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TMI Blog2019 (7) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... an Contract Act 1872. 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 - 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. Article 226. (1) Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises 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, prohibition, 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]. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts 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 High Court must look at the case of the Appellant holistically and make a determination as to whether it would be proper to exercise its writ jurisdiction - Appeal allowed - decided in favor of appellant. - Civil Appeal No. 5654 of 2019 (Arising out of Special Leave Petition (C) No. 29040 of 2018) - - - Dated:- 29-7-2019 - Dr. D.Y. Chandrachud And Indira Banerjee, JJ. For the Appellant : Ms. Neela Gokhale, Sr. Mr. Ilam Paridi, Adv., Ms. Shradha Agrawal, Adv., Ms. Shruti Dixit, Adv., Ms. Kamakshi S. Mehlwal, AOR For the Respondent : Ms. Alka Agrawal, Adv., Mr. Raj Bahadur Yadav, AOR, Ms. Shalini Kaul, AORJUDGMENT Dr. D.Y. Chandrachud, J. 1. The present appeal raises the issue of whether a private agreement entered into between the Appellant and the second Respondent in the form of the Constitution and Bye Laws of the latter can, by conferring exclusive jurisdiction on the courts at Chennai, oust the writ jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oust the writ jurisdiction of the High Court; (iii) Whether the writ jurisdiction Under Article 226 should be exercised in the facts of a given case has to be determined by the High Court; and (iv) In the present case, the High Court has manifestly erred in holding that Clause 21 of the Constitution and Bye Laws of the second Respondent created an absolute bar on the exercise of the writ jurisdiction by the High Court. 6. Mr. K M Natraj, learned Additional Solicitor General submitted that: (i) There can be no ouster of a public law remedy as is embodied in Article 226; (ii) Clause 21 of the Constitution and Bye Laws of the second Respondent is a non-statutory contract, the impact of which has to be considered by the Bombay High Court, which it failed to do; and (iii) Judicial review is a part of the basic structure of the Constitution and can neither be confined nor abrogated. 7. Mr. Paras Kuhad, learned Senior Counsel appearing on behalf of the second Respondent urged that in essence by the impugned judgment, the High Court has in its discretion, declined to entertain the Writ Petition. Hence, it is urged that properly construed, the High Court did not ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is total ouster of jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy. The decision in A B C Laminart has been followed in subsequent decisions. Rajasthan State Electricity Board v. Universal Petrol Chemicals Limited (2009) 3 SCC 107; Interglobe Aviation Limited v. N Satchidanand (2011) 7 SCC 463 10. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction of the High Court Under Article 226 of the Constitution is equitable and discretionary. The power under that Article can be exercised by the High Court to reach injustice wherever it is found. 12. 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. This Court has repeatedly held that no limitation can be placed on the powers of the High Court in exercise of its writ jurisdiction. In A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani (1962) 1 SCR 753 a Constitution Bench of this Court held that the nature of power exercised by the High Court under its writ jurisdiction is inherently dependent on the threat to the Rule of law arising in the case before it: 10... We need only add that the broad lines of the general principles on which the court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionary nature of the High Court's writ jurisdiction. The court added that courts had themselves imposed certain constraints on the exercise of their writ jurisdiction to ensure that the jurisdiction did not become an appellate mechanism for all disputes within a High Court's territorial jurisdiction. The court stated: 14... The High Courts do not, and should not, act as courts of appeal Under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. The intentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n examination of the facts and circumstances of a particular case. 19. This understanding has been laid down in several decisions of this Court. In Uttar Pradesh State Spinning Co. Limited v. R.S. Pandey (2005) 8 SCC 264 this Court held: 11. Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a Rule of self imposed limitation. It is essentially a Rule of policy, convenience and discretion and never a Rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief Under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. 20. The principle that the writ jurisdiction of a High Court can be exercised where no adequate alternative remedies exist can be traced even further back to the decision of the Constitution Bench of this Court in State of Uttar Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. In exercising its discretion to entertain a particular case Under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the Petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case. 23. At this juncture it is worth discussing the decision of this Court in Aligarh Muslim University v. Vinay Engineering (1994) 4 SCC 710. In that case, the contract between the parties contained a Clause conferring jurisdiction on the courts at Aligarh. When the High Court of Calcutta exercised its writ jurisdiction over the matter, this Court held: 2. We are surprised, not a little, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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