1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.6513 of 2008 ABG Infralogistics Ltd. Petitioners Vs. The Trustees of Jawaharlal Nehru Port Respondents Mr.S.Venkiteswaran, Sr.Advocate with Ms.S.Priya, Mr.Ranjeet Sangle and Mr.Abhimanyu Sing for petitioners. Mr.Venkatesh Dhond with Mr.Milan Bhise i/b. M/s. Milan Bhise & Co. for respondents. CORAM: BILAL NAZKI & S.J.VAZIFDAR,JJ. October 8, 2008. P.C. 1. Rule. Returnable forthwith. Respondents waive service. With the consent of the counsel and the parties, the petition is heard finally. 2. The petitioners are a company specialized in the development of infrastructure associated with the ports in India. The respondents decided to develop a Stand-alone Container-handling Facility with a key length of 330 metres towards north at their port on Design, Build, Finance, Operate and Transfer (DBFOT) 2 basis. For this they issued a Request for Qualification document in June 2008. The petitioner also applied for consideration. The writ petition is in a very narrow compass as it relates to interpretation of a clause in the Request for Qualification document. According to the petitioners, they are qualified to be considered, whereas the respondents maintain that they are not qualified. The clause that is the subject matter of difference between the petitioners and respondents is Clause 2.2.3 which reads as under: "2.2.3 2.2.3 2.2.3 O & M Experience: O & M Experience: O & M Experience: The Applicant shall (in the case of a Consortium) include a member having at least 26% (Twenty six percent) equity participation in the Project company / SPV, who has experience of five years or more in operation and maintenance (O&M) of Category I projects specified in Clause 3.2.1, with an aggregate capital cost equal to Rs.600,00,00,000 (Six Hundred Crores). In case the Applicant is not a Consortium, it shall be eligible only if it has equivalent experience on its own. In the absence of such experience, the Applicant shall, for a period of at least 5 (five) years from the date of commercial operation of the project, undertake to enter into an operations and maintenance (O&M) agreement with an entity having equivalent experience, failing which the Concession Agreement shall be liable to termination." 3. The learned Senior Counsel for the petitioners contends that mere perusal of this clause shows that 3 it lays down three categories of persons who can be held to have O&M experience. The first category would be a consortium which must include a member having at least 26 % equity participation in the project company who in turn has the stipulated experience. The second category would be an individual with the same experience as such a consortium. The third category would be an applicant who for a period of five years from the date of the project undertakes to enter into an Operation and Maintenance agreement with an entity having equivalent experience. The consequence of failure in this category is that the agreement is liable to termination on that ground. 4. The contention of the counsel for the petitioners is that the third category is in fact by way of an exception for the benefit and may be availed of by applicants of both, the first and the second categories. It was submitted that the O&M experience is necessary for both the first and the second categories. Thus if an applicant, whether a consortium or an individual does not have the requisite experience, the applicant is given an option to give an undertaking that the applicant will enter into an Operation and Maintenance agreement with an 4 entity having the equivalent experience for the stipulated period. 5. The learned counsel for the respondents submits that the benefit of the third category is available only to applicant of the second category. Since a consortium is made of several persons or several entities, it is expected to have at least one member with an equity participation not less than 26 % having the requisite experience. An individual on the other hand has to rely on himself. Therefore, this concession is applicable to an individual alone. 6. Therefore, the only question to be decided by us is whether the concession given in the third part of Clause 2.2.3 is available to individuals alone or whether it is available to a consortium as well as individuals. 7. We do not find the interpretation of Clause 2.2.3 placed by the learned counsel for the respondents to be correct. As rightly pointed out by the learned counsel appearing for the petitioners this concession is available to an applicant and an applicant is defined in Clause 2.2.1 to include a 5 consortium. The clause itself is in three parts. The third part which gives a concession refers to an applicant and an applicant is defined in Clause 2.2.1 to include a consortium. On a plain reading of Clause 2.2.3 therefore the benefit of the third part applies to both types of applicants - a consortium and to an individual. 8. We are also told that out of the four Port Trusts in the country, the other three Port Trusts have also interpreted Clause 2.2.3 in this manner. This is not denied in the counter affidavit. The respondents however have maintained that they are not bound by the interpretation placed on this clause by the other Port Trusts in the country. Since this interpretation is being followed by three Port Trusts and on the first principles, and for the reasons stated above we feel that the only interpretation that can be placed on Clause 2.2.3 is that the applicant in the third part thereof would include and individual as well as a consortium. 9. In the result, we hold that the petitioner is eligible to be considered in terms of Clause 2.2.3. The Writ Petition is accordingly allowed with 6 directions to the respondents to consider the bid of the petitioner, subject to other considerations and conditions being satisfied. Rule is made absolute accordingly. (S.J.VAZIFDAR,J.) (BILAL NAZKI,J.)