2ND N ATIONAL M OOT C OURT C OMPETITION , 2022

CN -22-E

2ND NATIONAL MOOT COURT COMPETITION, 2022

Before

THE HON’BLE HIGH COURT, NEW BAILEY

APPELLATE JURISDICTION

L.P.A. N O . _____/2022

IN THE MATTER OF

RUMPOLE OF THE BAILEY PVT LTD ..................................... .................APPELLANT S

V.

1 . GOVERNMENT OF N.B.C.T

2. DEPARTMENT OF PUBLIC PROCUREMENT........................ ..............RESPONDENT S

ON SUBMISSONS TO THE HON’BLE HIGH COURT, NEW BAILEY

( UNDER ARTICLE 226 OF THE CONSTITUTION OF MCKERNISTAN)

MEMOR ANDUM ON BEHALF OF THE RESPONDENT S

DRAWN AND FILED BY THE COU NSELS ON BEHALF OF THE RESPONDENT S

1
 2ND NATIONAL MOOT COURT COMPETITION, 2022

TABLE OF CONTENTS
Table of
Contents ............................................................................................................................................ i
List of Abbreviations ......................................................................................................................................
ii Table of
Authorities ...................................................................................................................................... iii
Table of Cases ...............................................................................................................................................
iv
Statement of Jurisdiction ..............................................................................................................................
vi
Statement of Facts .......................................................................................................................................
vii
Statement of Issues ......................................................................................................................................
ix
ISSUE: 1 .................................................................................................................................................
ix ISSUE:
2 ................................................................................................................................................. ix
ISSUE: 3 .................................................................................................................................................
ix
Summary of Arguments .................................................................................................................................
x
CONTENTION: I ..........................................................................................................................................
x CONTENTION:
II ......................................................................................................................................... x
CONTENTION: III .......................................................................................................................................
xi
Arguements Advanced...................................................................................................................................
1
CONTENTION I: ..........................................................................................................................................
1
That Writ of Mandamus cannot be issued to the Government for Appointing The Tribunal Members. .
1
CONTENTION II: .....................................................................................................................................
6

i
 2ND NATIONAL MOOT COURT COMPETITION, 2022

That the Hon’ble High Court cannot hear the matter in merits and issue the Writ of Certiorari to quash
the impugned Banning Order. ....................................................................................................................
6 THE HIGH COURT CANNOT HEAR THE MATTER IN
MERITS................................................................... 6
THE PRINCIPLES OF NATURAL JUSTICE HAVE NOT BEEN VIOLATED .....................................................
7
CONTENTION III: .................................................................................................................................
12
That the Constitutional Rights of the Petitioner have not been violated through the Impugned Banning
Order. .......................................................................................................................................................
12
FREEDOM OF TRADE IS NOT A FUNDAMENTAL RIGHT OF A COMPANY............................................
13
THERE HAS BEEN NO VIOLATION OF ARTICLE 21 OF THE CONSTITUION............................................
14
Prayer ..........................................................................................................................................................
xvi

LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSION

& And

AIR All India Reporter

Anr. And others

Del Delhi

Ed. Edition

Et Al Et. Alia

¶ Paragraph

§ Section

ii
 2ND NATIONAL MOOT COURT COMPETITION, 2022

SC Supreme Court

SCC Supreme Court Cases

UP Uttar Pradesh

V./vs. Versus

Vol. Volume

TABLE OF AUTHORITIES

STATUTORY COMPILATIONS

1) The Tribunals Appointment Act, 2020, § 3, No. 11, Acts of Parliament, 1949 (India).

BOOKS, COMMENTARIES AND DIGESTS

1) C.K.THAKKER, ADMINISTRATIVE LAW, (2nd ed. 2012).

2) DR. ASHOK K. JAIN, CONSTITUTIONAL LAW OF THE INDIA, (94th ed. 2019).
3) I.P. MASSEY, ADMINISTRATIVE LAW, (9th ed.2017).
4) J.N. PANDEY, CONSTITUTIONAL LAW, (57th ed.2019).
5) M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (8th ed. 2018).
6) VOL. 2, DD BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 9TH ED. (2014).

WEBSITES:

1) www.scconline.com

2) www.advance.lexis.com

3) www.indiankanoon.org

4) https://www.legalserviceindia.com/legal

5) https://www.lawyerservices.in/

TABLE OF CASES

iii
 2ND NATIONAL MOOT COURT COMPETITION, 2022

S. NO CASES CITATION PAGE NO.

iv
 2ND NATIONAL MOOT COURT COMPETITION, 2022

1. U.P. State Sugar Corpn. Ltd. v. Kamal (2008) 2 SCC 41 1.

Swaroop Tondon
2. L. Chandra Kumar v. Union of India and 1997(3) SCC 261 1.
Ors.
3. Secretary, Minor Irrigation and Rural (2002) 5 SCC 521 2.
Engineering Services v. Sahngoo Ram
Arya
4. Thansingh v. Supdt. of Taxes AIR 1964 SC 1419 2.
5. All India Lawyers Forum for Civil AIR 2001 Del. 380 2.
Liberties v. Union of India
6. Union of India v. T.R. Varma AIR 1957 SC 882 2.
7. Titaghur Paper Mills Co. Ltd. v. State of AIR 1983 SC 603 2.
Orissa
8. U.P. Jal Nigam v. Nareshwar Sahai SCC (194) 209 2.
Mathur
9. Radha Raman Samanta v. Bank of India, (2004) 1 SCC 605 2.
10. State of West Bengal v. North Adjai Coal (1971) 1 SCC 309, 310 2.
Co.
11. Delhi Development Authority v. (2009) 5 SCC 339 3.
Mahender
Singh

12. Sanjana M. Wig. v. Hindustan Petroleum ., (2005) 8 SCC 242

Corpn. Ltd.
13. Indira Nehru Gandhi v. Raj Narain 1975 SCR (3) 333. 3.

14. Jagdish Prasad v. M.C.D. AIR 1993 SC 1254. 3.

15. Ramana Dayaram Shetty v. Airport AIR 1979 SC 1628 4.
Authority of India
16. LIC v. Escorts Ltd. AIR 1986 SC 1370 5.
17. LIC of India v. Consumer Education & AIR 1995 SC 1811 5.
Research Centre
18. State of Kerala v. K.P.W.S.W.L.C. Coop. AIR 2001 Ker. 58 5.
Soc. Ltd.
19. D.R. Mills v. Commissioner, Civil AIR 1976 SC 2243 5.
Supplies
20. Arunima Baruah v. U.O.I. (2007) 6 SCC 120 5.
21. S.J.S. Business Enterprises (P) Ltd. v. AIR 2004 SC 2421 5.
State of Bihar

v
 2ND NATIONAL MOOT COURT COMPETITION, 2022

22. Anil Vasudev Salgaonkar v. Naresh (2009) 9 SCC 310 5.

Kushali Shigaonkar

vi
 2ND NATIONAL MOOT COURT COMPETITION, 2022

22. Prestige Lights Ltd. v. State Bank of India (2007) 8 SCC 449 5.
23. P. Kasilingam v. P.S.G. College of (1995) Supp 2 SCC 348 6.
Technology& Ors.
24. H.B. Gandhi, Excise and Taxation (1992) Supp (2) SCC 6.
Officer-cum-Assessing Authority v. Gopi 312.
Nath & Sons
25. Gurdeep Singh v. State of Jammu & AIR 1993 SC 2638 6.
Kashmir
26. Sub-Divisional Officer, Konch v. Maharaj (2003) 9 SCC 191 6.
Singh
27. Union of India v. Adani Exports Ltd (2007) 13 JT 144 6.
28. Indian Oil Corp. Ltd. v. Ashok Kumar AIR 1997 SC 1030 6.
Arora
29. State of Madhya Pradesh v. M/s. M.V. AIR 1997 SC 993 6.
Vyavasaya & Co.
30. Syed Yakoob vs. K.S. Radhakrishnan & , 1964 AIR 477 7.
Others,

31. National Textiles Workers AIR 1983 SC 75 8.

v. P.R. Ramkrishnnan
32. Karnataka Public Service Commission [1992] 2 SCC 206 8.
vs. B.M. Vijay Shankar
33. Maneka Gandhi v. Union of India AIR 1978 SC 597. 8.

34. Karnataka Public Service Commission v. (1992) 2 SCC 206 8.

B.M. Vijay Shankar
35. Balco’ Employees Union v. UOI, (2002) (2002) 2 SCC 333 9.
2 SCC 333

36. Ashwini Kumar v. State of Bihar [1995] INSC 687 10

37. Abhay Kumar v. Srinivasan AIR 1981 Delhi 381 11
38. State Trading Corporation of India v. 1963 SCJ 705 12
Commercial Tax Officer
39. Tata Engineering v. State of Bihar AIR 1965 SC 40 13

40 Francis Coralie v. Union Territory of AIR 1981 SC 746 14

Delhi,
41 Olga Tellis v. Bombay Municipal AIR 1986 SC 180 14

vii
 2ND NATIONAL MOOT COURT COMPETITION, 2022

corporation
42 Sodan singh v. New Delhi Municipal AIR 1989 SC 1988 14
Committee AIR 1989 SC 1988

STATEMENT OF JURISDICTION

The Respondents humbly submit to jurisdiction of the Hon’ble Division Bench of the High Court
of New Bailey under Article 226 of the Constitution of Mckernistan in response to the Letter
Patent Appeal filed by the Appellants.

viii
 2ND NATIONAL MOOT COURT COMPETITION, 2022

STATEMENT OF FACTS

Introduction: The Republic of Mckernistan is an archipelagic country in the Indian Ocean.

Following its independence from foreign powers in 1980, the new central government initiated
myriad of public welfare programs. Among its most ambitious projects was the Kush-Agro Food
Security program. This scheme provides food and nutrition, upon state’s expenses, to a significant
chunk of population which remains malnourished. This scheme set bench mark for public- private
partnerships and a study in social affirmative action. The capital of Mckernistan is New Bailey.
The administrative control of New Bailey is governed through the New Bailey Capital Territory
(N.B.C.T.) which has its own government. Mckernistan follows the federal system, yielding
wideranging powers to states, including to N.B.C.T.

The Rumpole Chronicle: Rumpole of the Bailey Pvt.Ltd. [RotB] is a private company
incorporated under the laws of Mckernistan. Mr. Horace Rumpole is the Managing Director of
RotB Pvt. Ltd. and owns 79% of its shareholding. The company is a bulk traders and
manufacturer of scores of agro-chemical products. In the F.Y. 2018-2019, it had a turnover of
INR 400 Crores with a profit of INR 25 Crores. The company and has been a reliable participant
in the government’s tender process with a major chunk of its supplies being made to the Govt. of
N.B.C.T.

Department of Procurement: The tenders of Govt. are handled by Department of Procurement

which is the nodal agency for procuring all products required by varying organs of the
Government. In March 2021, it found certain products prima facie unsuitable for use. The
samples of such products were sent for testing from statutorily accredited laboratory and it was
found that either the chemical composition of the products was not as per the specifications
mentioned in the tender, or they were contaminated. Unfortunately, batches of consumables had
already been made through some of these products and had been distributed. When there were
multiple complaints of serious health ailments in the population, the Department of Procurement
immediately banned procurement of supplies from appellants for periods of 2 years vide its order

ix
 2ND NATIONAL MOOT COURT COMPETITION, 2022

dated 28 April 2021. This banning order, on the first instance, was challenged by RotB before the
Procurement Tribunal on 1 April 2021.
The Procurement Tribunal: The Tribunal was constituted by the State Legislature of N.B.C.T.
under the Tribunals (Appointment) Act 2020 to deal with cases pertaining to procurement of
goods and services by Govt. agencies which were earlier dealt by the High Court. In July 2019,
however, the members of Procurement Tribunal resigned en masse following the corruption
allegations leveled against them. The Search-cum-Selection Committee under the Act so created
had in May 2020 nominated names and sent the same to the Govt. of N.B.C.T. However, till date
no appointments have been made with the effect that all seats in the Tribunal remain vacant and
no matter is therefore heard by the tribunal. The Government of N.B.C.T. has faced immense
criticism in the media for not filling the vacant seats.

The Writ Petition: The pendency of the application before the nonfunctional Procurement
Tribunal and the continuing effect of the Banning order were causing intractable losses to the
company. Therefore, RotB filed a writ petition before the High Court of New Bailey. The Single
Judge Bench of the High Court heard and dismissed the petition on following grounds:
i. Issuance of Writ of mandamus would be an encroachment upon the executive’s domain. Thus,
such a direction would be unconstitutional and illegal.
ii. The court lacks jurisdiction to hear the matter on merits as there is a presence of an efficacious
remedy before the Procurement Tribunal.
iii. Absence of any exceptional circumstance to entertain the writ.

Aggrieved by the decision of the Single Judge Bench of this Hon’ble High Court, RotB filed a
Letters Patent Appeal. Cross appeals were also filed by the Respondents and the Hon’ble
Division Bench of the High Court of New Bailey has taken up the matters for hearing.

STATEMENT OF ISSUES

ISSUE: 1

WHETHER THE INGREDIENTS FOR THE TORT OF NEGLIGENCE HAVE BEEN MADE OUT ?

x
 2ND NATIONAL MOOT COURT COMPETITION, 2022

ISSUE: 2

WHETHER THE BOUTIQUE OWNERS ARE VICARIOUSLY LIABLE ?

ISSUE: 3

WHETHER THE STATE MUNICIPAL CORPORATIONS CAN BE HELD LIABLE FOR POOR MAINTENANCE
LEADING TO ACCIDENT ?

xi
 2ND NATIONAL MOOT COURT COMPETITION, 2022

SUMMARY OF ARGUMENTS

CONTENTION: I

THE INGREDIENTS FOR THE TORT OG NEGLIGENCE HAVE BEEN MADE OUT
IN THIS CASE ?

Inevitable accidents are those accidents, as evident from the name, which could not have been
prevented by the parties through the exercise of ordinary care, caution, and skill. It is also known
as unavoidable- accident doctrine.

Essentials for Inevitable Accident:

1. There was no intention on the part of the defendant.

2. And, the collision could not have been avoided with reasonable care.

The defendant humbly submits before the Honourable District court of Jalandhar that Sukhi,
and servant of the small boutique named Ladies Fashion Pvt. Ltd in Jalandhar was supposed
to deliver the Salawar – Suit and a Phulkari Dupatta with duty of care. He while driving
cautiously on the busy road of vegetable market which was full of pits and potholes, lost
control and skidded, met with a rather unwanted and unforeseeable accident which led to the
tearing of the dupatta, Since there has been no intention and any sight or intiution of the
accident the boutique is not liable for the damages occurred.

xii
 2ND NATIONAL MOOT COURT COMPETITION, 2022

CONTENTION: II

WEATHER THE BOTIQUE OWNERS ARE VICARIOUSLY LIABLE?

A separate legal entity is when you and anyone involved in your company are separate from your
business for legal purposes. SLE means that if someone takes legal actions against your business,
your personal finances are separate and safe from the legal suit and invester, stakeholders, and
partners are also personally protected.

*Examples of personal protection:

1. Individuals or business cannot hold shareholders liable for the business actions .

2. Separation of business and personal accounting and assets.

3. Creditors cannot seek repayment from or take action against shareholders.

The defendant humbly submits before the Honourable District court of Jalandhar that this case is
filed against the wrong party. It should be against the boutique i.e Ladies Fashion Pvt. Ltd in
place of the boutique owners i.e Kamalpreet and Gurpreet. The company has its own rights
according to the Company Act 2013, so the case should be filed against the company. It is also
submitted that there is no case against the company.

CONTENTION: III

WEATHER STATE MUNCIPAL CORPORATION CAN BE HELD LIABLE FOR POOR

ROAD MAINTENANCE LEADING TO ACCIDENT

Negligence is defined as failing to do something that a wise or reasonable person would do or

doing something that a prudent or reasonable person would not do. The plaintiff's breach of a
legal duty of care causes unintended injury to the plaintiff.

xiii
 2ND NATIONAL MOOT COURT COMPETITION, 2022

The defendant humbly submits before the Honourable District Court of Jalandhar, that Municipal
corporation should be held liable as they were negligent on their part, i.e they didn’t maintained
the roads which led to the accident. So the compensation should be piad by the municipal
corporation not the boutique owners.

xiv
 2ND NATIONAL MOOT COURT COMPETITION, 2022

ARGUEMENTS ADVANCED

CONTENTION I:

THAT WRIT OF MANDAMUS CANNOT BE ISSUED TO THE GOVERNMENT FOR APPOINTING THE
TRIBUNAL MEMBERS.

1. It is most respectfully submitted that the writ of mandamus against the government of
N.B.C.T is not maintainable under Article 226 of the Constitution of the Mckernistan. Under
Article 226, the High Court exercises its power of judicial review and it entertains a petition
in its original power. It exercises discretionary and equitable jurisdiction under Art. 226 1 and
this jurisdiction cannot be barred even by any constitutional amendment. 2 However, while
interpreting the powers under Articles 226/227, the Supreme Court and various High Courts have laid
down certain self imposed restrictions. In certain situations, it refrains from exercising its jurisdiction
under Art. 226.
Such situations find their existence in the present case which is as follows:
(i) Presence of Effective Alternative Remedy
(ii) No encroachment upon Executive’s domain.
(iii) Non interference in Contractual matters
(iv) Suppression of Facts
2. Existence of these factors renders the writ to be non-maintainable. The aforementioned argument is
authenticated by making following averments:

PRESENCE OF ALTERNATIVE REMEDY

3. It is most respectfully submitted that the petition has been filed prematurely since there is a
presence of an appropriate forum for seeking redressal which is the Procurement Tribunal.
The Supreme Court has laid down the proposition that when a statutory forum or tribunal is
specially created by a statute for redressal of specified grievances of persons on certain
matters, the High Court should not normally permit such persons to ventilate their specified
grievances
1 U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Tondon, (2008) 2
SCC 41 2 L. Chandra Kumar v. Union of India and Ors. 1997(3)
SCC 261.

1
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

before it by entertaining petitions under Art.226 of the Constitution. 2 Further, in the case of
Than Singh v. Superintend of Taxes,3it has observed:

“though Art. 226 is couched in wide terms, the exercise of the jurisdiction is discretionary
and is subject to several self-imposed restrictions, one of these being that ordinarily the writ
jurisdiction is not to be resorted to if the petitioner can obtain an alternative remedy under
the statute.”

4. The High Court usually does not permit by entertaining a petition under Art. 226 of the
Constitution the machinery created under the statute to be bypassed, and will leave the party
applying to it to seek resort to the machinery so set up”. 4In L. Chandra Kumar5 a Seven
Judge Bench of the Supreme Court held that the power of judicial review under Art. 226 of
the Constitution was one of the basic features of the Constitution. But at the same time, it
also held that a litigant cannot straight away invoke the constitutional jurisdiction of
respective High Courts at the first instance but must approach the Administrative Tribunal
first. The principle has been stated by the Supreme Court as follows:6

“It is well settled that when an alternative and equally efficacious remedy is open to a
litigant, he should be required to pursue that remedy and not invoke the special jurisdiction
of the High Court to issue a prerogative writ. It is true that the existence of another remedy
does not affect the jurisdiction of the Court to issue a writ; but the existence of an adequate
legal remedy is a thing to be taken into consideration in the matter of granting writs....”
5. It is to be noted that Article 226 is not meant to bypass or circumvent statutory procedures. 7
In the case of State of West Bengal v. North Adjai Coal Co., 8the Supreme Court has held that
normally before a writ petition under Art. 226 is entertained, the High Court would insist that

2 Secretary, Minor Irrigation and Rural Engineering Services v. Sahngoo Ram Arya, (2002) 5 SCC 521.
3 Thansingh v. Supdt. of Taxes, AIR 1964 SC 1419 : (1964) 6 SCR 654.
4 All India Lawyers Forum for Civil Liberties v. Union of India, AIR 2001 Del. 380.
5 (1997) 3 SCC 261.
6 Union of India v. T.R. Varma, AIR 1957 SC 882.
7 Titaghur Paper Mills Co. Ltd. v. State of Orissa, AIR 1983 SC 603.
8 State of West Bengal v. North Adjai Coal Co. (1971) 1 SCC 309, 310.

2
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

the party aggrieved by the order of a quasi-judicial tribunal should have recourse to the
statutory authorities which have power to give relief. 9

6. Further, it cannot supplant substantive statutory provisions. Hence, since The Tribunals
(Appointment) Act, 2020 is a self-contained Code, the common law principles of justice,
equity and good conscience cannot be extended in awarding interest, contrary to or beyond
the provisions of the Statute and the Hon’ble High Court cannot exercise its power to award
interest in a manner other than one prescribed by Statute while exercising jurisdiction under
Article 226. 10
In appropriate cases, the Court may refuse to exercise its discretionary
jurisdiction by invoking the doctrine of forum convenience.
No encroachment upon Executive’s domain.
7. It is humbly submitted that if the Hon’ble Court issues a writ against government, it would be
a transgression upon executive’s domain and would go against the Doctrine of Separation of
Powers. The theory of separation of powers signifies that: first, the same person should not
form part of more than one of the three organs of the government and secondly, one organ of
the government should not interfere with any other organ of the government. In the case of
Indira Nehru Gandhi v. Raj Narain,12 Chandrachud, J, observed that
“the political usefulness of the doctrine of separation of powers is now widely recognized …
No constitution can survive without a conscious adherence to its fine checks and balances.”
8. The principle of separation of powers is a principle of restraint which ‘has in it the precept
innate in the prudence of self-preservation … that, discretion is the better part of valour’.
Therefore, the Hon’ble High Court should not interfere in the decision taking power of the
Government of N.B.C.T. vis-a-vis the appointment of Tribunal Members.

Writ not be issued to ask for performance of Discretionary Power.

9. Writ of mandamus could not be issued to compel the government to exercise its discretionary
power vested with statutory authority.11 The term “discretion” when qualified by the word

9 U.P. Jal Nigam v. Nareshwar Sahai Mathur, (1995) I SCC 21: 1995 SCC (194) 209; Radha Raman Samanta v.
Bank of India, (2004) 1 SCC 605.
10 Delhi Development Authority v. Mahender Singh, (2009) 5 SCC
339, 12 Indira Nehru Gandhi v. Raj Narain, 1975 SCR (3) 333.
11 Jagdish Prasad v. M.C.D., AIR 1993 SC 1254.

3
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

“administrative” means choosing from amongst the various available alternatives but with
reference to the rules of reason and justice and not according to personal whims.
10. It is true that in any intensive form of government, the government cannot function without
the exercise of some discretion by the officials. It is necessary not only for the
individualization

of the administrative power but also because it is humanly impossible to lay down a rule for
every conceivable eventuality in the complex art of modern government. In the case of
Ramana Dayaram Shetty v. International Airport Authority of India,12 Bhagwati J, observed
that Exercise of discretion is an inseparable part of sound administration and, therefore, the
State, which is itself a creature of the Constitution, cannot shed its limitation at any time in
any sphere of State activity.
11. Ordinarily, the Court will not exercise the power of the statutory authorities. It will at the first
instance allow the statutory authorities to perform their own functions and would not usher
the said jurisdiction itself. In the case at hand, the appointment of members of tribunal is a
discretionary power vested with the Government in the sense that it would appoint the
Chairperson and members on the recommendation of search-cum-selection Committee.13 The
Government is under an obligation to appoint members but it is not bound by specific time
limit. It can be construed that under normal circumstances, the Govt. is obliged to perform its
duty but in any other situation, it may exercise its discretion.
12. Thus the power conferred on the executive authority is based on its subjective satisfaction, in
which case the courts should not readily defer to the conclusiveness of an executive
authority’s opinion as to the existence of a matter of law and fact upon which the exercise of
power is predicated. Therefore, Hon’ble High Court cannot ask the Respondent No. 2 to
exercise its discretion in a particular manner not expressly required by law, or question its
exercise on merits, or substitute its own discretion for that of the authority in which it is
vested.

NO INTERFERENCE IN CONTRACTUAL MATTERS.

12 Ramana Dayaram Shetty v. Airport Authority of India, AIR 1979 SC 1628.

13 Annexure 5, § 3(1): Appointmnet of Chairperson, Members of Tribunal.

4
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

13. It is most respectfully submitted that issuance of writ is not desirable when there is an
absence of public law element and the matter is purely contractual in nature. For a public law
remedy enforceable under Article 226 of the Constitution, the actions of the authority need to
fall in the realm of public law be it a legislative act of the State, an executive act of the State
or an instrumentality or a person or authority imbued with public law element. Thus the
Court will

not exercise its jurisdiction to entertain a writ application wherein public law element is not
involved.14
14. Mandamus is not issued if the right is purely of a private character. In the case at hand, the
right, enforceability of which is sought by the appellant is purely contractual in nature. A
private right, such as arising out of a contract, cannot be enforced through mandamus and the
proper course is a civil suit except when the matter falls in the public law domain. 15 The
Supreme Court has, in catena of judgments, made it clear that judicial review is not
concerned with policy making functions of the State and particularly those involving
financial implications. In the instant case, appellants were merely partners in Government’s
tender process through which it supplied raw material to different agencies of the
Government.18
SUPPRESSION OF FACTS:
15. It is a well established principle that suppression of materials exposes the aggrieved party to
the risk of threshold dismissal. This principle emanates from the very nature of the power of
interference under Art.226 i.e. a discretionary jurisdiction. A person who approaches the
court for justice must come with clean hands and not one who intentionally attempts to
deflect the Court from the true path of justice by leading the court to injustice.16

14 LIC v. Escorts Ltd, AIR 1986 SC 1370; LIC of India v. Consumer Education & Research Centre, AIR 1995 SC
1811.
15 State of Kerala v. K.P.W.S.W.L.C. Coop. Soc. Ltd., AIR 2001 Ker. 58; D.R. Mills v. Commissioner, Civil
Supplies, AIR 1976 SC 224.3 18 Factual matrix, 5.
16 Arunima Baruah v. U.O.I., (2007) 6 SCC 120, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, (2004) 7
SCC 166: AIR 2004 SC 2421.

5
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

16. “Material facts” in other words mean the entire bundle of facts which would constitute a
complete cause of action.17 Non disclosure of full facts or suppression of relevant materials or
otherwise misleading the Court would disentitle a party to any relief. 18 The appellants seeking
mandamus against government have attempted to deviate the Court’s attention to the fact that
they were the ones who jeopardized the lives of hundreds of people by supplying
contaminated products. They are not before this Court with clean hands and thus their plea
should not be entertained.

CONTENTION II:

THE BOTIQUE OWNERS ARE VICARIOUSLY LIABLE

The defendant humbly submits before the Honourable District Court of Jalandhar that

1) THIS CASE IS FILED AGAINST THE WRONG PARTY

It should be against the boutique i.e Ladies Fashion Pvt. Ltd in place of the boutique owners
i.e Kamalpreet and Gurpreet. The company has its own rights according to the Company
Act 2013, so the case should be filed against the company. It is also submitted that there
is no case against the company.
A separate legal entity is when you and anyone involved in your company are separate from
your business for legal purposes. SLE means that if someone takes legal actions against
17 Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310.
18

6
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

your business, your personal finances are separate and safe from the legal suit and
invester, stakeholders, and partners are also personally protected
salmon vs salmon
The Court of Appeal, declaring the company to be a myth, reasoned that Salomon had
incorporated the company contrary to the true intent of the then Companies Act, 1862,
and that the latter had conducted the business as an agent of Salomon, who should,
therefore, be responsible for the debt incurred in the course of such agency.
The House of Lords, however, upon appeal, reversed the above ruling, and unanimously held
that, as the company was duly incorporated, it is an independent person with its rights
and liabilities appropriate to itself, and that “the motives of those who took part in the
promotion of the company are absolutely irrelevant in discussing what those rights and
liabilities are”.3 Thus, the legal fiction of “corporate veil” between the company and its
owners/controllers4 was firmly created by the Salomon case.
IMPLICATIONS OF SALOMON V SALOMON
Commencing with the Salomon case, the rule of SLP has been followed as an
uncompromising precedent5 in several subsequent cases like Macaura v Northern
Assurance Co.6, Lee v Lee’s Air Farming Limited,7 and the Farrar case.8
The legal fiction of corporate veil, thus established, enunciates that a company has a legal
personality separate and independent from the identity of its shareholders.9 Hence, any
rights, obligations or liabilities of a company are discrete from those of its shareholders,
where the latter are responsible only to the extent of their capital contributions, known as
“limited liability”.10 This corporate fiction was devised to enable groups of individuals
to pursue an economic purpose as a single unit, without exposure to risks or liabilities in
one’s personal capacity.11 Accordingly, a company can own property, execute contracts,
raise debt, make investments and assume other rights and obligations, independent of its
members.12 Moreover, as companies can then sue and be sued on its own name, it
facilitates legal course too.13 Lastly, the most striking consequence of SLP is that a
company survives the death of its members

kandoli tea estate 1886

7
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

The appellant, Mr. Macaura, formerly owned a timber estate in Northern Ireland, who
consequently sold the timber to a Canadian Milling Concern, agreeing to accept payment
in the shares of the company. The appellant received 42,000 fully paid up £1 shares,
making him the whole owner. He was also an unsecured creditor for £19,000. The
appellant took out an insurance policy on the timber in his own name, and shortly
afterwards damage was caused by the fire. The appellant sought to recover from such an
insurance policy, but Northern Assurance Co. refused to pay up as timber was owned by
the company, and the fact that company is a separate legal entity.
The House of Lords held that insurers were not liable on the contract, as Mr. Macaura had no
insurable interest in the timber, as his relation was to the company, and not to its goods.
Unusually, in this case, request to lift the corporate veil was made by the corporation's
owner himself, as he contended that he held the maximum percentage of shares. However
the court held that the corporator, even if he holds all the shares, is not the corporation,
and neither he nor any creditor of the company has any property legal or equitable in the
assets of the corporation.

B. IF THERE IS PROPER CARE IN THE DUTY THEN THE MASTER IS NOT

LIABLE

This is humbly submitted before the Honourable District of Jalandhar that when there
is reasonable care in the duty then the master in not laible for the actions of the servant

As stated in the case of Storey v Ashton The defendant in this case, was a wine merchant
who, in the course of employment, sent his clerk and his car man off with a horse and cart to
make a delivery of wine and collect and return the empty bottles. During their journey from
doing this, rather than completing this task set by the employer, the car man was told by the
clerk to drive in the opposite direction to visit his brother-in-law as it was past 3.00pm on a
Saturday and outside of business hours. Following this change of direction, the car man ran
over the plaintiff

8
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

The issue in this case was whether the defendant could be said to be at fault for the actions of
his employees at a time that they were not directly acting on behalf of him, but still using his
equipment. It was an important to draw a line between negligence arising out of a master’s
instruction and when the employee could be said to be operating on the basis of his own act

The defendant was not liable in this instance as the court considered that the car man was
operating a new and independent journey from the one he was instructed to do. The court
surmised that as it was after business hours, the incident that harmed the plaintiff could be
considered to have taken place outside the course of his employment. With this being said,
the court still emphasised the strict nature of an employee acting under an employers
instruction.

Similarly , In Twine v Bean’s Express Ltd

A driver was engaged to drive his employers’ van, his employers having a contract with the
Post Office. When so doing, he gave Mr. Twine a lift from A to B, both offices of the Post
Office. The driver had been expressly forbidden to give lifts.

The express prohibition upon giving lifts was not only a prohibition but was also a limiting
factor on the scope of the employment. The driver was not acting in the course of his
employment. Lord Greene said: ‘He (the driver) was employed to drive the van. That does nt
mean . . that because the deceased man was in the van it was within the scope of the driver’s

9
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

employment to be driving the deceased man. He was in fact doing two things at once. He was
driving his van from one…

10
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

CONTENTION III:

THAT THE CONSTITUTIONAL RIGHTS OF THE PETITIONER HAVE NOT BEEN VIOLATED
THROUGH THE IMPUGNED BANNING ORDER.

THERE HAS BEEN NO VIOLATION OF ARTICLE 14 OF THE CONSTITUTION.

30. It is humbly submitted that there has been no violation of the Constitutional rights of the
appellants. The obligation was cast on the Appellants to manufacture the food which was
safe and wholesome and an element of trust therefore was created on the basis of assurances
given by the manufacturer. If the trust was broken, the department could then act and impose
the ban on the supply of product of the manufacturer. The appellant was under a primary
obligation to ensure the safety of the products. In case of breach of that obligation, the
appellant is liable to be banned from any further dealing with the Government.
31. Art. 14 springs to life and judicial review to strike down any state action this is arbitrary in
nature. “Non-arbitrariness, being a necessary concomitant of the rule of law, it is imperative
that all actions of every public functionary in whatever sphere must be guided by reason and
not humour, whim, caprice or personal predilections of the persons entrusted with the task on
behalf of the State and exercise of all powers must be for public good instead of being an
abuse of power.19. Mere fact that some hardship or injustice is caused to someone is no
ground to strike down the rule altogether if otherwise the rule appears to be just, fair and
reasonable and not unconstitutional.20. so merely because a penalty has been imposed on the
appellant as a ban of 2 years cannot be regarded discriminatory since the company was
negligent.
32. Further, the duty to act fairly is part of fair procedure, envisaged under Articles 14 and 21 of
the Constitution. Every activity of a public authority or those under public duty or obligation
must be informed by reason and guided by public interest. the respondents took a restrictive
approach towards the appellants in order to warn the company for future course of action.
Therefore, the action on part of the respondents in not violative of Article 14 of the
Appellants.

19 Dolly Chanda v. Chairman, Jee, (2005) 9 SCC 779.

20 A. P. Coop. Oil Seeds Growers Federation Ltd. v. D. Achyuta Rao, (2007) 13 SCC 320.

11
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

FREEDOM OF TRADE IS NOT A FUNDAMENTAL RIGHT OF A COMPANY.

33. It is humbly submitted before the bench that a company or a corporation cannot enforce a
fundamental right of freedom of trade protected under Article 19 of the Constitution since it
is not recognized as a citizen. The decision in the case of State Trading Corporation v. The
Commercial Tax Officer21 in the corporate citizenship jurisprudence of the Supreme Court is
significant as it conclusively negates the possibility of treating corporations as citizens for the
purposes of Art. 19 on the reasoning that Citizenship of corporations, is neither recognized
neither under the Constitution of India nor under the Citizenship Act, 1955.
34. Drawing a distinction between citizenship and nationality, the Court stated that while all
citizens are nationals of a State, the reverse is not always true because nationality is a concept
of international law while citizenship is a concept of municipal law. Therefore, while a
company might have ‘nationality’, which ordinarily is determined by the place of its
incorporation, it does not have ‘citizenship’. Further, even the argument that State Trading
Corporation was a government body, and so it could not claim to enforce Fundamental Rights which
are meant for the protection of private parties against the government or its instrumentalities are not
maintainable.
35. In the Tata Engineering v. State of Bihar,47 shareholders along with the company joined in
making the petition. It was argued that the corporate veil of the Tata Company should be
pierced and its substantial character determined without reference to the technical doctrine of
the corporation’s separate entity. However, the Apex Court refused to accept this argument
and held that a company has a legal entity of its own which is entirely separate from that of
its shareholders and to accept the plea of the shareholders would amount to enforcing
indirectly what the company could not claim directly. Thus, even individual shareholders
cannot claim a Fundamental Right so as to benefit the company. Therefore, it is clear that the
company cannot invoke a fundamental right of Freedom of trade under Article 19 of the
Constitution of Mckernistan.

21 State Trading Corporation of India v. Commercial Tax Officer, 1963

SCJ 705. 47 Tata Engineering v. State of Bihar, AIR 1965 SC 40

12
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

THERE HAS BEEN NO VIOLATION OF ARTICLE 21 OF THE CONSTITUION.

36. It is humbly submitted that administrative action on part of Respondents had in no way
violated the fundamental right of the Appellants protected under Art.21 of the Constitution of
India. Article 21 embodies a constitutional value of supreme importance in a democratic
society’.22The right guaranteed under Article 21 is available to ‘citizen’ as well as
‘noncitizen.’ Article 21 states as follows:

“No person shall be deprived of his life or personal liberty except according to a procedure
established by law.”

37. The terms ‘life’ and ‘personal liberty’ encompass a wide variety of rights of the people,
which are a result of the evolution in the interpretation of Article 21 by the courts over the
years49. Therefore, Article 21 covers a plethora of rights of people. Under the aspect of Right
to life is also embodied the Right to live with human dignity. Thus, in Maneka Gandhi’s
case50, court gave a new dimension to Article 21. It has been held that the right to”live” is not
merely confined to physical existence but it includes within its ambit the right to live with
human dignity. Elaborating the same view, the Court in Francis Coralie v. Union Territory
of Delhi,23 said that right to live is not restricted to mere animal existence. It means
something more than physical survival. The right to live is not confined to the protection of
any faculty or limb through which life is enjoyed but it also includes the “right to live with
human dignity”, and all that goes with it, namely the bare necessities of life such as adequate
nutrition, clothing, shelter etc.
38. In the matter at hand, Government of N.B.C.T was focusing its energies upon enabling the
population of the Mckernistan to progress in a globalized world and thus it initiated one of its
most ambitious projects by name of kush-Agro Food Security Programme. Under the same, a
significant chunk of the population, which was malnourished due to the repeated famines
which beset the country during colonial rule, was provided food and nutrition upon state’s
expenses as it is the right of people to have adequate nutrition but due to an unfortunate event

22 Francis Coralie Mullin vs The

Administrator (1981) 49 Supra Note, 50Ibid.
23 Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746

13
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

on part of the Applicant, this was affected as the main objective of this programme was at
stake. Therefore, the Government by way of issuing a banning order ceased the supplies
which would ultimately affect the population’s health as it had already caused serious health
ailments to few. This way, government of N.B.C.T protected the right to live with human
dignity as covered under Article 21.
39. It is further submitted that in case of Olga Tellis v. Bombay Municipal corporation,24
popularly known as the “pavement dwellers case”a five-judge bench of the court has finally
ruled that the word ‘life’ in article 21 includes the ‘right to livelihood ‘also.
40. But in Sodan singh v. New Delhi Municipal Committee25, the Apex court has held, the right to
carry on any trade or business is not included in the concept of life and personal liberty.
Article 21 is not attracted in a case of trade or business. And therefore, in the present issue
there is no infringement of the right to trade of the petitioner company and hence, Article 21
is not at all violated in this regar

24 Olga Tellis v. Bombay Municipal corporation AIR 1986 SC 180; (1985) 3 SCC 545
25 Sodan singh v. New Delhi Municipal Committee AIR 1989 SC 1988

14
MEMORIAL ON BEHALF OF THE RESPONDENTS
2ND NATIONAL MOOT COURT COMPETITION, 2022

15
MEMORIAL ON BEHALF OF THE RESPONDENTS
 2ND NATIONAL MOOT COURT COMPETITION, 2022

PRAYER

WHEREFORE, IN THE LIGHT OF FACTS AND CIRCUMSTANCES OF THE CASE,

ISSUES RAISED ARGUMENTS ADVANCED, AUTHORITIES CITED, THE COUNSEL
ON BEHALF OF THE RESPONDENTS HUMBLY REQUESTS THAT THIS COURT
MAY BE PLEASED TO ADJUDGE THAT:

1. The Writ of Mandamus cannot be issued to the Government for Appointing the Tribunal
Members.
2. The Hon’ble High Court cannot hear the matter in merits and issue the Writ of Certiorari
to quash the impugned Banning Order.
3. The Constitutional Rights of the Petitioner have not been violated through the Impugned

Banning Order.

And/ or

Pass any such order, judgement or direction that the Hon’ble Court may deem fit in the
interest of equity, justice and good conscience.

For this act of kindness, the Counsels for the Respondents as in duty bound shall forever
pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_____________________________

Sd/-

COUNSELS FOR THE RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENTS

2ND NATIONAL MOOT COURT COMPETITION, 2022

xvi

MEMORIAL ON BEHALF OF THE RESPONDENTS