and allowed the Petitioner to participate
in the tender process for about 3 years until it
suddenly took a unilateral decision to debar the
Petitioner from the bidding process on the strength
of a communication received from the Deputy
Secretary, Ministry of Shipping, dated 22nd May,
2009. Ms. Chidambaram submitted that in between
the aforesaid decision by which the Petitioner was
debarred from participating in the bidding for the
8th Berth/Container Terminal at Tuticorin, the Vizag
Port on 5th June, 2008, took a decision to shortlist
the existing BOT Operators while recording that the
same should not be taken as a precedent.
37
39. Ms. Chidambaram submitted that it was
unreasonable on the part of the Respondents to
debar the Petitioner from participating in the 8th
Berth/Container Terminal without formalising a
formal policy with regard to the intention of
promoting competition and avoiding monopoly. It
was also urged that P&O Ports, which had earlier
been debarred from participating in the bidding for
the Second Container Terminal at the JNPT, was
allowed to participate in the bid for the Third
Container Terminal, although the P&O Ports and its
Associates were controlling 48% of the Container
Terminal business in India and by allowing it to
participate in the Third Tender, the Central
Government was, in fact, going back on its desire
to eliminate monopoly by private Operators within
the Indian Ports.
40. Ms. Chidambaram urged that it would be apparent
from the changing policies adopted by the Central
38
Government that they were made to suit a particular
situation and possibly a particular tenderer. It
was submitted that even though the First Respondent
was entitled to change its policies from time to
time, such changes had to be informed by reason,
which was absent in the instant case. Ms.
Chidambaram added that the decision in the P&O
Ports’ case could not be taken to be a precedent as
far as the Petitioner, PSA Sical Terminals Ltd.,
was concerned, since P&O Ports was not a party to
the Licence Agreement at JNP and had no contractual
right to bid for the Second Container Terminal
there. Although, NSICT had such a right in view of
Clause 2.3 of its Licence Agreement to bid for
Container Terminal No.7, it did not assert its
right and the same was not also considered in the
judgment delivered by the High Court.
41. In support of her submissions, Ms. Chidambaram
first referred to the decision of this Court in
39
Delhi Cloth & General Mills Ltd. Vs. Rajasthan
State Electricity Board [(1986) 2 SCC 431], wherein
the High Court had quashed the decision of the
Rajasthan Electricity Board to charge uniform
tariff despite the prevailing concessional rates
granted to a consumer under an agreement, upon
holding that only a legislative amendment could
override a contractual right by specifically
overriding the contractual terms. Ms. Chidambaram
also referred to the decision of this Court in PTC
India Ltd. Vs. Central Electricity Regulatory
Commission [(2010) 4 SCC 603], wherein, in the
context of determination of tariff under the
Electricity Act, 2003, this Court held that the
making of a Regulation under Section 178 of the Act
became necessary because a Regulation made under
Section 178 had the effect of interfering with and
overriding the existing contractual relationship
between the regulated entities. This Court held
that a Regulation under Section 178 is in the
40
nature of subordinate legislation which could even
override the existing contracts, including Power
Purchase Agreements, which had to be aligned with a
Regulation under Section 178 and could not have
been done only on the basis of an order of the
Central Commission.
42. Ms. Chidambaram reiterated that while the
Central Government was entitled to alter its
policies regarding participation of candidates in
the bid process for the Second Container Terminal
at the Tuticorin Port, such alteration would have
to be informed by reason and not on the whims of
the authorities, which is so apparent in the facts
of the present case. Accordingly, in the absence
of a formal policy regarding the participation of
candidates in the bid process for the Second
Container Terminal of the Tuticorin Port Trust and,
in particular, the Petitioner, which was covered by
Clause 2.3 of the Licence Agreement, the Petitioner
41
could not have been barred from participating in
the tender process for being awarded the contract
for the Second Container Terminal at Tuticorin
Port. Ms. Chidambaram submitted that the decision
of the Tuticorin Port Trust Authorities to debar
the Petitioner from participating in the tender
process suffered from the view of Wadnesbury
unreasonableness and was liable to be quashed.
43. The learned Solicitor General, Mr. Gopal
Subramaniam, appearing for the Union of India in
both the matters, submitted that the case of the
appellant, APM Terminals B.V., and that of the
Petitioner, PSA Sical Terminals Ltd., stand on a
similar footing, despite Ms. Chidambaram’s efforts
to prove otherwise. The learned Solicitor General
submitted that the same policy decisions taken by
the Central Government in regard to private
participation in the development and operation of
Container Terminals in the Major Indian Ports
42
governed both the cases, though at different ports.
The learned Solicitor General submitted that on 26th
October, 1996, the Union of India issued guidelines
for all Major Port Trusts regarding private sector
participation in the major ports. In the preamble
of the said guidelines it was indicated that in
order to improve efficiency, productivity and
quality of service, as well as to bring in
competitiveness in port service, it had been
decided to throw open the port sector to private
sector participation. It was, however, made clear
in Clause 4 of the policy statement that ports
would have to ensure that private investment did
not result in the creation of private monopolies
and that private facilities were available to all
users on equal and competitive terms.
44. Pursuant to the said policy decision, the JNPT
decided to convert the Bulk Terminal which had been
commissioned on 26th May, 1989, and had been
43
designed to handle imported fertilizers, fertilizer
raw materials and food grains through mechanized
bulk handling facilities, into a Container Terminal
on Build, Operate and Transfer (BOT) basis on
licence for a period of 30 years. Tenders were
invited and, ultimately, NSICT proved successful
and was granted such licence by the JNPT for the
First Container Terminal. The learned Solicitor
General submitted that at the said point of time,
Clause 2.3 was included in the Licence Agreement
which provided that the Licence Agreement to NSICT
would not prevent it from participating in any
subsequent bid invited by JNPT for operation of
Container Terminals. However, in order to give
effect to its policy decision to prevent private
monopolisation, the JNPT floated another Tender on
28th October, 2002, for construction of a Second
Container Terminal in which Clause 1.3 of the
Tender documents provided that JNPT was desirous of
entrusting the project to another Licensee other
44
than the existing Licensee at JNPT or its
associates and interconnected or sister companies.
The learned Solicitor General submitted that in the
said process, GTI, a Joint Venture Company of APM
Terminals and CONCOR proved to be the successful
bidder.
45. Mr. Subramaniam also indicated that Clause 1.3,
referred to hereinabove, was challenged by NSICT in
Writ Petition No.3083 of 2002, before the Bombay
High Court which dismissed the same and upheld the
decision to exclude NSICT. The said decision of
the Bombay High Court was also upheld by this
Court.
46. The learned Solicitor General submitted that in
the agreement entered into with GTI it was
specifically mentioned in Clause 8.3 that the
Licensee would forego the right to bid for, either
directly or indirectly, the additional facilities
or existing facilities, during the term of the
45
agreement. It was submitted that certain other
conditions were also stipulated in the said clause
which were aimed at preventing private
monopolisation of the facilities of the port.
47. The learned Solicitor General submitted that in
keeping with its aforesaid policy decision, while
allowing the JNPT to invite Global Tenders for a
“Stand Alone” project, the Central Government
reminded JNPT of the Government policy formulated
in October, 1996, to ensure that private investment
did not create private monopolies. It was also
clarified that the policy adopted to exclude the
existing container operator from the tender for the
next container, would continue till such time a
formal policy was finalised and notified. It was
submitted that in the light of such decision, a
Global invitation was issued by JNPT on 2nd March,
2009, for development of the Fourth Container
Terminal at JNPT, and those who had been permitted
46
to participate for the Third Container Berths were
excluded. The learned Solicitor General submitted
that it was only a question of fortuitous
circumstances which resulted in the tender for the
Third Container Terminal remaining unfinalised.
Since GTI had been granted licence for the Second
Container Terminal, it was only in keeping with the
policy decision of the Respondents that the
appellant, APM Terminals B.V., was barred from
participating in the Tender for the Third Container
Terminal and was allowed to participate in the bid
for the Fourth Container Terminal. If the Tender
process for the Third Container Terminal had been
concluded, the present situation would not have
arisen. It is only because of the fact that the
Tender for the Third Container Terminal could not
be concluded that the Tender for the Fourth
Container Terminal was treated to be the Tender for
the Third Container Terminal and as a result, the
appellant stood disqualified.
47
48. The learned Solicitor General submitted that
the Central Government was only following its
decision to ensure healthy competition and to
prevent the concentration of control of the Major
Port Trusts in the hands of the private sector
which could result in unintended discrimination,
since the private operators had been given the
right to give priority berthing to their own ships
and other ships could be serviced on a ‘First come
First served’ basis.
49. Countering the submissions made by Mr. Nariman
and Ms. Chidambaram regarding the doctrine of
legitimate expectation and the right of the
Government to alter its policy, the learned
Solicitor General referred to the decision of this
Court in Punjab Communications Ltd. Vs. Union of
India & Ors. [(1999) 4 SCC 727], wherein, it was
held that a change in policy could defeat a
substantive legitimate expectation if it could be
48
justified on Wednesbury reasonableness. The
learned Solicitor General, therefore, submitted
that the decision taken by the Government to
prevent private monopoly in the handling of port
activities was fully justified and could have an
overriding effect over contractual terms arrived at
by the Government with a private party.
50. On behalf of the JNPT, it was submitted by Mr.
Vikas Singh, learned Senior Advocate, that the
challenge thrown to the order passed by the Bombay
High Court, upholding the decision of JNPT to
exclude the appellant from participating in any
Tender for development of the port facilities for a
period of 30 years from the date of signing of the
agreement, was fully justified. Mr. Vikas Singh
submitted that in view of Clause 8.3.1 of the
Agreement entered into between JNPT and the
appellant, it was not open to the appellant to
resile from the same. Furthermore, global tenders
49
had been invited for the construction of the Fourth
Container facility on 2nd March, 2009 and as per the
said agreement, the appellant remained ineligible
to participate in the said Tender also. Mr. Vikas
Singh submitted that it is no doubt true that
originally the appellant was provided with RFQ
documents, but subsequently it was informed that in
view of Clause 8.3.1 in its Agreement dated 10th
August, 2004, it was not entitled to participate in
the tender process for the Fourth Container
facility.
51. While adopting the submissions made by the
learned Solicitor General, Mr. Vikas Singh also
submitted that since the Tender for the Third
Container facility had not been proceeded with, the
Tender for the Fourth Container Terminal would be
treated to be the Tender for the Third Container
Terminal from which the appellant and its
50
associates stood excluded on account of the
existing policy dated 26th September, 2007.
52. Mr. Vikas Singh submitted that while deciding
the Writ Petition filed by NSICT, neither the
Bombay High Court nor this Court had the benefit of
the subsequent Constitution Bench decision of this
Court in PTC India Limited Vs. Central Electricity
Regulatory Commission [(2010) 4 SCC 603], in which
this court had held that “regulatory intervention
into the existing contracts across-the-board could
have been done only by making Regulations under
Section 178 and not by passing an Order under
Section 79(1)(j) of the 2003 Act”. Mr. Vikas Singh
submitted that the appeal filed by APM Terminals
B.V. was without merit and was liable to be
dismissed.
53. We have carefully considered the submissions
made on behalf of the respective parties and are ad
idem with the learned Solicitor General that the
51
appeals and the Transferred Cases raise the same
issue and the only difference between the two is
that the appellant had not referred to or sought
the benefit of Clause 2.3 of its agreement, which
permitted it to participate in future tenders in
relation to development work within the port area,
while in the petitioner’s case the same formed the
main plank of its claim. In substance, the
question that we are faced with is whether despite
the contractual right vested in the appellant as
well as in the petitioner in the Transferred cases
to participate in future tender processes for
developmental work within the port area, such right
could be taken away and/or curtailed by a
unilateral policy decision of the Central
Government. The further question in the case of
the appellant is whether having been debarred from
participating in the bid for the Third Container
Terminal in JNPT, it could also be excluded from
the bidding process of the Fourth Container
52
Terminal.
54. Both the Bombay High Court as well as this
Court have held that in public interest it was open
to the Government to alter its policies in order to
subserve the common good and that contractual
rights would have to give way to the greater public
interest, which in this case was to prevent the
creation of private monopolies in the management of
port facilities in the Major Ports in the country,
as this could have far-reaching and disastrous
consequences as far as shipping in such ports was
concerned. As already indicated hereinabove, the
policy decision of 26th October, 1996, made
provision for privatisation and also gave private
operators the right to give priority berthing to
their own ships. The said decision had the
potential of substantially disrupting the schedule
of other ships intending to use the port facilities
and could discourage foreign ships from coming to
53
Indian Ports and thereby disturb the very pattern
of the shipping trade in India.
55. While disposing of Writ Petition No.8083 of
2002, filed by P&O Australia Ports Pty. Limited
against the Board of Trustees of JNPT, the Division
Bench of the Bombay High Court examined the
question raised herein at length. It found that
the appellants were handling container terminals in
Karachi and Sri Lanka and also at JNP and Chennai,
thereby exercising control over 48% of the
container traffic in India. The High Court held
that the two existing terminals at JNP and Chennai
are the biggest container terminals in the country
and if the appellant and the petitioner in the
Transferred Cases were permitted to operate the new
container terminals also, they would have virtual
monopoly of the container traffic in the entire
country which would not be in the public interest.
54
56. The High Court also took note of the fact that
certain shipping agents and their associates had
expressed concern regarding the increased tariff
charged by the appellant at its container terminals
at JNP and the possibility of a monopoly being
created by it in the country. The High Court took
note of the fact that port authorities all over the
world had woken up to the possibility of private
monopolies controlling the use of port facilities
in such a manner so as to benefit their own ships
to the detriment of world-wide shipping as a whole.
The High Court took note of the fact that P&O Ports
itself had been excluded from bidding for the Third
Container Terminal in the Port of Melbourne on the
ground that it would give the said operator a
position of dominance which was to be avoided in
the interest of the shipping industry at large.
Two other examples of Port Klang in Malaysia and
Bhabange Port in Thailand, were also taken note of
by the Bombay High Court where different
55
independent operators were appointed to promote
competition.
57. It is precisely for such reason that it had
become necessary for the Central Government to
alter its policy decision regarding entrusting
control of the container terminals in the major
ports of India in a manner so as to eliminate
monopolisation and to encourage competition. The
decision of the High Court was duly endorsed by
this Court in SLP(C)No.7488 of 2003 and it was
observed that the High Court had rightly dismissed
the writ petition.
58. Insofar as the decision taken by the Central
Government to alter its policy regarding the grant
of licence for operating the container terminals in
the Major Ports in India as against the contractual
right embodied in the form of Clause 2.3 in the
agreements executed or entered into between the
Central Government and the appellant and the
56
petitioner in the Transferred Cases, is concerned,
the said controversy is no longer valid in regard
to the appellant, since such point had not been
taken on its behalf in the writ petition before the
Bombay High Court. However, the same has been
taken as a specific point on behalf of the
petitioner in the Transferred Cases as far as the
Tenders for the Second Container Terminal at the
Tuticorin Port are concerned. The said question
has to be considered in the light of Article 14 of
the Constitution and the greater public interest as
against the contractual right of the individual.
59. The provisions of Clause 2.3 in the Agreements
signed between the Tuticorin Port Trust and PSA
Sical cannot be read in isolation of the other
provisions in the agreement which prevented the
Licensee from bidding for other work within the
port area during the period of the licence. In
fact, in our view, the change in policy to prevent
57
private mobilization has been held to be justified
by the Bombay High Court as well as this Court. In
the absence of any arbitrariness in effecting such
change in policy and keeping in mind the larger
public interest, we are of the view, that the
Central Government was within its powers to strike
a balance with regard to the control of the port
facilities so that the same did not come to be
concentrated in the hands of one private group or
consortium which would be in a dominant position to
control not only the rights of tariff, but also the
entry of ships, not belonging to such group, into
the Major Ports and thereby give an undue advantage
to its own ships over other shipping agencies.
60. Normally, the Courts do not interfere with
policy decisions of the Government unless they are
arbitrary or offend any of the provisions of the
Constitution. In the present cases, the adoption
of such a course would, in our view, be apposite.
58
61. It has been the consistent view of this Court
that a change in policy by the Government can have
an overriding effect over private treaties between
the Government and a private party, if the same
was in the general public interest and provided
such change in policy was guided by reason.
Several decisions have been cited by the parties in
this regard in the context of preventing private
manopolisation of port activities to an extent
where such private player would assume a dominant
position which would enable them to control not
only the berthing of ships but the tariff for use
of the port facilities. In both the cases under
consideration, the same set of entrepreneurs are
interested in gaining control over the different
container terminals to the exclusion of other
players. The Central Government in its Ministry of
Shipping and Transport, therefore, took a decision
not to permit licensees who have been granted a
licence for running one of the container terminal
59
berths from participating in the bid process for
the immediate next container terminal, with the
intention of promoting healthy competition for the
benefit of the shipping industry and the ports in
India as well. The decision to alter its policy is
based on sound reasoning and the Central Government
has taken such decision for the benefit of the
consumers as a whole. The changed policy would
also have the effect of preventing cartelisation
and dominant status, which could inevitably affect
the ultimate pricing of consumer goods within the
country. As was held in Shimnit Utsch India
Private Ltd. Vs. West Bengal Transport
Infrastructure Development Corporation Limited and
Ors. [(2010) 6 SCC 303], the Government was
entitled to change its policies with changing
circumstances and only on grounds of change a
policy does not stand vitiated.
60
62. It was further held that Government has the
discretion to adopt a different policy, alter or
change its policy to make it more effective. The
only qualifying condition is that such change in
policy must be free from arbitrariness,
irrationality, bias and malice and must be in
conformity with the principle of Wednesbury
reasonableness. Although, it has been urged by Ms.
Chidambaram that such change in policy could be
effected only by way of legislation, such a
submission, if accepted, could stultify the powers
of the Central Government to alter its policies
with changing circumstances for the benefit of the
public at large. It is not as if the right of a
licensee to bid for a further container terminal
berth has been excluded for the entire period of
the Licence Agreement but in order to ensure proper
competition and participation by all intending
tenderers, the said policy has also been altered to
61
enable such licensees to bid for the next but one
tender as and when invited.
63. However, as far as the appellant is concerned,
it is because of certain fortuitous circumstances
that it came to be excluded from the tender process
for the Fourth Container Terminal. If the tender
process for the Third Container Terminal had been
concluded, the various complications could have
been avoided since under the revised policy, the
appellant was entitled to participate in the
alternate bids. The appellant having been excluded
from one bid on the basis of an existing policy,
cannot be debarred from participating in the next
bid, by taking recourse to a different yardstick.
Such a course of action would be contrary to public
policy. Accordingly, the authorities of the JNPT
shall allow the appellant to continue to
participate in the tender process for the Fourth
Container Terminal and the decision to the contrary
62
conveyed to the appellant on 29th June, 2009, is
quashed.
64. As far as PSA Sical Terminals Ltd. is
concerned, Ms. Chidambaram’s submission as to the
applicability of the doctrine of legitimate
expectation is at best an expectation if there are
cogent grounds to deny the same. The said doctrine
has been explained by this Court in Sethi Auto
Service Station Vs. Delhi Development Authority
[(2009) 1 SCC 180], and it was held that the
appellant in the said case had certain expectations
which were duly considered and favourable
recommendations had also been made, but the final
decision-making authority considered the matter
when the policy had undergone a change and the
cases of the appellants therein did not meet the
new criteria for allotment laid down in the new
policy. It was also observed that the concept of
legitimate expectation has no role to play where
63
State action is based on public policy and in the
public interest, unless the action taken amounted
to an abuse of power.
65. As we have indicated earlier, the Central
Government was within its powers to adopt a policy
to prevent the port facilities from being
concentrated in the hands of one private group or
consortium which could have complete control over
the use of the facilities of the ports to the
detriment of the shipping industry as a whole. The
decision taken by the Tuticorin Port Trust
Authorities to exclude PSA Sical Terminals Ltd.
from bidding for the 8th Berth Container Terminal
cannot, therefore, be said to be arbitrary or
unreasonable so as to warrant interference. In
fact, the position of PSA Sical Terminals Ltd. is
no different from that of A.P.M. Terminals B.V.
which had been excluded from the bid for the Third
Container Terminal at JNPT.
64
66. In the aforesaid circumstances, the appeal
filed by APM Terminals BV is allowed and the
decision of the Bombay High Court is set aside.
However, we are also of the view that the decision
of the Madras High Court does not call for any
interference and the Transfer Cases filed by PSA
Sical Terminals Limited are accordingly dismissed,
but without any order as to costs.
66. All interim orders are vacated.
………………………………………………J. (ALTAMAS KABIR)
………………………………………………J. (CYRIAC JOSEPH)
New Delhi, Dated: 11.05.2011.
65