19/11/2021- Respondent NHAI invited submissions of e-quotation(s) from bidders- for User

Fee Collecting Agency through e-tender for Saini Majra Fee Plaza at Km. 28.160 Ambala-
Kaithal of NH-65.
06/12/21- Respondent engaged petitioner as User Fee Collecting Agency for period of 3
months.
07/12/21- Contract was signed- handing over the site from 08/12/21 to 08/03/22.
07/01/22- Respondent invited the bids from the eligible bidders- RFP for period of 1 year.
28/01/22- Petitioner submitted bid documents- successful H1 bidder.
15/02/22- Contract signed and executed between parties- handing over of plaza from
16/02/22 to 16/02/23.
13/10/22- Respondent issued RFP for the same work and site.

Writ Petition for quashing the RFP dated 13/10/22.

Petitioner has a subsisting contract for which RFP on 13/10/22 has been issued.
Process of initiation of another RFP for the same scope of services- illegal, arbitrary, and
violative of Article 14.
Early termination of contract- certain stretches of land handed over to other collecting
agencies under OMT/BOT concessionaire pursuant to directions or notice being served by
Respondent to Petitioner.
RFP does not include any such directions and Petitioner has not been served with any notice.
Petitioner is a Partnership Firm engaged in business of mining, national highway tolling.
Shri Narendra Kumar- authorized by other partners to sign, verify, institute the present Writ
Petition.
There is no controversy with respect to the contract dated 07/12/21 and 15/02/22.
Contract dated 15/02/22 states the contract to be put into effect from 16/02/22 to 16/02/23-
for one year or till the plaza is handed over to other collection agency (OMT/BOT).

[Clause 2- Period]
When going for BOT/OMT concessionaire, authority reserves the right to reduce the period
without compensation- total amount payable by bidder to authority shall be proportionately
modified depending upon the period.
Period shall be one year- if authority does not get higher bid, it reserves the right to increase
the contract period at same remittance- upto 3 months.

[Clause 35- Termination]

Authority shall be entitled to terminated this contract- decision to transfer the road section to
BOT/OMT concessionaire- after giving notice to the contractor- contractor shall not be
entitled to any claim or compensation.
Authority shall terminate this contract anytime- without assigning reasons- after giving notice
in writing- contractor shall not be entitled to any claim, or any compensation on such
termination- notice to be given seven days prior in writing.

[Clause 37- Integrated Contract]

The contract shall not be explained, modified, or contradicted by any prior or
contemporaneous negotiations, representations, or contracts, written or oral or minutes of
meeting between the parties or bid documents.

Petitioner furnished bid security deposit amounting rs 2,08,00,000/-, for a period of 14

months - 31/01/22 to 31/02/23 - to 301/002/23- performance security and for due observance
of the terms & conditions of contract and performance of its obligations for 1 year.
Petitioner had been operating and had submitted its bid based on specific time period of one
year as per RFP document. Price submitted in bid had a direct correlation with duration of 1
year provided under RFP document.
Respondent's assurance of fixed period of one year was sole basis for submitting the bid.
13/10/22- respondent issued RFP for the same toll plaza for same work for which subsisting
contract existed between petitioner and respondent.
Impugned RFP not only breaches its contract but also amounts to a deemed/ implied
termination.
Contract to be terminated only when certain stretches of land would be handed over to other
collecting agencies under OMT/ BOT concessionaire by directions issued or notice served.
As per the impugned RFP, tendering process will be finalized on 27/11/22 with letter of
award to successful bidder- as per contract (15/02/22) petitioner would still have 4 months to
act as fee collecting agency.
RFP does not specify new contract date applicable to successful bidder- it states- start date of
contract- within 2 days from date of signing agreement or date indicated in LOA.

Grounds for writ

Respondent's action of floating the RFP (has already been awarded to petitioner w.e.f.
16/02/22 to 16/02/23) is an arbitrary action and violates article 14.
Respondent's action amounts to termination of the subsisting agreement without any notice or
hearing being issued.
No notice of termination was issued to the petitioner that is mandatorily required as under the
agreement.
Action of respondent- contrary to principle of natural justice- as petitioner was not given any
notice of termination.
Respondent being 'state' as per Article 12 is supposed to be fair and reasonable in its actions.
Respondent in present case is acting ex-facie arbitrary and capricious.
Petitioner having submitted the bid based on period of 1-year binds the respondent from
curtailing the time period of 1 year considering petitioner has not indulged in wrong doing
during the due operation period.
Unilateral action of respondent of terminating the contract without any reasonable
opportunity of being heard before issuing RFP is impermissible in law.
Notice to be issued before taking any action affecting the party. The state must be reasonable
and fair in its actions.
Issuance of RFP illegal and unlawful as it is affecting the business operations of the firm and
violates 19(1)(g).
Raghunath Thakur v. State of Bihar- any order having civil consequences to be passed only
after following the principles of natural justice.
One sided modification of terms and conditions in the contract contravenes Clause 37 of the
contract.
Bharat Sanchar Nigam ltd. & anr. v. BPL Mobile Cellular ltd. & ors. - government or
governmental authority cannot vary the terms of contract unilaterally. (State must be fair and
reasonable in its actions- accountable for its actions causing consequences to civil)
Change in tariff to not be made unilaterally- contract to be valid and concluded.
Decision making not complying is illegal, unlawful, vitiated by arbitrariness and procedural
irregularity.
Petitioner prays for-
Issuance of an order, writ, or direction to quash the RFP dated 13/10/22.
Issuance of an order, writ, or direction to respondent that implementation of RFP not to
prejudicially affect the petitioner's rights.
Issuance of an order, writ or direction directing the respondent directing them for start date to
any bidder to be done after March 2023.
Award cost in favour of Petitioner - against respondent.
Any order the court deems fit in the interest of justice and in favour of petitioner.
Application under section 151 (CPC) for interim relief/stay
The current RFP dated 13/10/22 is issued for same work on same site and the said action of
respondent amounts deemed termination of the subsisting contract without issuance of notice
or directions being given in the RFP.
Petitioner is working diligently and operating the business without any pending complaint.
Prays to pass ad-interim ex-parte- directing and restraining respondent from proceeding over
the RFP for taking any action so as it does not take further action in pursuance of the
upkeeping of the highway.

Application under 151 (CPC) for exemption from filing typed copies of the Dim Annexures.
Petitioner is filing certain dim annexures of which typed copies are not readily available due
to time constraints and waiting for same would delay the filing of petition.
Prays before Hon'ble court to exempt from filing typed copies.
___________________
(On behalf of respondent)
Application under section 151 (CPC) for seeking modification/variation of order dated
20/10/22
Writ Petition was listed on 20/10/22 where Hon'ble court had directed respondent to file reply
and directed it would not issue any work order till next date of hearing- 12/12/22.
For the impugned RFP dated 13/10/22 the petitioner contends the issuance of this RFP
amounts to an implied termination of agreement and it violates its rights under Articles 14
and 19(1)(g).
Petitioner thus sought for quashing of RFP dated 13/10/22 and to direct the authority so as
not to proceed with furtherance in pursuance of this RFP to protect the rights of petitioner and
to direct them to assign start date (to any successful bidder) of after March 2023 and cost of
proceedings in favour of petitioner.
Petitioner after challenging the tender process participated in the impugned tender initiated
via RFP dated 13/10/22 and among 7 bidders it submitted highest of Rs. 44,24,00,000- which
is 11.07% above APC (Annual Potential Collection) of Rs. 39.83 Cr.
Respondent contends if they are not permitted to proceed then they would be deprived of
public revenue required for operation and maintenance of national highways.
Respondent claims its action being in public interest since sudden increase in traffic because
of Transharyana project from 01/08/22 (feeder route to this Toll Plaza) and toll collection
doubled- previous bid thus lost relevance and viability- respondent thus had to act so in
public interest to safeguard interest of revenue.
As an increase in vehicles on the route and toll collection it was required as per the
respondent to issue RFP as they were losing out on revenue of approx. Rs. 5 lakh per day.
Prays to permit respondent to issue letter of award to the H-1 bidder or to direct petitioner to
deposit Annual Quoted Remittance in terms of the highest bid of Rs. 44,24,00,000/- being
offered by themselves.

Reply on behalf of sole respondent NHAI

Any fact either not specifically denied or adverted or anything not expressly admitted shall be
treated to have been denied.
Writ petition is not maintainable- relief sought cannot be granted. Relief barred by provisions
of the Specific Relief Act.
After challenging the tender, the petitioner participated in impugned tender process initiated
via RFP submitting the highest bid based on current potential- petition shall be dismissed as
they cannot be permitted to challenge the process.
Respondent would be deprived of public revenue and requests intervention of the Hon’ble
court to collect revenue required for operation and maintenance.
Action taken by them is in public interest since start of commercial operations on the
Transharyana project from 01/08/22 (feeder route to this toll).
Petitioner submitted bid for Sirohi Bahali Toll Plaza- petitioner thus cannot be permitted to
challenge RFP and then participate in same- petition should be dismissed.
Respondent- yet to select a contractor- no notice being issued yet- respondent will take steps
as per contractual clauses- no violation of principles of natural justice.
Dispute being contractual in nature without any public law element- no claims for
enforcement of contract be made by petitioner via contract.
Food Corporation of India v. Jagannath Dutta & ors. - notice issued for unilateral
termination- against natural justice and unlawful- Supreme Court held- High Court was not
justified in quashing notice when terms and conditions of the contract permit either party for
terminating the agreement. (Commercial relation between petitioner & respondent- governed
by terms of agreements- dispute related to agreement to not to be entertained by court.
Joshi Technologies International Inc. v. Union of India- contract between private party and
state- under realm of private law- no element of public law- aggrieved to invoke remedies
under ordinary civil law instead of approaching High Court. In matters of contract appellant
or respondents cannot claim relief in nature of mandamus.
Assuming, so Writ Petition is maintainable- issuance of RFP is not arbitrary and violative of
Art. 14 and 19(1)(g) or violative of principles of natural justice.
Contends claims of petitioner by interpretation of clause 2 being misunderstood and so do the
interpretation of clauses 2, 35, being misinterpreted by the petitioner.
Issuance of RFP dated 13/10/22- a mere process to select an agency who would be handed
over project from petitioner- more issuance not an act of terminating of agreement.
Petitioner has not challenged provisions of agreement- grievance to issuance of impugned
RFP- hence cannot contend unilateral termination being impermissible.
Hajee S.V.M. Mohammed Jamaludeen Bros. & Co. v. Govt. of T.N.- government can
unilaterally rescind a contract- appellant cannot bypass clauses under an agreement and if
such clauses empower the govt. to unilaterally terminate the contract the clause would stand
valid and so would the action of govt. be.
Petitioner cannot contradict to contractual provisions by relying upon other provisions of law
and are bound by the terms of agreement as agreed upon.
Agreement not specifically enforceable- respondent entitled to revoke/ dissolve agreement
without giving reasons where contract is determinable as per Section 14(d) of Specific Relief
Act.
Section 41 (ha) bars from granting any injunction with respect to any project or services to be
started.
Para wise Reply
Initiation of RFP is not illegal, unlawful and does not violate Article 14- issuance of RFP- to
select agency- only thereafter respondent would proceed in furtherance with the contract &
law- petitioner having been filed petition for quashing of the RFP has itself participated in the
process, offering highest bid- thus should be disentitled for any relief.
Denies of any loss not being suffered if relief granted in favour of petitioner. Submits that no.
of Passenger Car Units since are increasing there is rise in toll, revenue being increased
approximately 90-95% as compared to in July-22. And agreement if not terminated earlier
petitioner would act as fee collecting agency for next four months.
No categorical assurance that petitioner would act as collecting agency for fixed period of
one year. Relies on Clause 2 & 35(2) stating they can terminate contract either by handing
over plaza to another agency or by giving notice in writing.