JUDGMENT : Anoop V. Mohta, J. 1. In view of the urgency so expressed, rule made returnable forthwith. Heard finally by consent. 2. The common issues are involved, so also the prayers and the Respondents, therefore, this Judgment. 3. Petitioner No.1 in WPL No. 1192 of 2017, is an Association of more than 450 transporters as members handling 76% of the Import-Export to and from the Jawaharlal Nehru Port Trust (for short, “JNPT”) Port. 4. On 23 March 2017, Bid/Tender Notice issued by Respondent No.2-JNPT 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, Nhava-Sheva 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, i.e. the importers who fulfilled certain criteria as per the aforesaid facility notice, as per which 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 (for short, “the Customs Act”). On 10 March 2008, Petitioner No.1 issued letter to Respondent No.2-JNPT, appraising him about the Chaotic situation arisen at the port due to the mismanagement of JNPT. On 7 December 2012, second reminder letter was issued to Respondent-JNPT demanding management issues should be looked at urgently. Various correspondence kept on making the representation to Respondent-JNPT citing the traffic congestion problems at the Port which either were ignored or redressed with fake assurances. 5. 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. 5. 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. Again on 12 April 2017, Petitioner No.1 issued letter to Respondent-JNPT and tried to explain the plight of the transporters and devastating effect if such tender is allowed to Respondent No.2 and requested to withdraw the tender, but that too was not responded. On 17 April 2017, Petitioner No.1 also made a representation to Respondent No.2 vide a presentation whereby certain suggestions were made for implementation of DPD Model. The Petitioners themselves formulated four stages of implementation plan taking into account all the ground level realities. Inspite of the presentation made by the Petitioners on behalf of all the members, RespondentJNPT did not withdraw the tender notice. Hence the present Petition. 6. In so far as WPL No. 1626 of 2017 is concerned, the Petitioner is a Private Limited Company engaged in the business of manufacturing Kraft papers and other allied products through the process of recycling imported waste papers. The Petitioner has been regularly importing 150-200 containers of waste paper per month at Nhava-Seva port for captive consumption in its plant for manufacturing paper and other allied products as the timely availability of the waste product is very much essential for sustaining the continuous running of the plant as any disruption in supply may cause the shutdown of plant. On 23 March 2017, Respondent-JNPT under DPD Model intends to select a panel of transports with respect to five regions as earmarked by them through the tender process and 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 account of introduction of DPD a.k.a. DPD facility, the Import General Manifest also indicates where a container is meant for DPD. An Import Advance List (“IAL”) is filed by the shipping line with the terminal prior the berthing of the vessel. On account of introduction of DPD a.k.a. DPD facility, the Import General Manifest also indicates where a container is meant for DPD. An Import Advance List (“IAL”) is filed by the shipping line with the terminal prior the berthing of the vessel. The importers who fulfilled certain criterion on the basis on their tract record and reputation, with minimum compliance under the Customs Act, as part of the Risk Management System (“RMS”) and on the basis of selfassessment were allowed to take their goods directly to their factory premises from the port terminal without it being diverted to Container Freight Station (for short, “CFS”). Even as per FN No. 161/2016, it was provided that if the DPD containers which are not cleared by the importer within 48 hours of the arrival of the container, then such container will be automatically transferred to the designated CFS, speedy CFS. However, due to sudden increase in the number of DPD importers from 50 to 681 i.e. from 3% to 17%, the port became all the more congested. Hence this Petition. 7. Both the Petitioners have challenged tender/notice of JNPT, Traffic Department dated 23 March 2017, “for selection of transporter for providing transport solution for various identified routes for DPD, ISO freight containers from the four terminals of JNPT”. By amendments have challenged the policy decision. 8. In WPL No. 1192 of 2017, Contesting Respondent No.2JNPT has filed affidavit-in-reply dated 3 June 2017. The Petitioners filed their affidavit-in-rejoinder on 20 June 2017. In WPL No. 1626 of 2017, Contesting Respondent No.2JNPT has filed affidavit-in-reply dated 11 July 2017. This Court, on 27 April 2017, after hearing the learned counsel appearing for the Petitioners and Respondent No.2-JNPT, directed Respondent No.2 not to proceed further in respect to the tender in question till the next date of hearing. The interim order, so granted, has been in force till this date. Judicial Review in New Policy decision: 9. The law with regard to the contract/tender is quite settled. The learned counsel appearing for the respective parties have read and referred various Judgments of the Supreme Court and the High Courts. Those are: for the Petitioners’ side: (a) Tata Cellular Vs. Union of India (1994) 6 SCC 651 ); (b) State of Bihar & Ors. Vs. Project Uchcha Vidya, Sikshak Sangh & Ors. (2006) 2 SCC 545 ); (c) Association of International Schools & Principals Foundation & Anr. Those are: for the Petitioners’ side: (a) Tata Cellular Vs. Union of India (1994) 6 SCC 651 ); (b) State of Bihar & Ors. Vs. Project Uchcha Vidya, Sikshak Sangh & Ors. (2006) 2 SCC 545 ); (c) Association of International Schools & Principals Foundation & Anr. Vs. State of Maharashtra & Anr. ( 2010(6) Mh.L.J. 816 ); (d) Aurangabad Electrical Contractors Association, Aurangabad, & Ors. Vs. State of Maharashtra ( 2015(1) Mh.L.J. 182 ); (e) Bijoe Emmanuel & Ors. Vs. State of Kerala & ors. (1986) 3 SCC 615 ) (f) Gainda Ram & Ors. Vs. Municipal Corporation of Delhi & Ors. (2010) 10 SCC 715 ) (g) B.P. Sharma Vs. Union of India & Ors. (2003) 7 SCC 309 ) Respondents’ side - (h) All Cargo Logistics & Ors. Vs. Union of India (2017) SCC OnLine Bom. 2419); (i) JSW Infrastructure Limited & Anr. Vs. Kakinada Seaports Limited & Ors. (2017) 4 SCC 170 ) (j) Reliance Telecom Limited & Anr. Vs. Union of India & Anr. (2017) 4 SCC 269 ) (k) Montecarlo Limited Vs. National Thermal Power Corporation Limited (2016) 15 SCC 272) (l) Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited & Anr. (2016) 16 SCC 818) (m) SKL Company Vs. Chief Commercial Officer, Southern Railways & Ors. (2015) 16 SCC 509 ); 10. The Apex Court in M/s. CRRC Corporation Ltd. Vs. Metro Link Express for Gandhinagar & Ahmedabad (MEGA) Company Ltd. (2017(6) SCALE 345)has interpreted the tender conditions and the eligibility criteria and set aside the High Court order - “29. In Reliance Telecom Ltd. and another v. Union of India and another, the Court referred to the authority in Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. and others wherein it has been observed that though the principle of judicial review cannot be denied so far as exercise of contractual powers of Government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the court that in the matter of award of a contract power has been exercised for any collateral purpose.” 11. The Supreme Court, while dealing with the requirement of the State to take any new policy decision and/or in related administrative action, has recorded in the judgment of Ekta Shakti Foundation Vs. The Supreme Court, while dealing with the requirement of the State to take any new policy decision and/or in related administrative action, has recorded in the judgment of Ekta Shakti Foundation Vs. Government of NCT of Delhi (2006) 10 SCC 337 )that: 11. “5 While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere. 6. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation. 7. The policy decision must be left to the Government as it alone can adopt (sic decide) which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government. 8. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company v. City of Chicago (L. Ed. p. 734). “The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company v. City of Chicago (L. Ed. p. 734). “The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review.” (Emphasis added) 12. Recently, the Apex Court in the case of Binoy Viswam v. Union of India and Ors. (MANU/SC/0693/2017)while considering the above position of law, held that - “96. ….............. Thus, Article 14 in its ambit and sweep involves two facets, viz., it permits reasonable classification which is founded on intelligible differential must have a rational relation to the objects sought to be achieved. Further, it does not allow any kind of arbitrariness and ensures fairness and 16, dated 9 June 2017 equality of treatment. It is the fonjuris of our Constitution, the fountainhead of justice. Differential treatment does not per se amount to violation of Article 14 of the Constitution and it violates Article 14 only when there is no reasonable basis and there are several tests to decide whether a classification is reasonable or not and one of the tests will be as to whether it is conducive to the functioning of modern society.” 13. 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. In JSW Infrastructure Limited & Anr. (supra), the Apex Court held that” 9. We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractual matters. In JSW Infrastructure Limited & Anr. (supra), the Apex Court held that” 9. We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractual matters. A Three Judge Bench of this Court in Tata Cellular vs. Union of India held that (i) there should be judicial restraint in review of administrative action; (ii) the court should not act like court of appeal; it cannot review the decision but can only review the decision making process (iii) the court does not usually have the necessary expertise to correct such technical decisions.; (iv) the employer must have play in the joints i.e., necessary freedom to take administrative decisions within certain boundaries” 14. By keeping above position of law, we are proceeding further in the matter, as ultimately, the Court needs to consider the acts 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. Basic provisions 15. The following Sections of the Major Port Trusts Act, 1963 (for short, “the MPT Act”), are referred and read - Section 2. Definitions. Basic provisions 15. The following Sections of the Major Port Trusts Act, 1963 (for short, “the MPT Act”), are referred and read - Section 2. Definitions. - (f) “dock” includes all basins, locks, cuts, entrances, graving docks, graving blocks, inclined planes, slipways, gridirons, moorings, transitsheds, warehouses, tramways, railways and other works and things appertaining to any dock, and also the portion of the sea enclosed or protected by the arms or groynes of a harbour;” “(h) “goods” includes livestock and every kind of movable property;” “(m) “major port” has the same meaning as in the Indian Ports Act;” “(q) “port” means any major port to which this Act applies within such limits as may, from time to time, be defined by the Central Government for the purposes of this Act by notification in the Official Gazette, and, until a notification is so issued, within such limits as may have been defined by the Central Government under the provisions of the Indian Ports Act;” “(r) “port approaches”, in relation to a port, means those parts of the navigable rivers and channels leading to the port, in which the Indian Ports Act is in force;” “(t) “prescribed” means prescribed by rules or regulations made under this Act;” “(w) “regulations” means regulations made under this Act;” “(x) “rules” means rules made by the Central Government under this Act;” Section 42 Performance of services by Board or other person. - “(1) A Board shall have power to undertake the following services: (a) landing, shipping or transhipping passengers and goods between vessels in the port and the wharves, piers, quays or docks belonging to or in the possession of the Board; (b) receiving, removing, shifting, transporting, storing or delivering goods brought within the Board’s premises;” “[(3A) Without prejudice to the provisions of subsection (3), a Board may, with the previous approval of the Central Government, enter into any agreement or other arrangement (whether by way of partnership, joint venture or in any other manner) with, any body corporate or any other person to perform any of the services and functions assigned to the Board under this Act on such terms and conditions as may be agreed upon.]” 16. The Customs Act, provides that - 2. Definitions….. The Customs Act, provides that - 2. Definitions….. “(12) “customs port” means any port appointed under clause (a) of section 7 to be a customs port, [and includes a place appointed under clause (aa) of that section to be an inland container depot];” “(13) “customs station” means any customs port, [customs airport, international courier terminal, foreign post office] or land customs station;” “(23) “import”, with its grammatical variations and cognate expressions, means bringing into India from a place outside India;” “(26) “importer”, in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes [any owner, beneficial owner] or any person holding himself out to be the importer;” “(37) “shipping bill” means a shipping bill referred to in section 50;” Section 141. Conveyances and goods in a customs area subject to control of officers of customs. - (1) All conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of this Act, be subject to the control of officers of customs. [(2) The imported or export goods may be received, stored, delivered, dispatched or otherwise handled in a customs area in such manner as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such as may be prescribed.] 17. The parties have read and referred the conditions of tender/notice in question and so the policy decisions based upon the tender conditions/public tender, have been announced. Scheme and object of the tender: 18. The object and purpose of inviting tender in the selection of transporter and providing solution for DPD ISO freight containers from four terminals of JNPT is reflected in the preamble to the tender. “Preamble to the Tender Jawaharlal Nehru Port Trust (JNPT) Navi Mumbai is one of the twelve Major Ports of India. Commissioned in the year 1989, it is the number one container port in the country. JNPT has initiated various steps to improve all the productivity parameters to reduce the cost and time for doing business through the port. At present, port is stacking the containers CFS/ICD wise and allocating the cargo to the trucks on “bestpick” model and “cherrypicking” model is not possible. However, with the DPD facility, the port will need to create additional stacks equivalent to the number of DPD clients in order to continue on the “bestpick” mode. At present, port is stacking the containers CFS/ICD wise and allocating the cargo to the trucks on “bestpick” model and “cherrypicking” model is not possible. However, with the DPD facility, the port will need to create additional stacks equivalent to the number of DPD clients in order to continue on the “bestpick” mode. This is not possible due to the high number of DPD clients and limitation of the yard area, equipment and manpower capacity. To find out a suitable solution to this, the transportation system at various PSUs was studies, however, there was no similar example for arriving at a transportation solution. The international ports were studied, however, it was found that the similar system cannot be implemented at JNPT because in India the transportation sector is highly unorganized and the number of trucks available with a transporter is much less as compared to other developed countries. Also, the level of automation, standardization and use of technology is much different in India and hence, a suitable example for replication was not found. To address this issue an “Out-of-box” solution was found which would be “first-of-its-kind” in India. The model was worked out considering the two requirement-1) The number of stacks has to be minimum and 2) It should be designed on the “bestpick model” keeping the number of shifting to the minimum. The detailed background and the transportation solution is explained further in this section.” 19. This was after various studies and information collected by Port of Customs, Ministry of Shipping and with intent to identify measures to reduce the transaction cost and time, and the reasons so reflected and keeping in line “Ease of Doing Business” and “Make in India”. The Government of India has proposed DPD Model, which envisages the significant reduction in transaction cost and time. 20. DPD concept and its benefits have also been elaborated. There is no issue that of the stakeholder including the Petitioner-simporters 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 following advantages are not in dispute. There is no issue that of the stakeholder including the Petitioner-simporters 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 following advantages are not in dispute. “Prompt and timely delivery leading to reduction in in inventory costs, saving in transportation costs, saving in Handling and storage charges at warehouse, saving in Container detention charges payable to Shipping Lines, delivery of DPD container at Port Terminals 24x7 basis, reduction in dwell time for containerized cargo. In view of the above advantages, DPD is expected to be the game changer for the EXIM trade.” 21. The limited role of JNPT, Customs, IPA, DGShipping and Private Terminal Operators has been explained in Clause (f). The respective roles have been discussed with all the stakeholders before issuing of the tender in question. It is reiterated that - “The idea is only to create a platform for a transport operators to work to the requirements of the DPD model and provide endtoend transport solution. The role of JNPT, Customs, DGShipping, Indian Ports Association and private terminal operators will be very limited in creating the platform and the business model has to be run by trade/private sector.” 22. The Transportation Solution, which is important facet of the DPD model is also elaborated in clause (g). This includes the formation of Grievance Redressal Committee. Clause (g) of the Transportation Solution reads thus - “(i). Import containers shall be cleared within 48 hours from the port and will be delivered directly at the factory/premises of the importer/location as designated by the Importer. (ii). All DPD Cargo traffic will be distributed routewise into the identified routes. (iii). Port terminal operators will arrange DPD import cargo routewise in separate stacking area. (iv). In the present Transport Solution model, a transporter will be selected for each location through a bidding process. The rate of the selected transporter arrived through the bidding process will be publish on the website of JNPT and Customs. (v). The importers with DPD facility will be informed about the transporters selected through the bidding process and their rates and the importers shall need to enter into commercial arrangement with the transporter. (vi). The rate of the selected transporter arrived through the bidding process will be publish on the website of JNPT and Customs. (v). The importers with DPD facility will be informed about the transporters selected through the bidding process and their rates and the importers shall need to enter into commercial arrangement with the transporter. (vi). Importer will need to clear the documentation of the container immediately and ensure that the selected transporter clears the cargo from the port within a total time of 48 hours, failing which the container cargo will be transferred to the designated CFS. In such cases, the importer shall be required to clear the documentation and the transporter of the concerned CFS shall transport the containers from the CFS to Importer premises. (vii). JNPT, NSICT, NSIGT, GTI, DG Shipping, Indian Ports Association and Customs together shall form a grievance redressal committee that will address the issues of the stakeholders related to the transport solution. (viii). JNPT shall not enter into any direct commercial arrangement with the transporter. (ix). Importers will need to hire the selected transporters for taking the DPD import delivery. The importers shall enter into commercial arrangement with the selected transporters and shall share the necessary documentation with the transporter based on which the terminal operators will give delivery to the transporter. (x). the arrangement with the transporter shall be governed by the terms and conditions of this tender. JNPT shall issues Letter of Award to the Successful Bidder for each route and the Successful Bidder shall have the exclusive right to clear the DPD container from the port for the corresponding route for which it is selected. (xi). It will be mandatory for the importers to align with the selected transporter for the transportation of container cargo on any particular route. Importers shall not be allowed to use own fleets. In these backgrounds, requirement is for an Efficient Transporters with sound business model. 23. 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. 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. It is also made clear about the limited role of JNPT, which is reproduced as under: “6.10 JNPT is facilitating the transportation arrangement between the Importers and the transporters in order to ensure reduction of Dwell Time under the DPD arrangement. By submitting the Bid, the Bidders agree that the commercial arrangement between the Importers and transporters will be separate and at any point of time, JNPT shall not entertain any claim of the Contractor/Importer. Also, any dispute between the importers and the contractors shall need to settle between themselves and JNPT shall not be a party to the dispute. JNPT/Grievance Redressal Committee shall only address the issues related to the DPD arrangement.” 24. The provision of transportation arrangement is also provided in clause 6.10 and so also extension of duration of contract and arrangement. Clause 6.16.12 deals with the dispute between JNPT and the Contractor. The decision of the Chairman of JNPT made will be final and binding on both the parties, with provision in case, the contractor is not satisfied the law of land shall prevail. The jurisdiction of Mumbai High Court shall prevail, so also any dispute relating to the tender is subject to the jurisdiction of Court at Mumbai only. 25. The Petitioners have crystallized the concept of DPD and CFS and requirement of 48 hours evacuation on the arrival of the goods. Those are as under: CFS MODEL:- The CFS, which is nothing but an extension of the port, was introduced in the year 1989 by the Customs Department to help clear the congestion of the ports in India. 25. The Petitioners have crystallized the concept of DPD and CFS and requirement of 48 hours evacuation on the arrival of the goods. Those are as under: CFS MODEL:- The CFS, which is nothing but an extension of the port, was introduced in the year 1989 by the Customs Department to help clear the congestion of the ports in India. In this model, imported goods are immediately shifted after the arrival from the port to CFS, where all the activities related to clearance of goods for home consumption, warehousing, temporary admissions, reexport, temporary storage for onward transit and outright export and transshipments take place thereby reducing port congestion. The Petitioners further states that, since inception on 1989, even the Respondent No. 2 port in order to counter the congestion issue have been running on the CFS model thereby confining itself only to terminal activity and assigning all the Customs examination and destuffing operation to the CFS. Accordingly, over the years, 34 CFS have been established in the Respondent No. 2 port by the substantial investment of more than Rs.1000 crore. At present, this CFS is employing, directly and indirectly, around 3000 workers. DPD MODEL: Direct Port Delivery is a policy introduced by the Customs as per which the importers who fulfills certain criterion becomes eligible to directly take the delivery of the goods without any physical examination of the goods by the Custom Authority on payment of duty within 48 hours of the arrival of the vessel. In the year, 2008, Chief Commissioner of Custom, Nhava Seva issued a Facility Notice No. 63 of 2008(“FN 63/2008 ) as per which DPD was introduced for the first time in Mumbai Port and the importers with minimum volumes of 300 TEUS annually on the basis on their track record and reputation, with minimum compliance under the Customs Act, 1962 and on the basis of selfassessment were allowed to take their goods directly to their factory premises from the port terminal without it being diverted to CFS. It was further notified that if the goods under the DPD policy are not evacuated within 48 hours then it would be directly diverted to Speedy CFS from where the importers can get their goods released. It may be noted that under the said notification, approximately 50 importers were identified as the DPD eligible importers. It was further notified that if the goods under the DPD policy are not evacuated within 48 hours then it would be directly diverted to Speedy CFS from where the importers can get their goods released. It may be noted that under the said notification, approximately 50 importers were identified as the DPD eligible importers. However, from November 2016 to February 2016, Commissioner of Custom, Nhava Seva issued two Public Notices having No. No. 161 of 2016, (“PN 161/2016”), Public Notice No. 180 of 2016 (“PN 180/2016”) as per which total of 681 importers were identified who can avail Direct Port Delivery i.e. DPD facility by relaxing the eligibility requirements specified in FN 63/2008. The Petitioner submits that due to this policy decision, the volume of DPD containers increased to 17 % from 3 %.” Recognized DPD facility from Port Terminal to ACP Importers - 26. Public Notice No. 161/2016 dated 28 November 2016, was subject matter of All Cargo Logistics & Ors. (Supra) [Writ Petition No.3310 of 2017], whereby, it is recorded as under: “16. On 1st September, 2008, respondent No. 3 issued Facility Notice No. 63 of 2008. That notice, inter alia, provided for DPD facility (i.e. for importers to take delivery directly from the port terminal) to ACP importers (as per Public Notice No. 64 of 2005) and to 100% Export Oriented Units (EOUs) for FCL containers covered by the RMS or where no examination is required. The petitioners state that under the DPD facility, delivery of the containers would be done at the port itself and therefore, such containers would not travel to a CFS for completion of the Customs formalities. Facility Notice No. 63 of 2008 provided for importers, who satisfy the aforesaid criteria, to apply for DPD facility to respondent No. 3 in the prescribed form. It also provided for the procedure that would be followed under the DPD facility.” “20. The petitioners state that on account of Public Notice No. 161 of 2016, there has been a rise in the volume of DPD container traffic. As a result of this, the business of CFSs, including the petitioners, was significantly impacted since a significant number of containers, which would otherwise hitherto have passed through CFSs such as the petitioners, would no longer come to the petitioners on account of being earmarked as DPD i.e. delivery at the port itself. As a result of this, the business of CFSs, including the petitioners, was significantly impacted since a significant number of containers, which would otherwise hitherto have passed through CFSs such as the petitioners, would no longer come to the petitioners on account of being earmarked as DPD i.e. delivery at the port itself. It is significant to note that on account of Public Notice No. 161 of 2016, requiring clearance of the containers from the port within 48 hours, there was an increase in the number of DPD containers that were sent to the designated CFSs i.e. Speedy/respondent No. 9 on account of not being collected within the period of 48 hours prescribed by Public Notice No. 161 of 2016, as illustrated in further details below.” “57. …............ Once the regulations deal with such matters, then, it is not necessary that separate provisions have to be made for each matter covered by subsection (2) of section 141. Section 141(2) itself enables the Commissioner to exercise control. The provisions of the Customs Act, 1962 have to be enforced so as to carry out its object and purpose and the goods in the customs area are subject to the control of officers of Customs. They can, with the aid of these regulations and framed by the Board, control the receipt, storage, delivery, despatch or otherwise handling of the imported or export goods in customs area. If subsection (2) of section 141 enables the Board to make regulations for this purpose so as to assist the officers of Customs in performing their functions and duties, then, all the more there is no substance in the contentions of Mr. Dwarkadas that the officials lack the power or jurisdiction to issue the impugned notices. The impugned notices are referable to the regulations which are made under the provisions of the Act. Therefore, issuance of public notices is implicit and inherent in the exercise of the enabling power of ensuring proper handling of the goods in the customs area and the larger power of control vesting in the officers of the Customs.” “61. ….............. Article 19(1)(g) of the Constitution of India protects certain rights and particularly to practice any profession or to carry on any occupation, trade or business. However, clause (6) of Article 19 enables placing of reasonable restrictions on this freedom. ….............. Article 19(1)(g) of the Constitution of India protects certain rights and particularly to practice any profession or to carry on any occupation, trade or business. However, clause (6) of Article 19 enables placing of reasonable restrictions on this freedom. This clause clarifies that nothing in subclause (g) of clause (1) of Article 19 shall affect the operation of any existing law insofar as it imposes or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by subclause (g). The freedom, therefore, is not absolute. In the interest of general public, the law may impose restrictions on the freedom of the citizen to start or carry out his business. Such a law cannot be, therefore, struck down as violative of the mandate of Article 19(1)(g) of the Constitution of India. A business loss to a particular person or diminution in profits cannot be, therefore, the ground on which any action, which is in public interest, can be interfered with. Therefore, at the instance of the petitioners, the present public notices cannot be quashed and set aside.” “67. In the first notice of 2017 (Public Notice No. 8 of 2017 dated 16th January, 2017), the office of the Commissioner of Customs refers to the representations by various stakeholders/members from trade and then states that as a measure of trade facilitation and ease of doing business, the points raised by these persons have been examined and pointwise clarification/procedural requirements are set out in this public notice. In Public Notice No. 9 of 2017, there is a reference made to meetings with the CFSs within the jurisdiction of JNCH, at which, their views were solicited in order to find a solution to logistic arrangements. It was discussed that the JNPT is already preparing a logistic solution in the form of engaging 57 major transporters, who will provide transport services to DPD clients in efficient manner and evacuation of containers from terminal will take place on best pick up basis. This will facilitate further rationalisation of shifting charges being charged by terminal operators. The DPD clients can avail the aforesaid logistic solution. Then, various suggestions on this aspect are referred and further directions have been issued.” “70. This will facilitate further rationalisation of shifting charges being charged by terminal operators. The DPD clients can avail the aforesaid logistic solution. Then, various suggestions on this aspect are referred and further directions have been issued.” “70. …...If there is a confusion, chaos and delay then, that may be advantageous to the petitioners, but it would be certainly detrimental to the public interest. The larger public interest has to be subserved and once that is ensured, then, the same prevails over the commercial or business interests of the petitioners. For their commercial or business motives, a decision taken in public interest cannot be interfered with. The mandate of Articles 14 and 19(1)(g) of the Constitution of India are not violated.” The Petitioners’ frontal points: 27. Insofar as Writ Petition (L) No. 1192 of 2017 - (i) The tender is ex facie illegal and without any jurisdiction. (ii) The tender interferes with the fundamental rights of the Petitioner to carry on its trade under Article 19(1)(g) of the Constitution of India. (iii) The impugned tender is sought to create monopoly in the hands of few big transporters who will be selected region wise and hence is discriminatory against the Petitioners as it would unjustly deprive the Petitioner of their business and hence violates Article 14 of the Constitution of India. (iv) The impugned tender is arbitrary, unreasonable and has been issued without any application of mind and liable to be quashed as per Article 14 of the Constitution of India. (v) The impugned tender is arbitrary, unreasonable and has been issued without any application of mind is also evident from the fact that the tender clauses itself are not consistent with each other which shows the whimsical approach of Respondent No.2 in issuing the tender. (vi) The tender has been issued in excess of the mischief sought to be prevented or object sought to be achieved. (vii) There is no urgency which is shown by Respondent No.2 in the issuance of such tender and that the said tender is of an excessive nature as it goes beyond the requirement of the interest of general public. Insofar as Writ Petition (L) No. 1626 of 2017 (i) Power and the jurisdiction of the Respondents. (ii) Fundamental right to do business under Article 19(1)(g) of the Constitution of India. (iii) Minutes of the meeting can never amount to “policy decision of the Government”. Insofar as Writ Petition (L) No. 1626 of 2017 (i) Power and the jurisdiction of the Respondents. (ii) Fundamental right to do business under Article 19(1)(g) of the Constitution of India. (iii) Minutes of the meeting can never amount to “policy decision of the Government”. (iv) The transportation policy will be optional and not compulsory. (v) The tender is an extension of the DPD policy and even supported by Customs. (vi) Tender creates monopoly. (vii) The tender does not deal with the delivery of the goods. Policy decision by any mechanism - 28. 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. 29. In the larger interest of all the concerned, the joint action committee recommended the policy to encourage and develop the DPD Model of clearance of containers from the port, and thereby, direct delivery to be given to accredited importers identified by the customs authorities within 48 hours of their landing. The DPD model, insures speedy removal of the containers from the port, by reducing the dwell time of containers and therefore, the cost. A cabinet approval on 16 November 2016, at the meeting of the Secretary, Ministry of Shipping that JNPT would identify the transporters for the routes for the DPD clients and issue tender for these transporters in two weeks time. JNPT to plan 4th Container Terminal, kept in mind, the increase in traffic that would be handling by DPD and DPE. The JNPT, therefore, decided to provide and arrange for transportation of the containers from the port area based on perdetermined routes. 30. JNPT to plan 4th Container Terminal, kept in mind, the increase in traffic that would be handling by DPD and DPE. The JNPT, therefore, decided to provide and arrange for transportation of the containers from the port area based on perdetermined routes. 30. The preamble to the tender provides: (i) Drawback and issues arising out of the existing CFS Model, which has led to increase in the transaction cost and time due to its logistic costs and additional detention; (ii) Advantages of the DPD Model and the benefits it has in reducing the delivery time and costs, which in turn, will also decongest the port; (iii) The successful implementation of the DPD Facility and the efficient handling at the port is based on transport solution, for which purpose, JNPT, Customs, Indian Ports Association and DG Shipping together with the private terminal operators have taken the initiative to work out a transportation solution for DPD; (iv) The transportation solution necessitates the port terminal operator (JNPT in this case) to arrange DPD import container routewise in a separate stacking area. This in turn, requires predetermination of transporters for each location. 31. The JNPT has issued the tender for selection of transporters, keeping in view the change in the staking order of the containers at the port, to ensure speedy removal the number stacks need to be reduced and to be arranged regionwise, so that each of the containers can be delivered and removed in the sequence in which the same are stacked, without shifting them for the purposes of giving delivery of a specific container to the transporter. It has therefore, been decided, based on the data received by Respondent No. 2 from the Customs Authorities to identify five routes. This would enable the stacking of containers to be done regionwise, thereby making stacking simpler and avoiding shifting of containers since irrespective of the order in which the containers are stacked, it would be stacked for the same route in the same region, and the transporter can pick any of them for delivery to the consignee (importer). This is to ensue that the dwell time and the costs of delivery of the container would be reduced. 32. The JNPT, published the tender with various conditions, including eligibility criteria of two models which provides the opportunity to wider the number of truck clauses, truck operators and other transportation business persons. This is to ensue that the dwell time and the costs of delivery of the container would be reduced. 32. The JNPT, published the tender with various conditions, including eligibility criteria of two models which provides the opportunity to wider the number of truck clauses, truck operators and other transportation business persons. This includes, the Consortia-Joint Venture or the operational contract basis even for the period of 9 months.. The manner of evaluation of bids is provided. The High Level Committee is constituted to select more than one tenderer for any of the routes. The scope of tender is defined as it covers only the DPD Containers. The other requirement like Reefer Containers, Flattrack Bed, Open Top, Tank Containers, are not the requirements. 33. It is stated that, the tender covers only 28% of the total import cargo handled by Respondent No. 2 which is 50% of the total cargo handled by Respondent No. 2, the balance 50% being the export cargo. Thus, the tender affects only 14% of the total cargo handled by Respondent No. 2 under the DPD Model. It is therefore, respectfully submitted that the tender for selection of transporters is designed to implement the DPD model, which is part of the larger policy of the Government of India. To successfully implement the DPD policy and to ensure efficient removal of the containers within 48 hours and thereby, reduce the dwell time and the costs, Respondent No. 2 needs to rearrange and/or change the manner of stacking of containers on the basis of predetermined routes. This would eliminate shifting of containers from one place to another while giving delivery to the selected transporter. Respondent No. 2 is the “Major Port” within the meaning of the MPT Act, read with Indian Ports Trust Act, 1908. The port is a restricted area and Respondent No. 2 is empowered to control and regulate entry and access to the port area. The functions of Respondent No. 2 are inter alia, set out in Section 42 of the MPT Act. The port is a restricted area and Respondent No. 2 is empowered to control and regulate entry and access to the port area. The functions of Respondent No. 2 are inter alia, set out in Section 42 of the MPT Act. Respondent No. 2 is authorized to decide the manner in which the containers shall be stacked and stored within the premises of Respondent No. 2 and in what manner, and how the same shall be removed and transported from its premises, including the order and manner in which the delivery of the containers shall be given to each of the DPD importers through the selected transporters. Respondent No. 2 has therefore, issued the tender with a view to reduce dwell time and costs, and to ensure smooth and orderly dispatch of the container without causing congestion in and around the port. As such, the tender is based on the larger policy of the Government of India and has accordingly been designed in public interest with the above objectives. 34. 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. 35. The process relating to transport of containers is further clarified as under - (i) JNPT is one of the twelve major Ports in India and the biggest container port in the country. (ii) The dispatch logistics of transport of imported cargo from ports conventionally works in two ways –CFS Model and DPD Model. The DPD Model was introduced in the Port in 2008 to streamline the dispatch of imported cargo that lands at the port. The two models are briefly described below. (iii) In the CFS Model, there are broadly five participants involved, viz. (i) the Port, (ii) the Container Freight Station, (iii) Customs authority, (iv) the Importer and (v) transporters. The DPD Model was introduced in the Port in 2008 to streamline the dispatch of imported cargo that lands at the port. The two models are briefly described below. (iii) In the CFS Model, there are broadly five participants involved, viz. (i) the Port, (ii) the Container Freight Station, (iii) Customs authority, (iv) the Importer and (v) transporters. The containers offloaded at the port are aggregated at as heaps for each CFS at JNPT’s Container Yard at the outset and then transported to one of several CFS (JNPT has 34 CFS). The transporter does not “cherry pick” the container but is required to collect containers on a “best pick” mode (i.e. containers destined for a particular CFS are required to be collected on a first availability basis). Customs clearance happens at the CFS. Thus the cargo is first released for transport trucks to transfer the containers from the Port’s container yard to the CFS, and thereafter, from the CFS to the importer. The entire process in the CFS Model routinely takes 89 days out of which 7/8 days are spent in CFS. Several issues were identified with the CFS Model, namely, additional, avoidable transportation and handling cost which can vary between Rs. 8,000/to Rs. 15,000/-. (iv) To address the issues that arose out of the CFS Model, the Government of India had proposed the DPD Model which envisages a significant reduction in transaction cost and time. From 2008, the shipment logistics by way of the DPD Model has come to be gradually implemented at JNPT. In the DPD Model, the intermediary process of transferring the goods to a CFS is eliminated. An importer, accredited by Customs, is permitted to take delivery of the container from the Port’s container yard. Customs verification is undertaken within the terminal itself. The entire process is cut down to barely 2 days. There is significant saving in transportation costs, handling, storage costs and reduction of “dwell time” for containerized cargo. The importer directly benefits from this model; there is a corresponding reduction in costs, congestion and chaos that is routine in the industry and it is cheaper to conduct foreign trade for the country. (v) However, even with the introduction of the DPD Model, the CFS Model continues at JNPT. This is because not all importers are eligible to avail the DPD Model (eligibility for which, is determined by the Customs authorities). (v) However, even with the introduction of the DPD Model, the CFS Model continues at JNPT. This is because not all importers are eligible to avail the DPD Model (eligibility for which, is determined by the Customs authorities). (vi) The Customs Department (which is the statutory authority which determines the extent of implementation of the DPD Model), aligning with Government decision to significantly enlarge DPD volume, permitted more numbers of Importers to avail the DPD facility for removal of cargo at JNPT and has been in the process of accrediting such importers. As of late 2016, more than 700 importers were recognized to avail the DPD Facility. (vii) With a significant increase in the number of importers using the DPD Model, it was realized that segregating containers on to large number of heaps and in the absence of a suitable / tailored transport solution, evacuation difficulty will increase manifold. Anticipating the chaos and confusion likely to occur with the increase in traffic congestion, the Petitioner decided to rationalize and streamline the implementation of the DPD Model at its Port. (viii) The policy decision by the JNPT was to select transporters for five different highvolume routes, by way of a transparent tendering process. The criteria for selection of transporters were broadly premised on: (a) fleet size and capability of transporter, (b) experience in the field, (c) financial capability of transporter, (d) technological capability to cater to logistical requirements. The selected transporters were to operate for a period of three years, extendable by two years upon mutual consent. (ix) JNPT’s decision to so rationalize the transportation under the DPD Model is with the wideranging object of streamlining the traffic movement to and from the Container yard and to ensure reliable and good quality service to the importers. Accordingly, keeping with this policy decision, the Petitioner issued notice of tender dated 23 March 2017, inviting prospective transporters to apply for selection. 36. The JNPT has also required to improve the route container. The JNPT does not access rights created by fly overs, created parking spaces, converted holding yard into processing area, shifted customs formation from gate to processing area, removed tool booth, deployed additional security personnel to support to the police, introduced CCTV surveillance camera at important junction, created control room and simplified the time consuming procedures. The JNPT does not access rights created by fly overs, created parking spaces, converted holding yard into processing area, shifted customs formation from gate to processing area, removed tool booth, deployed additional security personnel to support to the police, introduced CCTV surveillance camera at important junction, created control room and simplified the time consuming procedures. It is cleared that this is to reduce the logistical coasts to support the manufacturing and other economic activities. It is the matter of record that a large number of stakeholder have been consulted. The bidders would be selected on behalf of importers, through the transparent bidding process, which would be evaluated by a high level committee comprising of the members of IPA, DG, Shipping, Customs and JN Port Terminal including two major DPD importers. The Policy is within the power and jurisdiction of RespondentsNo breach of law. 37. The challenge is raised by the container operators, Association, importers and transporters to the entire tender but not only to the tender conditions. There is no question of breach of fundamental rights of any association, as such, the breach of individual rights, even if any, required to be considered on factual data/material basis. It cannot be on assumption and presumption. The power, authority and jurisdiction of the Respondents to bring in new policy, keeping in mind, the purpose and object so reflected in the preamble and the other parts of the terms and conditions of the tender cannot be stated to be without jurisdiction and/or authority and/or illegal. The Petitioners have no independent and/or exclusive rights to do the business of transportation or importation in any area without the due permission, sanction and authorization from the respective authorities under the law. The privilege/license/gate passes of transportations and/or doing business even if granted, it is always subject to terms and conditions and its limitations. All are bound to manage their affairs and to do the business even of transportation and/or delivery of goods within the spare of law and regulation and conditions. The Petitioners have right to take the delivery of goods through the one transporters-that itself does not mean such transporters and/or importers can bring in or out their own transports at their will and wish, even at port/customs area. The Petitioners have right to take the delivery of goods through the one transporters-that itself does not mean such transporters and/or importers can bring in or out their own transports at their will and wish, even at port/customs area. The smooth transportation of goods and/or delivery of goods from port/customs area to respective market places and/or vice-versa, required to be streamlined to avoid congestion and delay. All departments and stakeholders are required to work in coordination and in the interest of people at large for providing the goods at the destiny, at the earliest point of time. This is in the background that ultimately, the department/the officials in the port area and/or customs area are required to handle and/or deal specifically in bulk imported and/or exported goods. The requisite number of containers are required to be stalked in or arranged for proper delivery of the goods of the respective importers and/or persons. The proper documentation of the goods and the procedure so followed, is in the interest of all. The goods must be reached and delivered to its owners/importers/transporters, at the earliest. The importers are free to have their own transporters but they cannot have a right or insist to do their transportation through the particular transporters. The tender not restricting their right of transportation. This only intend to streamline ingress and outgress of vehicles/transportation for proper and smooth delivery of goods through the 4/5 gates route-wise, area-wise. The role of transporters and importers required to be restricted near/on such gates. This, in no way, debar and/or obstruct the commercial arrangements between the importers and the transporters. They have required to arrange their affairs even of this nature, keeping in mind the policy/regulations and the scheme so adopted in the interest of all. It is a matter of contract only. The Respondents have nothing to do with such rights. Such streamline policy can be stated to be taking away any fundamental rights and/or legal rights of the transporters and/or importers. The new policy is for proper implementation of the aims and objects so announced in the preamble of the tender. 38. We cannot overlook that “port” or “port area” is a restricted area and of all the transporters are required to take delivery of their imports clients after due license/gate passes and permission including ingress and outgress of vehicles. The new policy is for proper implementation of the aims and objects so announced in the preamble of the tender. 38. We cannot overlook that “port” or “port area” is a restricted area and of all the transporters are required to take delivery of their imports clients after due license/gate passes and permission including ingress and outgress of vehicles. Section 42(1)(b) of the MPT Act and its contents, provide the power of port to undertake various services including receiving, removing, shifting, transporting, storing, delivering the goods brought within the port premises. Merely the goods become “out of charge” that itself is not sufficient or takes away the authority of the Respondents to regulate and/or streamline the smooth transportation of goods through these transporters/containers. The purpose and object of the scheme of the tender is to remove congestion and smooth and fast transportation of goods apart from rearrangement and arrangement of containers staking. The obligation of the Respondents to control and regulate it, till it goes out of the JNPT area and/or out of the area through the fixed route. The routewise arrangement, cannot be stated to be contrary to any law and/or jurisdiction and/or authority. No fundamental rights are affected 39. The submission that the tender interfering with the fundamental rights of the Petitioners to carry on its trade under Article 19(1)(g) of the Constitution of India is unacceptable. The private selection of transporters and right to continue to do business with them by the importers association, members and/or right of transporters to do business, only with the particular private importers even by long standing, in no way can be stated to be violative of Article 19(1)(g) of the Constitution of India. The internal contract, even if any, required to be arranged as per the policy and/or regulation fixed by the authorities with whom they want to and/or intend to do such business. To say that for this existing contracts the Respondents should not change and/or bring a new policy, is unacceptable situation. The Respondents have been regulating the affairs of such transportation and/or delivery of goods from time to time in the port/customs area, keeping in mind the demand and supply of such goods and the requirement of importers and transporters. It is a matter of record that how the transporters/ importers and respective vehicle numbers have been changed now up to 450/750. It is a matter of record that how the transporters/ importers and respective vehicle numbers have been changed now up to 450/750. The Respondents cannot be silent spectators and not to take any decision to bring in the mechanism, in the interest of people at large. The Petitioners contentions therefore, are unacceptable. They are always free to do their business within the framework of law and the policy. It is unacceptable contention that this tender and mechanism breaches any fundamental rights of such transporters and/or importers. The Judgments so cited read and referred in this regard, need no discussion, as the law is settled. We have to consider the facts and circumstances of the case and so also change the policy decision, keeping in mind, the requirement of time and the situation. State policy cannot be regulated by the private stakeholders 40. There is nothing that the policy decision so initiated cannot be implemented without the Petitioners approval and/or the consent. There is ample material on record to show that before declaring the tender, the stakeholders were invited and the same was discussed. It is unacceptable that the Petitioners were not aware of such, even otherwise, the executive decision if they have taken and it is within the framework of law and their power and jurisdiction unless it is contrary to law and/or fundamental rights. The scope of judicial review is very limited specifically when, there is no contra factual and/or material data placed on record except assumption and presumption. This is in the background that the tender itself not yet implemented and/or acted upon because of interim order obtained by the Petitioner in the Petition. Everything is halted so also the implementation of the new scheme and/or mechanism. This is in the background that the Petitioners are not opposing the DPD policy/mechanism. The Petitioner cannot be permitted to decide the Respondents requirement to have a transport solution and the related policy, in view of the stated urgency. 41. The reliance on the Judgments, including State of Bihar & Ors. (Supra) and Association of International Schools & Principals Foundation & Anr. (Supra), are of no assistance, specifically in the facts and circumstances of the case. This is not the case, where any fundamental rights of transporters and/or the importers have been envisaged under Article 19(1)(g) of the Constitution of India and have been curtailed permanently and/or temporarily. (Supra) and Association of International Schools & Principals Foundation & Anr. (Supra), are of no assistance, specifically in the facts and circumstances of the case. This is not the case, where any fundamental rights of transporters and/or the importers have been envisaged under Article 19(1)(g) of the Constitution of India and have been curtailed permanently and/or temporarily. They are free to their business, but then according to the policy decision, so declared by the JNPT, insofar as the transportation and/or importation and delivery of goods within their area. 42. This is also in the background that the Respondents have issued the tender to implement the public notice dated 28 November 2016 issued by the Chief Commissioner of Customs, under Section 141(1) of the Customs Act, which was issued for implementation which includes the DPD policy in the JNPT. About 681 importers have been identified from DPD from the JNPT port. As noted, the Petitioners and others have already welcomed the DPD policy in JNPT. This also is to promote the Government of India’s “make an India” and “Ease of doing business initiative”. 43. The Respondents’ mechanism to select the transporters, keeping in mind, to clear the transport congestion at the port, therefore, cannot be halted with. This is in the background that the increase in the DPD containers, created the containers stake, the containers DPD Wise, due to the congestion of the yard area. To stake the containers routewise and by selecting the transporters for the route, through the tender process to make the evaluation smooth without any congestion, therefore, at this stage, cannot be stated to be unjust, arbitrary and/or without any aims and objects. This assists in clearing the containers within 48 hours to avoid compulsory designated CFS. This is in All Cargo (supra) considered this facet in favour of the Respondents. Therefore, this transportation policy, if it is in integral and/or connected part of the DPD policy and once the DPD policy is recognized and accepted, even by the Petitioners, it is difficult to dissect the transportation policy of this nature, only at the instance of transporters, importers, containers and other stakeholders. 44. We are inclined to observe that the Respondents need to consider overall system and mechanism, keeping in mind the DPC policy, government initiatives and the requisite transportation smooth delivery of goods and transportation. 44. We are inclined to observe that the Respondents need to consider overall system and mechanism, keeping in mind the DPC policy, government initiatives and the requisite transportation smooth delivery of goods and transportation. The restriction, therefore, so imposed by selecting the route and number of importers, agents, and to carry out the business of transportation through the said main tenderer/importers, based upon the route and number of trucks/transporters, in no way take away any fundamental rights. They are free to do their business, but within the framework of new policy so declared. We are inclined to observe that the challenge, at this stage, without permitting the JNPT to proceed with the scheme and mechanism which they have announced and decided to implement, is quite premature and in fact obstructing to the implementation of the new policy. Such action of the Petitioners is, therefore, not in the interest of public at large. Individual cases and grievances, if any, and/or difficulties even if any, is always matter of discussion and negotiation and settlement. The modification and/or change in policy conditions, are always available. Therefore, at this stage, to halt the tender and to declare it arbitrary, unjust, violative of any articles, is unacceptable. We are inclined to observe here that, the transporters and/or importers cannot insist how the Respondents JNPT to do the business and to manage the affairs and/or regulate the port and/or its area. This is keeping in mind the various departments involved and their requirement to control and/or regulate such import and export of goods and its proper and effective timely delivery by avoiding the congestion area, any sorts of delay in actual delivery of goods, even if it is “out of charge”. 45. There is no force in the contention that it creates the monopoly in the hands of somebody, who will have selected region-wise. The purpose of this selection, the region-wise and route-wise selection and internal to have a few importers in-charge with their respective numbers of trucks/transport containers, cannot be stated to be a creation of monopoly. The freedom of business, jointly, singly and/or collectively, based upon the policy and/or regulations. The requirements in the respective fields is always a matter of commercial wisdom and arrangement. Therefore, the contentions of the Petitioners are unacceptable. The reliance on the Mahesh Verma Vs. State of Maharashtra (2008 (4) Mh. The freedom of business, jointly, singly and/or collectively, based upon the policy and/or regulations. The requirements in the respective fields is always a matter of commercial wisdom and arrangement. Therefore, the contentions of the Petitioners are unacceptable. The reliance on the Mahesh Verma Vs. State of Maharashtra (2008 (4) Mh. L.J. 657)is of no assistance on the facts itself. There is a force in the contentions that the DPD containers only 28% of the import cargoes (which ratio of import and export cargo is 50:50). The transporters are free to do their remaining business of transportation, even at the JNPT port, apart from about 14% of entire transportation. There are various mechanism provided for transporters to do business jointly, individually or through the joint venture and/or through 9 months contract mechanism. 46. We are of the view that 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. 47. 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. Therefore, at this permature stage, the contention of the Petitioners and to interfere with the tender is not in the interest of all the concerned. We are not inclined to accept the case of the Petitioners that the tender is in excess and beyond the interest of general public. On the contrary, keeping in mind the judgments of the Supreme Court, the classification and the tender conditions so imposed and the mechanism so announced unless contrary material brought on record, it is well within the object sought to achieve. The classification and the action is reasonable and well within the framework of declared policy and power and authority of the Respondents. All Cargo (supra) decision is connected. 48. The classification and the action is reasonable and well within the framework of declared policy and power and authority of the Respondents. All Cargo (supra) decision is connected. 48. The Petitioners’ counsel tried to distinguish the case of All Cargo (supra), by saying that those notices dated 9 February 2017, 6 January 2017, were issued under Section 141 (2) and Section 157(2) of the Customs Act, as the authorities have power to make rule in respect of the movement of the goods in the port area and therefore, submitted that the in the present matter, the Respondents have no power and jurisdiction to issue such tender. Therefore, as contended in the present case, they have challenged the action of JNPT and not of the Chief Commissioner of Customs. The Judgment of All Cargo (supra)) is not challenged by the importers. The Court noted that the Petitioners were silent for more than 8 years, as the first public notice was issued in 2008, as similar notice for appointment of designated CFS. It is also contended that, the goods which were diverted to the designated CFC were not out of charge and the customs have lien on the said goods. The movement of the goods which are out of charge by JNPT through this tender is a issue. 49. We are inclined to observe that the above distinct features of All Cargo (supra) as recorded above, cannot be dissected totally, as the policy decision so taken, is the integrated and connected part of JNPT regulation and so the Commissioners, customs regulations. The preamble of tender itself makes position clear that all the concerned departments are interested and involved for free and smooth transportation of the goods of the importers, through the transporters from the JNPT and/or by customs area. Power to change or modify the policy decision in the public interest 50. The individual Petitioners’ instance to do the business, through the contractors of their choice is not fundamental rights and/or legal rights/ which should prevail over the authority of Respondents, to change the policy and/or implementing the new transportation policy. Such Petitioners/importers/ manufacturers are free to do business and/or transportation, but according to the policy and the regulations so fixed by the Respondents. Such streamline of transportation, in no way takes away and/or infringe such manufacturers fundamental rights to do business. Such Petitioners/importers/ manufacturers are free to do business and/or transportation, but according to the policy and the regulations so fixed by the Respondents. Such streamline of transportation, in no way takes away and/or infringe such manufacturers fundamental rights to do business. Tender stakes, therefore, cannot be decided at the instance of one such singular manufacturer. The right to chose the transporter, in view of above, cannot be stated to be fundamental to prevail over the power and authority of Respondents to bring in and change the business rules of transportation. There is no substance in the contention that it is an ulterior motive and/or malafide intention and/or create a monopoly in favour of some transporters. 51. The stage of submission of tender, not yet proceeded, because of the interim order passed by this Court. The submissions and the contentions on assumption and presumption at the instance of transporters, manufacturers and/or importers, is therefore, unacceptable. The private parties commercial agreements with the transporters or the importers cannot be within the purview and power of the Respondents. The Respondents JNPT however, by following the due procedure, inviting the transporters of particular route with particular numbers of transporters/trucks, keeping in mind the scheme and object that itself cannot be read to mean that they have interfered and or infringed the others rights. By keeping of private agreements open and applying no restrictive rules in the agreements and by providing all the various transport contracts for fixing the routes and/or particular routes, source of liberty and freedom to grant to all the concerned to do the respective business. The Respondents tender, at this stage, cannot be stated to be reflecting non application of mind, arbitrary and/or unjust. Bijoe Emmanuel & Ors. (supra) is distinguishable on facts and circumstances itself and specifically for the reasons so recorded above. That Judgment, therefore, so cited by the learned counsel appearing for the Petitioners are of no assistance to interfere with the tender so issued. [(Gainda Ram & Ors.(supra)] 52. We have noted 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. 53. 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. 53. Therefore, the submission that 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. 54. Resultantly, we pass the following order: ORDER (a) Both the Writ Petitions are dismissed. (b) There shall be no order as to costs. 55. Mr. Kantawala, the learned Counsel appearing for the PetitionersAssociation, after pronouncement of this Judgment in open Court, submitted to extend the interim stay already granted by this Court on 27 April 2017. However, considering the reasons so recorded and to avoid further delay and as the stay has been in force till this date, we are inclined to continue the interim order so granted by this Court on 27 April 2017, for further two weeks from today. Order accordingly.