PRACTICAL MOOT COURT 9TH SEMESTER -2019

9th SEMESTER PRACTICAL COURS- 2019

BEFORE THE HON’BLE SUPREME COURT

OF MAYERLAND

WRIT PETITION FILED UNDER Art. 32 OF THE CONSTITUTION OF

MAYERLAND

IN THE MATTER OF

W.P. No. ***** /2019

IRINA ..…….PETITIONER

VERSUS

Musk Apparel Inc. ……..RESPONDENT

COUNSEL ON BEHALF OF (RESPONDENT), MUSK APPAREL

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TABLE OF CONTENTS

S. No. PAGE No.

1. LIST OF ABBREVIATIONS………………………………………………..04

2. INDEX OF AUTHORITIES………………………………………………….05-06

3. STATEMENT OF JURISDICTION………………………………………….07

4. STATEMENT OF FACTS………………………………………………08-09

5. ISSUES RAISED…………………………………………………………10

6. SUMMARY OF ARGUMENTS………………………………………...11

7. ARGUMENTS ADVANCED …………………………………………….12-16

1. WHETHER THE COMPANY IS STATE OR NOT ?

1.1 THE COMPANY IS A PRIVATE ENTITY………………………………….12

1.2 WRIT CANNOT BE ISSUED AGAINST A PRIVATE/ INDIVIDUAL

PARTIES………………………………………………………………………12

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2. WHETHER THE WRIT PETITION FILED UNDER Art 32 IS MAINTAINABLE OR

NOT?

2.1 THERE IS NO CONCLUSIVE PROOF OF THE VIOLATION OF

FUNDAMENTAL RIGHTS……………………………………………………13.

2.2 THE ALTERNATIVE LEGAL REMEDIES AVAILABLE TO THE PETITIONER

HAVE NOT BEEN EXHAUSTED……………………………………………..13

2.3 THE PETITIONER DOES NOT HAVE LOCUS STANDI TO FILE THE WRIT
PETITION………………………………………………………………………….14

3. WHETHER THE CONTRACT IS BINDING OR NOT?

3.1 UNDER SECTION 3 OF THE CONTRACT ACT, THE COMMUNICATION OF

THE PROPOSAL AND ACCEPTANCE IS INCOMPLETE…………………………14

3.2 WITH REFERANCE TO SECTION 4 OF THE CONTRACT ACT ,1872 THE

CONTRACT DOES NOT EXIST………………………………………………………15

8.PRAYER…………………………………………………………………...17

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LIST OF ABBREVIATIONS

S. N. ABBREVIATIONS REFERRED WORD OR

PHRASE

1. & And

2. Hon’ble Honourable
3.
Art. Article
4.
S. No. Serial Number
5.
W.P. Writ Petition
6.
No. Number
7.
HR Human Resource
8.

9. Inc. Incorporation

10. St. Saint

11. Asso. Association

12. FRs Fundamental Rights

13.
Vs. Versus
14.
AIR All India Reporters
15.
SCC Supreme court cases

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INDEX OF AUTHORITIES

A. Cases Referred

1. Romesh Thapar v. UOI,AIR 1950 SC 124

2. Ajay Hasia Etc vs Khalid Mujib Sehravardi & Ors. Etc on 13 November, 1980
3. Federation of Bar Association in Karnataka ,V. UOI, AIR 2000 SC 2544
4. State of Rajasthan &Ors V. UOI , AIR 1977 SC 1361
5. The constitution of India,1950
6. Aiyar, Ramanatha P ‘THE LAW LEXICON’ , (2nd ed.,Reprint 2006)
7. Id.
8. Supra note 4
9. BALCO Employees Union (Regd.) vs. UOI, (2002) 2 SCC 333,|| 68

B. Books Referred

1. Constitution of India- P. M. Bakshi

2. Introduction to the Constitution of India- Durga Das Basu

3. A People’s Constitution- The everyday life of law in Indian Republic- Rohit De

4. Bare Act of Indian Contract Act, 1872

5. Bare Act of the Constitution of India

6. The Constitution of India, the Constitution Act, 2015, Universal Law Publishing

7. Bharat ka Samvidhan- Subhash C. Kashyap

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C. Articles Referred

1. https://indiankanoon.org

2. arthapedia.in/inex.php?title= Government company

3. https://www.lawctopus.com/academike/equality-opportunity-public-employment/
Articles on legal issues [ISSN: 2349-9796]

4. Indian Contract Act, 1872, Section 3,, Indian Kanoon

5. Indian Contract Act, 1872, Section 4,, Indian Kanoon

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STATEMENT OF JURISDICTION

The petitioner herein approaches the Hon’ble Supreme court through a writ petition under
Art. 32 of the Constitution. Since the petitioner is not being aggrieved by violation of any
fundamental rights for which the approach has been made under Art. 32, this Court need not
entertain this writ petition. The respondent affirms that they shall accept any judgement of
this Hon’ble court as final and binding upon themselves and shall execute in its entirely and
in good faith.

Place: Mayerland By : counsels of the respondent

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STATEMENT OF FACTS

Irina is a fashion designer & had graduated from one of the top most institute for fashion
designing and technology in Mayerland with distinction. When Irina graduated, her academic
profile was impressive that’s why she received a lot of job offers from major fashion houses
including that from Musk Apparels whose offices where located in various cities in
Mayerland. Irina’s hometown was located in Quegmire & Musk Apparels had a vacancy in
their office in St. Juniper which was 6 miles away from Quegmire. Irina was highly interested
in the position offered by the Musk Apparels in their St. Juniper’s office due to location and
job profile. She was also excited because the exposure at Musk Apparels was immence.

She applied for the job interview and was selected for second round of interview wherein she
was supposed to create a 3D design. She was sent an offer letter that her application for the
job had been accepted and was intimated that the job would be in the office of her choice
though the teams from all offices across the country would be required to meet frequently in a
common place. She was asked to respond to the same through an email. Irina sent an email of
acceptance. She was also asked to submit the attested hard copies of the acceptance lettter
along with certificate of qualification in person at St. Juniper’s office of Musk Apparels.

Irina on the next day went to St. Juniper in person to meet the head of HR and submit her
certificate of qualification. She met the manager of Musk Apparel Mr. Dean. After meeting
with him Irina was asked to wait in reception area where she overheard the manager
discussing that her batch mate from college, Sheena, had also been shortlisted for the position
& Sheena also had a very generously worded letter of recommendation from the university
director. Meanwhile, a staff came & informed her that the HR official is not available at the
office as he was travelling for official purpose. The staff also explained that in the absence of
a prior appointment they could not guarantee the availability of officials from HR. She was
served coffee and was told she will receive an email for the schedule day for the submission
of the documents.

That evening she received an email stating that Musk Apparels has hired a short listed
candidate for the offered position and her candidature stands withdrawn. The company also
explained in the mail that the choice of candidature was made through final decision of the
authorities as mentioned in the terms of job offer.
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ISSUES RAISED

1. WHETHER THE COMPANY IS PRIVATE OR NOT?

2. WHETHER THE WRIT PETITION FILED UNDER Art.32 IS

MAINTAINABLE OR NOT?

3. WHETHER THE CONTRACT IS BINDING OR NOT?

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SUMMARY OF ARGUMENTS

1. WHETHER THE COMPANY IS PRIVATE OR NOT?

The respondent humbly submits before the Hon’ble Supreme Court of Mayerland, that
the petition filed is not maintainable as the company is a private entity with regards to
Mayerlands companies act 1956. This writ, however, cannot be issued against the
President, Governors of States, or against private, individual parties.

2. WHETHER THE WRIT PETITION FILED UNDER Art. 32 IS MAINTAINABLE

OR NOT?

The respondent humbly submits before the Hon’ble Supreme Court that the writ
petition filed under Art.32 is not maintainable as there is no violation of fundamental
rights of the petitioner. It is further submitted that in the present case alternative relief
has not been exhausted i.e. Petitioner has an opportunity to approach the Hon’ble High
Court under Art. 226. Moreover, the Petitioner does not have the Locus Standi i.e. the
right or capacity to bring an action or to appear in a court of justice as the Petitioner is
not a person aggrieved in this matter.

3. WHETHER THE CONTRACT IS BINDING OR NOT?

The respondent humbly submits before the Court that the contract is not binding
between the petitioner and the Musk Apparels as Under Art.3, Art.4 and Art.5 of the
Mayerlands contract act 1872 , the communication of the proposal and acceptance of
the matter is not completed.

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ADVANCED ARGUMENTS

1. WHETHER THE COMPANY IS STATE OR NOT?

The respondent humbly submits before the Hon’ble Court that the writ petition
filed by the petitioner is not maintainable because [1.1] The company is a private entity;
[1.2] Writ cannot be issued against a private, individual parties.

[1.1] THE COMPANY IS A PRIVATE ENTITY

1. The respondent humbly submits before the Court that the company is a private entity
and not a state. Though the company is involved in some Projects funded by the Government
of Mayerland but not in paticular case. A “Government company” is defined under Section
2(45) of the Companies Act, 2013 as “any company in which not less than 51% of the paid-
up share capital is held by the Central Government, or by any State Government or
Governments, or partly by the Central Government and partly by one or more State
Governments, and includes a company which is a subsidiary company of such a Government
company”. Thus, the cardinal feature of a government company is not less than 51%
ownership by Central/state government, either individually or jointly.

2. Furthermore in the case of Ajay Hasia Etc vs Khalid Mujib Sehravardi & Ors. Etc on 13
November, 1980 it was held that the “State” must come under the ambit of ‘six markers': (1)
holding of the corporation’s entire share capital by the government; (2) extensive financial
assistance; (3) a State-conferred monopoly status; (4) deep and pervasive State control; (5)
functions of public importance, or closely related to governmental functions; and (6)
transferring a government department to a corporation. So, here in the present case company
is not fulfilling any of the above given marker. Hence, it is a private entity .

[1.2] WRIT PETITION CANNOT BE ISSUED AGAINST PRIVATE/INDIVIDUAL

ENTITY

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3. According to Art. 32 of the constitution of Mayerland, this writ can be issued against a
person who, despite having legal rights, fails to perform his duties in the capacity of his
holding a position of public office. The officers, government and subordinate/inferior courts
refusing to perform their jurisdiction are covered under this writ. This writ, however, cannot
be issued against the President, the Governors of State, or against private, individual parties.

2. WHETHER THE WRIT PETITION FILED UNDER Art. 32 IS

MAINTAINABLE OR NOT?
It is humbly submitted in the court that the petition filed Under Art.32 is not maintainable
because [2.1]There is no conclusive proof of the violation of the FRs; [2.2] The alternative
legal remedies available to the petitioner have not been exhausted ;[2.3] The petitioner does
not have locus standi to file the writ petition.

[2.1] THERE IS NO CONCLUSIVE PROOF OF THE VIOLATION OF

FUNDAMENTAL RIGHTS

4. It is humbly submitted that in the present petition there is no prima facie of fundamental
rights (hereinafter FRs). The Hon’ble Supreme court in Romesh Thapar Vs. UOI1 held that
if there is a violation of FR the jurisdiction of Art.32 can be invoked. Violation of
Fundamental Right is “sine qua non” of the right conferred by Art.322 . In reference to
the present matter there is no violation of the FR of the individual as there is no inequality
on any grounds.

5. Furthermore, in state of Rajasthan & Ors Vs. UOI3 it was held that Art. 324 cannot be
invoked simply to adjudge the validity of any legislation or an administration action unless
it adversely affects petitioner’s FRs. In the instant matter there is no violation of
FR of the petitioner instead the job was given to a deserving person and no misuse of
authority took place.

[2.2] THE ALTERNATIVE LEGAL REMEDIES AVAILABLE TO THE

PETITIONER HAVE NOT BEEN EXHAUSTED

1
Romesh Thapar Vs. Union of India, AIR 1950 SC 124
2
Federation of Bar association in Karnataka Vs. Union of India AIR 2000 SC 2544
3
State of Rajasthan & Ors Vs. UOI, AIR 1977 SC 1361
4
The Constitution of India, 1950
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6 The existence of a competent body to hear this particular case questions the
maintainability of the writ petition filed. In the case of central excise Vs. Jainson Hosiery5
, the Hon’ble supreme court held that where there is alternative statutory remedy court
should not interfere unless the alternative remedy is too dilatory or cannot grant quick relief.
Thus, the respondent humbly submits that the present writ petition is not maintainable on
the ground that alternative remedy has not been exhausted. Therefore the writ petition is
not maintainable for the aforesaid reasons.

[2.3] THE PETITIONER DOES NOT HAVE LOCUS STANDI TO FILE THE WRIT
PETITION

7. In the instant matter the petitioner does not have the locus standi to file the writ
petition.under Art. 32. Here the term locus standi means a place of standing, a right of
appearance in a Court of Justice. It signifies the right to bring an action and to be heard 6. A
person must have a sufficiency of interest to sustain his standing to sue. 7 Locus standi
involves the question whether the petitioner is entitled to invoke the jurisdiction of the
court.

8. A well established rule of locus standi is that a person has no right to complain under
Art.328 where no FR has been infringed. 9 In reference to the present matter the petitioner does
not have the locus standi to approach before the court as no FR has been violated in this case.

3. WHETHER THE CONTRACT IS BINDING OR NOT ?

The respondent humbly submits before the Hon’ble court that there does not exist any form
of contract (neither orally nor written ) between the Petitioner and the company i.e. Musk
Apparels. The reasons behind this lies with the Contract Act of Mayerland, 1872 and are as
follows : [3.1] under section 3 of the contract act, the comunication of the proposal and

5
AIR 1979 SC 1889
6
Aiyar, Ramanatha P ‘The law lexican’
7
Id
8
Supra note 4
9
BALCO Employees Union (Regd) Vs. UOI (2002) 2 SCC 333, ||68

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acceptance is incomplete [3.2] With reference to section 4 of the contract act, contract does
not exist.

[3.1] COMMUNICATION IS NOT COMPLETE

9. Section 3 of the contract act of Mayerland , states that—The communication of proposals,

the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are
deemed to be made by any act or omission of the party proposing, accepting or revoking, by
which he intends to communicate such proposal, acceptance or revocation, or which has the
effect of communicating it. —The communication of proposals, the acceptance of proposals,
and the revocation of proposals and acceptances, respectively, are deemed to be made by any
act or omission of the party proposing, accepting or revoking, by which he intends to
communicate such proposal, acceptance or revocation, or which has the effect of
communicating it." In the present case the proposal made by the petitioner is not accepted by
the responded. Hence, the communication is not completed and therefore the contract does not
exist.

[3.2] WITH REFERENCE TO SECTION 4 OF THE CONTRACT ACT, CONTRACT

DOES NOT EXIST

10. Respondent humbly submits before the Court that under section 4 of the Contract Act, 1872
of Mayerland it is given that ‘The communication of a proposal is complete when it comes to
the knowledge of the person to whom it is made.’ The communication of an acceptance is
complete when it is put in a course of transmission to him so as to be out of the
power of the acceptor. The communication of a revocation is complete when it is put into a
course of transmission to the person to whom it is made, so as to be out of the power of the
person who makes it.10 And since the conditions have not been fulfilled in the case presented,
therefore, there is no existence of any contract between the two parties mentioned, i.e. the
Petitioner and the Respondent.

Indian Contract Act, 1872, Bare Act

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PRAYER

Therefore in the light of the arguments advanced, authorities cites and facts mentioned, the
counsel of the Respondent humbly prays and implores before the Hon’ble Court to adjudicate
by issuing the appropriate direction of orders. It is further prayed that this Hon’ble Court may
be pleased to hold, adjudicate and declare that

1. The Writ Petition filed is not maintainable.

2. Company in this case is not a state.
3. No existence of Contract.

The Court may make any other order as it may deem fit in terms of justice, equality
and good conscience.

And for this act of kindness, the Respondent shall as duty bound ever humbly pray.

RESPECTFULLY SUBMITTED
Place: Mayerland S/d
Date: Counsel(s) for the Respondent

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