Team No.

- R19

IN THE HIGH COURT OF ACCRERIA ACCRERIA

ADVOKAM
PETITIONER V.

UNION OF VISILY & OTHERS

RESPONDENT

MEMORIAL FOR RESPONDENT

Table of Contents
LIST OF ABBREVIATION .......................................................................................................................... II INDEX OF AUTHORITIES ......................................................................................................................... III CASES ................................................................................................................................................. III BOOKS ................................................................................................................................................ III STATUTES ........................................................................................................................................... III STATEMENT OF JURISDICTION ...............................................................................................................IV FACTS OF THE CASE ................................................................................................................................V ISSUE RAISED ....................................................................................................................................... VII SUMMARY OF ARGUMENTS................................................................................................................. VIII ARGUMENTS ADVANCED ...................................................................................................................... 10 1.THE SUIT IS NOT MAINTAINABLE UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ............. 10 2.THE CONCESSION AGREEMENT IS VALID ...................................................................................... 12 I.THE PETITIONER IS NOT PRIVITY TO THE CONTRACT ................................................................. 12 II.THE CONTRACT IS NOT AGAINST PUBLIC POLICY ...................................................................... 12 III.This contract falls within the economic policy making power of the government. ................. 13 3.THE MINORITY STATUS OF UNIVERSITARIA VEVORIA CANNOT BE SNATCHED ............................ 15 I.THE TERM MINORITY SHOULD BE UNDERSTOOD WIDELY ......................................................... 15 II.THE INSTITUTION FULFILS ALL THE CRITERIONS NECESSARY TO BE A MINORITY INSTITUTION16 III.THE INSTITUTION IS WORKING FOR THE GREATER PUBLIC PURPOSE...................................... 17 4.AGREEMENT BETWEEN THE STATE OF ACCRERIA AND THE UNIVERSAL BANK IS VALID ............. 20 I.For acts done in bona fide, incidental violations should be overlooked. ................................... 20 5.PENALTY OF ONE BILLION VISILIAN DOLLARS MAY NOT BE IMPOSED ON THE UNION OF VISILY AS THERE IS NO ANTICIPATORY BREACH ......................................................................................... 22 I.There is neither any breach of the contract, much less any anticipatory breach. ..................... 22 PRAYER ................................................................................................................................................. 24

LIST OF ABBREVIATION
AIR All ER Art. B.L.R. Const. e.g. G.L.R. i.e. I.L.R. Id. MANU No. note p. /pp. para./paras. PC SC SCC Sec. Supp. v. All India Reporter All England Report Article Bombay Law Reporter Constitution exempli gratia (for example) Gujarat Law Reporter id est (that is) Indian Law Reports ibidem (in the same place as above) Manupatra.com Number Foot note Page/pages Paragraph/paragraphs Privy Council Supreme Court Supreme Court Cases Section Supplementary versus

ii

INDEX OF AUTHORITIES
Cases:
1. A.S. Sailaja v Principal, Kurnool Medical, AIR 1986 AP 209 2. Aries Advertising Bureau v. CT Devaraj, 1955 AIR 2251 3. Atladara Kelavani Mandal and Ors. v State Of Gujarat And Ors, (2004) 1 GLR 244 4. Firdaus Amrut Higher Secondary v M.M. Dave, AIR 1992 Guj 179. 5. Gulabchand Gambhirmal v. Kudilal Govindram, AIR 1959 MP 151 6. Hambai Framjee Petit v Secretary of State for India, ILR (1914) 42 IA 44. 7. M.O.H. Uduman And Ors v M.O.H. Aslum, 1991 AIR 1020 8. Narayan Singh v Bihar, (1978) A.I.R. 136 9. Narmada Bachao Andolan v. Union of India and Ors., (2000) 10 SSC 664. 10. Premium Granites v. State of Tamil Nadu, 1994]1SCR579 11. R.K. Dalmia v UOI, AIR 1962 SC 1821 12. Shakti Foundation v. Govt. of NCT of Delhi, MANU/SC/3115/2006 13. Shiv Dayal v UOI, AIR 1963 Punj. 538 14. SP Gupta v UOI, 1981 Supp. SCC 87. 15. St. Stephen's College v. University of Delhi, AIR 1992 SC 1630 16. State of Bihar v. Kamalesh Jain ,1993 Supp(2) SCC 300. 17. State of Bombay v. R.S. Nanji, AIR 1956 SC 294. 18. State of Kerela v. Mother Provencial Very Rev, AIR 1970 SC 2079 19. The Calcutta Gas Company v. The State Of West Bengal And Others, 1962 AIR 1044

Books:
1 D.D. BASU, COMMENTARY ON THE INDIAN CONSTITUTION, 499 (8th ed., 2008). P.B.SAHASRANAMAN, HANDBOOK OF ENVIORNMENTAL LAW, (1ST ed., 2009)

Statutes:
The Constitution of India, 1950 The Indian Contract Act, 1872

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STATEMENT OF JURISDICTION
The respondent has approached the high court under Art. 226 of the Constitution of India, 1950.

iv

FACTS OF THE CASE

The Union of Visily is a Union of 27 states and several Union Territories, which irrespective of their geographical location are run and managed by the Union Government. The present case mainly pertains to the State of Accreria and the Union territory of Advansa which is the biggest city of the state of Advansa. In the state of Accreria reside the followers of Vero (an ancient religion). Although these people have a national population of 0.425%, within the state of Accreria they account for over 60% of the total population. The city of Advansa is modern city, and has state of art infrastructural facilities. The city is well endowed as, apart from the infrastructure, there are a set of 80 islands which attracts tourists round the year. Thus even though there is an acute problem of slum dwellers, the tourism business continues to thrive. The city is also the educational capital of Visily. Two of its universities feature in the top ten of the world, but for the purposes of the current problem, we will be mainly dealing with the Universitaria Verovia. The Universitaria Verovia, a minority institution is managed by a trust which is sponsored by the Vedantam industries is run by Mr. Vedantam. There is also the Advansa University (AU) which is run by the Vedanam Foundation which is owned by Mr. Vedanam. The Universitaria Verovia is established on the founding principle of the Vero religion and with permissible instruction of Vero religion as a compulsory ingredient of its syllabi and curricula. Both, Mr. Vedantam and Mr. Veedanam are brothers. About two decades back, the Union of Visily faced bankruptcy, at which time several international bodies intervened, and provided assistance in the form of financial and capacity building measures. A major part of the contribution was given by the Universal Bank which entered into a twenty year agreement, wherein the Universal Bank had a right to veto any governmental decision pertaining to finances, at any time. Thus, the Union had to pay a heavy due for the assistance it had received. As all these bodies, were known to have interference and influence in all major financial decisions of the Government in Visily. Also in doing so, they would pay negligible attention to the social factors and related governmental policies. That being said, the primary problem that has arisen is in regard to the construction of an airport (Pearl of the Sea) in the island of Coralia, which is a part of the 80 islands that house some highly endangered flora and fauna. There was only a military airport in the state of
v

Accreria, thus a lot of civilian traffic used to flood to it and it used to cause serious disruptions to the proper functioning of th airport. Thus it was decided that a new airport would be constructed with the sole aim of it being for civilian purposes, i.e., Pearl of the Sea. The Visilian Government invited bids for entering into a concession agreement for development of the airport. During the release of the bids the sole consideration for selection of the parties was technical. The bid was eventually won by Vedanam Inc. and the work began immediately. Soon after this happened, Universitaria Verovia announced its desire to start an oceanic biofuel research centre. The state of Accreria, which had already been suffering from huge energy deficits readily obliged and extended all support necessary for the project, by providing the centre with an expert faculty. The state of Accreria also in its own capacity had entered into an agreement with Universal bank that in return for their knowledge database, the state would allow the bank to use the airport. Also the experts who were present they voiced their disapproval at the construction of the airport at such a highly ecologically volatile area. But that was not paid any heed to by the Visilian Govt. Advokam, the petitioner is a student of Finance at Advansa University. He found the economic model used by the government for the agreement was not viable and would render serious losses to the Union. One of the fundamental tenants of the Vero religion is indulging in non-violence. However the establishment of the bio-fuel research centre would lead to the destruction of thousands of microbes, thus Advokam has urged that the minority status of the university be snatched as it would violate the basic tenets of the Vero religion rendering the minority status on the university baseless. Also, the construction of the airport would completely destroy the natural beauty for which tourists flock to Advansa all round the year. Thus this would be a direct violation of right to life of the people who are completely dependent on the tourism industry. Thus, he has applied to the High Court of Accreria under a writ petition under Article 226 of the Constitution of India.

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ISSUE RAISED
1) THE CONCESSION AGREEMENT IS VALID

I. II.

THE PETITIONER IS NOT PRIVITY TO THE CONTRACT. THE CONTRACT IS NOT AGAINST PUBLIC POLICY

2) THE MINORITY STATUS OF UNIVERSITARIA VEVORIA CANNOT BE SNATCHED

I. II.

THE TERM MINORITY SHOULD BE UNDERSTOOD WIDELY THE INSTITUTION FULFILS ALL THE CRITERIONS NECESSARY TO BE A MINORITY INSTITUTION

III.

THE INSTITUTION IS WORKING FOR THE GREATER PUBLIC PURPOSE

3) AGREEMENT BETWEEN THE STATE OF ACCRERIA AND THE UNIVERSAL BANK IS VALID I. FOR
ACTS DONE IN BONA FIDE, INCIDENTAL VIOLATIONS SHOULD BE

OVERLOOKED.

4) PENALTY OF ONE BILLION VISILIAN DOLLARS MAY NOT BE IMPOSED ON THE UNION OF VISILY AS THERE IS NO ANTICIPATORY BREACH I. II. THE PETITIONER IS NOT PRIVITY TO THE CONTRACT THE CONTRACT IS NOT AGAINST PUBLIC POLICY

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SUMMARY OF ARGUMENTS I.
THE CONCESSION AGREEMENT IS VALID

The concession agreement is a result of the power of the state to enter into agreements with other parties. It is humbly submitted that the respondent has not ignored any provision and has entered into the agreement with due caution in bona fide. The basic object behind the agreement is beneficial to the public at large. Also, the petitioner does not have a right to challenge as there is no Privity of Contract.

II.

THE MINORITY STATUS OF THE UNIVERSITARIA VEVORIA CANNOT BE SNATCHED

The minority status of Universitaria Vevoria is undeniable as it is not only administered by a minority community but also established by it. The University has made Vero religion as a important ingredient of its syllabi and curricula. The university has been instrumental in making Advansa the educational hub of the Union. the institution is making a move towards contributing towards the society and thus it should be seen as a bona fide action of the institution.

III.

AGREEMENT VALID

BETWEEN THE

STATE

OF

ACCRERIA

AND THE

UNIVERSAL BANK

IS

It is humbly submitted that the agreement between the State of Accreria and the Universal Bank is valid as the object and the consideration of the contract is not unlawful. Also, it is evident that the state is acting in bona fide, as even the Union hasnt challenged the authority of the state even though the state does not have express authority in this regard.

IV.

PENALTY OF ONE BILLION VISILAIN DOLLARS MAY NOT IMPOSED ON THE UNION OF VISILY AS THERE IS NO ANTICIPATORY BREACH

Neither is there any breach, nor is there any anticipatory breach. As per the principle of anticipatory breach, the other party gets the right to either terminate the contract or to claim damages. In this particular case, nothing of the sort has happened, thus the petitioner does not have any right to challenge the contract. Also, since Vedanam Inc. has kept on continuing the

viii

construction work therefore no anticipatory breach from either party. It would be inappropriate to direct the Union of Visily to pay damages as there is no anticipatory breach.

ix

ARGUMENTS ADVANCED
1. THE SUIT IS NOT MAINTAINABLE UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
Prima facie, it may appear that that the petitioner is a selfless person who is acting on behalf of the society. However, it is urged that there should be a deeper reading of the facts, it can easily be understood that the petitioner has acted with ulterior motives. The petitioner has asked for compensation by means of a contractual remedy in the said prayer. However, the petitioner fails to realise that, this is a which is a Private Law remedy and, is available on claim by those who are privy to the said contract. It will be proved by subsequent arguments that how the petitioner is neither a party to the contract and thus he fails to be privy to the contract. The court while considering on the position on entertaining the plaint, should note the S. P. Gupta v Union of India,1 where the court has observed that:The relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or a meddlesome interloper to approach the court under the guise of a PIL litigant. It should be noted that one of the main reasons for the filing of the PIL is because, the petitioner being a devout Vero follower is appalled by the killing of millions of microbes. Thus the ulterior motive for the filing of the case is clearly for his personal satisfaction. It was held by the Honble Supreme Court that Public Interest Litigation cannot be used to remove to distress of any particular individual.2 It should also be noted by the Honble court that the construction of the airport is a policy decision of the state, and the court should not interfere in it. The case of Ekta Shakti Foundation v. Govt. of NCT of Delhi3 should be referred to in this regard, where the court observed that 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

1 2

1981 Supp. SCC 87. State of Bihar v. kamalesh Jain 1993 Supp(2) SCC 300. 3 MANU/SC/3115/2006

10

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. Thus, it is urged that the court should personally indulge in the fact finding process, as issues such delicate as this should not be wholly treated only on emotional grounds.

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2. THE CONCESSION AGREEMENT IS VALID

The Advansa airport is a military airport, thus letting civilians use the airport causes sufficient amount of difficulty to the military. Thus, the pearl of the sea has been conceptualized. In the present case, the viability of the petitioners contentions is highly questionable.
I. THE PETITIONER IS NOT PRIVITY TO THE CONTRACT

This agreement is between the Union of Visily and Vedanam Inc about the building of an airport at an uninhabited island of Coralia, one of the 80 islands of the city of Advansa. The agreement was based on a private-public model. The rule of privity to contract was laid down in the case of Shiv Dayal v UOI4, where it was laid down that only the persons entitled to the benefits or bound by the obligations of a contract are entitled to sue or be sued upon it. In the present case, the petitioner is wrong in his fundamentals by challenging the concession agreement. The petitioner, who is a student of finance at the Advansa University, came to the conclusion that the financial model used by the Government for the concession agreement for Pearl of the Sea was not viable, and may result into a heavy loss to the Government. A contract confers upon the parties to the contract the right to sue or be sued. But in this particular case, Advokam is not privy to the contract, thus he does not have any right of suing the parties and calling for the contract to be declared null and void. It was clearly held in the case of Aries advertising Bureau v. CT Devaraj,5 the court held that if there is no Privity of Contract then the suit against such of those, who are not parties to the contract, is not maintainable.
II. THE CONTRACT IS NOT AGAINST PUBLIC POLICY

Section 13 of The Indian Airports Authority Acts, 1971, reads as follows, Any land required by the Authority for discharging its functions under this act shall be deemed to be needed for a public purpose and such and may be acquired by the authority under the provisions of the Land Acquisition Act, 1894 or of any other law for the corresponding for the time being in force. It is urged that for the purposes of this particular case, the term authority be understood as the

4 5

AIR 1963 Punj. 538 Aries Advertising Bureau v. CT Devaraj, 1955 AIR 2251

12

Government. thus, as it was held in the case of R.K. Dalmia v. UOI,6 that it is to be construed that the legislature makes the laws in bona fide. Thus the selection of the island of Coralia for the construction of the airport should be treated as an execution of public function. Section 23 of the Indian Contract Act, 1872 reads that if the consideration or object of an agreement is lawful unless- it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another; or the court regards it as immoral, or opposed to public policy. The object of the concession agreement is mainly to make a civilian airport which would effectively reduce the load on the military airport. Thus, it cannot be contended that the agreement goes against public policy. The union of visily has entered into the contract by virtue of the power entrusted upon it by the constitution of India in Article 53. The said provision states that the union may enter into agreements for the benefit of the public, and this falls within the executive power of the state. In the case of Gulabchand Gambhirmal v. Kudilal Govindram7, it has been held that the courts should use extreme reservation in holding a contract as void against Public Policy, and should do so only when the contract is incontestable and on any view inimical to Public interest. The doctrine should be invoked in clear cases in which harm to the public in substantially incontestable and does not depend upon the idiosyncratic inference of a few judicial minds. In the present case it is apparent the benefit the public will receive from the construction of the airport.
III. This contract falls within the economic policy making power of the government.

Entering into contracts for the benefit of the public falls within the executive power of the Union Government. In the case of Premium Granites v. State of Tamil Nadu 8, it was said that The Court must maintain judicial restraint and not ordinarily encroach in the domain of executive or legislature and it is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise, or a better public policy can be evolved.

6 7

R.K. Dalmia v UOI, AIR 1962 SC 1821 AIR 1959 MP 151 8 [1994]1SCR579

13

In the present case, while adopting the model of Public Private Partnership, The Visilian Government invited bids for entering into a concession agreement for development of the Pearl Of The Sea airport. Thus this is entirely within the authority of the Government. it is urged, that the Honble court may declare the policy decision of the government to be void only if it seems to go against public policy, but even then the court should tread with utmost caution. This has been clearly laid down in the case of Narmada Bachao Andolan v. Union of India and Ors.,9 the validity of establishment of a large dam was challenged. The court held that: While protecting the rights of the people from being violated in any manner utmost care has to be taken that the court does not cross its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The court has come down heavily whenever the executive has sought to impinge upon the court's jurisdiction. At the same time, in exercise of its enormous power the court should not be called upon to or undertake governmental duties or functions. The courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The courts should not attempt to replace its judgment with that of the policy decisions of the Government as that would amount to a violation of the authority which the courts exercise.

Narmada Bachao Andolan v. Union of India and Ors., (2000) 10 SSC 664.

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3. THE MINORITY STATUS OF UNIVERSITARIA VEVORIA CANNOT BE SNATCHED

I. THE TERM MINORITY SHOULD BE UNDERSTOOD WIDELY

The Universitaria Verovia which is run by the Vedantam Educational trust is sponsored by the Vedantam Industries which in turn is a culmination of the religious beliefs of Mr. Vedantam. The main contention of the petitioner is that since the university is a minority institution, is should not violate the basic tenents of the Vedo religion, which is primarily indulging in Nonviolence. The petitioners overlook the purpose of establishing the oceanic biofuel research center. It is quite clear from the facts of the case that for the state of Advansa, which has been suffering from heavy energy deficit this development has come as a boon and thus the state has extended all possible assistance towards the university. in the following lines, this issue regarding the minority status of the university will be dealt with in a twofold manner. Afticle 30(1) of the constitution of India, impart upon all the minority communities to establish and administer an educational institutional institution of their own choice. The title of Minority on the institution is not a question open to debate as the Vero People account for only .425% of the population of the Union of Visily. In order to claim the right guaranteed under Art. 30(1), the following conditions must be fulfilled-: i. ii. The community must show that it is a religious or a linguistic minority. It must show that the institution was established by it.

As, it was laid down in the case of State of Kerela v. Mother Provencial Very Rev 10 that after an institution has been brought under the minority community, it does not matter that whether the funds have been supplied by a single individual or by the community at large, or whether the members outside the community are taking advantage. Thus, in this particular case, even though the institution is managed by the trust created by one individual, its status is beyond contention. If it were to be contended that the Vero people, even though a minority in the context of the union, are a majority within the state of advansa, it should be understood, that the term minority is to be understood from the constitutional scheme, which signifies an identifiable group of people or community who are seen to be deserving protection.11 Although within the state of Accreria, the Vero people form a majority, yet it is not clear whether all the people
10 11

AIR 1970 SC 2079 D.d.basu, commentary on the Indian constitution, page 499.

15

follow the traditions of the religion, but this much is clear from the facts of the case that with more and more Veros following the Indus culture, the religion is close to facing extinction. Thus, the term, minority should be broadly construed and the court should itself indulge in the process of fact finding and take into consideration the findings of the various scholars regarding the Vero people.
II. THE INSTITUTION FULFILS ALL THE CRITERIONS NECESSARY TO BE A MINORITY INSTITUTION

Coming to the second issue regarding the viability of the minority status of the institution, it should primarily be understood that the title of a minority institution is granted by the state itself after itself being fully satisfied that the institution has satisfied all the required criterions. It should be understood that the sole reason the university has embarked upon the project regarding bio-fuel research is for the benefit of a society which has an acute shortage of energy supplies. Article 30(1) should be properly understood in this regard. The first right that is bestowed by the article is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be by a minority community. 12 It does not at all matter that i a single benevolent individual, which in that case is Mr. Vedantam with his own means, found the institution and by virtue of the trust set up by his organization contributes the funds. The case should be understood on the basis of the intention on which the institution has been established. In this case, the intention is to benefit a religion that is facing extinction. As it has been rightly put in the case of Mother Provincial, it is irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection. The court should take into consideration the intention of the University while indulging in the research and in doing so; it will be convinced of the benefit the institution will provide to the majority. The question before this Honble High Court arise: What does one mean by "minority institution"? When does an educational institution become a "minority institution"?
12

AIR 1970 SC 2079

16

In case of Firdaus Amrut Higher Secondary v M.M. Dave,13 the court considered the guidelines issued by the Minorities Commission for determination of minority status of educational institutions: 1) Firstly, the Commission has stated that the benefit of Art. 30(l) can be claimed by the community only on proving that it is a religious or linguistic minority and that the educational institution was established by it. 2) Secondly, the Commission has stated that it is not always necessary that the objects for which a minority has established an educational institution must include the conservation of its language, script or culture. Art. 30(l) only emphasizes that the body establishing and administering an educational institution belongs to a minority based on religion or language. 3) Thirdly, the commission has provided that an institution seeking recognition as a minority institution must fulfil the statutory requirements concerning the academic standards, qualification of teachers and of the students seeking admission. It must have financial resources and capability to run on sustained basis The Universitaria Verovia can be characterized as a minority institution as it is not only administered by a minority community but is also established by it. The University has made Vero religion as a compulsory ingredient of its syllabi and curricula. The standard of education can be anticipated from the very fact itself that the University ranks amongst the top ten universities of the world. Therefore, it would be appropriate to say that the University fulfills the conditions required by the Minority Commission to qualify as Minority Institution.

III.THE INSTITUTION IS WORKING FOR THE GREATER PUBLIC PURPOSE

The draft article and the Constituent Assembly Debates in unambiguous terms show that minority status of a group of persons has to be determined on the basis of population of a State or Union Territory.14 It is clearly mentioned that Veros account for over 60 percent of Accrerias population. As the census of the Union Territory is different from the census of the State (Census of the Chandigarh
13 14

Firdaus Amrut Higher Secondary v M.M. Dave, AIR 1992 Guj 179. TMA Pai

17

can be referred as example), therefore census of the Union Territory should be considered to determine the minority status. However, population of Union territory is not mentioned in the present case and Vero religion is at the verge of extinction, with a large part of its followers now following the Indus culture,. Suffice it to say that if population of the Accreria is considered to determine the minority, it would cause prejudice to the respondent and shall ultimately result into the miscarriage of justice. In case of Atladara Kelavani Mandal and Ors. v. State of Gujarat And Ors,15 the court held that there cannot be any straight jacket formula for testing or examining the status of an institution as minority. It would vary from facts to facts and various considerations may be required to be examined and some of them are - the persons forming the institutions, the intention with which the institutions is formed, the beneficiaries of the institutions by and large and whether any intention is made express or implied for advancement, upliftment or preservation of minority, etc.16 Constitution Bench of the Supreme Court of India, in the case of St. Stephen's College v. University of Delhi,17 held that the choice of institution provided in Article 30(1) does not mean that the minorities could establish educational institution for the benefit of their own community people. Indeed, they cannot. It is legally impermissible to construe Article 30(1) as conferring the right on the minorities to establish educational Institution only for their own benefit. The minorities are not entitled to establish and administer educational institution for their exclusive benefit. The root decision of public purpose can be found in the Privy Council decision of Hambai Framjee Petit v Secretary of State for India.18 The Constitution Bench of Hon'ble Supreme Court considered the ratio of Hambai's case in State of Bombay v. R.S. Nanji,19 and observed as under: In Hamabai's case the observation of Batchelor, J. to the effect "General definitions are, I think, rather to be avoided where the avoidance is possible, and I make not attempt to define precisely the extent of the phrase 'public purpose' in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may
15 16

Atladara Kelavani Mandal and Ors. v State Of Gujarat And Ors, (2004) 1 GLR 244 Atladara Kelavani Mandal and Ors. v State Of Gujarat And Ors, (2004) 1 GLR 244 17 St. Stephen's College v. University of Delhi, AIR 1992 SC 1630 18 Hambai Framjee Petit v Secretary of State for India, ILR (1914) 42 IA 44. 19 State of Bombay v. R.S. Nanji, AIR 1956 SC 294.

18

mean must include a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned" received the approval of Privy Council.

In Narayan Singh v Bihar,20 S.K. Jha J: ..the objective test applied from case to case, which has since been judicially recognised, is that whatever furthers the general interests of the community as opposed to the particular interests of the individuals must be regarded as a public purpose. Public purpose may be achieved through private enterprise as well as through any public agency.

In the present case, the respondent is fulfilling its social obligation by establishing a centre for oceanic biofuel research, as no minority educational institution can be established for the benefit of a particular community alone. Therefore, the minority status of the university cant be snatched as it fulfills its social obligations mentioned by the court.

If the minority status of the university is robbed because of such frivolous issues, especially when an internationally acclaimed institution is trying to contribute to the society, it would surely amount to grave injustice. To conclude, in the words of Jawaharlal Nehru, the history of india, and many of the countries of Europe has demonstrate that there can be no stable equilibrium in any country so long as an attempt is made to crush a minority or to force it to conform it to the ways of the majority21

20 21

Narayan Singh v Bihar, (1978) A.I.R. 136 Readings on minorities, Iqbal A. Ansari, Institute of objective studies, Jawaharlal Nehrus Note on minorities, page-132, Vol-2.

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4. AGREEMENT BETWEEN THE STATE OF ACCRERIA AND THE UNIVERSAL BANK IS

VALID

In the present case, for the purposes of convincing the Honble court of the reasons why the state of Accreria, the respondent would be heavily relying on the facts of the case.
I. For acts done in bona fide, incidental violations should be overlooked.

The facts of the case affirm that the state of Accreria have been suffering from huge energy deficits. The state of Accreria houses not only the most prominent educational institutions, but many international agencies. It can be quite easily assumed that these shortage of supply of energy has adverse effect on the economy of the state. Thus, when finally the state saw a ray of hope, it provided Universitaria Verovia all the assistance it needed to meet the energy crisis. In doing so, the state was not acting beyond its authority per se. It should also be taken note of that when the time came for the respondents of the case to make a move, the Union and the State Gov.s both con-jointly applied and the Union Government did not raise any question challenging the authority of the State government. The sole purpose of this exercise is to elaborately describe that the State Govt. was only acting in bona fide. When it comes to the application of constitution provisions, it has always been the trend that for the benefit of the community at large, the terms have been given very wide interpretations. Thus, it is humbly urged to the court that they may engage in harmonious construction of the laws and treat the violation of procedures as purely incidental and try to reconcile the differences in the laws between the union and the state. Thus, it is contended that the court may widen the ambit the ambit of the said doctrine so that it may seem appropriate to the present situation. The Honble court is requested to refer to the case of A.S. Sailaja v Principal, Kurnool Medical22 , where it was stated that Therefore, in interpreting the provisions, we have to see what is the effect thereof. The interpretation should be to subserve the purpose. It should not however be construed that the Doctrine is only to reconcile the differences between the Union and State laws, in the case of The Calcutta Gas Company v. The State Of West Bengal And Others23 the court invoked the doctrine to settle the dispute between Entry 25 and 25 of
22 23

AIR 1986 AP 209 1962 AIR 1044

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List II of the seventh schedule of the Constitution. Again in the case of M.O.H. Uduman And Ors vs M.O.H. Aslum24 where there was an issue regarding a contract of partnership and there arose and the court had utilized the doctrine of harmonious construction to gather the intention of the parties to the contract. It is urged that the court may look at the pith and substance of the actions which the State of Accreria has engaged into. The university was only lacking in expert opinion, which was provided by the state with the help of the Universal Bank. The Universal bank has stuck along through thick and thin with the Union govt. Though it may be contended that granting the Bank a right to free use of the airport will be a violation of the right of the general public to use it, it should not be forgotten that it is mainly because of the contribution of universal bank that the Union of Visily is now financially stable and has had a influx of International Establishments. It seems evident that the state has acted in a desperate manner to secure to its citizen their energy needs. If it be considered that universal bank does not provide assistance, then the State of Accreria will face perennial shortage of energy supplies. Thus, it is humbly requested before the Honble court that to meet the interests of justice, the authority of the state be not questioned.

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1991 AIR 1020

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5. Penalty of One Billion Visilian Dollars may not be Imposed on the Union of Visily as There is no Anticipatory Breach
In the present case, it has been contended by the petitioner to call off the contract on the grounds of anticipatory breach and has requested for the payment of One billion Visilian dollars towards Vedanam Inc.
I. There is neither any breach of the contract, much less any anticipatory breach.

for the conditions of anticipatory breach to be successful, there must first be an indication or intimidation from the side of one of the parties that they refuse to carry of the terms of the contract. In the present scenario, nothing of the sort has happened. The act of Anticipatory breach can be done in two ways: Before the time of performance comes a party to the contract refuses to perform the act

entirely When it becomes impossible for the performance to be done

In the present case, none of the requirements have been fulfilled. As in no way have the govt. functioned to make the contract impossible to be performed. In modern times, the welfare state is the source of enormous amount of wealth and more and more persons enjoy government largess in the form of jobs, contracts, licenses, quotas, mineral rights, concessions, etc.25 in the selfless tryst of the petitioner, he fails to recognize that the airport which will be constructed will also be a major source of employment for the people of Accreria. Also, Mr. Advokam is not privy to the contract between the Union and the Universal bank. The rule of privity as in the case of Shiv Dayal vs UOI26 is that only the persons who are entitled to the benefits of the contract or those who are bound by the contractual terms cane sue or be sued in a contract. Again in the case of Again in the case of Jama Das vs Ram Autar, the Supreme Court upheld the Doctrine of Privity, and said that other than parties to the contract any third person cannot sue or be sued.

25 26

M.P.Jain, Indian Constitutional Law, 6th ed, page 1678, lexis nexis publishers. AIR 1963 Punj. 538

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Thus, it is fairly evident that the Advokam does not have the capacity of suing the parties and claiming relief, as he is not at all related to the case. The government has engaged in a fair process of bidding and has selected the most eligible bidder. Thus, it is requested that the petition be dismissed.

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PRAYER

Wherefore, may it please the Court in the light of the questions presented, arguments advanced, and authorities cited, to adjudge and declare that: The Petitioner respectfully requests this Honourable Court to determine:

That the concession agreement is valid; That the minority status of Universitaria Verovia cannot be snatched; That the agreement between Accreria and Universal Bank is valid; That Penalty of one Billion Visilian dollars not to be paid by the Union of Visily to Vedanam Industries on account of no anticipatory breach.

All of which is respectfully affirmed and submitted

COUNSEL FOR THE RESPONDENT UNION OF VISLIY AND OTHERS

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