2ND NATIONAL MOOT COURT COMPETITION, 2022

AM CODE –
CN-22-E

2ND NATIONAL MOOT COURT COMPETITION, 2022

Before

THE HON’BLE HIGH COURT, NEW BAILEY

APPELLATE JURISDICTION
L.P.A. No._____/2022

IN THE MATTER OF

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

V.

1. GOVERNMENT OF N.B.C.T

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

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

(UNDER ARTICLE 226 OF THE CONSTITUTION OF MCKERNISTAN)

MEMORANDUM ON BEHALF OF THE APPELLANT

DRAWN AND FILED BY THE COUNSELS ON BEHALF OF THE APPELLANT

1
 2ND NATIONAL MOOT COURT COMPETITION, 2022

TABLE OF CONTENTS

List of Abbreviations .................................................................................................................... ii

Table of Authorities ..................................................................................................................... iii
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
Arguments Advanced ................................................................................................................... 1
CONTENTION I: ........................................................................................................................... 1
That the Writ of Mandamus be issued to the Government for Appointing The Tribunal Members.
......................................................................................................................................................... 1
CONTENTION II: .......................................................................................................................... 6
That the High Court can hear the matter in merits and issue the Writ of Certiorari to quash the
impugned Banning Order? .............................................................................................................. 6
THAT THE HON’BLE COURT CAN, IN THE ALTERNATIVE, HEAR THE MATTER IN
MERITS: ......................................................................................................................................... 6
THAT IT CAN ISSUE THE WRIT OF CERTIORARI TO QUASH THE BANNING ORDER. 6
CONTENTION III:....................................................................................................................... 12
that there has been a violation of Constitutional Rights of the Petitioner through the impugned
Banning Order ............................................................................................................................... 12
THE IMPUGNED ORDER IS VOLATIVE OF ARTICLE 14 OF THE CONSTITUTION. ..... 12
That Impugned Order suffers from the vice of arbitrariness and unreasonableness. .................... 14
VIOLATION OF ARTICLE 19 OF THE CONSTITUTION OF MCKERNISTAN. ................. 15
THERE HAS BEEN VIOLATION OF ARTICLE 21 OF THE CONSTITUION. ..................... 18
Prayer .......................................................................................................................................... xxi

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

LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSION

& And

§ Section

¶ Paragraph

AIR All India Reporter

Anr. And others

Art. Article

Del. Delhi

DPP Department of Public Procurement

Ed. Edition

Et Al Et. Alia

ILR Indian Law Reporter

N.B.C.T. New Bailey Capital Territory

SC Supreme Court

SCC Supreme Court Cases

V./vs. Versus

Vol. Volume

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

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, (57thed.2019).
5) M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (8th ed. 2018).
6) VOL. 2, DD BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 9THED. (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/

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

TABLE OF CASES

S.NO. CASES CITATION PAGE

NO.
1. A.L. Kalra v. P & E Corpn of India, Ltd., AIR 1984 SC 1361 13
2. Ashutoshgupta v. state of rajasthan AIR 2002 SC 13
3 Bachan Singh v.State of Punjab AIR1982 SC 1325 13
4 Balaji v. State of Mysore AIR 1963 SC 649 11
5 BALCO Employees’ Union v. Union of Indi (2002) 2 SCC 333 07
6 Bennett Coleman & Co. v. Union of India AIR 1973 SC 106 14
7 Board of Trustees, Port of Bombay v. (1983) 1 SCC 124 16
DilipkumarNadkarni
8 Canara Bank v. Debasis Das (2003) 4 SCC 557. 08
9 ChiranjitLalChowdhuri v. Union of India AIR 1951 SC 41 14
10 D.C. & G.M. v. Union of India, AIR 1983 SC 937 14
11 D.N. Jeevraj v State of Karnataka (2016) 2 SCC 653 04

12 DharampalSatyapal Ltd. v. Dy. Commr. of Cen. (2005) 2 Gau LR 12

Ex.Gauhati 520
13 Director of Settlements v Apparao AIR 2002 SC 1598 01
14 Dr. RaiShivendraBhadur v. Governing Body of the AIR 1962 SC 02
Nalunda College 1210.

15 E.P. Royappav.State of Tamil Nadu, AIR 1974 SC 555 13

16 Errington v. Ministry of Health (1935) 1 KB 09
249(CA)
17 Francis Coralie Mullin v The Administrator (1981) AIR 746 16
18 Godawat Pan Masala Products I.P. Ltd. v. Union of AIR 2004 SC 4057 09
India
19 Godhra Electric Co. v. State of Gujarat AIR 1975 SC 32 14
20 Imperial Chemical Industries Ltd. v. Registrar of AIR1981 Del.190. 11
Trade Marks
21 K.A. Karim & Sons v. I.T.O. 1983 Tax. L.R. 11
1168
22 K.S. Rama Murthy v. Chief Commissioner, AIR 1963 SC 1464 11
Pondicherry
23 Kraipak v. Union of India AIR 1970 SC 150 06
24 KVR Setty v State of Mysore, AIR 1967 SC 993 03

25 M. P Industries Ltd. v. Union of India, AIR 1974 SC 87 10

26 Maneka Gandhi v. Union of India AIR 1978 SC 597 07
27 Mohinder Singh Gill v. Chief Election Commr. AIR 1978 SC 851 07
28 Natwar Singh v. Director of Enforcement (2010) 13 SCC 09
255

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

29 Nestle India Limited v. Food Safety and Standards AIR 2016 (NOC 11
Authority of India 225) 98
30 Praga Tools Corp v Inmanual AIR 1969 SC 01
1306.
31 R.C. Cooper v. Union of India AIR 1970 SC 564 13
32 Russel v. Duke of Norfolk, (1949) (1949) ALL ER 08
109
33 S.G. Jaisinghani v. Union of India AIR 1967 SC 1427 13
34 S.I. Syndicate v. Union of India AIR 1975 SC 460 04

35 Sanjana M. Wig v. HPCL 2004 (3) SCC 553 04

36 Sanjay Singh v. U.P. Public Service commission, AIR 2007 SC 950 06

Allahabad,

37 Santosh Kumar v. State of Bihar & others 2014 SC 8757 03

38 Saraswati Industrial Syndicate Ltd. v. Union of India AIR 1975 SC 460 04
39 Sarku Engineering Services v. Union of India AIR 2017 (NOC 09
49) 21
40 Shri AnadiSmarak Trust and Ors. v. R.R.Udani&Ors. AIR 1989 SC 01
1607.
41 Smt. KiranBedi v. Committee of Inquiry 1989 AIR 714 16
42 Star India P. Ltd. v. The Telecom Regulatory Authority 146 (2008) DLT 14
of India 455.
43 State of Bihar v. Lal Krishna Advani AIR 2003 SC 3357 17
43 State of Bombay v. United Motors, AIR. 1951 S.C. 05
252
44 State of Haryana v. Chaman Mal, AIR 1976 SC 1654 04

45 State of M.P. v G.C. Mandawara AIR 1954 SC 493 02

46 State of West Bengal v. Naruddin (1998) 8 SCC 143. 02

47 Statesman v. Fact Finding Committee AIR 1975 Cal 14. 15

48 Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477 07
49 T.K. Rangarajan v. Govt. of T.N. AIR 2003 SC 3032 05

50 Tata Cellular v. Union of India AIR 1996 SC 11 06

51 Union Of India v. Mohan LalCapoor AIR 1974 SC 87 10

52 UOI v S.B. Vohra, AIR 2004 SC 1402 01
53 Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1 05
Mumbai

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

STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Division Bench of the High Court of New Bailey under
Article 226/227 of the Constitution of Mckernistan after filing an intra court appeal against the
verdict of the Single Judge Bench of this Hon’ble High Court.

ARTICLE 226(1):Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories directions,
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo
warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part
III and for any other purpose.

ARTICLE 227(1): Every High Court shall have superintendence over all courts and tribunals
throughout the territories interrelation to which it exercises jurisdiction.

vi
MEMORIAL ON BEHALF OF THE APPELLANT
 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 wide-
ranging 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 trader 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. It is a company of international renown 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 dated 28 April 2021.
This banning order, on the first instance, was challenged by RotB before the Procurement Tribunal
on 1 April 2021.

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

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 thenonfunctional 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 theHon’ble Division
Bench of the High Court of New Bailey has taken up the matters for hearing.

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

STATEMENT OF ISSUES

ISSUE: 1

WHETHER THE WRIT OF MANDAMUS CAN BE ISSUED TO THE GOVERNMENT FOR APPOINTING THE
TRIBUNAL MEMBERS?

ISSUE: 2

WHETHER THE HON’BLE HIGH COURT CAN HEAR THE MATTER IN MERITS AND ISSUE THE WRIT OF
CERTIORARI TO QUASH THE IMPUGNED BANNING ORDER?

ISSUE: 3

WHETHER THERE HAS BEEN A VIOLATION OF CONSTITUTIONAL RIGHTS OF THE PETITIONER

THROUGH THE IMPUGNED BANNING ORDER?

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

SUMMARY OF ARGUMENTS

CONTENTION: I

THAT THE WRIT OF MANDAMUS CAN BE ISSUED TO THE GOVERNMENT FOR APPOINTING THE
TRIBUNAL MEMBERS

It is humbly submitted before the Hon’ble High Court of New Bailey that the writ of mandamus
can be issued to the Government of N.B.C.T. directing it to appoint the members of Procurement
Tribunal as it is bound by a statutory duty. It is submitted that the appellants fulfill all the grounds
required for the issuance of Writ of mandamus. Appellants have a legal right to seek redressal
which it is unable to exercise due to non-functioning of Procurement Tribunal. For this reason, the
Tribunal, also, cannot be considered as an ‘effective and adequate’ alternate forum available for
seeking redressal.

CONTENTION: II

THAT THE HON’BLE HIGH COURT CAN HEAR THE MATTER IN MERITS AND ISSUE THE WRIT OF
CERTIORARI TO QUASH THE IMPUGNED BANNING ORDER

It is humbly submitted that the High Court can hear the matter in merits since the policy decision of banning
the appellants for 2 years is manifestly arbitrary and irrational. Moreover, the administrative procedure
followed before the issuance of office memorandum is in utter violation of Principles of Natural Justice.
No pre-decisional Notice was provided to the Appellants regarding the product sample testing conducted
from the laboratory. Further, no opportunity of hearing was provided before passing of the impugned order.
Therefore, the banning order should be set aside.

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

CONTENTION: III

THAT THERE HAS BEEN A VIOLATION OF CONSTITUTIONAL RIGHTS OF THE PETITIONER

THROUGH THE IMPUGNED BANNING ORDER.

It is humbly submitted that the there has been gross violation of fundamentals rights of the
Appellant protected under Article 14, 19 and 21 of the Constitution of Mckernistan. The company
has been deprived of his liberty to trade and shareholders have lost their freedom of trade and
profession. Moreover, the impugned order has also severely damaged the reputation of the
company not only in Indian market but also in foreign market.

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

ARGUMENTS ADVANCED

CONTENTION I:

THAT THE WRIT OF MANDAMUS BE ISSUED TO THE GOVERNMENT FOR APPOINTING THE
TRIBUNAL MEMBERS.

1. It is most humbly submitted before the Hon’ble Court that issuance of Writ of mandamus against
Respondent No. 1- Government of N.B.C.T. is maintainable.In the modern era of welfare state,
when there is governmental action on a vastscale, a procedure to obtain expeditious and effective
redress against an illegal exerciseof power by the Executive is extremely desirable. The High
Court as the guardian of people’s right controls these administrative authorities with the help of
a tool called Writ. One of the writs under Article 226 is the Writ of Mandamus.
2. Mandamus is a command or an order issued to direct any person, corporation, inferior Court or
Government, requiring him or them to do or forbear to do some particular thing in the nature of
a public duty1 or in certain cases a statutory duty 2. In the present case, it is sought for fulfillment
of a statutory duty. The primary objective of writ of mandamus is to prevent disorder from a
failure of justice and is necessary to be granted in all cases where law has prescribed no specific
remedy and where justice despite demanded has not been granted 3.The ambit of mandamus is
very wide, and it must be available when an injustice has occurred 4.It is further submitted that
certain conditions are to be met with for the issuance of the writ of mandamus which are as
follows:
(i) The aggrieved party has a legal right.
(ii) There is an infringement of the legal right.
(iii) Infringement is due to non-performance of legal duty.
(iv) Performance of legal duty was demanded but refused.
(v) Absence of effective alternate legal remedy.

1
Praga Tools Corp v Inmanual, AIR 1969 SC 1306.
2
A.T. Markose, Judicial control of Administrative Action in India, p. 364.
3
UOI v S.B. Vohra, AIR 2004 SC 1402; Director of Settlements, AP v M.R. Apparao, AIR 2002 SC 1598.
4
Shri AnadiMuktaSadhguru Shri MuktajeeVandasjiswamiSuvarnaJayantiMahotsavaSmarak Trust and Ors. v.
R.R.Udani and Ors.; AIR 1989 SC 1607.

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

It is respectfully submitted that the appellants fulfill all the conditions abovementioned. The
aforementioned argument is substantiated under following averments:

1.1 THE AGGREIVED PARTY HAS A LEGAL RIGHT.

3. It is humbly submitted that for the issuance of writ of mandamus, the aggrieved party must have
a legal right5 to the performance of a legal duty. Legal rights are those rights that are recognized
by the state through its statutes. In the present case, the appellants have a legal right to seek remedy
and this right springs up from The Tribunals (Appointment) Act of 2020 6. This statute has twofold
objectives: first, the appointment of members to various Tribunals and second, to decrease the
pendency of legal proceedings that have been initiated in various Tribunals. In the instant case, it
is the Procurement Tribunal where the appellants can enforce their legal right.

1.2 THERE IS ANINFRINGEMENT OF THE LEGAL RIGHT.

4. It is humbly submitted that Respondent No. 1 i.e., the Govt. of NBCT has failed to realize the
abovementioned objectives of the statute by not appointing members to the Procurement Tribunal.
This failure on part of the Government has snatched away the legal right of the appellant to seek
justice by challenging the impugned Banning order due to non-functioning of the Tribunals. In
State of West Bengal v. Naruddin 7, the Supreme Court has observed that the writ of mandamus is
a personal action where the respondent has not done the duty they were prescribed to do by law.
The performance of duty is the right of the applicant.Thus, if there’s non-performance of duty, it
is succinctly an infringement of the legal right of the aggrieved party.

1.3 STATUTORY DUTY NOT PERFORMED BY PUBLIC AUTHORITY.

5. It is most humbly submitted that there is non-performance of a statutory duty byRespondent No.
1 i.e., the Govt. of N.B.C.T. whichis a public authority as per Article 12 of the Constitution of
India. The writ of mandamus can be granted when there is in the applicant a right to compel the
performance of some duty cast upon the authority 8 . The essence ofmandamusis that it is a

5Dr. RaiShivendraBhadur v. Governing Body of the Nalunda College, AIR 1962 SC 1210.
6Annexure 5.
7State of West Bengal v. Naruddin, (1998) 8 SCC 143.
8State of M.P. v G.C. Mandawara, AIR 1954 SC 493

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

command by Court ordering the performance of a public legal duty 9i.e., a duty cast by law. 10In
the case of Santosh Kumar v State of Bihar 11, the Hon’ble Supreme Court has held that mandamus
can be issued to a legal authority to compel to it to perform its statutory obligation.

6. Nature of the Duty:It is the nature of the duty imposed on the body that becomes relevant on
the face of non-performance of that duty. When the duty is merely left to discretion, the writ of
mandamus will not lie. The duty must be judged in the light of positive obligation owned by the
person or authority to the affected party. No matter by what means the duty is imposed; if a positive
obligation exists mandamus cannot be denied 12 . Whether the nature of duty is obligatory,
mandatory or mere directory depends on the scheme of the statute in which the duty has been set
out. Therefore, it becomes necessary to have a brief look at the relevant provisions of the said act.§
3(1) of Tribunal (Appointment) Act, 2020 runs as follows:

Section 3 Appointment of Chairperson, Members of Tribunal

(1) The Chairperson and the Member of a Tribunal shall be appointed by the respective State
Government on the recommendation of a Search-cum-Selection Committee constituted under sub-
§ (2), in such manner as the State Government may, by rules, provide.

7. The perusal of the above provision reveals that the usage of word “shall” in § 3 of the Tribunals
Appointment Act, 2020 provides for a mandatory nature of duty and should not be read as “May”.
If this is done i.e., the concept of “situation interpretation” evolved, it would negate the very object
and purpose of the statute which is to as when the duty is merely discretionary in nature; the writ
of mandamus will not lie13.Therefore, public duty to appoint the members of tribunal is a statutory
duty and not a discretionary power of the Govt.

1.4 PERFORMANCE OF THE LEGAL DUTY DEMANDED BUT NEGLECTED.

8. The Writ of Mandamus is maintainable when justice was demanded but was refused or neglected
by the authorities. A party seeking mandamus must first call upon the authority concerned to do
justice by performing its legal obligation and show that it has refused or neglected to carry it out

9
KVR Setty v State of Mysore, AIR 1967 SC 993
10
State of M.P. v G.C. Mandawara, AIR 1954 SC 493
11
Santosh Kumar v. State of Bihar & others Lnindord 2014 SC 8757
12
Supra Note 1.
13
Supra Note 8.

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

within a reasonable time before applying to a Court formandamus even where the alleged
obligation is established.14A writ in the nature ofmandamuscan be issued to a statutory authority
only on its failure to perform mandatory legal duty.15 If there is no such failure to perform legal
duty despite demand and a right in the person seekingmandamus, the writ would not be
issued.16This demand and refusal concept17 realizes the objective of writ of mandamus as was laid
down in case of UOI v. S.B. Vohra,18wherein, Hon’ble Supreme Court held:

“The object of mandamus is to prevent disorder from a failure of justice and is required to be
granted in all cases where justice despite demanded has not been granted.”

9. In the case at hand, the appellants indeed sought justice but were not granted the same. At the
very first instance, when the appellants received the impugned Banning order, they challenged it
before the Procurement Tribunal on 1May, 2021. But the tribunal itself is not functional on account
of seats lying vacant. So, the application before it is pending. This pendency is causing intractable
losses to the company as it has been unable to participate in around 90 tenders costing up to 260
Crores. Therefore, issuance of writ of mandamus is the need of the hour.

1.5 NO EFFECTIVE ALTERNATIVE LEGAL REMEDY AVAILABLE.

10. It is humbly submitted that there is an absence of an ‘effective alternative’ legal remedy. In the
present case, Procurement tribunal would have been that effective alternative for raising any
grievances pertaining to procurements.However, the irony is that this forum itself is in “dormant
position” due to unavailability of Chairperson and members. It has been more than 2 years since
the members of procurement tribunal resigned en masse and till date no appointments have been
made by the Government of N.B.C.T. 19 Heavy reliance is put on the case of Sanjana M. Wig v.
HPCL20, in which the Hon’ble Supreme court held:

14State of Haryana v. Chaman Mal, AIR 1976 SC 1654

15
Saraswati Industrial Syndicate Ltd. v. Union of India, AIR 1975 SC 460.
16
D.N. Jeevraj v State of Karnataka, (2016) 2 SCC 653.
17
S.I. Syndicate v. Union of India, AIR 1975 SC 460.
18
U.O.I v. S.B. Vohra, AIR 2004 SC 1402.
19 Factual Matrix, 10.
20
Sanjana M. Wig v. HPCL 2004 (3) SCC 553.

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

“a writ petition is maintainable when the forum chosen by the parties would not be in a position
to grant appropriate relief.”

11. Hence, it is contended that mere physical presence of a “forum” cannot be equated with the
presence of Alternative legal remedy if that forum is not functional.

1.6 PRESENCE OF ALTERNATE REMEDY IS NO BAR.

12. It is further submitted that Mandamus is not refused on the ground that there is an adequate
alternate remedy where the petitioner complains that his right is infringed. 21 Availability of
alternative remedy is no bar in the exercise of extra ordinary jurisdiction of High Court under Art.
226,22 particularly when the Petitioner challenges the order on the ground of violation of principles
of natural justice. TheApex Court in Whirlpool Corporation v. Registrar of Trade Marks,
Mumbai23has observed in para 15 as under:

“the alternative remedy has been consistently held by this Court not tooperate as a bar in at
least three contingencies, namely, where the writ petition has been filed for the enforcement of
any of the Fundamental Rights or where there has been violation of the principle of natural
justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is
challenged”
13. Therefore, even if there is an option for redressal from court but the petition of mandamus for
grant of an adequate forum is absolutely justified.

14. Since all the essentials of the writ of mandamus have been fulfilled, it is humbly requested that
the Hon’ble HC may consider the issuance of writ of mandamus under Art.226 of the Constitution
of Mckernistan, directing the respondent to appoint members of the Procurement Tribunal.

21Stateof Bombay v. United Motors, AIR. 1951 S.C. 252: (1953) S.C.R. 1069.
22
T.K. Rangarajan v. Govt. of T.N.,AIR2003 SC 3032.
23Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1.

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

CONTENTION II:

THAT THE HIGH COURT CAN HEAR THE MATTER IN MERITS AND ISSUE THE WRIT OF
CERTIORARI TO QUASH THE IMPUGNED BANNING ORDER?

2.1THAT THE HON’BLE COURT CAN, IN THE ALTERNATIVE, HEAR THE

MATTER IN MERITS:
15. It is humbly submitted that the Hon’ble High Court can hear the matter in merits under Article
226 of the Constitution of Mckernistan. It is to be noted that the apex Court has held in plethora
of judgments that a policy decision or a matter of policy is not totally immune from judicial review.
If it is discernible that there has been an inadequate study of a factor on the basis of which a policy
decision is taken and where there is manifest arbitrariness or irrationality, interference by the courts
is permissible24.

16. Further, if a writ petition raises an arguable or triable issue, or when the party claims to have
been aggrieved by the action ofa public body on the plea that the action is unlawful, high-handed,
arbitrary orprima facie unjust, he is entitled to a hearing on its petition on the merits. The Supreme
Court has emphasized in Tata Cellular v. Union of India25 that while the Court does not interfere
with government’s freedom of contract, invitation of tenders and refusal of any tender which
pertain to policy matter, the Court can interfere when the state decision or action is vitiated by
arbitrariness, unfairness, illegality, irrationality or unreasonableness. Therefore, the Hon’ble High
Court Can hear the matter in merits.

2.2 THAT IT CAN ISSUE THE WRIT OF CERTIORARI TO QUASH THE BANNING
ORDER.
17. It is humbly submitted that impugned banning order should be set aside issuing the Writ of
certiorari. Generally, certiorari is issued to a body acting in an adjudicatory capacity and
according to natural justice or fair procedure and not to one acting in a purely administrative
manner. However,over the course of time, courts have been expanding the horizons of Natural
Justice.26For e.g.,certiorari has been issued to: authorities dealing with cancellation of licenses,
imposition of penalties etc. This shows that there is an increasing judicial trend of imposing the

24
Sanjay Singh v. U.P. Public Service commission, Allahabad, AIR 2007 SC 950
25
Tata Cellular v. Union of India, AIR 1996 SC 11
26
A. K Kraipak v. Union of India, AIR 1970 SC 150

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

requirements of natural justice on different types of bodies and different types of administrative
action.27. In the instant case, the impugned banning order by Respondent No. 2- Department of
Public Procurement is an administrative order which has been passed in violation of principles of
natural justice.Thus, a writ of certiorari is maintainable against the impugned Banning order under
Art.226 of Constitution of Mckernistan. The abovementioned argument will be authenticated
under following averments:
i. Impugned order passed in utter violation of Principles of Natural Justice.
ii. Non compliance with Doctrine of proportionality under Common Law.
2.3 IMPUGNED ORDER PASSED IN UTTER VIOLATION OF PRINCIPLES OF
NATURAL JUSTICE.

18. It is most respectfully submitted that there has been a blatant violation ofPrinciples of Natural
Justice by Respondent No. 2. These principles are attracted whenever a person suffers a civil
consequence, or a prejudice is caused to him by any administrative action. Civil consequences
mean infraction of personal or property rights, violation of civil liberties, material deprivation or
sufferance of non-pecuniary damages.28Moreover, the applicability of the principles of natural
justice is independent on any statutory provisions. The Hon’ble Supreme Court in Syed Yakoob v.
K.S. Radhakrishnan,29 has held that the writ of certiorari can be issued when the proceedings are
in violation of principles of natural justice.Wherever a prejudice is caused the principles are
necessarily attracted.30 The principals of natural justice,traditionally, recognize two fundamental
principles that are: (i) Nemojudex in causasua (ii) Audi AlteramPartem. In the case at hand, it is
the second principle which has been disregarded.

2.3.aAudi AlteramPartem/ rule of fair hearing

19. ‘Rule of fair hearing’ is the second long arm of the principles of natural justice. This principle
is a sine qua non of every civilized society. A wrong order may adversely affect a person, and it is
essentially for this reason that a reasonable opportunity needs to be granted before passing
anadministrative order. 31In the case at hand, the impugned Banning Order was straightaway passed

27
JAIN, A TREATISE ON ADM. LAW, I, Chs. IX-XII (1995); CASES & MATERIALS ON INDIAN ADM. LAW,
I, VIII–XI (1994)
28
Mohinder Singh Gill v. Chief Election Commr., AIR 1978 SC 851
29
Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477
30
Maneka Gandhi v. Union of India, AIR 1978 SC 597
31BALCO Employees’ Union v. Union of India, (2002) 2 SCC 333.

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

by DPP on1 May 2021, whereby RotB was banned from business dealings with Govt. of NBCT
for period of two years. Appellant was provided no opportunity to defend themselves.

20. In the instant case, there is no statute which lays down a certain procedure to be followed to
exercise the discretionary power vested with the procurement department, and therefore this
administrative agency was to follow a fair and just procedure based on the Principles of Natural
Justice. The department failed to comply with the principles and passed the order in utter violation
of them. The aforementioned argument has been substantiated under the following sub-folds,
namely:

i. Absence of show-cause notice and subsequent hearing.

ii. No opportunity of fair hearing provided.

There was an absence of Show-cause Notice.

21. It is most respectfully submitted that it was incumbent upon the respondent No. 2 to serve a
show-cause noticeto the appellants after furnishing the copy of the laboratory reports.32 This was
imperative in order to sustain the principles of Natural Justice. Anotice embodies rule of fairness
and must precede an adverse order. Further, the time given should be adequate for a person so that
he could prepare for an effective defence. Denial of notice makes the administrative decision
completely vitiated. 33Notice is the initial stage of any hearing. Until and unless one knows the
foundation of matter at hand and the issues involved in the case, he cannot defend himself.In case
where the notice has not been issued, or service is defective, which ultimately is in violation of
principles of natural justice, then an administrative authority may decide the case de novo along
with giving a proper notice. Therefore, the order passed by DPP should be set aside.
No opportunity of hearing was provided.

22. It is most respectfully submitted that penalty, in the form of ban for 2 years, was directly
imposed on the appellants without providing the opportunity of hearing. It is a well-established
provision of law that a pre-decisional notice forms the part of a fair hearing. In the landmark case
of Russel v. Duke of Norfolk, 34 the Hon’ble Court held that the standard of natural justice is that

32 Factual Matrix, 6.
33
Canara Bank v. Debasis Das, (2003) 4 SCC 557.
34
Russel v. Duke of Norfolk, (1949) ALL ER 109

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

the person concerned should have a reasonable opportunity of presenting his case. Thus, it is the
humble submission that if a person is subjected to pains or penalties, it is the fundamental rule that
he should have the knowledge of the case against him and be given a fair opportunity of answering
it. A reasonable opportunity of being heard is to be provided before imposing any penalty 35 and
by not giving such an opportunity, the impugned order is erroneous and violative of the principles
of natural justice.36

23. In the case of Sarku Engineering Services v. Union of India 37, the Bombay High Court has
observed that a proper and fair opportunity of hearing and showing cause is the essential
concomitant ofthe principles of natural justice, which is required to be followed, considering the
drastic, damaging and far-reaching impact, which an order ofblack-listing or banning has on the
contractor. The continuing effect of the impugned order has resulted in severe adverse civil
consequences as the appellanthas been made incompetent to participate in several tenders
estimated at a total cost of 260 Crores. Thus,the impact of impugned orders is in the nature of a
civil death as it has affected the goodwill and reputation of the Appellants-Company. It is humbly
submitted that the appellants have been carrying on this business for more than 50 years and such
a complaint was nevermade against the Appellants by anyone in the past.38
In addition to this, where conclusions are controversial, howsoever slightly, and penalties
discretionary, natural justice is a must. 39

Ex ParteEvidence:
24. That ex parte evidence taken in the absence of the other party violates the principles of fair
hearing. This was discussed by the court in Errington v. Ministry of Health.40 The main thrust
of this case is that whatever information is obtained by the administrative authority must be
disclosed to the other party and an opportunity to rebut it must be provided.It is contended that
since no Show-Cause notice was served to the appellants regarding sample testing of the products,

35
Natwar Singh v. Director of Enforcement, (2010) 13 SCC 255
36
Godawat Pan Masala Products I.P. Ltd. v. Union of India, AIR 2004 SC 4057
37
Sarku Engineering Services v. Union of India, AIR 2017 (NOC 49) 21
38
Annexure 2,
39
MP Jain & SN Jain‟s Principles of Administrative Law, 406 ( Dr. Shakil Ahmad Khan, 7 th ed., 2011)
40
Errington v. Ministry of Health, (1935) 1 KB 249(CA)

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

the appellants lost out on challenging the samples taken for conduct of the tests by the Government
Testing Laboratory.

Inadequately Reasoned Memorandum

25. It is most humbly submitted that “Reason” is an essential requirement of the rule of law. If
reasons are given, their adequacy is a justifiable issue. Courts do not prescribe any particular form
or scale of reasons. 41 The nature and elaboration of reasons shall, therefore, depend on the fact
situation of every case. 42 However, the reasons should reveal a rational nexus between the facts
considered and the conclusions reached. 43The reasons must also be comprehensible, adequate to
sustain the decision, and must deal with all the fundamental points. If reasons are given, Court can
determine the relevance of reasons. In case the reasons itself are wrong, it may debase an
administrative action.

Doctrine of Proportionality not complied with

26. It is submitted before the Court that DPP while examining the issue of the case did not take
into consideration the fact that the Applicant was the manufacturer in only two of the impugned
products, and any deficiencies attributable to the rest were on account of manufacturing
deficiencies, for which the respective manufacturers should be held accountable and not the
applicant. It is also submitted that the measure of an outright ban on supply of all products is
disproportional. The Applicant has in F.Y. 2020 – F.Y 2021 successfully participated in and
provided varying products through 267 DPP Tenders.44 Of them, the Government Testing Lab has
only been able to find faults in products supplied through 3 tenders. Hence, a blanket ban on the
petitioner company’s supplies without even considering the relevant facts of the case is clearly
disproportional.

27. Therefore, it stands proved that the office memorandum has been passed in contravention to
fundamental principles of natural justice and for this along with other reasons, it should be quashed

41
M. P Industries Ltd. v. Union of India, AIR 1974 SC 87.
42
Ibid.
43
Union Of India v. Mohan Lal Capoor, AIR 1974 SC 87.
44 Annexure 2.

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

as the position is well settled that the order passed in violation of the principles of natural justice
is void. Therefore, writ of certiorari be granted.

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

CONTENTION III:

THAT THERE HAS BEEN A VIOLATION OF CONSTITUTIONAL RIGHTS OF THE PETITIONER

THROUGH THE IMPUGNED BANNING ORDER

3.1 THE IMPUGNED ORDER IS VOLATIVE OF ARTICLE 14 OF THE

CONSTITUTION.

28. It is most respectfully submitted before the Hon’ble Court that the impugned banning order
dated 28 April 2021, issued by the Procurement Department, is violative of Article 14 of the
Constitution of Mckernistan. Article 14 runs as follows:

“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.45”

29. The foremost object of Article 14 is to secure to all persons, citizens or non-citizens, the
equality of status and opportunity as mentioned in the preamble of our Constitution. The language
of Article 14 is couched in negative terms and is in form, an admonition addressed to the State.46
In the modern welfare state, the government carries out some of its functions through traditional
governmental departments. If the government acts departmentally or through its officials, it
undoubtedly falls within the definition of state under Article 12.47 Therefore, governing powers of
the Department of Public Procurement, being a state, is subject to fundamental Constitutional limit
and the mandate of article 14 is enforceable against it.
Further, Article 13 mandates that a law inconsistent with the fundamental rights is void. The term
‘law’ in Article 13 has been given a wide connotation so as to include any ordinance, order, bye-
law, rule, regulation, notification, custom or usage having in the territory of India the force of law
[Art. 13(3)(a)]. In the case of Balaji v. State of Mysore 48 , the Supreme Court has held an
administrative order to be a law under Article 13. Therefore, undisputedly, the validity of the
impugned Banning order by DPP can be tested on the touchstone of Fundamental Rights.49

45INDIAN CONST., art. 14.

46
Nestle India Limited v. Food Safety and Standards Authority of India, AIR 2016 (NOC 225) 98
47
K.A. Karim & Sons v. I.T.O., 1983 Tax. L.R. 1168, Imperial Chemical Industries Ltd. v. Registrar of Trade Marks,
AIR1981 Del.190.
48
Balaji v. State of AIR 1963 SC 649.
49
K.S. Rama Murthy v. Chief Commissioner, Pondicherry, and AIR 1963 SC 1464.

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

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

The aforementioned argument is substantiated under following averments:

(i) Impugned order is a clear transgression upon the Principles of Natural Justice,
(ii) Impugned order suffers from the vice of arbitrariness and unreasonableness.

3.1.a. That Impugned Banning Order is a clear transgression upon the Principles of Natural
Justice.

30. It is humbly submitted thatin the matter at hand there is an absence of any statute laying down
a procedure for exercising the discretionary power vested with the procurement Tribunal, in which
case, this administrative agency was to follow a minimum of a fair procedure which refers to
Principles of Natural Justice.
31. The principles of natural justice require that no person should be condemned unheard and no
order should be passed arbitrarily and these principles become available "as the laws prevailing
within the territory of India". However, there has been a violation of principles of Natural Justice
on account of the impugned order being passed without issuance of a show-cause notice and giving
no opportunity to the appellants to allay the concerns.50
32. It is most respectfully submitted that it was incumbent upon the respondents to serve a show-
cause notice in regard to imposition of penalty after furnishing the copy of the laboratory reports
to sustain the principles of Natural Justice. Transgression in the present case is quite serious
striking at the root of the tendering process of the petitioner.
33. Further,the banning order was to the prejudice of the appellants and could not have been passed
without giving them any opportunity to explain their stand. The appellant was directly issued the
said memorandum of charges on the ground of supplying sub-par products to the government and
no opportunity of fair hearing was provided to the company to put to rest the concerns of the DPP
regarding the quality of its products supplied.

3.1.b. That Impugned Order suffers from the vice of arbitrariness and unreasonableness.

34. It is humbly submitted that the impugned order passed by Respondent No. 2 is wholly arbitrary,
capricious and unreasonable.It is to be noted that gradually there has been a significant shift
towards equating arbitrary and unreasonableness as the yardstick by which administrative or
legislative actions are to be adjudged. The doctrine of equality before law is a necessary corollary

50DharampalSatyapal Ltd. v. Deputy Commissioner of Central Excise, Guhati,(2005) 2 Gau LR 520.

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

of the rule of law which pervades in the Indian constitution. 51 In fact, in the case of S.G.
Jaisinghaniv. Union of India,52 it was observed:
“the absence of arbitrary power is the first essential of the rule of law upon which our whole
constitutional system isbased. The rule of law means that decisions should be made by the
application of known principles and rules and, in general, such decisions should be predictable
and the citizen should know where he is. If a decision is taken without any principle or without any
rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with
the Rule of law.”
35. So, wherever arbitrariness or unreasonableness is found, there is denial of rule of law.53In the
case at hand, there is a lack of transparency since the sample products were tested without
informing and in absence of the appellants. This action renders the impugned order to be arbitrary
in nature and if any action is arbitrary, it must necessarily involve the negation of equality 54 and
thus, is violative of Art.14 of the Constitution. 55,

3.2 VIOLATION OF ARTICLE 19 OF THE CONSTITUTION OF MCKERNISTAN.

36. It is humbly submitted that there has been an infringement of fundamental right to freedom of
trade of the appellants. It is well established that Art. 19 guarantee some of the basic, valued and natural
rights inherent only in natural person and not a juristic person.However, in course of time, the strictness
of the abovementioned pronouncements has been dilutedby resorting to the strategy of joining a
natural person along with a company inthe writ petition challenging violation of Art.
19(1)(g).Shareholders of a corporation can validly claim remedy for their individual violation
of fundamental rights and the mere fact that a company is one of the petitioners would not preclude
them from doing this.56This is an effective method to get over the disability otherwise imposed on
the companies by judicialdicta.

37. In the case at hand, Mr. Horace Rumpole is the Managing Director of the company and holds
79% of its shares. The ban imposed on the company will not only be perilous to the company but
also to the shareholders who have invested in the company.

51
Ashutoshgupta v. State of Rajasthan, AIR 2002.
52
S.G. Jaisinghani v. Union of India: AIR 1967 SC 142.7
53
Bachan Singh v.State of Punjab, AIR1982 SC 1325.
54
A.L. Kalra v. P & E Corpn of India, Ltd., AIR 1984 SC 1361.
55
E.P. Royappa v.State of Tamil Nadu, AIR 1974 SC 555.
56
R.C. Cooper v. Union of India, AIR 1970 SC 564.

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

38. In D.C. & G.M. v. Union of India,57 the Supreme Court has stated that the law with regard to
a company challenging the violation of its Fundamental Rights under Art. 19 are in a “nebulous
state”. The Court has gone on to say:

“Thus, apart from the law being in a nebulous state, the trend is in the direction of holding that in
the matter of fundamental freedoms guaranteed by Art. 19, the rights of a shareholder and the
company which the share-holders have formed are rather co-extensive and the denial to one of the
fundamental freedom would be denial to the other. It is time to put an end to this controversy......”

39. It would also be prudent on part of Hon’ble Courts to bear in mind that minor flaws regarding
the non-impleading of shareholders as parties to the petition, ought not to have prevented them
from granting relief as long as a violation of the citizens’ fundamental rights was proved. For
instance, in theSholapur Mills case,58 where a shareholder of the company challenged an executive
order on the ground that it infringed his fundamental rights, though the Court cautioned that in
cases for redressing wrongs done to companies, the company itself should bring forth a claim, it
ignored this minor flaw and went on to consider the matter on merits.The consequence of such an
approach is that irrespective of whether the State action infringes rights of citizens directly or
through restrictions on the corporation, since in substance, the ‘impact or effect’ of the action is
the same, citizens would not be rendered remediless.
40. It is further submitted that denial of constitutionally guaranteed fundamental rights to citizens
on the mere ground of form and not substance, would constitute a violation of public policy. Hence,
to prevent this effect, the Courts ought to lift the corporate veil of the company revealing the
shareholders behind it. For instance, in the Bennett Coleman case,59the shareholder’s petition was
held maintainable under Arts. 19(1)(f) and (g), as his right to carry on the business through the
company, and his right to a divisible share in the future of the property of the company, was being
diminished by the take-over of the company. 60 Lifting the corporate veil and recognizing
the rights of citizens behind the veil is substantially different from recognizing a corporation as a
citizen. By lifting the corporate veil, the Court only recognizes that there are shareholders behind
the veil whose rights are being violated and hence grants the remedy. The corporation is still not
recognized as a citizen.The Supreme Court held the petitions maintainable on the ground that the

57
D.C. & G.M. v. Union of India, AIR 1983 SC 937; Star India P. Ltd. v. The Telecom Regulatory Authority of India,
146 (2008) DLT 455.
58ChiranjitLalChowdhuri v. Union of India, AIR 1951 SC 41.
59
Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106.
60Godhra Electric Co. v. State of Gujarat, AIR 1975 SC 32.

16
MEMORIAL ON BEHALF OF THE APPELLANT
 2ND NATIONAL MOOT COURT COMPETITION, 2022

rights of the companies as well as the shareholders were involved, and “the Court will not,
concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant
relief.”
41. In the Statesman v. Fact Finding Committee,61the High Court observedthe fact that the company was
the petitioner did not prevent the High Court from giving relief to the shareholder.The Supreme Court
held the petitions maintainable on the ground that the rights of the companiesas well as the
shareholders were involved, and “the Court will not, concentrating merely upon the technical
operation of the action, deny itself jurisdiction to grant relief.”

42. Denial of the Fundamental Right to the shareholders does not appear to be justified since the
shareholders have a direct interest in the property and businessof the company. If the company’s
career is jeopardized, the value of their sharesin the company is prejudicially affected. Thus, there
was justification for piercingthe corporate veil and for granting relief on the petition of the
shareholders whowere citizens of India.

61Statesman v. Fact Finding Committee, AIR 1975 Cal 14.

17
MEMORIAL ON BEHALF OF THE APPELLANT
 2ND NATIONAL MOOT COURT COMPETITION, 2022

3.3 THERE HAS BEEN VIOLATION OF ARTICLE 21 OF THE CONSTITUION.

43. It is humbly submitted that administrative action on part of Respondent No. 1 and No 2 has
violated the fundamental right of the Appellants protected under Art.21 of the Constitution of
India. 62 Article 21 embodies a constitutional value of supreme importance in a democratic
society’. 63 It is also fundamental to democracy as it extends to natural persons and not just
citizens. Article 21 runs as follows:

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

Article 21secures two rights:

1) Right to life, and
2) Right to personal liberty.
3.3.a. RIGHT TO LIFE

44.‘Life’ in Article 21 of the Constitution is not just the physical act of breathing. It does not
connote mere physical existence or continued drudgery through life. 64 It has a much wider
connotation, including the right to live with human dignity, reputation etc. Reputation is a crucial
part of one’s life. Similarly, corporate reputation is a crucial part of any business. A positive
corporate image creates more business opportunities due to commitment of different stakeholders
It is to be noted that it was this solid loyalty that the respondents have been indulged in a public–
private partnership with the appellants for past 20 years.65

45. However, the respondents didn’t consider even once about the consequences of the banning
order imposed against the company. In the case of Smt. KiranBedi v. Committee of Inquiry,66the
Court has held:

“Good reputation is an element of personal security and was protected by the Constitution, equally
with the right to the enjoyment of life, liberty, and property.”

62INDIAN CONST. art. 21.

63
Francis Coralie Mullin vs The Administrator (1981) AIR 746.
64
Board of Trustees of the Port of Bombay v. DilipkumarNadkarni, (1983) 1 SCC 124.
65
Annexure 4 (Order of Single Bench dismissing Petition).
66
Smt. KiranBedi v. Committee of Inquiry, 1989 AIR 714.

18
MEMORIAL ON BEHALF OF THE APPELLANT
 2ND NATIONAL MOOT COURT COMPETITION, 2022

46. Thus, any wrong action of the state or agencies that sullies the reputation of a virtuous person
would undoubtedly come under the scope of Article 21.In the case at hand, it is submitted that the
appellant is a company of international renown. It has been doing this business not only in
Mckernistan but also has its presence in the foreign market. However, as aresult of the impugned
orders, goodwill and corporatereputation of the Petitioner – Company had been completely
tarnished.
47. It is submitted that the Reputation of a company determines the social standing of the
organization as well as the persons working therein in the eyes of society and so any detrimental
action would cause an immediate dent to this reputation. Therefore, when the reputation comes
into question in the court of public scrutiny, the company undoubtedly has a right to preserve it as
fiercely as it could for which every possible legal action can be challenged under Article 21.InState
of Bihar v. Lal Krishna Advani, 67 the Apex Court has observed that if any authority, in the
discharge of its duties fastened upon it under the law, transverse into the realm of personal
reputation adversely affecting somebody; it must provide a chance to have his say in the matter.
However, in the instant case, no opportunity was provided to appellants and the banning order was
passed without considering the positive image of the Company which it has maintained for the last
fifty years.

Right to Speedy Trial

48. The right to speedy trial is not a fact or fiction but a Constitutional reality and it has to be given
its due respect. The courts and the legislature have already regarded it as one of the mediums of
reducing the increasing workloads on the courts. In the case of Smt. Maneka Gandhi v. Union of
India &Anr.,68Bhagawati, J has laid down:

“the law envisaged by Article 21 must stand the test of Article 14 and procedure laid down by
Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It
must be right and just and fair and not arbitrary, fanciful or oppressive, otherwise it would be no
procedure at all and the requirement of Article 21 would not be satisfied.”

67State of Bihar v. LalKrishna Advani, AIR 2003 SC 3357.

68
Supra Note 30.

19
MEMORIAL ON BEHALF OF THE APPELLANT
 2ND NATIONAL MOOT COURT COMPETITION, 2022

49. The words ‘personal liberty’ used in Article 21 of the Constitution have been correctly
interpreted so as to include liberty to trade freely and that the impugned order directly interfered
with the petitioner’s freedom of trade.
50. A combined reading ofArticle 14 and 21 leads to the conclusion that no person can be deprived
of his personal liberties except according to procedure established by law which must certainly be
available to all persons equally within the territory of India.Article 21 along with Article 14 and
19, therefore, must be treated as a trinity of rights projecting a golden triangle ensuring a healthy
and effective life to all the residents in India including its citizens. These three Articles project an
assurance that the promise held forth by the Preamble will be performed by ensuring an egalitarian
era within the discipline of fundamental rights.

20
MEMORIAL ON BEHALF OF THE APPELLANT
 2ND NATIONAL MOOT COURT COMPETITION, 2022

PRAYER

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

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

1. The Writ of Mandamuscan be issued to the Government for Appointing the Tribunal
Members.
2. The Hon’ble High Court can 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 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 Petitioner as in duty bound shall forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_____________________________

S/d

COUNSELS FOR THEPETITIONER

xxi
MEMORIAL ON BEHALF OF THE APPELLANT