- (1.) THE appellants in the AST are aggrieved by an interim order of a single Judge dated August 11, 2014 passed in the respondents' WP No.22511 (W) of 2014 under Article 226 of the Constitution of India. The Kolkata Port Trust (in short "KoPT") issued a tender notice dated July 21, 2014 putting the shore handling services for dry bulk cargo handling at its Haldia Dock Complex out to tender. The tender notice mentioned that KoPT would grant the successful bidder Handling Agency Licence for undertaking and performing the services charging their principals within the specified ceiling rates and paying the KoPT the quoted royalty. Clause 7.12 of Section III of the notice is quoted below: "7.12 Only those bidders, who undertake to pay royalty to KoPT at the highest bid received, will be issued Handling Agency License and will be allowed to undertake shore handling or dry bulk cargo at HDC after obtaining Handling Agency License to be so issued by KoPT. Bidders not submitting such undertaking will be debarred from undertaking shore handling of dry bulk cargo at HDC."
(2.) QUESTIONING the tender notice the respondents filed the WP stating the following case: - The KoPT Traffic Manager granted them a Clearing and Forwarding Licence under Bylaw 55A of the Bylaws of the Port of Calcutta framed under the provisions of the Act concerned. The licence entitles them to transact shipping, clearing and forwarding business in the KoPT dock. The tender decision is intended to impose restrictions on their business activities as Shore Handling Agents. KoPT has no authority to fix ceiling rates for prices charged for the services. The scheme to levy royalty being contrary to the provisions of the Major Port Trusts Act, 1963 is illegal. KoPT has in effect sought to regulate the terms and conditions of private contracts between them and their customers. The notice is illegal also for the reason that the decision to issue it had not been approved by the requisite majority of the KoPT Board trustees.
(3.) THE order of the single Judge dated August 11, 2014 is quoted below: "By order dated 5th August, 2014 a report was directed to be produced of the board resolution dated 18th July, 2014. This day, the respondent authorities have produced not only the board resolution dated 18th July, 2014 but also other related documents which resulted in the subject tender. From a reading of the said resolution, it appears that in principle the Board of Trustees had agreed to the introduction of the proposed scheme but were against it in view of legal and financial issues which had been discussed in the meeting. In spite of the said issues raised, the Chairman overruled the views of the majority of the Trustees and introduced the subject scheme. It may be true that the Board of Trustees right from 2012 agreed in principle to introduction of the said subject scheme but prior to giving the subject scheme a final shape raised certain objection which need to be addressed before issuance of the subject tender. Such working of the scheme has been questioned by a majority of the members of the Board of Trustees. Therefore the subject scheme cannot be allowed to stand as issued prima facie. Accordingly, NIT dated 21st July, 2014 be not given effect to till 26th September, 2014. Directions are given for filing affidavits. Let affidavit in opposition be filed within three weeks from date; reply thereto, if any, be field within a fortnight thereafter. Matter to appear in the list on 22nd September, 2014. Records produced are returned to Counsel for the respondent authorities. Certified copy of this order, if applied for, be given to the parties on priority basis." By the impugned order the single Judge has restrained the appellants from proceeding further with the tender process on the grounds that the working of the scheme in execution whereof the notice has been issued was questioned by the majority members of the KoPT Board trustees, and that in the prima facie view of the single Judge the scheme cannot be allowed to stand. Mr. Kapoor appearing for the appellants has submitted as follows: - Sections 42 and 48 of the Major Port Trusts Act, 1963 provide a complete answer to the respondents' WP case. Section 42 has empowered the KoPT Board to authorise the successful bidder to perform the Shore Handling Services in question that the KoPT Board itself is empowered to undertake. The KoPT Board took decision on December 13, 2012 for authorizing persons chosen through appropriate process for rendering the services in its Haldia Dock Complex at the rates in consonance with the scale of rates framed by the authority under s.48 and on payment of a part of the charges to KoPT as royalty. The respondents have no right to question the decision and steps. Mr. Mukherjee appearing for the respondents has submitted as follows: - The KoPT Board does not render the services that the KoPT has put out to tender. KoPT can put out to tender only those services that its Board undertakes under s.42 and the successful bidder can perform only those services as the person authorised by the KoPT Board to perform them. The scale of rates framed by the authority under s.48 applies only to the KoPT Board and the person authorised by the KoPT Board under s.42(3), but not to the respondents who perform the Shore Handling Services on being engaged for the purpose by their customers. The provisions of cl.7.12 of s.III of the tender notice are bound to affect the respondents in that if the scheme in the tender is put into operation, the respondents will be debarred from performing the services they have been performing for long on the basis of requisite licence granted by the KoPT authority.;