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2017 (8) TMI 580 - HC - Indian LawsWithdrawal of Tender Notice - selection of transporter for providing transport solution for various identified routes for DPD, ISO freight containers from the four terminals of JNPT - interpretation of tender conditions - Held that: - The position of law with regard to the tender, contract and/or such policy decision has been settled through various judgments, specifically when it comes to taking administrative and/or executive decision to bring in and/or make policy - the Court needs to consider the facts and the nature of terms and conditions of tender. The tender conditions, if are against the provisions of law, arbitrary, discriminatory, illegal and affects the fundamental rights of the Petitioners, covering Articles 14, 19(1)(g) of the Constitution of India, an appropriate writ or directions may be issued by the Court, but not otherwise. There is no issue that of the stakeholder including the Petitioners importers have appreciated this DPD mechanism. The Government directives therefore, required to be implemented in line by JNPT and the Customs and the related stakeholders, including the Petitioners/ importers/transporters. The DPD model is stated to be simple and less time consuming. The duration of agreement is three years with a provision to extend the arrangement for a period of two years at negotiable rate, terms and conditions on mutual consent. Section 1 provides for the notice inviting tender, followed by instructions to bidders, the evaluation of bids, scope and volume of work. The requirement of minimum truck trailers is in clause (b) from 1.4.2. The provision is made about the “operational contract” for truck trailors. The volume of work and special terms and conditions of contract have been elaborated in clause (5) and (6). The High level committee is provided to select more number of tenderer in a route. The volume of each route is estimated. The Grievance Redressal Committee is provided in clause 5.8, that will address the issues of stakeholders related to the transport solution. The Committee shall ensure the overall quality of service of the transport solution. Policy decision by any mechanism - Held that: - The concept of “policy decision” may include Executive instructions/instructions also. The effect and use of it only enlightend its utility and usefulness. Any challenge to policy decision, without factual document/material is premature. Any policy decision cannot be challenged on presumption and assumption. The policy decision can be changed and modified, subject to its practice, utility and its use. It is ultimately the State/expert's/ executive decision, keeping in mind the interest of people at large, rather than private individual or associations' rights of doing business. Judicial review is permissible only if such decision is contrary to law and/or breaches constitutional provisions. Some leverage and latitude requires to be given to the State and its authorities, for implementation of such policy decision. It is clear therefore, considering the preamble and object of policy decision, taken at higher level, in furtherance of the DPD model to promote the government of India's “Make in India”, and “Ease of Doing Business” initiatives. The Respondents' decision to rerationalise and streamline the implementation of the DPD model at its port is well within the scheme. The DPD model is introduced to bring in a change in the existing clearance framework to meet contemporary needs. The tender, is with view to implement the policy decision to promote the manufacturing industry and streamline the processes for import of goods. The Policy is within the power and jurisdiction of Respondents - No breach of law. The Respondents required to allow to proceed with the tender and to implement the same. In case of difficulties and/or issues various mechanisms have been provided. Those mechanisms require to be utilized by all the concerned as and when occasion comes. The halting of such implementation at the instance of the Petitioners, therefore, is not in the interest of people at large - The impugned tender, therefore, is not arbitrary unreasonable and cannot be stated to be without any application of mind. All the clauses are required to be read and so also all the connected schemes. Power to change or modify the policy decision in the public interest - Held that: - the terms and conditions of the tender and its object and purpose, is in the interest of general public. The infringement, even if any, to some extent as stated by the Petitioners, of the private interest of transporters/importers or few importers/transporters, cannot prevail over in the public interest so referred in the policy decision and the tender conditions - the transportation policy would be optional and not compulsory, is not acceptable. Such optional policy will create confusion, chaos and will be uncontrolled and unregulated. The policy decision and its implementation therefore, required to be implemented and extended to all the concerned. Unless the decision is concrete and make compulsory, it will be difficult to implement and as it is nothing but extension of DPD policy and supported by the customs and all the concerned departments, it will not be entail the desire result, to achieve the aims and objects of the scheme/policy decision. Its implementation by all, is a must. Petition dismissed - decided against petitioner.
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