Bombay High Court imposes ₹5 lakh costs on Adani Ports, dismisses plea against disqualification in tender process

The Bombay High Court on Monday imposed costs of ₹5 lakh on Adani Ports and Special Economic Zone Limited (Adani) while dismissing its plea challenging the disqualification of its bid in connection with the tender issued by the by the Board of Trustees of Jawaharlal Nehru Port Authority (JNPA) for upgradation of its container terminal in Navi Mumbai [Adani Ports and Special Economic Zone Limited v. Board of Trustees of Jawaharlal Nehru Port Authority & Ors.]."The decision of JNPT to disqualify the petitioner (Adani) after having once declared it as qualified, to our mind, conforms to the settled law that JNPT was bound by the tender terms and conditions, which amounts to a representation to the public, and that any deviation would have amounted to a fraud on public," the bench of Chief Justice Dipankar Datta and Justice MS Karnik held.The Court also held that since Adani brought an unmeritorious case for adjudication, it shall bear the costs of the proceeding, assessed at ₹5 lakhs.The Bench was informed that Adani had remitted to JNPA an amount of ₹4,24,800 which had not been forfeited by JNPA. Accordingly, JNPA was permitted to retain such amount and Adani was directed to pay the balance amount of ₹75,200 within a month from today.Status quo on the order, as requested by Adani, was also refused..JNPA had issued a global invitation calling for applications from interested parties for operation and maintenance of their container terminal for a period of 30 years.Before the procedure for bidding could begin, the Board sent a notice to the company asking them to show cause why they should not be disqualified from said tender.The basis for this notice was an order of the Andhra Pradesh High Court they came across by which the High Court had upheld the termination of the concession agreement by the Vishakhapatnam Port Trust (VPT).Adani responded to the notice, and was granted personal hearing by the Board. After such hearing, Adani requested for a 'without prejudice' participation in the bid.However, the Board on May 2, addressed a letter to Adani that as VPT has issued termination letter to them, it has been disqualified from participating in the present tender process.The present plea was filed against the same..Adani submitted that it is a multi-location port developer and operator managing over 10 ports and 60 terminals in the country, which indicated that there could not have been an iota of doubt on their financial or technical capabilities.They moved the Court urgently seeking to restrain the Board of Trustees of JNPA from declaring the highest bidder under the tender or signing the concession agreement with any other bidder.Meanwhile JNPA sought dismissal of the plea stating that its decision as a tendering authority was not subject to judicial review as courts lacked the technical expertise to examine the conditions mentioned in the tenders.JNPA contended that the project involved an investment of over ₹827 crores was of great national and public importance.It was because of this, that JNPA had taken measures to choose the right bidder..Senior Advocates Ravi Kadam and Vikram Nankani with advocates Bulbul Singh, SS Jan, S Manek and A Dhabolkar briefed by M/s. Crawford Bayley & Co appeared for Adani.Senior Advocate Venkatesh Dhond with Advocates Saket Mone, Abhishek Salian and Devansh Shah briefed by Vidhii Partners appeared for the JNPA..[Read judgment]