Case Note & Summary
The dispute arose from a tender notice dated 23 March 2017 issued by the Jawaharlal Nehru Port Trust (Respondent No. 2) for selection of transporters to provide transport solutions for Direct Port Delivery (DPD) of ISO freight containers from its four terminals. The petitioners in the two joined writ petitions—an association representing over 450 transporters handling approximately 76% of import-export traffic at the port, along with an individual transporter member, and a private limited company engaged in manufacturing Kraft paper through imported waste paper—challenged the tender notice and the underlying policy decision. They contended that the DPD model, as proposed, would restrict container clearance to only five selected transporters for each of five identified regions, thereby creating a monopolistic situation that would adversely affect existing transporters and importers. The petitioners had previously raised concerns about traffic congestion and mismanagement at the port through correspondence and representations, but these were allegedly ignored or met with false assurances.
The facts reveal that the DPD facility was originally introduced by the Chief Commissioners of Customs, Nhava Sheva, via Facility Notice No. 63 of 2008, allowing accredited importers who met certain criteria to remove containers directly from the port without examination under the Customs Act, 1962. Over time, the number of eligible importers increased from 50 to around 778, leading to severe congestion. The importer-petitioner relied on a continuous supply of imported waste paper for its manufacturing plant, and any disruption could cause a shutdown. The tender notice required that all DPD containers be cleared within 48 hours, failing which they would be transferred to a designated Container Freight Station.
The main legal issue before the court was whether the tender process and the policy decision were arbitrary or unreasonable, warranting judicial intervention. The petitioners argued that the selection of only five transporters would eliminate competition and harm their businesses. The contesting respondent, JNPT, filed affidavits in reply, but the detailed arguments and the court's analysis are not contained in the available judgment excerpt, which ends mid-sentence during the listing of cited case law.
On 27 April 2017, after hearing the parties, the court directed Respondent No. 2 not to proceed further with the tender until the next date of hearing, and this interim order remained in force. The final hearing was completed on 21 July 2017, but the operative part of the judgment is not included in the provided text. Consequently, the ultimate decision and the ratio decidendi cannot be ascertained from the excerpt.
Issue of Consideration
Whether the tender notice dated 23 March 2017 issued by Jawaharlal Nehru Port Trust for selection of transporters under the Direct Port Delivery model is arbitrary, discriminatory, and violative of the rights of existing transporters and importers?
Case Details
2017 LawText (BOM) (08) 55
Writ Petition (Lodging) No. 1192 of 2017 and Writ Petition (Lodging) No. 1626 of 2017
Anoop V. Mohta, Smt. Anuja Prabhudessai
Mr. Sujay Kantawala a/w Ms. Shilpi Jain, Mr. Ashish Mehta for Petitioner in WPL No. 1192 of 2017 and for Respondent No.3 in WPL 1626 of 2017; Mr. Rohan Rajadhyaksha a/w Mr. Pratik Jhaveri for Petitioner in WPL No. 1626 of 2017; Mr. Vikram Nankani, Senior Advocate a/w Mr. Om Prakash Jha, Ms. Surabhi Chatterjee, Mr. Raghav Shekhar for Respondent No.2 in both Petitions
Maharashtra Heavy Vehicle and Interstate Container Operators Association and John Oswald Cordiera (WPL No. 1192 of 2017); Sunshine Paptech Pvt. Ltd. (WPL No. 1626 of 2017)
Union of India through the Secretary, Ministry of Shipping; The Chairman, Jawaharlal Nehru Port Trust (in both petitions); Maharashtra Heavy Vehicle and Interstate Container Operators Association (Respondent No. 3 in WPL No. 1626 of 2017)
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petitions challenging a tender notice dated 23 March 2017 issued by Jawaharlal Nehru Port Trust for selection of transporters under the Direct Port Delivery model, alleging it creates a monopoly and adversely affects existing transporters and importers.
Remedy Sought
Quashing of the tender notice and the underlying policy decision; withdrawal of the tender.
Filing Reason
The tender would restrict DPD container transport to only five selected transporters, jeopardizing the businesses of existing transporters and the continuous supply chain of import-dependent manufacturers.
Previous Decisions
On 27 April 2017, the High Court directed Respondent No.2 not to proceed further with the tender till the next date of hearing; the interim order continued until the date of judgment.
Issues
Whether the tender notice and policy decision of JNPT to select only five transporters under the DPD model is arbitrary, discriminatory, or violative of legal rights?
Judgment Excerpts
On 23 March 2017, Bid/Tender Notice issued by Respondent No.2JNPT for “selection of transporter for providing transport solution for various identified routes for direct port delivery ISO freight containers from the four terminals of JNPT”, whereby the JNPT under the Direct Port Delivery (DPD) Model intends to select a panel of transporters with respect to five regions as earmarked by them through the tender process.
All the containers which are required to be cleared before 48 hours under the DPD model shall be diverted only to the selected five transporters.
On 1 September 2008, the Chief Commissioners of Customs, NhavaSheva issued a facility Notice No. 63 of 2008 (“FN 63/2008”) as per which DPD facility was introduced for the first time as a facility to accredited importers... on payment of duty, containers were allowed to be removed directly from the port itself without any examination as required under the Customs Act, 1962.
During November 2016 to February 2017, the Commissioner of Customs, Nhava Seva issued various public notices, PN 161/16 and PN 180/16 as per which total of 778 importers were identified who can avail DPD facility by relaxing the eligibility requirements specified in FN 63/2008.
Procedural History
Writ Petition (Lodging) No. 1192 of 2017 filed by Maharashtra Heavy Vehicle and Interstate Container Operators Association and another; Writ Petition (Lodging) No. 1626 of 2017 filed by Sunshine Paptech Pvt. Ltd. Both heard together by consent. On 27 April 2017, the court directed JNPT not to proceed with the tender. Final hearing concluded on 21 July 2017; judgment pronounced on 4 August 2017.
Acts & Sections
