A2 Govt

2ND DR.
PARAS DIWAN MEMORIAL “ENERGY LAW”NATIONAL MOOT COURT

COMPETITION, 2012
IN THE HONORABLE
SUPREME COURT OF INDOI
IN THE MATTER OF:
1. GOVERNMENT OF INDOI THROUGH THE SECRETARY, MINISTRY OF PETROLEUM &

NATURAL GAS
2. INDOI OIL CORPORATION LTD.
3. HEXXON PETROLEUM CORPORATION LTD.
4. BRIGHT PETROLEUM CORPORATION LTD. …………...……..
…………...…….. ……
……..........PETITIONER
(S )
VERSUS
RETRO PETROLEUM LTD.…………...….……..………..…….

….......................RESPONDENT
ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDOI

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
MOST RESPECTFULLY SUBMITTED
T1
MEMORIAL for RESPONDENT
2ND DR. PARAS DIWAN MEMORIAL “ENERGY LAW”NATIONAL MOOT COURT
COMPETITION, 2012
CODE:
COUNSEL FOR THE PETITIONERS
MEMORIAL for RESPONDENT

COMPETITION, 2012
- TABLE OF CONTENTS -
TABLE OF CONTENTS
INDEX OF AUTHORITIES…………………………………………………………..................i
LIST OF CASES..............................................................................................................................i
BOOKS AND TREATISES...............................................................................................................ii
ARTICLES....................................................................................................................................iii
STATUTES REFFERED..................................................................................................................iv
WEB SOURCES............................................................................................................................iv
LIST OF ABBREVIATIONS.............................................................................................................v
STATEMENT OF FACTS…………………………………………………………………….VII
STATEMENT OF JURISDICTION……………………………………………………………
X
STATEMENT OF ISSUES
..................................……………………………………………………………………..XI
SUMMARY OF ARGUMENTS………………………………………………………………XII
ARGUMENTS ADVANCED……………………………………………………………………1
1. THAT CCI HAS NOT THE JURISDICTION TO DECIDE MATTERS RELATING TO ABUSE OF
DOMINANT POSITION AND PREDATORY PRICING IN PETROLEUM PRODUCTS (HSD IN THE
INSTANT CASE)?......................................................................................................................1
2. THAT THE ACT OF NOMCS TO SELL HSD AT REGULATED PRICE IS NOT ANTI-
COMPETITIVE……………………………………………………………………………….. .4
2.1 The Relevant Market in the instant case is HSD...........................................................5

2.2 NOMCs fall under the definition of ‘state’ under Article 12 of the Constitution.........6
2.3 The practice of regulating prices HSD falls under the ambit of sovereign functions.. .8
2.4 The NOMCs do not fall under the definition of an “Enterprise” under the Competition
Act.........................................................................................................................................11
2.5 Provisions of Section 3 not applicable to the NOMCs.......................................................12
___________________________________________________________________________
COMPETITION, 2012
- TABLE OF CONTENTS -
3. THAT THE GOVERNMENT OF INDOI IS LEGALLY JUSTIFIED TO REGULATE THE PRICES OF

HSD AFTER DISMANTLING THE APM…..…………………………………………………………
13
3.1 Price Regulation a part of Sovereign Function of the Government for the Welfare of the
Economy...............................................................................................................................13
3.2 Absence of Mala fide intention on the part of the Government.........................................15
PRAYER........................................................................................................................xviii
___________________________________________________________________________
COMPETITION, 2012
- INDEX OF AUTHORITIES -
INDEX OF AUTHORITIES
LIST OF CASES
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487..............................................................................7
Ashoka Smokeless Coal India (P) Ltd v. Union of India, (2007) 2 SCC 640, p.687.....................10
Collector of Customs, Madras v. Nathella Sampathu Chetty and Anr., AIR 1959 Mad 142.......14
Delhi Developmental Authority v. Joint Action Committee, (2008) 2 SCC 672...........................16
Electricity Broad , Rajasthan v. Mohan Lal, AIR 1967 SC 1857...................................................6
Kasturi lal v. State of J&K, AIR 1980 SC 1992: (1980) 4 SCC 1..................................................8
Laxmi Khandsari v. State of U.P, AIR 1981 SC 873....................................................................13
M/s. Diwan Sugar and General Mills (P.) Ltd. and Ors. v. U.O.I, AIR 1959 SC 626.................14
Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra Ltd.,....1
Maru Ram v. Union of India,...........................................................................................................2
Meenakshi Mills Ltd. v. U.O.I, AIR 1974 SC 366.........................................................................14
Mineral Development Ltd. v. The State of Bihar and Anr., AIR 1960 SC 468.............................14
Narendra Kumar and Ors. v. The Union of India and Ors., AIR 1960 SC 430...........................13
Ramnath Verma v. State of Rajasthan, (2012) 3 SCC 212............................................................16
Saraswati Industrial Syndicate Ltd. v. U.O.I, AIR 1975 SC 460..................................................14
State of Madras v. V.G. Row, AIR 1952 SC 196...........................................................................14
Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331..........................................................................6
United States v. Grinnell Corp., 384 U.S. 563................................................................................5
MEMORIAL for RESPONDENT i

COMPETITION, 2012
BOOKS AND TREATISES
 BISHOP, SIMON AND MIKE WALKER, THE ECONOMICS OF EC COMPETITION

LAW: CONCEPTS, APPLICATION AND MEASUREMENT 45 (2nd Edition, Sweet and
Maxwell)
 C.K.TAKWANI, LECTURES ON ADMINISTRATIVE LAW (Eastern Book Company Lucknow,
1998)
 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (Wadhwa and Company Law
Publishers Nagpur, 2009)
 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (Wadhwa and Company Law
Publishers New Delhi, 2006)
 EINER ELHAUGE & DAMIEN GERADIN, GLOBAL COMPETITION LAW AND ECONOMICS 451-
452(Hart Publishing, USA, First Edn. Reprint, 2008)
 H.M.SEERVAI, CONSTITUTIONAL LAW OF INDIA (Universal Law Publishing New Delhi,
1996)
 HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION AND
ITS PRACTICE SEC 3.6 AT 113 (2nd ed., 1999)
 I.P.MASSEY, ADMINISTRATIVE LAW (Eastern Book Company, 2005, Lucknow)
 JAGADISH SWARUP, CONSTITUTION OF INDIA (Modern Law Publication Allahabad, 2008)
 M.P.JAIN, INDIAN CONSTITUTIONAL LAW (LexisNexis Butterworths Wadhwa Nagpur,
2010)
 OECD (2003): OECD PEER REVIEW: COMPETITION LAW AND POLICY IN
SOUTH AFRICA.
 RICHARD POSNER, ANTITRUST LAW 79-80 (2nd ed., University of Chicago Press)
 RICHARD WHISH, COMPETITION LAW 675 (Oxford publications, 6th edition, 2000)
 SUBHASH C. KASHYAP, ANTI-DEFECTION LAW AND PARLIAMENTARY PRIVILEGES
(Universal Law Publication New Delhi, 2003)
 SUBHASH C. KASHYAP, PARLIAMENTARY PROCEDURE (Universal Law Publication New
Delhi, 2006)
MEMORIAL for RESPONDENT ii

COMPETITION, 2012
ARTICLES
 Akhilesh Patel, Indian Judicial Process : A Critique,(January 25, 2011)

 And Networks, 3 J. Competition L. & Econ. 625
 Antitrust Laws in the United States and the European Union, 36 J. Marshall L. Rev. 271
 Aparna Viswanathan, From Commanding Heights to Competition: A Comparative Analysis
 Article 356 and the Scope of Judicial Review: A Critical Study of State of Rajasthan v.
Union of India.
 Arvind P Bhanu, Changing Face of Article 356:Judicial Zeal and Jerk
 Bus. L.J. 1, (2006)
 Daniel E. Lazaroff, Entry Barriers and Contemporary Antitrust Litigation, 7 U.C. Davis
 Dynamic Competition in Antitrust Law, 5 J. Competition L. & Econ. 581
 Edwin Hughes, The Left Side Of Antitrust: What Fairness Means And Why It Matters, 77in
Anti-Merger Suits, 18 ANTITRUST BULL. 45 (1973).
 Interpretation Challenged, 50 Hastings L.J. 871, 911-35 (1999).
 Ioannis Lianos, Vertical Restraints, and the Limits of Article 81(1) EC: Between Hierarchies
 Ittai Paldor, The Vertical Restraints Paradox: Justifying the Different Legal Treatment of
 Jenna Narayan, ‘Defect-Shun’: Understanding Schedule X to the Constitution of India,
(December 22, 2010)
 K. Jayasudha Reddy and Joy V. Joseph, National Commission to Review the Working of
the Constitution : Executive Discretion and Article 356 of the Constitution of India: A
Comparative Critique.
 Kenneth G. Elzinga & Thomas F.Hogarty, The Problem of Geographic Market Delineation
of India's Competition Act 2002 With UK/EC Law, I.C.C.L.R. 2003, 14(7), 229-236, 230
(2003)
 Price and Non-Price Vertical Restraints, 58 U. Toronto L.J. 317
 Ram Jeethmalani, Role of President under the Constitution of India, (January 11, 2011)
 Sandra Ferson Young, An International Antitrust Dilemma: An Analysis of The Interaction of
 T.S.Sivagnanam, Principles of Natural Justice, (December 28, 2010)
MEMORIAL for RESPONDENT iii

COMPETITION, 2012
 Tarun Jain, Audi Alteram Partem : Natural Law Revisited, (December 24, 2010) The Hindu,
Article 356 should be abolished, (January 17, 2011)
 Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency
 William Baxter, The Viability of Vertical Restraints Doctrine, 75.
STATUTES REFFERED
 ESSENTIAL COMMADITIES ACT, 1955

 THE COMPANIES ACT, 1956
 THE COMPETITION ACT, 2002
 THE CONSTITUATION OF INDIA, 1950
 THE PETROLEUM AND NATURAL GAS REGULATORY BOARD ACT, 2006
WEB SOURCES
 http://dwmw.files.wordpress.com/2011/06/bell-church-study.pdf
 http://ec.europa.eu/competition/mergers/legislation/jn.pdf
 http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:051:0015:0016:EN:PDF
 http://indiankanoon.org/doc/63771/
 http://transition.fcc.gov/osp/projects/baker_vertical_mergers.pdf
 http://www.atg.wa.gov/antitrustguide.aspx
 http://www.bmradvisors.com/upload/documents/Tax%20Edge%20Special1326779738.pdf
 http://www.concurrences.com/article.php3?id_article=35278&lang=fr
 http://www.concurrences.com/state_aid_thesaurus_reports_question.php3?id_question=1022
 http://www.dnaindia.com/analysis/comment_acid-test-for-realty-in-dlf-ccispat_1600565
 http://www.iflr.com/Article/2919271/India-The-evolution-of-competition.html
 http://www.indiajuris.com/comlaw.pd
 http://www.lw.com/upload/pubContent/_pdf/pub1918_1.pdf
 www.asiantribune.com
 www.ikanoon.com
MEMORIAL for RESPONDENT iv

COMPETITION, 2012
LIST OF ABBREVIATIONS
Anr Another’s
APM Administered Pricing Mechanism
Art. Article
BPCL Bright Petroleum Corporation Ltd.
CAT Competition Appellate Tribunal
CCI Competition Commission of India
Co. Company
Corp. Corporation
EEC European Economic Community
Govt. Government
HPCL Hexxon Petroleum Corporation Ltd.
HSD High Speed Diesel
IOCL Indoi Oil Corporation Ltd
J&K Jammu and Kashmir
Ltd. Limited
MOPNG Ministry of Petroleum & Natural Gas.
NOMCs National Oil Marketing Companies
Ors. Others
PNGRB Petroleum and Natural Gas Regulatory
Board
Pvt. Private
RPL Retro Petroleum Limited
SC Supreme Court
SCC Superme Court Cases
Sec. Section
U.O.I. Union of India
U.S. United States
V Versus
Vol. Volume
MEMORIAL for RESPONDENT v

COMPETITION, 2012
- STATEMENT OF FACTS-
STATEMENT OF FACTS
-I-
Constitutional framework of Indoi: Indoi is a country whose constitutional framework is

similar to that of India. Globalization has fuelled the demand for energy fuels to accelerate the
economic growth of developing countries like Indoi. The strategy for energy development is an
integral part of the overall economic development. Indoi is the fifth largest consumer of the
energy fuels which was increasing every year. The domestic crude was not sufficient so it was
imported which amounted to 80% of the total consumption.
Government of Indoi constitutionally committed to cater the economic interest of the vulnerable
sections of the people, had a [policy to provide them certain petroleum product at a subsidized
rate therefore the pricing of petroleum products id one of the major concern of the Ministry of
Petroleum & Natural Gas (MoPNG) of the Government of Indoi.
-II-
Petroleum pricing till 2002: In the year 1970 several oil companies were nationalized.
Government introduced Administered Pricing Mechanism (APM) which was a complex way of
cross-subsidization and ensured a 12 percent post-tax return to the oil companies. It also
empowered the Government to artificially decide upon the prices of petroleum products.
The explosive growth of 1990s required the Government to call for private and international
investors. As a result the Government constituted a committee to recommend on the deregulation
and tariff reforms required in the oil sector which recommended for the dismantling of the APM
and were approved by the Government. The Government appointed an “Expert Technical Group
(ETG)” to study the phasing and tariff structure of the oil sector. ETG recommended the phased
deregulation of the APM and in total by 1.4.2002.
MEMORIAL for RESPONDENT vi

COMPETITION, 2012
-III-
Petroleum pricing after 2002: Government of Indoi accepted the recommendations of ETG.
MoPNG notified phased dismantling of APM vide resolution no. P-20012/29/97 dated 21 st
November, 1997. Thereafter, dismantling of APM for consumer pricing w.e.f. 1 st April, 2002
was notified and private players were authorized to market the transportation fuel including HSD
as per the guidelines contained in MoPNG resolution no. P -23015/1/2001 Mkt. Accordingly
APM was completely dismantled w.e.f 1st April 2002. National Oil Marketing Companies
marketed HSD before the private players entered the field. NOMCs are public sector companies
in which the Government holds the majority share.
There was a steep increase in the prices of HSD in the international market and Government
keeping in view its adverse effect on the people did not increase the price of HSD in conformity
with the international prices. NOMCs suffered huge losses which was compensated by issuing
them oil bonds
-IV-
Retro Petroleum Limited : RPL got the authorization for marketing petroleum HSD and
invested heavily to setup outlets for HSD retail with legitimate expectation that the prices of
HSD will be market determined. despite the resolution the government continued to regulate the
prices of HSD which made RPL to suffer huge losses without any compensation and so had to
close their outlets.
-V-
Regulatory Boards: Government of Indoi had enacted the Competition Act, 2002 to promote
and sustain competition in the market to protect the interest of the consumers and ensure freedom
of trade, to promote economic efficiency, to make markets work for the welfare and benefit of
the consumers and to ensure fair and healthy competition and a board named Petroleum and
Natural Gas Regulatory Board (PNGRB) under the Petroleum and Natural Gas Regulatory
Board Act, 2006 to regulate the refining , processing, storage, transportation, distribution,
marketing and sale of petroleum and petroleum products and natural gas excluding production of
MEMORIAL for RESPONDENT vii

COMPETITION, 2012
crude oil and natural gas so as to protect the interest of consumers and entities engaged in
specified activities relating to petroleum, petroleum products and natural gas.
-VI-
Conflict: RPL filed the case in CCI against the Government and NOMCs for predatory pricing
and abuse of dominant position for which CCI issued notice to the respondent who raised certain
preliminary objections that CCI does not have the jurisdiction to deal in the cases relating to
petroleum and the same falls within the jurisdiction of PNGBR, and it is a policy matter of the
Government and the same cannot be questioned.
CCI held for its jurisdiction, against which Government went to CAT, which did not pass any
interim relief, ordered CCI to continue with the proceedings but not to pass any final order till
disposal of the appeal. CAT finally held for CCI’s jurisdiction.
Aggrieved by the order of CAT the Government moved to the Supreme Court of Indoi and
prayed for the quashing of the order and also filed an application for interim stay on the
proceeding before the CCI.
MEMORIAL for RESPONDENT viii

2ND DR. PARAS DIWAN MEMORIAL
“ENERGY LAW”NATIONAL MOOT COURT COMPETITION, 2012
- STATEMENT OF JURISDICTION-
STATEMENT OF JURISDICTION
The Special Leave Petition has been preferred by the Appellants under Article 136 of the Indian
Constitution before the Honorable Supreme Court of India.
Article 136 of the India Constitution says that: (1) Notwithstanding anything in this Chapter, the
Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any court or tribunal
in the territory of India. (2) Nothing in clause (1) shall apply to any judgment, determination, and
sentence or order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces.
MEMORIAL for RESPONDENT ix

2nd Dr. PARAS DIWAN MEMORIAL
- STATEMENT OF ISSUES-
STATEMENT OF ISSUES
I. THAT CCI HAS NOT THE JURISDICTION TO DECIDE MATTERS RELATING
TO ABUSE OF DOMINANT POSITION AND PREDATORY PRICING IN
PETROLEUM PRODUCTS (HSD IN THE INSTANT CASE).

II. THAT THE ACT OF NOMCS TO SELL HSD AT REGULATED PRICE IS ANTI-
COMPETITIVE.
III. THAT THE GOVERNMENT OF INDOI IS LEGALLY JUSTIFIED TO REGULATE
THE PRICES OF HSD AFTER DISMANTLING THE APM.
MEMORIAL for RESPONDENT x

- SUMMARY OF ARGUMENTS-
SUMMARY OF ARGUMENTS
1. THAT CCI HAS NOT THE JURISDICITION TO DECIDE MATTERS RELATING
TO ABUSE OF DOMINANT POSITION AND PREDATORY PRICING IN
PETROLEUM PRODUCTS (HSD IN THE INSTANT CASE)
CCI does not have the jurisdiction to deal with the cases relating to abuse of dominant position
and predatory pricing in petroleum products (HSD in the instant case) as there is a specific
legislation, the Petroleum and Natural Gas Regulatory Board, 2006 to deal with the cases relating
to the pricing, the marketing and sale of petroleum and petroleum products, to safeguard the
interest of the consumers and entities engaged in specified activities relating to petroleum,
petroleum products and natural gas, etc and to promote competitive market. It is the later and
specific intention of the legislature to deal in the cases relating to the pricing of the petroleum
products and therefore it has an exclusive jurisdiction to deal with caes relating to the pricing of
the petroleum products.
2. THAT THE ACT OF NOMCS TO SELL HSD AT REGULATED PRICE IS ANTI-

COMPETITIVE?
The act of NOMCs to sell the HSD at regulated price in not anti-competitive as The NOMCs fall
within the definition of State under Article 12 of the Constitution, and are performing sovereign
functions.
2.1. The Relevant Market in the instant case is HSD
According to the Act, while determining the “relevant product market”, the factors to be taken
into consideration are physical characteristics of end-use of goods; price of goods or service;
consumer preferences; exclusion of in-house production; existence of specialized producers;
classification of industrial products. Applying the principle of interchange ability, the HSD are
specific transportation fuel which cannot be substituted by any other transportation fuel.
MEMORIAL for RESPONDENT xi

Therefore, in the present case HSD forms the relevant market as the same cannot be substituted
by any other petroleum or petroleum product.
2.2. NOMCs fall under the definition of ‘state’ under Article 12 of the Constitution.
The NOMCs fall under the ambit of “State” under the Constitution of India, thus, fall under the
sovereign function of the Government of Indoi. The Supreme Court of India has held in number
of decisions that Public Corporations and Undertakings fall within the inclusive definition of
“State”
2.3. The practice of regulating prices HSD falls under the ambit of sovereign
functions.
The government by regulating the price of HSD selling it at a subsidized rate through the
NOMCs is doing nothing but a sovereign function entrusted to it by the constitution under the
Directive Principles as well as the preamble of the constitution i.e. it is aiming at the economic
welfare of the people. Therefore the said action of regulating prices of HSD falls under the ambit
of the sovereign functions of the state.
2.4. The NOMCs do not fall under the definition of an “Enterprise” under the
Competition Act.
According to the Act an “enterprise” includes a person or a government department and “person”
any corporation established by or under any Central, State or Provincial Act or a Government
company as defined in section 617 of the Companies Act, 1956. For the purpose of anti-
competitive act on the part of the NOMCs its definition says that any enterprise or person will
not engage in anti-competitive agreement but since NOMCs are neither enterprise nor person
under the Competition act the provisions of anti-competitive agreement in the Competition Act
will not be applicable to NOMCs.
2.5. Provisions of Section 3 not applicable to the NOMCs
MEMORIAL for RESPONDENT xii

Since NOMCs fall under the definition of State and not under the definition of “enterprise” under
the Competition Act it can be concluded that the NOMC neither being person nor being an
enterprise under this act clearly cannot violate any provisions of the act, implying that there is no
anti-competitive agreement on the part of NOMCs. The provisions of section 3 of the act are thus
not applicable on them and practice of selling HSD at regulated prices is not anti-competitive.
3. THAT THE GOVERNMENT OF INDOI IS LEGALLY JUSTIFIED TO REGULATE

THE PRICES OF HSD AFTER DISMANTLING THE APM?
Government is legally justified to regulate the prices of HSD even after dismantling the APM as
it is the sovereign function of the Government to develop the economy as a whole as efficient,
reliable and competitively priced energy helps in accelerating economic growth. Affordable
energy directly contributes to reducing poverty, increasing productivity and improving the
quality of life.
3.1. Price Regulation a part of Sovereign Function of the Government for the
Welfare of the Economy
The regulation of the price of HSD by the Government of Indoi was a reasonable as it was done
with the intention for the economic welfare of the country as a whole. Indoi is a socialist
economy as declared in its Preamble and it is the duty of the Government to provide resources to
the people equally and at an affordable price. Government of Indoi by regulating the price of
HSD was only fulfilling its duty towards the citizens of the country.
3.2. No mala fide intention on the part of the Government
The intention of the government in regulating the prices of HSD was not to drive out competition
from the market but was economic welfare of the country. The bona fide intention on the part of
the Government can be seen from its act that it did not regulate the price of any other petroleum
product but only of HSD as regulating the price of HSD directly helps in regulating the prices of
MEMORIAL for RESPONDENT xiii

other essential commodity and also contributes in the directly contributes to reducing poverty,
increasing productivity and improving the quality of life.
MEMORIAL for RESPONDENT xiv

- ARGUMENT ADVANCED-
ARGUMENTS ADVANCED
1. THAT CCI HAS NOT THE JURISDICTION TO DECIDE MATTERS RELATING TO
ABUSE OF DOMINANT POSITION AND PREDATORY PRICING IN PETROLEUM
PRODUCTS (HSD IN THE INSTANT CASE)
1. For the consideration of this Hon’ble Court, the context of the present submission may be
laid out. It lays down whether CCI has the jurisdiction to decide matters relating to abuse of
dominant position and predatory pricing in petroleum.
2. It is humbly submitted that CCI does not have the jurisdiction to deal in the present case as
there is a specific Board constituted by the Government of Indoi under the Petroleum and
Natural Gas Regulatory Board Act, 2006 to deal in the matters relating to the marketing and
sale of petroleum and petroleum products, to safeguard the interest of the consumers and
entities engaged in specified activities relating to petroleum, petroleum products and natural
gas, etc and to promote competitive market.
3. If we go through the interpretation it is inferred that in case of conflict between two statutes
the provisions of the subsequent enactment will ordinarily prevail over the earlier enactment.
This point has been affirmed in the case Maharashtra Tubes Ltd. v. State Industrial and
Investment Corporation of Maharashtra Ltd1. PNGRB in its Preamble provides for the
establishment of a Petroleum and Natural Gas Regulatory Board to regulate the refining
process, processing, storage, transportation, distribution, marketing and sale of petroleum and
petroleum products and natural gas with an aim to protect the interest of consumers and
entities engaged in specified activities relating to petroleum, petroleum products and natural
gas. Such Board shall also promote competitive markets and shall deal with matters
connected with it. Since PNGRB was enforced in the year 2006 and Competition Act of India
1
Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra Ltd., (1993) 1 SCR
340: (1993) 2 SCC 144.
MEMORIAL for RESPONDENT 1

was enacted in the year 2002, the provisions of PNGRB have an over-riding effect on the
provisions provided in Competition Act, 2002.
4. In Maru Ram v. Union of India 2Supreme Court of India distinguished between a specific and
a special law holding that a specific provision dealing with a particular situation would over-
ride even a special law, which is inconsistent therewith. In the present case the PNGRB is a
specific law which deals with specific provisions relating to the trade of petroleum and
petroleum products and Competition Act, 2002 is a special law dealing with provisions
relating to fair trade practices amongst the different sectors in the economy. Therefore the
provisions of PNGRB will have an over-riding effect over the provisions contained in the
Competition Act as PNGRB is a sector specific Act.
5. Board has got jurisdiction as it is empowered to go into the question with regard to the fair
trade and fair competitive practice under Section 11(a) of the Act. The relevant portion of
Section 11(a) says:
11. Function of the Board- the Board shall-
(a) Protect the interest of consumers by fostering fair trade and competition amongst
the entities.
And therefore as per this section the Board is duty bound to foster the fair trade and fair
competition amongst the entities in order to protect the interests of the consumer.
6. The complaint has not been filed asking the Board to fix the price of the transportation fuels
or the petroleum products. The grievance of the complainants is that the Appellants are
indulging in a predatory pricing of transportation fuel like HSD which can be described as a
restrictive trade practice. Therefore, Board has the jurisdiction to entertain compliant under
Section 11(a)3 to put an end to the unfair competition meted out by the entities.
2
Maru Ram v. Union of India, AIR 1980 SC 2147: (1981) 1 SCC 638.
3
Section 11: Functions of the Board :-
The Board shall- (a) protect the interest of consumers by fostering fair trade and competition amongst the
Entities.

7. Section 11(a)4 is perennial in application as it confers wide jurisdiction to the Board for
fostering fair trade and competition amongst the entities and Section 12 and 25 as well
provide the jurisdiction to the Board relating to all the Petroleum products.
8. Section 12 makes it clear that Board can look into various issues related to activities in this
sector. Section 12(b)5 clearly provides that the complaint can be received by the Board to
conduct enquiry and investigation connected with the activities relating to the petroleum and
petroleum products and on contravention of the Rules and Regulations.
9. Section 256 of the Act provides that the complaint may be filed before the Board by any
person in respect of matters relating to entities or between entities on any matter arising out
4
Ibid.
5
Section 12(b): Receive any complaint from any person and conduct any inquiry and investigation connected with
the activities relating to petroleum, petroleum products and natural gas on contravention of-
(i) retail service obligations;
(ii) marketing service obligations;
(iii) display of retail price at retail outlets;
(iv) terms and conditions subject to which a pipeline has been declared as common carrier or contract carrier or
access for other entities was allowed to a city or local natural gas distribution network, or authorisation has been
granted to an entity for laying, building, expanding or operating a pipeline as common carrier or contract carrier
or authorization has been granted to anentity for laying, building, expanding or operating a city or local natural
gas distribution network;
(v) Any other provision of this Act or the rules or the regulations or orders made there under.
6
Section 25: Filing of complaints :-
(1) A complaint may be filed before the Board by any person in respect of matters relating to entities or between
entities on any matter arising out of the provisions of this Act: Provided that the complaints of individual
consumers maintainable before a consumer disputes redress forum under the Consumer Protection Act, 1986 (68
of 1986) shall not be taken up by the Board but shall be heard and disposed of by such forum. Explanation.-For
the purposes of this sub-section, the expression "consumer disputes redress forum" shall mean the district forum,
State Commission or, the National Commission, as the case may be, constituted under the provisions of the
Consumer Protection Act, 1986 (68 of 1986).
(2) Every complaint made under sub-section (1) shall be filed within sixty days from the date on which any act or
conduct constituting a contravention took place and shall be in such form and shall be accompanied by such fee as
may be provided by regulations : Provided that the Board may entertain a complaint after the expiry of the
Said period if it is satisfied that there was sufficient cause for not filing the complaint within that period.
(3) On receipt of a complaint under sub-section (1), the Board shall decide within thirty days whether there is a
prima facie case against the entity or entities concerned and may either conduct enquiry on its own or refer the
matter for investigation under this Chapter, to an Investigating Officer having jurisdiction; and, where the matter
is referred to such Investigating Officer, on receipt of a report from such Investigating Officer, the Board may,
hear and dispose of the complaint as a dispute if it falls under sub-section (2) of section 27 and in any other case,
it may pass such orders and issue such directions as it deems fit.
(4) Where the Central Government considers that a matter arising out of the provisions of this Act is required to
be investigated, it shall make a reference to the Board and the provisions of this Act shall apply as if such
reference were a complaint made to the Board.

of the provisions of the Act. The words “matters relating to” have a very wide connotation
and amplitude as it includes unfair trade and unfair competition within its scope and meaning
as referred to in Section 11(a)7. In other words, the words “matters relating to” as referred to
in Section 25 of the Act should be construed to give its widest amplitude. Unless there is a
specific regulation given by the Government to the Board, the Board has all powers to
entertain all types of complaints or disputes or petitions.
10. Section 628 of the Competition Act even provides that the provisions of this Act shall
be in addition to, and not in derogation of, the provisions of any other law for the time being
in force which shows that provisions of PNGRB will prevail over CCI and gives an over-
riding effect over the provisions of the Act.
2. THAT THE ACT OF NOMCS TO SELL HSD AT REGULATED PRICE IS NOT ANTI-
COMPETITIVE
11. It is most humbly submitted before the Hon’ble Court that the act of NOMCs to sell HSD at
regulated price is not anti-competitive as it is not violating any provisions mentioned in
section 3 of the Competition Act, 2002. The NOMCs fall within the definition of State under
Article 129 of the Constitution, and are performing sovereign functions. The NOMCs being
sovereign bodies are not covered under the Competition Act for their sovereign acts and
hence their acts cannot be brought under the ambit of anti-competitive acts.
7
Supra1
8
Section 62: Application of other laws not barred-The provisions of this Act shall be in addition to, and not in
derogation of, the provisions of any other law for the time being in force.
9
Article12: In this part, unless the context otherwise requires, “ the state” includes the Government and
Parliament of India and the Government and legislature of each of the states and all local or other authorities
within the territory of India or under the control of the government of India

2.1 The Relevant Market in the instant case is HSD
12. According to the CA, 2002 ‘Relevant market’ means the market which may be determined
by the Commission with reference to the relevant product market or the relevant geographic
market or with reference to both the markets.10 It is the relevant market with which the degree
of competition and its depth, in the specified region for the underlying product can be
assessed.11 A relevant market is defined according to both product and geographical factors.
A “relevant product market” means a market comprising all those products or services which
are regarded as interchangeable or substitutable by the consumer, by reason of characteristics
of the product or services, their prices and intended use.12 The products that can be
substituted for one another form competitive constraints for each other, and such, lie within
the same product market.13
13. According to the Act, while determining the “relevant product market”, the factors to be
taken into consideration are physical characteristics of end-use of goods; price of goods or
service; consumer preferences; exclusion of in-house production; existence of specialized
producers; classification of industrial products.
14. In the context of the present case, the relevant product market is the market for HSD. As per
the factual matrix, the HSD marketed by NOMC’s is fuel meant for the purpose of running of
automobiles.14Applying the principle of interchange ability, the HSD are specific
transportation fuel which cannot be substituted by any other transportation fuel. Therefore, in
the present case HSD forms the relevant market as the same cannot be substituted by any
other petroleum or petroleum product.
10
Section 2(r), The Competition Act, 2002.
11
United States v. Grinnell Corp., 384 U.S. 563.
12
Section 2(t), The Competition Act, 2002.
13
Ittai Paldor, The Vertical Restraints Paradox: Justifying the Different Legal Treatment of Price and Non-Price
Vertical Restraints, 58 U. Toronto L.J. 317.
14
Moot Proposition ¶ 8.

2.2 NOMCs fall under the definition of ‘state’ under Article 12 of the Constitution.
15. It is humbly submitted before the Hon’ble court that according to the facts of the case the
NOMCs are public sector companies of which the government of Indoi holds the major
shares.15 The Supreme Court of India has held in number of decisions that Public
Corporations and Undertakings fall within the inclusive definition of “State”. Under Article
1216 of the constitution, the definition of the word “State” includes:-
a) the Government and Parliament of India
b) the Government and the Legislature of each of the States and
c) all local or other authorities within the territory of India or under the Control of the
Government of India.
16. In Electricity Broad , Rajasthan v. Mohan Lal17and Sukhdev Singh v. Bhagatram18, a very
restrictive interpretation of the expression ‘other authorities’ was given by the court. Only the
authorities created by the constitution or statue were the ‘other authorities’, Though it is not
necessary that statuary authority should be engaged in performing governmental or sovereign
function. Thus, Rajasthan Electricity Broad, Co-operative Society, oil and Natural Gas
commission, Life Insurance Corporation, etc are held to be ‘other authorities’. These bodies
have power to make bye-laws, regulation, etc for regulating conditions of service of their
employees. The employees are entitlied to claim protection of article 1419 and 1620 against
15
Ibid.
16
Article12: In this part, unless the context otherwise requires, “ the state” includes the Government and
Parliament of India and the Government and legislature of each of the states and all local or other authorities
within the territory of India or under the control of the government of India.
17
Electricity Broad , Rajasthan v. Mohan Lal, AIR 1967 SC 1857.
18
Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331.
19
Article 14: Equality before law.-The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.
20
Article 16: (1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

these bodies. But in subsequent decisions, the Supreme Court has given a broad and liberal
interpretation to the expression ‘other authorities’ in view of the fact that in welfare state, a
government has to perform manifold functions for which it has to employ various agencies or
instrumentalities.
17. In the case of Ajay Hasia v. Khalid Mujib21 the Apex Court has given certain test to adjudge
whether a body is an instrumentality of the Government or not which include if the entire
share capital of the body is held by the Government, where the financial assistance given by
the Government is so large as to meet almost entire expenditure of the body, it is a relevant
factor if the body enjoys monopoly status which is conferred or protected by the State,
existence of deep pervasive state control may afford an indication that the body is a state
instrumentality, if the function performed by the body are of public importance and closely
related to the Governmental functions.
18. The NOMC’s fulfill the conditions laid down by the Supreme Court in R.D.Shetty v.
International Airport Authority22; as government being the major share holder becomes the
major source of share capital. According to the Company law, in matter of controlling in
general the affairs of the company, the majority rule will prevail; 23 thus government has the
total control over the NOMCs. It is thus contended before this Hon’ble Court that the
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or
classes of employment or appointment to an office under any State specified in the First Schedule or any local or
other authority within its territory, any requirement as to residence within that State prior to such employment or
appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office
in connection with the affairs of any religious or denominational institution or any member of the governing
body thereof shall be a person professing a particular religion or belonging to a particular denomination.
21
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.
22
(i) The source of the share capital;
(ii) The extent of State Control over the Corporation and whether it is “deep and pervasive”;
(iii) Whether the functions of the Corporation has a monopoly status;
(iv) Whether the functions of Corporation are of public importance and closely related to governmental
functions; and
(v) Whether, what belonged to a Government Department formerly was transferred to the Corporation.
23
K.C. Garg, Vijay Gupta, Poonam Gupta & R.C. Chawla, Company Law, Kalyan Publishers, New delhi, 2010.

NOMCs being national companies with government being the majority stake holder fall
under the preview of “state” under Article 1224 of the Constitution.
2.3 The practice of regulating prices HSD falls under the ambit of sovereign functions.
19. It has already been contended before the honorable court that NOMC’s fall under the preview
of the definition of “state” under Article 1225 of the Constitution, and thus can be regarded as
State for their actions and policies.
20. The government of Indoi is constitutionally bound to cater to the economic interests of the
vulnerable sections, under the Preamble as well as the Directive Principles of State Policy.
The government through NOMCs is working in accordance’s with these principles and the
main objective of the NOMCs is economic welfare of the people. In order to ascertain the
main objectives of public undertakings, it is necessary to bear in mind the Directive
Principles of State Policy enunciated in Part IV of the Constitution. Article 38 26 envisages not
only legal justice but socio-economic justice as well. The Supreme Court has observed that if
a law is made to further socio-economic justice, it is prima facie reasonable and in public
interest. In other words, if it is in negation, it is unconstitutional.27
24
Supra15.
25
Supra15.
26
Article 38: State to secure a social order for the promotion of welfare of the people.-
(1) The state shall strive to promote the welfare of the people by securing and protecting as effectively as it
may a social order in which justice, social, economic and political, shall inform all the institution of the
national life.
(2) The state shall, in particular, strive to minimise the inequalities in income, and endeavor to eliminate
inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of
people residing in different areas or engaged in different vocations.
27
Kasturi lal v. State of J&K, AIR 1980 SC 1992: (1980) 4 SCC 1.

21. This Article, along with Articles 39(b)28, 39(c)29 lay down fundamental policies, which the
State is required to follow in making laws with a view to securing a welfare State. Though
Directive Principles are not justifiable and the Courts cannot enforce them, still those are
binding on the various organs of the State.
22. The public sector undertakings function under the control and direction of the Government;
and, as such, they have to function in a manner expected from “State”, even in its
commercial sphere. No doubt, the primary purpose of public sector undertaking is to promote
economic growth by increased production and to secure adequate return which would help
the State in providing social, economic, educational and medical facilities to the people.
23. It is contended before the Court that majority of the transport activities in the country are
carried on through the use of HSD. The government keeping in mind the adverse effects of
increasing the price of HSD on the common man and economically vulnerable sections did
not increase the domestic price of HSD in conformity with the international prices. 30 The
basic reason for not doing so was the impact on the common man and the government’s
constitutional commitment. The direct impact of such an increase would have been a rise in
the price of food and other essential commodities, because with the rise in the price of HSD
the transportation cost of all the commodities would increase which will in turn put an
additional burden on the common man.
24. By controlling the prices of HSD the government has fulfilled one of its sovereign functions.
It is pleaded before the honorable court that if we look at the definition of an “essential
commodity” under the essential commodities act 1955, the definition under the Section 2(a)
(viii)31 which clearly specifies that it includes petroleum and petroleum products. HSD being
28
Article 39(b): That the ownership and control of the material resources of the community are so distributed as
best to subserve the common good
29
Article 39(C): That the operation of the economic system does not result in the concentration of wealth and
means of production to the common detriment.
30
Moot Proposition ¶10.
31
Section 2: Definition. In this Act, unless the context otherwise requires:
(a) "essential commodity" means any of the following Classes of commodities:
(viii) petroleum and petroleum products;

a petroleum product thus clearly falls under the ambit of an essential commodity under the
essential commodities act.
25. The government under Section 3(1)32 of the essential commodities act has Powers to control
production, supply, distribution, etc. "of essential commodities”. The section clearly points
out that the Central Government being of opinion that it is necessary or expedient so to do for
maintaining or increasing supplies of any essential commodity or for securing their equitable
distribution and availability at fair prices, it may by order, provide for regulating the
production, supply and distribution of such a commodity.
26. Section 3(2)(c)33 says that the government in an order made under subsection (1) may
provide for controlling the price at which any essential commodity may be brought or sold.
27. In Ashoka Smokeless Coal India (P) Ltd v. Union of India34 it has been held that it is required
in terms of the constitutional scheme under Article 39(b) and Article 14 of the constitution of
India, the Government is to make essential commodities available at a fair price.
28. The government by regulating the price of HSD selling it at a subsidized rate through the
NOMCs is doing nothing but a sovereign function entrusted to it by the constitution under
the Directive Principles as well as the preamble of the constitution i.e. it is aiming at the
economic welfare of the people. It is thus humbly pleaded before this honorable court that the
said action of regulating prices of HSD falls under the ambit of the sovereign functions of the
state.
32
Section 3: Powers to control production, supply, distribution, etc. "of essential commodities:
(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or
increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair
prices, or for securing any "essential commodity for the defence of India otthe efficient conduct of military
operations, it may by order, provide for regulating or prohibiting the production, supply and d~tribution thereof
and trade and commerce therein;
33
Section 3: Powers to control production, supply, distribution, etc. of essential commodities:
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made there under
may provide-
(c) for controlling the price at which any essential commodity may be brought or sold;
34
Ashoka Smokeless Coal India (P) Ltd v. Union of India, (2007) 2 SCC 640.

2.4 The NOMCs do not fall under the definition of an “Enterprise” under the
Competition Act.
29. It is humbly submitted before the honorable court that the NOMCs being state do not come
under the definition of an enterprise as stated in Section 2(h) 35 of the Competition Act.
According to the Act an enterprise includes a person or a government department. The
definition of a person as stated under section 2(l)(vi) clearly defines that it includes, “any
corporation established by or under any Central, State or Provincial Act or a Government
company as defined in section 61736 of the Companies Act, 1956 (1 of 1956)”.
30. As it has been already proved that the regulation of the prices of HSD is a Sovereign function
of the Government and NOMCs are performing action as State they do not fall under the
ambit of the definition of enterprise in the Competition Act. For the purpose of anti-
competitive act on the part of the NOMCs its definition says that any enterprise or person
will not engage in anti-competitive agreement but since NOMCs are neither enterprise nor
person under the Competition act the provisions of anti-competitive agreement in the
Competition Act will not be applicable to NOMCs.
31. The act of the government company in consideration is the act of price regulation, which falls
under the sovereign functions of the state giving NOMCs an exemption from the extent an
“enterprise” under this act for the purpose of price regulation. The definition clearly
specifying that any activity of the government does not fall under the ambit of an enterprise if
it falls under the ambit of sovereign functions. Thus the contention.
35
Section 2(h): "enterprise" means a person or a department of the Government, who or which is, or has been,
engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles
or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding,
underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or
through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located
at the same place where the enterprise is located or at a different place or at different places, but does not include
any activity of the Government relatable to the sovereign functions of the Government including all activities
carried on by the departments of the Central Government dealing with atomic energy, currency, defence and
space.
36
Section 617: Definition of “Government Company”
For the purposes of this Act, Government company means any company in which not less than fifty-one per cent
of the paid-up share capital is held by the Central Government, or by any State Government or Governments, or
partly by the Central Government and partly by one or more State Governments and includes a company which
is a subsidiary of a Government company as thus defined.

2.5 Provisions of Section 3 not applicable to the NOMCs
32. Section 3 of the Act, deals with anti-competitive agreements. The interpretation of the term
agreement being wide enough to include in its ambit even the act/ practice by an enterprise.
The section makes a clear mention of the words enterprise or person, i.e. this section is only
applicable to person and enterprise.
33. Now considering the above contentions and the very fact that the companies fall under the
ambit of the Article 12 of the Constitution, they cannot be held to be “person(s)” for the
purpose of this act. Also in the earlier contention it has been proved that the government
company performing sovereign functions does not fall under the ambit of an “enterprise”
under section 2(h)37 of the Act.
34. The clear interpretation of the above stated point being that the NOMC neither being person
nor being an enterprise under this act clearly cannot violate any provisions of the act,
implying that there is no agreement between the NOMCs. The provisions of section 3 of the
act are thus not applicable on them and practice of selling HSD at regulated prices is not anti-
competitive.
3. THAT THE GOVERNMENT OF INDOI IS LEGALLY JUSTIFIED TO REGULATE THE

PRICES OF HSD AFTER DISMANTLING THE APM?
34. For the consideration of this Hon’ble Court the context of the present submission may be laid
out. It deals with whether the Government of Indoi is legally justified to regulate the prices of
HSD even after dismantling the APM.
35. It is humbly submitted that the Government is legally justified to regulate the prices of HSD
even after dismantling APM as it was done under the sovereign function of the Government
to develop the economy as a whole as efficient, reliable and competitively priced energy
helps in accelerating economic growth. Affordable energy directly contributes to reducing
37
Supra37.

poverty, increasing productivity and improving the quality of life. The strategy for energy
development is an integral part of overall economic strategy.38
36. The price of the petroleum product in question, i.e., HSD have been continued to be
regulated by the Central Government in pursuance of the policy decision taken by the Central
Government as part of its sovereign function. When this is a policy matter of the Central
Government as referred to above in the letter dated 28.3.2008 sent by the Ministry of
Petroleum and Natural Gas, the same cannot be interfered with.
3.1 Price Regulation a part of Sovereign Function of the Government for the Welfare of
the Economy
37. It is humbly submitted before this Hon’ble Court that the regulation of price of HSD is a part
of Sovereign function of the Government and that it has been adopted for the welfare of the
economy as a whole.
38. State can impose reasonable restriction on Fundamental Rights enshrined in Part III of the
Constitution to implement the Directive Principles enshrined in Article 39(b) and 39(c) in
public interest under clauses 2 to 6 of Article 19.
39. It was held in the case Laxmi Khandsari v. State of U.P39. that “Restrictions may be partial,
complete, permanent or temporary but they must bear a close nexus with the object in the
interest of which they are imposed. Sometimes even a complete prohibition of the
fundamental right to trade may be upheld if the commodity in which the trade is carried on is
essential to the life of the community”.
40. The regulation of the price of HSD by the Government of Indoi was a reasonable as it was
done with the intention for the economic welfare of the country as a whole. Indoi is a
socialist economy as declared in its Preamble and it is the duty of the Government to provide
resources to the people equally and at an affordable price. Government of Indoi by regulating
the price of HSD was only fulfilling its duty towards the citizens of the country.
38
Moot Proposition ¶5.
39
Laxmi Khandsari v. State of U.P, AIR 1981 SC 873.

41. It has been held by the Supreme Court 40 that in determining the reasonableness of restrictions
imposed by law in the field of industry, trade or commerce, the mere fact that some of the
persons engaged in a particular trade may incur loss due to the imposition of restrictions will
not render them unreasonable because it is manifest that trade and industry pass through
periods of prosperity and adversity on account of economic, social or political factors. In a
free economy, controls have to be introduced to ensure availability of consumer goods, like
food-stuffs, cloth or the like at a fair price and the fixation of such a price cannot be said to
be an unreasonable restriction.
42. Due to the regulation of the price of HSD by the Government of Indoi Retro Petroleum
Limited is suffering from losses but this regulation cannot be termed unreasonable or
arbitrary act on the part of the Government as this regulation is aimed at bringing economic
equality amongst the citizens and for the development of the economy as the price of HSD
directly affects the economic development of the country.
43. In the case of State of Madras v. V.G. Row41, Mineral Development Ltd. v. The State of Bihar
and Anr.42, Collector of Customs, Madras v. Nathella Sampathu Chetty and Anr.43 and M/s.
Diwan Sugar and General Mills (P.) Ltd. and Ors. v. U.O.I.44 the Apex Court held that
restriction on the right of a trader dealing in essential commodities, or fixation of prices
aimed at bringing about distribution of essential commodities keeping the consumers
interests as the prime consideration cannot be regarded as unreasonable.
44. Further, in the case of Shree Meenakshi Mills Ltd. v. U.O.I.45 and Saraswati Industrial
Syndicate Ltd. v. U.O.I.46it was held that if a restriction imposed by the government has a
40
Narendra Kumar and Ors. v. The Union of India and Ors., AIR 1960 SC 430.
41
State of Madras v. V.G. Row, AIR 1952 SC 196.
42
Mineral Development Ltd. v. The State of Bihar and Anr., AIR 1960 SC 468.
43
Collector of Customs, Madras v. Nathella Sampathu Chetty and Anr., AIR 1959 Mad 142.
44
M/s. Diwan Sugar and General Mills (P.) Ltd. and Ors. v. U.O.I, AIR 1959 SC 626.
45
Meenakshi Mills Ltd. v. U.O.I, AIR 1974 SC 366.
46
Saraswati Industrial Syndicate Ltd. v. U.O.I, AIR 1975 SC 460.

reasonable nexus with that of its object, then that restriction is reasonable. The regulation of
price of HSD bears a reasonable nexus to the object which is sought to be achieved, namely,
reducing poverty, increasing productivity and improving the quality of life as the strategy for
energy development is an integral part of overall economic strategy.
45. Personal or individual interests must yield to the larger interests of community. This was the
philosophy behind the passing of the Act of 1955. Petroleum and Petroleum product’s price
regulation helps in serving the larger interest of the community being an essential
commodity.
3.2 Absence of Mala fide intention on the part of the Government
46. It is humbly submitted before this Hon’ble Court that in regulating the price of HSD the
Government of Indoi does not have any mala fide intention but is only regulating it for the
welfare of the economy.
47. The bona fide intention on the part of the Government can be seen from its act that it did not
regulate the price of any other petroleum product but only of HSD as regulating the price of
HSD directly helps in regulating the prices of other essential commodity and also contributes
in the directly contributes to reducing poverty, increasing productivity and improving the
quality of life.
48. Government dismantled APM with effect from 1.4.2002, which included the dismantling of
all the transportation fuel, which meant that prices of all the transportation fuel will be
governed by the international market determined prices. but the Government regulated the
prices of HSD even after dismantling APM as it was directly helping the economic welfare
of the country. If there would have been any mala fide intention on the part of Government to
abuse its dominant position, or to create monopoly in the market, or their sole intention
would have been to drive out the competitors from the market by making them suffer huge
losses over economic welfare, it would have regulated the price of all the petroleum product
but since the regulation of the price of other petroleum product did not have much of
relevance on the development of the economy, the Government did not regulate their prices.

49. The Apex Court held in the case of Ramnath Verma v. State of Rajasthan47 when a law is
itself non-discriminatory but its administration is challenged as discriminatory, the question
of intention of the administrative authority becomes material; in such a case administrative
action cannot be said to have offended against Article 1448 unless it was mala fide or acuted
by the hostile intention as distinguished from mere oversight.
50. It was held by the Apex Court in the case of Delhi Developmental Authority v. Joint Action
Committee49, Allottee of SFS Flats, that a policy decision is considered mala fide if it is
unconstitutional but the Government of Indoi to cater the economic interest of the vulnerable
sections of the people constitutionally provided them subsidy on petroleum products50
47
Ramnath Verma v. State of Rajasthan, (2012) 3 SCC 212.
48
Article 14. Equality before law.-The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.
49
Delhi Developmental Authority v. Joint Action Committee, (2008) 2 SCC 672.
50
Moot proposition ¶4.

- PRAYER-
PRAYER
It is most humbly prayed before the Hon’ble Superme Court of Indoi that in the light of facts of
the case, issues raised, arguments advanced, Authorities cited and the pleadings made, the Court
may be pleased to adjudge and:
1. declare that CCI and the Competition Appellate Tribunal have erred in taking jurisdiction
in the case.
2. declare act of NOMCs to sell HSD at regulated price is not anti-competitive.
3. declare that the Government of Indoi is legally justified to regulate the prices of HSD
after dismantling the APM.
The court may also be pleased to pass any other order in the light of justice, equity and good
conscience.
All of which is respectfully submitted,
Counsel on behalf of the Petitioners

X___________________________
MEMORIAL for RESPONDENT xvii

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2ND DR.

PARAS DIWAN MEMORIAL “ENERGY LAW”NATIONAL MOOT COURT

IN THE MATTER OF:

1. GOVERNMENT OF INDOI THROUGH THE SECRETARY, MINISTRY OF PETROLEUM &

RETRO PETROLEUM LTD.…………...….……..………..…….

ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF INDOI

MOST RESPECTFULLY SUBMITTED

MEMORIAL for RESPONDENT

2.1 The Relevant Market in the instant case is HSD...........................................................5

3. THAT THE GOVERNMENT OF INDOI IS LEGALLY JUSTIFIED TO REGULATE THE PRICES OF

Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487..............................................................................7

Delhi Developmental Authority v. Joint Action Committee, (2008) 2 SCC 672...........................16

Electricity Broad , Rajasthan v. Mohan Lal, AIR 1967 SC 1857...................................................6

Laxmi Khandsari v. State of U.P, AIR 1981 SC 873....................................................................13

Maru Ram v. Union of India,...........................................................................................................2

Meenakshi Mills Ltd. v. U.O.I, AIR 1974 SC 366.........................................................................14

Ramnath Verma v. State of Rajasthan, (2012) 3 SCC 212............................................................16

Saraswati Industrial Syndicate Ltd. v. U.O.I, AIR 1975 SC 460..................................................14

State of Madras v. V.G. Row, AIR 1952 SC 196...........................................................................14

Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331..........................................................................6

United States v. Grinnell Corp., 384 U.S. 563................................................................................5

MEMORIAL for RESPONDENT i

BOOKS AND TREATISES

 BISHOP, SIMON AND MIKE WALKER, THE ECONOMICS OF EC COMPETITION

MEMORIAL for RESPONDENT ii

 Akhilesh Patel, Indian Judicial Process : A Critique,(January 25, 2011)

MEMORIAL for RESPONDENT iii

 ESSENTIAL COMMADITIES ACT, 1955

MEMORIAL for RESPONDENT iv

MEMORIAL for RESPONDENT v

Constitutional framework of Indoi: Indoi is a country whose constitutional framework is

MEMORIAL for RESPONDENT vi

MEMORIAL for RESPONDENT vii

MEMORIAL for RESPONDENT viii

MEMORIAL for RESPONDENT ix

I. THAT CCI HAS NOT THE JURISDICTION TO DECIDE MATTERS RELATING

TO ABUSE OF DOMINANT POSITION AND PREDATORY PRICING IN

PETROLEUM PRODUCTS (HSD IN THE INSTANT CASE).

III. THAT THE GOVERNMENT OF INDOI IS LEGALLY JUSTIFIED TO REGULATE

THE PRICES OF HSD AFTER DISMANTLING THE APM.

MEMORIAL for RESPONDENT x

1. THAT CCI HAS NOT THE JURISDICITION TO DECIDE MATTERS RELATING

TO ABUSE OF DOMINANT POSITION AND PREDATORY PRICING IN

PETROLEUM PRODUCTS (HSD IN THE INSTANT CASE)

2. THAT THE ACT OF NOMCS TO SELL HSD AT REGULATED PRICE IS ANTI-

2.1. The Relevant Market in the instant case is HSD

MEMORIAL for RESPONDENT xi

2.5. Provisions of Section 3 not applicable to the NOMCs

MEMORIAL for RESPONDENT xii

3. THAT THE GOVERNMENT OF INDOI IS LEGALLY JUSTIFIED TO REGULATE

3.2. No mala fide intention on the part of the Government

MEMORIAL for RESPONDENT xiii

MEMORIAL for RESPONDENT xiv

1. THAT CCI HAS NOT THE JURISDICTION TO DECIDE MATTERS RELATING TO

ABUSE OF DOMINANT POSITION AND PREDATORY PRICING IN PETROLEUM

PRODUCTS (HSD IN THE INSTANT CASE)

MEMORIAL for RESPONDENT 1

11. Function of the Board- the Board shall-