Constitution of India – Art.226 – Ouster of High Court’s jurisdiction under, in view of existence of alternate remedy under the private agreement entered between the parties – If permissible – Second respondent, central governing authority for chess in India disaffiliated the appellant – Third respondent was affiliated in place of the appellant – Appellant filed writ petition – Second respondent raised preliminary objection that the Bombay High Court did not have jurisdiction to entertain the writ petition – Bombay High Court held that Clause 21 of the agreement between the appellant and the second respondent (in the form of Constitution and Bye laws of the latter) ousted the jurisdiction of all other courts except the courts at Chennai – On appeal, held: No limitation can be placed on the powers of the High Court in exercise of its writ jurisdiction – Decision whether or not to entertain an action under its writ jurisdiction is fundamentally discretionary and remains to be taken by the High Court on the facts and circumstances of particular case – If the argument of the second respondent that the dispute should be heard and decided at Chennai is accepted, the High Court of Madras would hear the present matter – Therefore, the alternate remedy (i.e. writ petition before the High Court of Madras) is equal in every way to the present remedy sought by the appellant – Existence of an alternate remedy, whether adequate or not, does not create an absolute legal bar on the exercise of the writ jurisdiction by High Court – In the present case, the Bombay High Court relied solely on Clause 21 of the Constitution and Bye Laws to hold that its own writ jurisdiction is ousted – It failed to examine the case holistically and make a considered determination as to whether or not it should, in its discretion, exercise its powers u/Art.226 – Scrutiny to be applied to every writ petition u/Art.226 by the High Court is crucial safeguard of the rule of law under the Constitution – Not open to High Court to abdicate this responsibility merely due to the existence of a privately negotiated document ousting its jurisdiction – Judgment of the High Court set aside – Writ Petition restored to the file of the High Court for being considered afresh –Societies Registration Act, 1860.
Constitution of India – Art.226 – High Court’s jurisdiction under –Contracts excluding the jurisdiction of all courts vis-a-vis contract conferring jurisdiction on one amongst multiple courts having proper jurisdiction – Validity of such contracts – Discussed– Indian Contract Act, 1872 – s.28.
Appellant-Society was an affiliated member of the second respondent, a central governing authority for chess in India. The Central Council of the second respondent passed resolution to disaffiliate the appellant. The third respondent was affiliated in place of the appellant. The appellant filed writ petition. The second respondent raised preliminary objection that the Bombay High Court did not have jurisdiction to entertain the writ petition. The Bombay High Court held that Clause 21 of the agreement between the appellant and the second respondent (in the form of Constitution and Bye laws of the latter) ousted the jurisdiction of all other courts except the courts at Chennai. Hence, the present appeal.
Allowing the appeal, the Court,
HELD:1.1 Parties cannot by contract exclude the jurisdiction of all courts. Such a contract would constitute an agreement in restraint of legal proceedings and contravene Section 28 of the Indian Contract Act 1872. However, where parties to a contract confer jurisdiction on one amongst multiple courts having proper jurisdiction, to the exclusion of all other courts, the parties cannot be said to have ousted the jurisdiction of all courts. Such a contract is valid and will bind the parties to a civil action. Parties cannot by agreement confer jurisdiction on a court which lacks the jurisdiction to adjudicate. But where several courts would have jurisdiction to try the subject matter of the dispute, they can stipulate that a suit be brought exclusively before one of the several courts, to the exclusion of the others. Clause 21 does not oust the jurisdiction of all courts. Rather, the Appellant and the second Respondent have agreed to submit suits or legal actions to the courts at Chennai. So long as the courts at Chennai have proper jurisdiction over a dispute involving the Appellant and the second Respondent, Clause 21 is not in violation of the principle set out in A B C Laminart. [Paras 8-10] [311-F; 312-A, F-G; 313-A]
1.2 Article 226 (1) of the Constitution confers on High Courts the power to issue writs, and consequently, the jurisdiction to entertain actions for the issuance of writs. The text of Article
226 (1) provides that a High Court may issue writs for the enforcement of the fundamental rights in Part III of the Constitution, or “for any other purpose”. A citizen may seek out the writ jurisdiction of the High Court not only in cases where her fundamental right may be infringed, but a much wider array of situations. The role of the High Court under the Constitution is crucial to ensuring the rule of law throughout its territorial jurisdiction. In order to achieve these transcendental goals, the powers of the High Court under its writ jurisdiction are necessarily broad. They are conferred in aid of justice. No limitation can be placed on the powers of the High Court in exercise of its writ jurisdiction. The powers of the High Court in exercise of its writ jurisdiction cannot be circumscribed by strict legal principles so as to hobble the High Court in fulfilling its mandate to uphold the rule of law. While the powers the High Court may exercise under its writ jurisdiction are not subject to strict legal principles, two clear principles emerge with respect to when a High Court’s writ jurisdiction may be engaged. First, the decision of the High Court to entertain or not entertain a particular action under its writ jurisdiction is fundamentally discretionary. Secondly, limitations placed on the court’s decision to exercise or refuse to exercise its writ jurisdiction are self-imposed. The writ jurisdiction of a High Court cannot be completely excluded by statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial jurisdiction, it must necessarily have the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution.[Paras 11-13] [313-B-C, G; 314-D-F]
1.3 If the Respondent’s argument is accepted, the High Court of Madras would hear the present matter. Therefore, the alternate remedy (i.e. a writ petition before the High Court of Madras) is equal in every way to the present remedy sought by the Appellant. The High Court of Madras is imbued with the same powers in the exercise of its writ jurisdiction. The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court’s writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter. In the present case, the Bombay High Court has relied solely on Clause 21 of the Constitution and Bye Laws to hold that its own writ jurisdiction is ousted. It failed to examine the case holistically and make a considered determination as to whether or not it should, in its discretion, exercise its powers under Article 226. The scrutiny to be applied to every writ petition under Article 226 by the High Court is a crucial safeguard of the rule of law under the Constitution in the relevant territorial jurisdiction. It is not open to a High Court to abdicate this responsibility merely due to the existence of a privately negotiated document ousting its jurisdiction. It is certainly open to the High Court to take into consideration the fact that the Appellant and the second Respondent consented to resolve all their legal disputes before the courts at Chennai. However, this can be a factor within the broader factual matrix of the case. The High Court may decline to exercise jurisdiction under Article
226 invoking the principle of forum non conveniens in an appropriate case. The sole and absolute reliance by the Bombay High Court on Clause 21 of the Constitution and Bye Laws to determine that its jurisdiction under Article 226 is ousted is however one such instance. The impugned judgment and order of the High Court is set aside.Writ Petition No. 7770 of 2017 is accordingly restored to the file of the High Court for being considered afresh. [Paras 15, 17, 18, 21 and 25-27] [316-C-F; 317-G-H; 319-C-H; 320-A]
A B C Laminart (P) Limited v. A P Agencies, Salem (1989)
2 SCC 163 : [1989] 2 SCR 1 – distinguished.
A V Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani [1962] 1 SCR 753; State of Uttar Pradesh v. Mohammad Nooh [1958] SCR 595– followed.
Uttar Pradesh State Sugar Corporation Limited v Kamal Swaroop Tondon (2008) 2 SCC 41 : [2008] 1 SCR
887; Minerva Mills v. Union of India (1980) 3 SCC
625 : [1981] 1 SCR 206 ; L Chandra Kumar v. Union of India (1997) 3 SCC 261 : [1997] 2 SCR 1186; Sangram Singh v. Election Tribunal, Kotah [1955] 2 SCR 1; Uttar Pradesh State Spinning Co Limited v. R S Pandey (2005) 8 SCC 264 : [2005] 3 Suppl. SCR
603 ; Aligarh Muslim University v. Vinay Engineering (1994) 4 SCC 710 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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