1.

WHETHER THE PRESENT WRIT PETITION FILED UNDER ARTICLE 226

IS MAINTAINABLE.
1.1 The Hon’ble High Court exercises territorial jurisdiction as both the parties are
located in as well as the cause of action arose in the State of Vijaypur.
1.2 Gunjan Deemed University may apply under Article 226 of the Constitution (i.e.
Gunjan has a right to file this writ as the rights of Gunjan have been affected).
The person who complains of the infringement of FR must show that the alleged
FR Belongs to him
Gunjan University is a legal person and may apply for enforcement of FR under
A14
1.2.1 The Fundamental as well as legal rights of the Petitioners have been violated.
A writ under 226 may be issued after finding that the aggrieved party has a legal
right which entitles him to any of the issuable wits and that such writ has been
infringed.1
Legal rights include any legally enforceable rights2

1.3 Whether the necessary parties have been included in the present writ petition.
(Central Government and GST Council are not necessary parties to the dispute)

1.4 There is no (efficacious) alternate remedy available in the present case;

Grounds for refusing relief under 226 i) alternative remedy3 Quote from judgement Veluswami
v Raja ‘The jurisdiction of the High Court to issue writs against orders of the Tribunal is
undoubted; but then, it is well settled that where there is another remedy provided, the court may
properly exercise its discretion in declining to interfere under Art. 226’

ii) that disputed facts or mixed questions of fact and law have to be investigated
The HC may refuse to grant remedy where there exists an alternative remedy equally efficient
and adequate 4 ‘. For purposes of this case it is enough to state- that the remedy provided for in
article 226 of the Constitution is a discretionary remedy and the High Court has always the
discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an
adequate or suitable relief elsewhere’ Onus of proving remedy not adequate is on applicant5

1
Calcutta Gas- Pending ,state of orissa v madangopal
2
Har Shankar v Dy. Excise Commr. /
3
Veluswami v Raja /
4
Rashid v I.T.I. Commission /
5
rashid v I.T.I. Commission /
 Where petitioner may get adequate relief by an ordinary action at law i.e. civil
proceeding, relief may be refused6

1.5 In the alternative, the alternative remedy is not adequate;

The existence of an adequate alternative is no bar to relief under A. 226 when-

Where the alternative remedy is ineffective7 or entails such delay that the the applicant
would be irreparably prejudiced, or subjected to lengthy proceedings and unnecessary
harassment.8

Quote from judgement-9-(ram and shyam)-‘ Ordinarily it is true that the court has imposed a
restraint in its own wisdom on its exercise of jurisdiction under Art. 226 where the party invoking
the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly
stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience
and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court. In
fact in the very decision relied upon by the High Court in The State of Uttar Pradesh v. Mohammad
Nooh it is observed that there is no rule, with regard to certiorari as there is with
mandamus, that it will lie only where there is no other equally effective remedy….. Tender in the
context in which the expression is used in rule 28, meant tenders to be invited from intending
contractors.'’

Quote from judgement 10- Calcutta discount- Where such action of an executive authority
acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and
unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or
directions to prevent such consequences. …The existence of such alternative remedy is not however
always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an
authority acting without jurisdiction from continuing such action.

A statutory remedy cannot be said to be an adequate alternative remedy when-

Alt. remedy would not be equally efficacious9

It is onerous10 and there has been palpable injustice11

Where alternate remedy would involve inordinate delay12

6
Sohan lal v union of India suganmal v state of MP /
7
Ram and Shyam v State of Haryana /
8
Collector of customs v Bava /, Calcutta Discount Co. v I.T.O. /
9
Collector of customs v Bava couldn’t find relevancy
10
Abool v shantilal- judgement not found
11
STO V Shiv Ratan judgement not relevant
12
Tilokchand v Motichand/ not relevant
 Where civil court or other alternative forum would not be competent to grant the relief
asked for in the Petition under A22613 or to decide the questions raised in the latter14.

1.6 No other petition has been filed in any other court regarding the subject matter at
dispute.

Where Petitioner has already instituted a suit or other proceeding under ordinary law, no
application will be entertained on the same questions, at least so long as those proceedings
are not disposed of. 15

1.7 The present writ petition does not suffer from any delay or laches, Grounds for
refusing relief under 226- petitioner is guilty of laches/ unreasonable delay16

‘It appears to us however that the maximum period fixed by the legislature as the time within
which the relief by a suit in a civil court must be brought 134--159 S.C. 18 may ordinarily be
taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be
measured. The Court may consider the delay unreasonable even if it is less than the period of
limitation prescribed for a civil action for the remedy. but where the delay is more than this
period, it will almost always be proper for the court to hold that it is unreasonable.’17

An application under 226 will not be entertained for enforcement of contract 18 ‘

Remedy for breach of contract by gov is a civil suit19 But a petition may lie under A 226 to
set aside a an order of Gov. which violates a constitutional or statutory provision even
thought it may arise out of a contract. On this principle the representations contained in a
scheme have been enforced against the Government even though the scheme was non
statutory20
17- anglo- afghan-Under our jurisprudence the Government is not exempt from liability to, carry
out the representation made by it as to its future conduct and it cannot on some undefined and
undisclosed ground of necessity or expediency fail to carry out the promise, solemnly made by it,
nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the
circumstances. In which the obligation has arisen. We agree with the High Court that the
impugned order passed by the Textile Commissioner and confirmed by the Central Government
imposing cut in the import entitlement by the respondents should be set aside and quashed and

13
Isha v T.R.O not that relevant
14
DMC Bank v Dulichand judgement not find
15
rashid v I.T.I. Commission/
16
Ashok v Collector
17
State of MP v Bhailal
18
Burmah construction co. v state of orissa/
19
Karnal Distillery v Union of India
20
Union of India v Anglo Afghan agencies, Century spinning co v Ulhasnagar municipalities
that the Textile Commissioner and the Joint Chief Controller of Imports and Exports be directed to
issue to the respondents import certificates for the total amount equal to 100% of the f.o.b. value of
the goods exported by them, unless there is some decision which fails within cl. 10 of the Scheme in
question.

The court would not interfere(on the merits) with determinations made by an authority invested
with statutory power, particularly when they relate to matters calling for expertise21 unless there
are exceptional circumstances calling for judicial intervention- eg (a) determination is mala
fide (b) prompted by extraneous considerations or (c) made in contravention of the principles
of natural justice22 or (d) any constitutional provision

21
State of MP v Bhailal
22
Union of India v prabhavalkar not relevant