Case: Apm Terminals B.V., A Company Incorporated Under Dutch Laws, Having Their Registered Office At The Hague Vs. Union of India, Through The Ministry of Shipping Having Its Office At Transport Bhuvan &amp; Another

agreement came to be entered into between the parties pursuant to the guidelines issued in the year 1996 by Ministry of Shipping to be followed by the Ports for Private Sector Participation in Major Ports so as to ensure that private investment does not result in creation of private monopoly. Thereafter the Ministry of Shipping has issued guidelines under letter No. PD12013/ 2/2005JNPT dated 26.9.2007 wherein it has been mentioned that a formal policy is to be finalized and notified and in the meantime in view of subsequent change in the policy carried out by the Government, the blanket restriction was modified and accordingly as per 2007 policy even existing contractors were permitted to bid for setting up of a container terminal at the same port albeit for the next but one already awarded to the successful contracting party and, therefore, the petitioner was also to be extended the benefit of the 2007 policy. It has been specifically pointed out that the Union of India had succeeded in debarring the petitioner from participating in the bid on account of 1996 policy but permitted NSICT to bid for the third container terminal in keeping with 2007 policy as they were also to bid for the fourth container terminal and, therefore, the petitioner has been denied illegally, arbitrarily and in wholly discriminatory manner the right to bid for the tender for the fourth container terminal. 35. It is further contended that even otherwise it being an adhoc policy, the respondents ought to have given a liberal construction to clause 8.31 as it was done in the case of NSICT. 36. It is submitted that the stand taken by the respondents by enforcement of clause 8.31 goes contrary to the well accepted principle of reasonableness. 37. In so far as the case of the petitioner that due to change in the policy which is still an adhoc decision, causes unreasonable restriction, has to be put to test by considering the policy which was in vogue on the date when the parties entered into the contract and the said restriction was imposed and on the relevant date i.e. 10.2.2004 when GIT which was a joint venture company of the petitioner and Container Corporation of India Ltd., and at the relevant time the 1996 police was in vogue and in keeping with the said policy, the respondent no. 2 have inserted clause 8.31 into the license agreement dated 10.8.2004 between GTI and Respondent No. 2 and, therefore, the petitioner cannot raise a plea that it operates unfairly in the circumstances on the unveil of new policy as issued in the circular of 2007 for the reason that the petitioner as well as others who participated in the tender have entered into the contract being fully aware of the Respondent No. 2 restraining the successful party to be awarded the contract to bid for similar contract for a period of 30 years in future and the said restriction was evenly applicable to all who participated in the tender process. Now having entered into a contract, the petitioner cannot be permitted to invoke the test of reasonableness by pleading doctrine of proportionality on having lost their right to participate in the subject contract which is much more substantial than what they received by entering into. It was for the petitioner to weigh the pros and cons before entering into the contract. 38. A subsequent change in the public policy will not exonerate the petitioner from the covenant, that the same will continue to operate during the continuance of the contract and there is no provision in the contract that in such a contingency the covenant imposing restraint on the right of the petitioner to bid for future contract will not be applicable nor the circular of 2007 provides for discharging the covenant of restraint in the contract entered into between the parties as per the policy of 1996. 39. It is a well accepted principle of restaint of trade, if reasonably necessary, shall prevail unless contrary to public policy. It is not the matter of debate that the policy that was in vogue at the time was not in larger public interst and, therefore, it cannot be said, as tried to be contended, that clause 8.31 of the agreement dated 10.8.2004 with JNPT for the development of an existing bulk Terminal at JNPT into a Container Terminal on BOT basis was not part of the contract and was inserted under duress. A person after claiming a contract taking into accounts its term, cannot later be allowed to assail validity of its terms or the rules constituting the terms of the contract by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India. It is now well settled by catena of decisions Orissa State Financial Corporation vs. Narsingh Ch. Nayak & Ors. (2003) 10 SCC 261 that Court cannot rewrite or replace an existing contract by passing directions under its power of writ jurisdiction. The Additional Solicitor General appearing for the respondents has pointed out that if at all the petitioners find that the terms of the contract require any modification the same cannot be sought in this petition as the agreement dated 10.8.2004 itself provides for in house remedy for settlement of disputes and that the appropriate forum for modifying the terms of the contract would be either to go to Civil Court or invoke the arbitration clause in the agreement. [(i) State of Orissa and others. vs. Narain Prasad and others (1996) 5 SCC 740 and (ii) Pimpri Chinchwad Municipal Corporation and Others vs. Gayatri Construction Company and Another, (2008) 8 SCC 172. 40. We, therefore, do find that the decision of the respondents to disqualify the petitioner from bidding for the tender by referring to clause 8.31 of the license agreement dated 10.8.2004 entered into between M/s. Gateway Terminal India Private Limited and the respondent no. 2 is just and proper. The same does not call for any interference.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]37. In so far as the case of the petitioner that due to change in the policy which is still an adhoc decision, causes unreasonable restriction, has to be put to test by considering the policy which was in vogue on the date when the parties entered into the contract and the said restriction was imposed and on the relevant date i.e. 10.2.2004 when GIT which was a joint venture company of the petitioner and Container Corporation of India Ltd., and at the relevant time the 1996 police was in vogue and in keeping with the said policy, the respondent no. 2 have inserted clause 8.31 into the license agreement dated 10.8.2004 between GTI and Respondent No. 2 and, therefore, the petitioner cannot raise a plea that it operates unfairly in the circumstances on the unveil of new policy as issued in the circular of 2007 for the reason that the petitioner as well as others who participated in the tender have entered into the contract being fully aware of the Respondent No. 2 restraining the successful party to be awarded the contract to bid for similar contract for a period of 30 years in future and the said restriction was evenly applicable to all who participated in the tender process. Now having entered into a contract, the petitioner cannot be permitted to invoke the test of reasonableness by pleading doctrine of proportionality on having lost their right to participate in the subject contract which is much more substantial than what they received by entering into. It was for the petitioner to weigh the pros and cons before entering into the contract.A subsequent change in the public policy will not exonerate the petitioner from the covenant, that the same will continue to operate during the continuance of the contract and there is no provision in the contract that in such a contingency the covenant imposing restraint on the right of the petitioner to bid for future contract will not be applicable nor the circular of 2007 provides for discharging the covenant of restraint in the contract entered into between the parties as per the policy of 1996.It is a well accepted principle of restaint of trade, if reasonably necessary, shall prevail unless contrary to public policy. It is not the matter of debate that the policy that was in vogue at the time was not in larger public interst and, therefore, it cannot be said, as tried to be contended, that clause 8.31 of the agreement dated 10.8.2004 with JNPT for the development of an existing bulk Terminal at JNPT into a Container Terminal on BOT basis was not part of the contract and was inserted under duress. A person after claiming a contract taking into accounts its term, cannot later be allowed to assail validity of its terms or the rules constituting the terms of the contract by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India. It is now well settled by catena of decisions Orissa State Financial Corporation vs. Narsingh Ch. NayakOrs. (2003) 10 SCC 261     that Court cannot rewrite or replace an existing contract by passing directions under its power of writ jurisdiction. The Additional Solicitor General appearing for the respondents has pointed out that if at all the petitioners find that the terms of the contract require any modification the same cannot be sought in this petition as the agreement dated 10.8.2004 itself provides for in house remedy for settlement of disputes and that the appropriate forum for modifying the terms of the contract would be either to go to Civil Court or invoke the arbitration clause in the agreement. [(i) State of Orissa and others. vs. Narain Prasad and others (1996) 5 SCC 740     and (ii) Pimpri Chinchwad Municipal Corporation and Others vs. Gayatri Construction Company and Another, (2008) 8 SCC 172.  40. We, therefore, do find that the decision of the respondents to disqualify the petitioner from bidding for the tender by referring to clause 8.31 of the license agreement dated 10.8.2004 entered into between M/s. Gateway Terminal India Private Limited and the respondent no. 2 is just and proper. The same does not call for any interference