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6TH KIIT NATIONAL MOOT COURT COMPETITION, 2018

[TABLE OF CONTENTS] Team Code: TN-109

1ST SYMBIOSIS LAW SCHOOL, HYDERABAD NATIONAL MOOT COURT COMPETITION, 2016

FORE THE HON’BLE SUPREME


COURT OF INDUX

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUX

BULBTECH AGGRIEVED PARTIES_____________________________________APPELLANT

Versus

NOTSOGENERAL ELECTRONICS_________________________________RESPONDENT NO. 1

GOVERNMENT OF INDUX______________________________________RESPONDENT NO. 2

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[TABLE OF CONTENTS]

TABLE OF CONTENTS

TABLE OF CONTENTS.....................................................................Error! Bookmark not defined.

LIST OF ABBREVIATIONS..................................................................................................IV

INDEX OF AUTHORITIES...................................................................................................VI

STATEMENT OF JURISDICTION........................................................................................XI

STATEMENT OF FACTS......................................................................................................XII

ISSUES RAISED..................................................................................................................XIII

SUMMARY OF ARGUMENTS.......................................................................................... XIV

ARGUMENTS ADVANCED....................................................................................................1

[ISSUE I.] THE PRESENT DISPUTE IS NON-ARBITRABLE..................................1

[A.] Serious Allegations Of Fraud Are Non-Arbitrable....................................................1

[B.] Violation of principles of natural-justice are non -arbitrable................................... 2

[C.] Third party involvement makes it difficult to adjudicate the dispute through the

arbitral tribunal.........................................................................................................3

[ISSUE II.] THE ARBITRATION CLAUSE IS ONEROUS, UNREASONABLE AND

UNFAIR…….................................................................................................. 4

[A.] The Arbitration Clause Confers Unfettered Discretion To One Party.......................4

[B.] The Arbitration Clause Violates Principles Of Natural Justice................................ 5

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[C.] The Condition Precedent Destroys The Essence Of Fairness & Deters Arbitration5

[ISSUE III.] MERCURY IS ENTITLED TO COMPENSATION FOR THE LOSS OF

OPPORTUNITY IN THE STATE OF ARKHAM......................................7

[A.] Mercury Is Wrongfully Disqualified On Allegation Of “Pending Dues”..................7

[B.] From Tender Amounted To Violation Of Art 14 And Is Hit By Doctrine Of Level

Playing Field Under Art 19(1) (g)............................................................................ 8

[C.] Damages For Loss Of Opportunity........................................................................... 9

[ISSUE IV.] RE-NEGOTIATION OF RATES OF THE TENDER IS PERMISSIBLE

10

[A.] CVC’s guidelines on post-tender negotiations.........................................................10

[B.] Doctrine of Legitimate Expectations....................................................................... 12

PRAYER..........................................................................................................................XVI

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[LIST OF ABBREVIATIONS]

LIST OF ABBREVIATIONS
Abbreviations Expansions

(P.) Private

§ Section

¶ Paragraph

& and

AIR All India Reporter

All ER All England Reporter

All. Allahabad

Anr. Another

Art. Article

Bom. Bombay

Co. Company

Col. Colonel

CVC Central Vigilance Commission

Del. Delhi

HC High Court

Hon’ble Honourable

ILR Indian Law Report

Inc. Incorporation

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[LIST OF ABBREVIATIONS]
ITAT Income Tax Appellate Tribunal

L.J Law Journal

Ltd. Limited

M.C.D. Municipal Corporation Delhi

Mad. Madras

Mah. Maharashtra

MANU Manupatra

Mts. Meters

NHA National Highway Authority

Ors. Others

Pvt. Private

SC Supreme Court

SCC Supreme Court Cases

Sq. Square

U.P Uttar Pradesh

v. Versus

v/s Versus

WLR Weekly Law Reports

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[INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

LIST OF CASES

Sl.no. Case Title Citation Pg.no.

1. A.Ayyasamy v/s.A.Paramasivam and (2016) SCC 386 1


Ors.

2. A.K.Kraipak v/s. Union of India (1969) 2 SCC 262 3


3. Instone v/s. A. Shroeder Music (1974) 1 WLR 1308 5
Publishing Company

4. Abdul Khadir Shamsuddin Dubere v/s. AIR 1962 SC 406 1


Madhav Prabhakar Oak

5. Agri Orient Industries (P.) Ltd. v/s. 1973 SCC OnLine Bom. 7
Commissioner of Income Tax, Bombay 182
City-I

6. Atlanta Ltd. v/s. Union of India 2018 SCC OnLine Del. 8


8269
7. Balmer Lawrie And Co. Ltd. v/s. (2013) 8 SCC 345 6
Parthasarathi Sen Roy And Ors.

8. Bharat Sanchar Nigam Limited v/s. (2009) 2 SCC 337 5


Motorola India Pvt. Ltd.

9. Bharat Sanchar Nigam Ltd. v/s. BWN ILR (2011) III Del. 6
Ltd.

10. Binny Ltd. v/s V. Sadashivan 2005 (5) CTC 117: 8


11. Canara Bank v/s. V.K.Awasthi (2005) 6 SCC 321 3
12. Central Inland Transport Corporation v/s. (1986) 3 SCC 156 6
Brojo Nath Ganguly,

13. Chairman, Board of Mining Examination (1977) 2 SCC 256 2


v/s. Ramjee

14. Delta Distilleries Ltd. v/s. United Spirits (2014) 1 SCC 113 4
Ltd. And Anrs.

15. Dharma Prathishthanam v/s. Madhok (2005) 9 SCC 686 5


Construction Pvt. Ltd.

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16. Dhingra Construction Co. v/s. Municipal AIR 2005 Del. 247 8
Corporation of Delhi

17. Directorate of Education v/s Educomp (2004) 4 SCC 19 8


Data Matics Ltd,

18. Food Corporation of India v/s Kamdhenu (1993) 1 SCC 71 12


Cattles

19. G.B.Mahajan v/s. Jalgaon Municipal AIR 1991 SC 1153 8


Council, ,

20. Gurmej Singh v/s. State of Punjab (2009) 12 SCC 440 5


21. Harbans Lal Sahnia and Anrs. v/s. Indian (2003) 2 SCC 107 3
Oil Capital Corporation Ltd. And Ors.

22. Her Majesty The Queen v/s The Martel 2000 SCC OnLine Can SC 9
Building Ltd. 61

23. Indian Oil Corp. Ltd. v/s Nilofer (2015) 16 SCC 125 6
Siddiqui,

24. Indian Oil Corporation Ltd. v/s Amritsar (1991) 1 SCC 533 8
Gas Service

25. Indian Railway Construction Ltd. v/s (2003) 4 SCC 579 8


Ajay Kumar

26. J.Mohapatra And Co. v/s. State of Orissa AIR 1984 SC 1572 5
27. K. Poomalai v/s Director of Sugar (2012) 8 Mad. LJ 457 11
28. Kasturi Lal Laxmi Reddy v/s. State of 1980 (3) SCR 1338 8
J&K

29. Keshav Mills Company Ltd. v/s. Union of 1973 (3) SCR 22 3
India

30. Kumari Shreelekha Vidyarthi and Ors. (1991) 1 SCC 212 6


v/s. State of Uttar Pradesh and Ors.

31. Lehigh Valley Coal Co. v/s Yensavaga 218 FR 547 11


32. LIC of India v/s. Consumer Education (1995) 5 SCC 489 6
and Research

33. Lucent Technologies Inc. v/. ICICI Bank 2009 SCC OnLine Del 5
Ltd. And Ors. 3213

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34. M. Pentiah v/s Muddala Veeramallapa AIR 1961 SC 1107 10
35. M/s Vijay Industries v/s. M/s NATL (2009) 3 SCC 527 7
Technologies Ltd.

36. M/s. Erusian Equipment and Chemicals (1975) 1 SCC 70 8


Ltd. v/s. State of W.B.

37. Madras City Wine Merchant v/s State of (1994) 5 SCC 509 13
Tamil Nadu

38. Mukesh Kumar Tripathi v/s Senior (2004) 8 SCC 387 11


Divisional Manager

39. N.Radhakrishnan v/s. Maestro Engineers (2010) 1 SCC 72 1

40. Nain Akhtar v/s. Executive Engineer MANU/HP/0440/2018 5


Mandi Division -II

41. Naresh Maheshwari v/s Municipal 2009 SCC OnLine Del 13


Corporation Delhi 2293

42. National Building Construction Corp. v/s (1998) 7 SCC 66 12


S. Raghunath and Ors.

43. National Insurance Company Ltd. v/s. MANU/MH/2381/2015 4


S.A. Enterprises

44. Needle Industries (India) Ltd. And Ors. 1981 SCR (3) 698 4
v/s. Needle Industries Newey (India)
Holding Ltd. And Ors.

45. Nobel Resources Ltd. v/s State of Orissa, (2006) 10 SCC 236 8
46. R.S.Dass v/s. Union of India AIR 1987 SC 583 2
47. Rajbir Singh Dalal v/s Chaudhari Devi (2008) 9 SCC 284 10
Lal University & Anr.

48. Ramana Daya Ram Shetty v/s. 1979 (3) SCR 1014 8
International Airport Authority of India

49. Reena Aggarwal v/s Anupam (2003) 3 SCC 199 10


50. Reliance Energy Ltd. v/s Maharashtra (2007) 8 SCC 1 9
State Road Development Corp. Ltd

51. Russel v/s. Russel (1880) 14 Ch D 471 1

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52. Sahara India (Firm) Lucknow v/s. (2008) 14 SCC 151 3
Commissioner of Income Tax, Central- I

53. Santa Singh v/s State of Punjab Air 1976 SC 2386 11


54. Seaford Court State Ltd. v/s Asher (1949) 2 All ER 155 10
55. Seethalakshmi Ammal v/s. State of AIR 1993 Mad. 1 2
Tamilnadu and Anr.

56. Shaldy Ltd. v/s. State of Goa (2012) 1 Mah. L.J. 533 7
57. Shree Ostwal Builders v/s. State of 2010 SCC OnLine ITAT 9
Maharastra 963

58. Shree Pacetronix Ltd. v/s State of W.B (2017) 3 ICC 446 9
59. Shri Sai Nath Enterprises v/s. Delhi 2017 SCC OnLine Del. 10
Municipal Corporation 8501

60. Shrisht Dhawan (Smt.) v/s. Shaw Bros. AIR 1992 SC 1555 2
61. State of Bihar v/s Asis Kumar Mukherjee AIR 1975 SC 192 10
62. State of Orissa v/s. Dr. Binapani Dei AIR 1976 SC 1269 3
63. State of U.P v/s C. Tobat AIR 1958 SC 414 11
64. Sterling Computer Ltd v/s M/s MM AIR 1996 SC 51. 8
Publication Ltd. And Ors.

65. Tejas Construction and Infrastructure Pvt. (2012) 6 SCC 464 8


Ltd. v/s. Municipal Council, Sendhwa

66. Track Innovation Pvt. Ltd. v/s. Union of 2010 SCC OnLine Del 6
India And Ors. 1999

67. Uddar Gagan Properties Ltd. v/s. Sant 2016 11 SCC 378 2
Singh and Ors.

68. Union of India v/s Uttar Pradesh State (2015) 2 SCC 52 5


Bridge Corporation Ltd.,

69. Union of India v/s. Col. J. N. Sinha (1970) 2 SCC 458 2


70. Union of India v/s. Dinesh Engineering (2001) 8 SCC 491 8
Corporation

71. Union of India v/s. Mangaldas N.Verma AIR 1958 Mad 296 5
72. Union of India v/s. Tulsiram Patel (1985) 3 SCC 398 2

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73. Unique Butyle Tube Industries (P.) Ltd. (2003) 2 SCC 455 11
v/s U.P. Financial Corporation

74. United Spirits Ltd., Banglore v/s. Delta 2012 (6) Mh. L.J. 552 4
Distilleries Ltd., Mumbai And Anrs.

75. Whirlpool Corpn. v/s. Registrar of (1988) 8 SCC 1 3


Trademarks

76. Workmen Dimakuchi Tea Estate v/s AIR 1958 SC 353 11


Management Dimakuchi Tea Estate

BOOKS

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[STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The Plaintiffs have approached the Hon’ble High Court of Malgudi under Clause XII of
the Letters Patent Act, 1866.

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STATEMENT OF FACTS

STATEMENT OF FACTS

[¶1.] The nations. On January 1, 2017, the Airport Authority of Malgudi issued a tender for
the management of public parking space. It was stated in the tender document that, for the
said purpose, an area of 5000 sq. mts. of land would be allotted. The tender was to be
awarded, to the highest bidder.

[¶2.] Mercury Inc. was amongst the 3 bidders who applied for the tender. Mercury Inc. made
an offer to pay Rs. 25,00,000-/ Lakhs per month for 5000 sq. mts. of land. Mercury’s bid was
the highest, and hence they were awarded the tender.

[¶3.] In January, 2018, Mercury Inc. noticed that, certain construction activities have been
started by the National Highway Authority on a portion of land which was allotted to
Mercury Inc. Pursuant to this, they filed an RTI query, wherein it was stated, that out of the
5000 sq. mts. of land allotted to them, 2000 sq .mts. of land was being acquired by National
Highway Authority. The Airport Authority had issued a No Objection Certificate, for the said
acquisition in 2016.

[¶4.] On March 5, 2017, Mercury Inc. wrote a letter to the Airport Authority stating that since
there is a reduction in the area of land allotted, it is directly affecting their revenue flow and
hence the license fee should also be proportionately reduced. However, the Airport Authority
chose not to respond to the letter. Thereafter, Mercury Inc. did not pay the license fee for the
month of March and April.

[¶5.] Mercury Inc. invoked the arbitration clause for peaceful settlement of dispute. The
arbitration proposal was rejected by the Airport Authority on grounds that as per the arbitration
clause, Mercury Inc. needs to clear all their dues before enforcing the arbitration clause.

[¶6.] Thereafter, Mercury Inc. wrote another letter to the Airport Authority for reducing their
license fee, to which, no reply was received from the Airport Authority. During this period
Mercury Inc. was disqualified from another tender issued by the Airport Authority, in the
state of Arkham on arbitrary grounds.

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STATEMENT OF FACTS

ISSUES RAISED

~ISSUE 1~

WHETHER THE PRESENT DISPUTE IS ARBITRABLE OR WHETHER IT SHOULD


BE TRIED BY THE CIVIL COURT IN A CIVIL SUIT?

~ISSUE 2~

WHETHER THE ARBITRATION CLAUSE IS ONEROUS, AND THE


CONDITION PRECEDENT AMOUNTED TO AN UNFAIR AND
UNREASONABLE CONDITION FOR INITIATING ARBITRATION?

~ISSUE 3~

WHETHER MERCURY IS ENTITLED TO DAMAGES FOR LOSS OF OPPORTUNITY


IN THE SECOND PROJECT AS A RESULT OF THE PURPORTED DUES?

~ISSUE 4~

WHETHER ANY PROPORTIONATE REDUCTION IN THE LICENSE FEE COULD TAKE


PLACE ONLY BY THE WAY OF RE- BID OR THE AUTHORITY COULD
ITSELF SUO-MOTO GRANT THE REVISION IN RATES OF THE TENDER?

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[SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PRESENT DISPUTE IS ARBITRABLE OR WHETHER IT


SHOULD BE TRIED BY THE CIVIL COURT IN A CIVIL SUIT?

No, the present dispute is non-arbitrable. The Hon’ble Supreme Court has held that where
disputes involve serious allegations of fraud, such disputes cannot be tried by an arbitral
tribunal and should be tried by a civil court in a civil suit. As per, Sec. 17 of the ICA, 1872
“fraud” is defined as active concealment of such facts which would have affected persons
willingness to enter into the contract. The Airport Authority concealed the fact that out of the
5000 sq. mts. of land to be allotted, 2000 sq. mts. have been acquired by NHA. Mercury
made the offer on the representation that 5000 sq. mts of land would be allotted and hence
fraud was committed on Mercury. In addition to this, where there is violation of principles of
natural justice such disputes cannot be tried by arbitral tribunal. Airport Authority has
violated the principle of fair play which is a part of principles of natural justice. Therefore,
the present dispute cannot be tried by the arbitral tribunal.

ISSUE 2: WHETHER THE ARBITRATION CLAUSE IS ONEROUS, AND THE CONDITION


PRECEDENT AMOUNTED TO AN UNFAIR AND UNREASONABLE CONDITION FOR INITIATING
ARBITRATION?

Yes, the present arbitration clause in onerous on Mercury Inc. Unfettered discretion is given
to the Airport Authority to appoint the sole arbitrator. Such discretion is illegal, arbitrary,
unfair and unreasonable as it violates principles of natural justice, which states that no one
can be a judge in his own cause. The condition precedent also goes against the basic tenets of
arbitration as it deters Mercury from invoking the arbitration. Such condition precedent also
presents a picture of unequal bargaining power of Mercury. The arbitration clause has been
framed in such a way that it places the Airport Authority at a dominant position in any dispute
which arises out of the contract. Therefore, such a clause should be struck down.

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[SUMMARY OF ARGUMENTS]

ISSUE 3: WHETHER MERCURY IS ENTITLED TO DAMAGES FOR LOSS OF


OPPORTUNITY IN THE SECOND PROJECT AS A RESULT OF THE PURPORTED
DUES?

Yes, Mercury is entitled to damages, since they were arbitrarily disqualified from the tender
issued in the State of Arkham. The tender clause had a condition precedent which stated that
a tender participant would be disqualified if they had any pending dues. However, Mercury
did not fall within the said condition since there was a dispute regarding the license fee. Till
the dispute was not settled, there does not arise an obligation to pay. The due was yet to get
crystalized. By unjustly disqualifying Mercury’s bid, the Airport Authority has violated their
right to freedom of trade and has also violated the Doctrine of Level Playing Field. By such
arbitrary disqualification Mercury has not only lost the opportunity to compete in the bidding
process, but rather lost the possibility of actually performing the contracts if its tender was
accepted. Therefore, damages need to be awarded for the loss of opportunity.

ISSUE 4: WHETHER ANY PROPORTIONATE REDUCTION IN THE LICENSE FEE


COULD TAKE PLACE ONLY BY THE WAY OF RE- BID OR THE AUTHORITY
COULD ITSELF SUO-MOTO GRANT THE REVISION IN RATES OF THE
TENDER?

Yes, the Airport Authority can themselves suo-moto grant revision in the rates of tender.
There is no law which specifically bars post-tender negotiations. However, the CVC
guidelines state that in case of government contracts, post-tender negotiation can happen with
L1. The object of CVC guidelines is to ensure fairness. Such being the object of the act, it can
be deduced that the legislative body did not want to limit fairness only to the lowest tenderer.
Therefore, the lowest bidder shall mean the highest bidder and hence post-tender negotiations
with the highest bidder is also permitted. The Doctrine of Legitimate Expectations states that
there should be a fair play in administrative actions. Such fair play demands that since there
is a wrong done to Mercury, it should be addressed by way of an appropriate remedy. Such
remedy lies in renegotiating the rates of license fee.

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[ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

[ISSUE I.] THE PRESENT DISPUTE IS NON-ARBITRABLE

1
[¶ 1.] A dispute exists between the Airport Authority of Malgudi and M/s Mercury Parking
2
Inc. regarding proportionate reduction in license fee of Rs. 25 Lakhs per month since the
area of land allotted under the license agreement has been substantially reduced. The license
agreement contains an arbitration clause which states that any dispute between them shall be
referred to a sole arbitrator appointed by the Airport Authority. However, the present dispute
between them is non-arbitrable since there are, [A.] serious allegations of fraud [B.] violation
of principles of natural-justice and [C.] third party involvement.

[A.] SERIOUS ALLEGATIONS OF FRAUD ARE NON-ARBITRABLE.

[¶ 2.] The Arbitration & Conciliation Act, 1996 is silent on the types of non-arbitrable
disputes however, the Supreme Court has judicially outlined enumerated issues which cannot
be referred to arbitration. The Hon’ble Supreme Court in N Radhakrishnan vs Maestro
3
Engineers, held that where fraud and serious malpractices are alleged, the matter can only be
settled by the court and such a situation cannot be referred to an arbitrator. It was observed
that fraud, financial malpractice and collusion are allegations with criminal repercussions,
and the arbitrator, being a creature of contract, has limited jurisdiction. In cases of serious
allegation of fraud, where fraud is of such a nature that permeates the entire contract,
meaning thereby in those cases where fraud goes to the validity of the contract itself, the
Court can sidetrack the arbitration agreement by dismissing application and proceed with the
4
suit on merits. Where prima facie a case of fraud is proved, the Court in general will refuse
5
to send the dispute to arbitration.
[¶ 3.] In the present suit, fraud was committed against Mercury Inc. by the Airport Authority.
It is the duty of the parties to disclose all material facts which would

[¶ 4.] affect other person's willingness to enter into contract. Non-disclosure of such facts would
6
amount to fraud. Under the Land Acquisition Act, 1896 a statutory period of one year,

1 Hereinafter referred to as “Airport Authority”.


2 Hereinafter referred to as “Mercury Inc.”.
3 N. Radhakrishnan v/s. Maestro Engineers., (2010) 1 SCC 72
4 A. Ayyasamy v/s. A. Paramasivam and Ors. (2016) 10 SCC 386
5 Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak, AIR 1962 SC 406; Russell v. Russell
(1880) 14 Ch D 471
6 Shrisht Dhawan (Smt.) v/s Shaw Bros, AIR 1992 SC 1555.

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[ARGUMENTS ADVANCED]
after intention of acquisition, is to be mandatorily observed when the land in under
7
acquisition. Any agreement for sale or transfer of property to a third party cannot be
8
executed during the said period. Such agreements would be null and void.
[¶ 5.] The Airport Authority contest that at the time of issuance of tender, no acquisition was
9
made by National Highway Authority and hence they had rightfully issued the tender for
5000 sq. mts. of land. However, such claim does not stand the scrutiny of law as they had no
right to issue tenders for the land which was under the process of acquisition. These facts
were actively suppressed from Mercury, disclosure of these facts would have affected
Mercury’s willingness to enter into the contract. This is a prima facie case of serious fraud.
Moreover, malafide intentions can also be seen from the facts that Airport Authority never
10
replied to the letters sent by Mercury in relation to land allotment.

[¶ 6.] Therefore, it is humbly pleaded before this Hon’ble Court that the present dispute
should be tried by the Civil Court and not by arbitration.

[B.] VIOLATION OF PRINCIPLES OF NATURAL-JUSTICE ARE NON -ARBITRABLE.

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[¶ 7.] Rules of natural justice are not rigid rules. This means that principles of natural
justice are not limited and courts can evolve new principles of natural justice. The Hon’ble
Supreme Court in the case of Sahara India (Firm) Lucknow v/s. Commissioner of Income-
12
Tax, Central-I held

“....The underlying principle of natural justice, evolved under the common law, is to
check arbitrary exercise of power by the State or its functionaries. Therefore, the
principle implies a duty to act fairly i.e. fair play in action....”
13
[¶ 8.] Fair play in action connotes that the concerned authority should act reasonably. The
principles of natural justice are not limited to judicial or quasi-judicial proceedings. Such rules

7 Seethalakshmi Ammal v/s. The State of Tamil Nadu and another: AIR 1993 Mad 1
8 Uddar Gagan Properties Ltd. v/s. Sant Singh and Ors., (2016) 11 SCC 378.
9 Moot Proposition, Para 15
10 Moot Proposition, Para 7 & 10.
11 R.S.Dass v/s Union of India, AIR 1987 SC 583: Union of India v/s Col. J.N.Sinha, (1970) 2 SCC 458:
Chairman, Board of Mining Examination v/s. Ramjee (1977) 2 SCC 256: Union of India v/s Tulsiram Patel,
(1985) 3 SCC 398.
12 Sahara India (Firm) Lucknow v/s CIT, Central-I, (2008) 14 SCC 151: A.K.Kraipak v/s Union of India
(1969) 2 SCC 262.
13 Keshav Mills Co. Ltd. v/s Union of India, 1973 (3) SCR 22

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also apply to administrative decisions and actions involving civil consequence. In cases, where
there is violation of principles of natural justice, availability of alternative remedy in the form of
15
arbitration agreement, will not bar the High Court in exercising its writ jurisdiction.

[¶ 9.] In the present case the acts of the Airport Authority, stands in sharp contrast to the
principles of natural justice. The mala fide actions on their part are against the principles of
fair play. From the time of issuance of tender, their acts stood against fairness and equity.
They issued a tender for a land which they did not owe and accepted a huge license fee in lieu
of it. When Mercury came to know of this, the Airport Authority did not entertain any of their
concerns and kept demanding the license fee for such portions of land which they had already
allotted to NHA. Even when Mercury tried to settle the dispute amicably by invoking the
arbitration agreement it was blatantly refused by the Airport Authority on such condition
which were unfavourable to Mercury.

[¶ 10.] These actions on the part of Airport Authority denied the petitioners, just & fair
treatment . Since there is a violation of principles of natural justice, the present suit should be
tried by a Civil Court.

[C.] THIRD PARTY INVOLVEMENT MAKES IT DIFFICULT TO ADJUDICATE THE DISPUTE


THROUGH THE ARBITRAL TRIBUNAL.

[¶ 11.] According to Section 27 of the Arbitration & Conciliation Act, 1996 the arbitral tribunal
can accept evidence form a third party. However, this power is limited in the sense that the
tribunal cannot itself issue summons to witness, or cannot enforce its own orders of producing
16
certain documents or cannot force a third party to lead evidence or to produce documents. It is a
17
basic principle that “Justice delayed is, Justice denied” Where adjudication of dispute involves
examining of detailed evidence, adjudication on complex facts, the appropriate forum for such
18
disputes shall be the civil courts even where an arbitration agreement exists.

14 State of Orissa v/s Dr. Binapani Dei, AIR 1976 SC 1269: Canara Bank v/s B.K.Awasthy, (2005) 6 SCC
321.
15 Whirlpool Corporation v/s. Registrar of Trademarks, (1998) 8 SCC 1: Harbans Lal Sahnia and Anrs.
v/s Indian Oil Corporation Ltd. and Ors., (2003) 2 SCC 107.
16 Delta Distilleries Ltd. Vs. United Spirits Ltd. & Anr., (2014) 1 SCC 113 United Spirits Ltd., Bangalore
v..Delta Distilleries Ltd., Mumbai and Anr. 2012 (6) Mh.L.J. 522, National Insurance Company Limited v/s. S.A.
Enterprises, MANU/MH/2831/2015.
17 Needle Industries (India) Ltd., & Ors V. Needle Industries Newey (India) Holding Ltd. & Ors., 1981
SCR (3) 698.
18 Supra, note 4.

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[¶ 12.] In the present case to decide the dispute between Airport Authority and Mercury the
arbitral tribunal will need evidences to be produced by NHA. However, the arbitral tribunal
cannot themselves direct NHA to do so. For this it needs to take assistance from the court.
This will cause delay in adjudication of dispute by the tribunal. Further, the dispute involves
settlement of such facts which needs to be proved by detailed evidence produced by all the
three parties to the dispute. Therefore, in the interest of justice, it would be prudent that the
High Court themselves adjudicate upon the complex set of facts by examining the detailed
evidences.

[ISSUE II.] THE ARBITRATION CLAUSE IS ONEROUS, UNREASONABLE AND UNFAIR.

[¶ 13.] The license agreement contains an arbitration clause which states “ “In case of any
dispute between the parties, the dispute will be referred to an arbitrator to be solely appointed
by the Airport Authority….”. However, such a clause is onerous, unfair and unreasonable as
[A.] it confers unfettered discretion to one party to appoint the arbitrator [B.] violates the
principles of natural justice [C.] defeats the very essence of fairness.

[A.] THE ARBITRATION CLAUSE CONFERS UNFETTERED DISCRETION TO ONE PARTY.

[¶ 14.] The Black’s Law Dictionary defines the term onerous as “Unreasonable burdensome
19
or one-sided.” The Hon’ble Supreme Court in the case of Dharma Prathishthanam v.
20
Madhok Construction (P.) Ltd. held that unfettered discretion of one party in unilateral
21
appointment and reference of arbitrator is illegal. Consent is the very essence of arbitration.
The clear and binding legal principles laid down by the court is that the reference to the sole
arbitrator has to be consensual reference. Reference by one party alone, does not amount to
22
consent. There are certain minimum levels of independence and impartiality that should be
23
required of the arbitral process, regardless of an existing agreement. A sensible law cannot,
for instance, permit appointment of an arbitrator who is himself party to the dispute, or who is
24
employed by (or similarly independent on) one party, even if this is what the parties agreed.

19 Garner, Bryan, Black’s Law Dictionary, West Pub. Co.United States of America, 9th Edition, 2009, p.
781..
20 Dharma Prathishthanam v. Madhok Construction (P.) Ltd, (2005) 9 SCC 686.
21 Union of India v. Mangaldas N. Verma, AIR 1958 Mad. 296.
22 Lucent Technologies Inc. v.. ICICI Bank Ltd and Ors., 2009 SCC OnLine Del 3213.
23 Law Commission Report 246.
24 Naim Akhtar v. Executive Engineer, Mandi Division II MANU/HP/0440/2018

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[¶ 15.] In the present set of facts in hand, the basic principles of arbitration are not adhered
to. The clause mentions that the Airport Authority has the sole discretion to appoint arbitrator,
without even taking Mercury into confidence. The framing of the clause has been done in
such a way that it confers upon the Airport Authority, unfettered powers to appoint,
whomsoever it deems fit, to adjudicate the dispute. Such a clause cripples Mercury by not
providing an equal opportunity to appoint the arbitrator.

[¶ 16.] Therefore, it is humbly pleaded before this Hon’ble Court that since the principles of
impartiality and independence cannot be discarded at any stage of the proceedings, specifically at
the stage of constitution of the arbitral tribunal, it would be incongruous to say that autonomy of
one party can be exercised in complete disregard to the basic principles of arbitration.

[B.] THE ARBITRATION CLAUSE VIOLATES PRINCIPLES OF NATURAL JUSTICE.

[¶ 17.] The principle of “Nemo Dex In Causa Sua” which means that no one shall be a judge
25
in his own case remains as a bedrock of natural justice. This principle is not only limited to
26
the act of judicial or quasi-judicial authority but applies equally to executive actions.
27
[¶ 18.] In the case of Bharat Sanchar Nigam Limited v/s. Motorola India Pvt. Ltd ., the
Hon’ble SC held that :

“….in view of the fact that the authority, who was entitled to appoint an arbitrator as
per contract, was the one who had imposed liquidated damages, allowing the same
person to appoint the arbitrator would defeat the principles of natural justice, which
recognizes that a party cannot be a judge in his or her own cause…”

[¶ 19.] Therefore, it is humbly pleaded before this Hon’ble Court that the arbitration clause
has been drafted in such a manner that on one hand it provides superseding discretion to the
Airport Authority and on the other hand it deprives Mercury minimal discretion in appointing
the arbitrator. This gives Airport Authority a blindfold discretion to appoint the arbitrator
thereby causing great injustice to Mercury and hence the court should declare such a clause as
null and void.

[C.] THE CONDITION PRECEDENT DESTROYS THE ESSENCE OF FAIRNESS & DETERS

25 Gurmej Singh v. State of Punjab, (2009) 12 SCC 440.


26 J. Mohapatra & Co. v. State of Orissa, AIR 1984 SC 1572
27 Bharat Sanchar Nigam Limited v/s. Motorola India Pvt. Ltd., (2009) 2 SCC 337

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ARBITRATION .

28
[¶ 20.] An arbitration clause need to be fair to both the parties. The test of fairness as
29
propounded by Lord Diplock in A. Schroeder Music Publishing Co is:
“Whether the restriction are both reasonably necessary for the protection of the
legitimate interest of the promisee and commensurate with the benefits secured to
the promisor under the contract?”

[¶ 21.] It is settled law that if a contract or a clause in a contract is found unreasonable or


30
unfair or irrational one must look to the relative bargaining power of the contracting parties.
It is necessary to strike down an unfair or unreasonable clause in a contract that has been
31
entered into by parties who do not enjoy equal bargaining power. Inequality of bargaining
power will apply where a man has no choice or rather no meaningful choice, but to give his
assent to a contract or to sign on the dotted lines in a prescribed or standard form or to accept
a set of rules as a part of contract, however unfair, unreasonable and unconscionable a clause
32
in that contract or form or rules maybe. Such an assent is mere acquiescence which can be
33
later withdrawn. The modern trend is also to examine the unreasonableness of a term in
such contract where the bargaining power is unequal so that these are not negotiated contracts
34
but standard form of contracts between unequal.

[¶ 22.] In the present set of facts in hand, the arbitration clause states “As a condition
precedent to the appointment of an arbitrator, the licensee will deposit any license amount
35
due to the licensor under the license agreement..” However, this condition does not merely
prevent justice being served but is also a clear indictment of the unequal bargaining power. It
prevents justice from being served to the party since the dispute is the one that pertains to the
determination of license fee. When dispute pertains to the quantification of the license fees,
36
non-settlement of the license fee cannot be a ground to deny adjudication by arbitration. In
this particular scenario, the condition has been placed in such a way so as to prevent initiation

28 Union of India v/s Uttar Pradesh State Bridge Corporation Ltd., (2015) 2 SCC 52:
29 (1974) 1 WLR 1308:
30 LIC of India v. Consumer Education and Research, (1995) 5 SCC 482.
31
Balmer Lawrie & Co. Ltd. v. Parthasarthi Sen Roy & Ors., (2013) 8 SCC 345: Central Inland Transport
Corporation v/s. Brojo Nath Ganguly, (1986) 3 SCC 156: Indian Oil Corp. Ltd. v/s Nilofer Siddiqui, (2015) 16
SCC 125.
32 Track Innovation Pvt. Ltd. vs. Union of India and Ors., (2010) SCC onLine Del 1999.
33 Bharat Sanchar Nigam Ltd. v/s. BWL Ltd, ILR (2011) III Delhi.
34 Kumari Shreelekha Vidyarthi & Ors. v. State of Uttar Pradesh and Ors., (1991) 1 SCC 212.
35 Moot Proposition, Para 8.
36 Shri Sai Nath Enterprises v. Delhi Development Authority 2017 SCC Online Del 8501

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of arbitration. It not only averts arbitration but also makes the remedy of arbitration an
illusion. If the condition precedent is followed, then there exists no dispute to be resolved
before the adjudicator. Reference need to be made to the point that the term “due” as
indicated in the condition mentioned above is yet to be decided. Justice stands as a complete
mirage where a party stands at an utter disadvantage to avail it.

[¶ 23.] Therefore, it is humbly pleaded before the Hon’ble Court since the condition precedent is
made without regard for reason or reality and is marked by lack of good sense or judgement it
should be declared null and void for violation of principles of justice and natural law.

[ISSUE III.] MERCURY IS ENTITLED TO COMPENSATION FOR THE LOSS OF


OPPORTUNITY IN THE STATE OF ARKHAM.

[¶ 24.] The Airport Authority issued a tender in the State of Arkham. Mercury was
disqualified from the tender due to a clause which stated “the tender participants would be
37
disqualified if there are any pending dues in any other project of the Airport Authority.”
The Airport Authority was wrong in disqualifying Mercury since [A.] Mercury does not have
a “due”, [B.] such disqualification is violative of Art. 14 and 19(1)(g), [C.] and therefore,
adequate compensation should be awarded for the loss of opportunity due to the wrongful
action of the State.

[A.] MERCURY IS WRONGFULLY DISQUALIFIED ON ALLEGATION OF “PENDING DUES”.

[¶ 25.] “Dues” refers to an ascertained and definite amount due to the creditor and not a disputed
38
amount. This means that quantum of debt should be conclusively established before it can be
called a pending due. The crystallisation of dues could not be said to have taken place until the
39
quantum thereof was either determined by agreement of parties or by a decree of the court.
Where two views are possible, the view holding that a party should not be disqualified should be
accepted since disqualification prevents the applicant from participating in the bidding process
and affects fundamental rights under Art. 19(1)(g) which also affects finances

37 Moot Proposition, Para 13


38 M/s Vijay industries vs. M/s NATL Technologies Ltd., (2009) 3 SCC 527
39 Agri Orient Industries (P.) Ltd. vs. Commissioner of Income tax, Bombay City-I, 1973 SCC OnLine Bom 182

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40
of the State.
[¶ 26.] In the present set of facts in hand, it is not disputed that there was a reduction in the
area of land, and hence Mercury requested for a proportionate reduction of the license fee to
be paid. Since, the Airport Authority did not pay heed to the request, Mercury stopped the
payments for the month of March and April, till the final rates of license fee is negotiated.
Mercury was very willing to pay the license fee but only to the extent it carried on its
operation. Therefore, when such payment is disputed, there does arose any pending due and
hence subsequent disqualification from the tender issued in the State of Arkham is unjustified
and constitutes a wrongful action on the part of Airport Authority.

[B.] FROM TENDER AMOUNTED TO VIOLATION OF ART 14 AND IS HIT BY DOCTRINE OF


LEVEL PLAYING FIELD UNDER ART 19(1) (G).

41
[¶ 27.] The contractual matters are not beyond the realm of judicial review. The court
examine the award of contract by the government or its agencies to prevent arbitrariness or
42
favouritism. The right to trade or carry on occupation does not certainly guarantee that one
can secure a public contract; however, surely that right carries within it a right to be
considered fairly, if the party seeking to enter into the contract fulfils the eligibility conditions
43
and is not hobbled by plainly unfair or arbitrary conditions. Although State exercises
unfettered powers to award a contract, it must be structured by rational, relevant and non-
44
discriminatory standards or norms. The legitimate expectation cannot be denied without fair
45
procedure. Every activity of the government has a public element in it and it must,
46
therefore, be informed with reason guided by public interest.
[¶ 28.] The Airport authority being a instrumentality of State, needs to be in consonance with the
constitutional principles, and observe natural justice. By maliciously disqualifying Mercury from
the tender, the Airport Authority resorted to unfair and arbitrary means, including a blatant
violation of Art. 14. While the authority has certain elbow room in exercising its

40 Shalby Ltd. v. State of Goa,(2012) 1 Mah. LJ 533.


41 Nobel Resources Ltd. v/s State of Orissa, (2006) 10 SCC 236,: Indian Oil Corporation Ltd. v/s Amritsar Gas
Service: Sterling Computer Ltd v/s M/s MM Publication Ltd. And Ors. AIR 1996 SC 51.
42
Binny Ltd. v/s V. Sadashivan 2005 (5) CTC 117: G.B.Mahajan v/s. Jalgaon Municipal Council, Tejas
Construction and Infrastructure Pvt. Ltd. v/s. Municipal Council, Sendhwa, AIR 1991 SC 1153: Directorate of
Education v/s Educomp Data Matics Ltd, (2004) 4 SCC 19..: Indian Railway Construction Ltd. v/s Ajay
Kumar, (2003) 4 SCC 579
43 Atlanta Limited v. Union of India 2018 SCC OnLine Del 8269
44 Ramana Dayaram Shetty v. International Airport Authority of India, 1979 (3) SCR 1014
45 M/s Erusian Equipment & Chemicals Ltd. v. State of West Bengal, (1975) 1 SCC 70
46 Kasturi Lal Lakshmi Reddy v. State of J&K 1980 (3) SCR 1338

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discretion in contractual matters, the discretion conferred on them must be exercised within
47
the four corners of law, and should not be violate Art.14 of the Constitution.

[¶ 29.] The Doctrine of Level Playing field in commercial parlance, is a concept of fairness
and requires all eligible players, who fulfils the conditions, to compete fairly. In the matter of
48
awarding Government contracts, the doctrine of level playing field is of vital importance.
When tenders are invited, the terms and conditions must indicate with legal certainty, norms
and benchmarks. This "legal certainty" is an important aspect of the rule of law. If there is
vagueness or subjectivity in the said terms it may result in unequal and discriminatory
49
treatment, and violates the doctrine of level playing field. Decisions or acts of the state
which result in unequal and discriminatory treatment, would violate this doctrine.

[¶ 30.] Therefore, it is humbly pleaded that the Airport Authority has wrongfully denied
Mercury, the opportunity to compete in the tender on wrongful interpretation of terms of the
tender, thereby violating the doctrine of Level Playing Field.

[C.] DAMAGES FOR LOSS OF OPPORTUNITY

[¶ 31.] The loss of opportunity to participate fairly is analytically different from, and
50
independent of, the loss of a reasonable expectation of receiving the contract. Meaning
thereby, that loss of opportunity exists independent of loss of profits. While the former is the
denial to compete among others, the latter is pure economic loss faced due to the fault of the
51
other party. The plaintiff’s loss will often be a competitor’s gain. If there is no idea of the
exact profits earned by a party if the tender was granted, the party is relegated to a civil
52
remedy to claim damages for the loss of opportunity.

[¶ 32.] Mercury’s loss of opportunity is incidental to the wrongful notion of purported dues upon
which Mercury has been unjustly disqualified by the Airport Authority. It has not only lost the
opportunity to participate in the tender process but also the possibility of qualifying the tender
and actually performing the contract. It needs to be understood that the loss is not only regarding
the opportunity to participate, but also the opportunity of actually qualifying and

47 Union of India v. Dinesh Engineering Corpn., Dhingra Construction Co. v.. Municipal Corporation of
Delhi AIR 2005 Del 247.
48 Shree Ostwal Builders v. State of Maharashtra, 2010 SCC OnLine ITAT 963
49 Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd., (2007) 8 SCC 1.
50 The Martel Case p.104
51 Feldthusen “Liability for Pure Economic Loss: Yes, But Why?” at p.102 also cited in The Martel Case
52 Shree Pacetronix Ltd. v. State of W.B, (2017) 3 ICC 446.

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performing the contract. Hence here there are two different losses caused i.e, the participation
as well as the possibility of performing the contract.

[¶ 33.] Therefore it is humbly pleaded before the Hon’ble Court that since Mercury was
wrongfully rejected from being considered in the tender hence, it should awarded
compensation for loss of opportunity.

[ISSUE IV.] RE-NEGOTIATION OF RATES OF THE TENDER IS PERMISSIBLE

[¶ 34.] The Airport Authority contest that for any proportionate reduction in the license fee,
for the management of parking space, they do not have any authority to revise the rates suo-
moto. For revising, the rates they need to issue a fresh tender, where bidders will propose the
revised rates and the highest bidder amongst them will be entitled to get the license. However,
this stand taken by Airport Authority for not revising the license fee of Mercury does not
53
stand in law as [A.] the Central Vigilance Commission has issued guidelines which permits
post-tender negotiation, [B.] post-tender negotiations can be allowed on the basis of Doctrine
of Legitimate Expectations.

[A.] CVC’S GUIDELINES ON POST-TENDER NEGOTIATIONS.

[¶ 35.] The doctrine of “casus omissus” literally means case omitted. It is basically a situation
not provided for by a statute or contract and therefore governed by caselaw or new-judge made
54
law. When a defect appears a judge cannot simply fold his hands and blame the draftsmen. He
must set to work on the constructive task to find the intentions and then he must supplement the
55 56
written words. In the case of Rajbir Singh Dalal v/s Chaudhari Devi Lal University & Anr.,
the Hon’ble SC held “In Mimansa, casus omissus is known as adhyahara. The adhyahara
principle permits us to add words to a legal text” Casus omissus can be supplied by the court in
cases of clear necessity and when the reason for it is found in the four corners

53 Hereinafter referred to as “CVC”


54 Garner, Bryan, Black’s Law Dictionary, West Pub. Co.United States of America, 9th Edition, 2009, p. 247.
55
Seaford Court Estate Ltd. v/s. Asher, (1949) 2 All ER 155.. Also referred in M.Pentiah v. Muddala
Veeramallapa, AIR 1961 SC 1107: State of Bihar v/s. Asis Kumar Mukherjee, AIR 1975 SC 192: Reena
Aggarwal v. Anupam, (2003) 3 SCC 199.
56 Rajbir Singh Dalal v/s Chaudhari Devi Lal University & Anr ,(2008) 9 SCC 284.

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57
of the statute itself. Words must be construed with the same imagination of the purposes
58
which lie behind them. The meaning of words of a statute are found not so much in a strict
grammatical or etymological propriety of language, nor even in its popular use, as in the
59
subject or in the occasion on which they are used, and the object to be attained.
60
[¶ 36.] In the case of K.Poomalai v. Director of Sugar , which involved post-tender
negotiations with the highest bidder, the Madras HC applied the principles of casus omissus
to interpret Section 10(3) of the Tamil Nadu Transparency in Tender Act, 1998 which stated:

“10. Evaluation and Acceptance of Tender- (3.)Notwithstanding anything contained in


sub-section (2), if the Tender Accepting Authority decides that the price of the lowest
tender is higher with reference to the prevailing market rate or the schedule of rates,
[the said authority] may negotiate for a reduction of price with that tenderer.”

[¶ 37.] The court held that the object of the Act is transparency, fairness and eliminating
corruption. Therefore, the statute cannot be interpreted narrowly. By applying principle of
casus omissus the court held that wherever the term “lowest tenderer” is used it shall also
mean “highest tenderer” and the term “lowest tender” shall also mean “highest tender”. Such
an interpretation is only in consonance with the purpose of the Act, otherwise it will mean
61
fairness only to the lowest tenderer and not to the highest tenderer. Therefore, in this case
the court allowed post-tender negotiation with the highest bidder.

[¶ 38.] The Central Vigilance Commission Act, 2003 empowers the Central Vigilance
Commission to exercise supritendence over Government Corporation and Government
62
Companies. In pursuance of this power, the CVC issued bye-laws on post-tender
63
negotiation on 3rd March 2007. As per the Circular, No.005/CRD/012
“...If at all negotiations are warranted under exceptional circumstances, then it can
be with L1 (Lowest tenderer) only if the tender pertains to the award of work/supply
orders etc. where the Government or the Government company has to make
payment….”

57 Unique Butyle Tube Industries (P) Ltd -Vs U.P. Financial Corporation, (2003) 2 SCC 455.
58 Lehigh Valley Coal Co. v. Yensavaga, 218 FR 547.
59 Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, AIR 1958 SC 353: State
of U.P v/s C.Tobit, AIR 1958 SC 414: Santa Singh v. State of Punjab, AIR 1976 SC 2386: Mukesh Kumar
Tripathi v. Senior Divisional Manager, (2004) 8 SCC 387.
60 K.Poomalai v. Director of Sugar, (2012) 8 Mad. LJ 457.
61 Id, Para 57.
62 Section 8 (h).
63 Central Vigilance Commission, Circular No.005/CRD/012, Dated the 3rd Mar 2007.

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[¶ 39.] The purpose of the said circular is to promote transparency, fairness and reduce
64
corruption in government tenders and contracts. Such being the purpose of the law, does
not mean that fairness should be limited only to lowest tenderer.

[¶ 40.] Therefore, it is humbly pleaded before this Hon’ble Court that the interpretation given
to a similar provision, which intended to achieve the same object in the K.Poomalai case
should be given to the said circular so that fairness in government contracts should also
extend to the highest bidders.

[B.] DOCTRINE OF LEGITIMATE EXPECTATIONS.

65
[¶ 41.] In the case of Food Corporation of India v. Kamdhenu Cattles the Hon’ble Supreme
Court held:

“Duty to act fairly on part of public authorities entitles every citizen to be treated in
a fair manner and it is imperative to give due importance to such an expectation in
order to satisfy the requirement of non-arbitrariness in state action or otherwise it
amounts to abuse of power.”

[¶ 42.] The validity of government actions, in matters of contracts is tested on the


66
touchstones of reasonableness and public interest. Doctrine of legitimate expectations
67
assures fair play in administrative action. Legitimate expectation arises where there was
68
some explicit promise made and such promise was clear and unambiguous. Therefore, as
per doctrine of legitimate expectation a party to contract can expect the State or its
instrumentality to be fair in its dealings.

[¶ 43.] In the present case, the bid made was on the expectations that, revenue would be
generated from the use of 5000 sq. mts. of land. However, presently the business operations
can be carried only on 3000 sq. mts of land. Therefore, the Airport Authority, is expected to
be fair in its dealing with Mercury and the doctrine of legitimate expectation require them to
reduce their license fee proportionately. If the tender rates are not reduced, it would be
contrary of the twin touchstone of reasonableness and fairness which is expected of the State
and its instrumentalities.

64 Central Vigilance Commission, Circular No.005/CRD/12, Dated 3rd Oct 2006.


65 Food Corporation of India v. Kamdhenu Cattles, (1993) 1 SCC 71.
66 Kasturi Lal Laxmi Reddy v. State of J&K, AIR 1980 SC 1992.
67 National Building Construction Corp. v. S. Raghunath and Ors. (1998) 7 SCC 66.
68 Madras City Wine Merchant v. State Of Tamil Nadu, (1994) 5 SCC 509.

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[¶ 44.] Based on the twin touchstones of reasonableness and fairness, in the case of Naresh
69
Maheshwari v. Municipal Corporation Delhi , where in the M.C.D. issued a tender for
management of public parking space the petitioner was allotted the tender for a monthly
license fee of Rs. 56, 786-/. Subsequently, due to certain objection the M.C.D was in a
position to handover only 20% of the land which was promised under the agreement. The
petitioner prayed for a proportionate reduction in the licensee fee. The Hon’ble Court held the
claims of petitioner valid and ordered for a 80% proportionate reduction in the monthly
license fee to be paid by the petitioner.

[¶ 45.] Therefore, it is humbly pleaded before this Hon’ble Court that since a wrong has been
done to Mercury, now it is upon the Airport Authority to act in a just and fair manner. Since,
Rs. 25,00,000-/ was to be paid on the representation that 5000 sq. mts. of land will be allotted
and now that there is a reduction in area of land on which operations can be carried out,
fairness demands that monthly licensee fee should also revised.

69 Naresh Maheshwari v. Municipal Corporation Delhi, 2009 SCC OnLine Delhi 2293.

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[PRAYER]

PRAYER

Wherefore, in the light of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed that this Hon’ble Court may be pleased to adjudge and issue a
writ of Mandamus declaring that:

I. This clubbed petition is maintainable before the Supreme Court of India;

II. The current manner of implementation of the Uniform Civil Code is in violation of
Article 14.

III.Secularism as a principle is violated by the current manner of implementation.

IV. The bilateral treaty subsisting between India and the State of Madina stands violated
in the instant matter.

And/or pass any other order in favour of the Appellant that it


may deem fit in the light of justice, equity, and good conscience.

All of which is most humbly prayed.

Place: Malgudi s/d

Dated: Counsel for Petitioner

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