MAHARASHTRA CHESS ASSOCIATION versus UNION OF INDIA & ORS.

[2019] 10 S.C.R.

AMAHARASHTRA CHESS ASSOCIATION

UNION OF INDIA & ORS.

(Civil Appeal No.5654 of 2019)

BJULY 29, 2019

[DR DHANANJAYA Y CHANDRACHUD ANDINDIRA BANERJEE, JJ.]

Constitution of India – Art.226 – Ouster of High Court’sjurisdiction under, in view of existence of alternate remedy underCthe private agreement entered between the parties – If permissible –Second respondent, central governing authority for chess in Indiadisaffiliated the appellant – Third respondent was affiliated in placeof the appellant – Appellant filed writ petition – Second respondentraised preliminary objection that the Bombay High Court did notDhave jurisdiction to entertain the writ petition – Bombay High Courtheld that Clause 21 of the agreement between the appellant and thesecond respondent (in the form of Constitution and Bye laws of thelatter) ousted the jurisdiction of all other courts except the courtsat Chennai – On appeal, held: No limitation can be placed on thepowers of the High Court in exercise of its writ jurisdiction – DecisionEwhether or not to entertain an action under its writ jurisdiction isfundamentally discretionary and remains to be taken by the HighCourt on the facts and circumstances of particular case – If theargument of the second respondent that the dispute should be heardand decided at Chennai is accepted, the High Court of MadrasFwould hear the present matter – Therefore, the alternate remedy(i.e. writ petition before the High Court of Madras) is equal in everyway to the present remedy sought by the appellant – Existence of analternate remedy, whether adequate or not, does not create anabsolute legal bar on the exercise of the writ jurisdiction by HighCourt – In the present case, the Bombay High Court relied solely onGClause 21 of the Constitution and Bye Laws to hold that its ownwrit jurisdiction is ousted – It failed to examine the case holisticallyand make considered determination as to whether or not it should,in its discretion, exercise its powers u/Art.226 – Scrutiny to be appliedto every writ petition u/Art.226 by the High Court is crucial

safeguard of the rule of law under the Constitution – Not open toHigh Court to abdicate this responsibility merely due to the existenceof privately negotiated document ousting its jurisdiction –Judgment of the High Court set aside – Writ Petition restored to thefile of the High Court for being considered afresh –SocietiesRegistration Act, 1860.

Constitution of India– Art.226 – High Court’s jurisdictionunder –Contracts excluding the jurisdiction of all courts vis-a-viscontract conferring jurisdiction on one amongst multiple courtshaving proper jurisdiction – Validity of such contracts – Discussed–Indian Contract Act, 1872 – s.28.

Appellant-Society was an affiliated member of the secondrespondent, central governing authority for chess in India. TheCentral Council of the second respondent passed resolution todisaffiliate the appellant. The third respondent was affiliated inplace of the appellant. The appellant filed writ petition. The secondrespondent raised preliminary objection that the Bombay HighCourt did not have jurisdiction to entertain the writ petition. TheBombay High Court held that Clause 21 of the agreementbetween the appellant and the second respondent (in the form ofConstitution and Bye laws of the latter) ousted the jurisdiction ofall other courts except the courts at Chennai. Hence, the presentappeal.

Allowing the appeal, the Court,

HELD:1.1 Parties cannot by contract exclude thejurisdiction of all courts. Such contract would constitute anagreement in restraint of legal proceedings and contraveneSection 28 of the Indian Contract Act 1872. However, whereparties to contract confer jurisdiction on one amongst multiplecourts having proper jurisdiction, to the exclusion of all othercourts, the parties cannot be said to have ousted the jurisdictionof all courts. Such contract is valid and will bind the parties to acivil action. Parties cannot by agreement confer jurisdiction on acourt which lacks the jurisdiction to adjudicate. But where severalcourts would have jurisdiction to try the subject matter of thedispute, they can stipulate that suit be brought exclusivelybefore one of the several courts, to the exclusion of the others.

AClause 21 does not oust the jurisdiction of all courts. Rather, theAppellant and the second Respondent have agreed to submitsuits or legal actions to the courts at Chennai. So long as thecourts at Chennai have proper jurisdiction over disputeinvolving the Appellant and the second Respondent, Clause 21is not in violation of the principle set out in Laminart.B[Paras 8-10] [311-F; 312-A, F-G; 313-A]

1.2 Article 226 (1) of the Constitution confers on HighCourts the power to issue writs, and consequently, the jurisdictionto entertain actions for the issuance of writs. The text of Article226 (1) provides that High Court may issue writs for theCenforcement of the fundamental rights in Part III of theConstitution, or “for any other purpose”. citizen may seek outthe writ jurisdiction of the High Court not only in cases whereher fundamental right may be infringed, but much wider arrayof situations. The role of the High Court under the ConstitutionDis crucial to ensuring the rule of law throughout its territorialjurisdiction. In order to achieve these transcendental goals, thepowers of the High Court under its writ jurisdiction are necessarilybroad. They are conferred in aid of justice. No limitation can beplaced on the powers of the High Court in exercise of its writ

jurisdiction. The powers of the High Court in exercise of its writEjurisdiction cannot be circumscribed by strict legal principles soas to hobble the High Court in fulfilling its mandate to uphold therule of law. While the powers the High Court may exercise underits writ jurisdiction are not subject to strict legal principles, twoclear principles emerge with respect to when High Court’s writFjurisdiction may be engaged. First, the decision of the High Courtto entertain or not entertain particular action under its writjurisdiction is fundamentally discretionary. Secondly, limitationsplaced on the court’s decision to exercise or refuse to exerciseits writ jurisdiction are self-imposed. The writ jurisdiction of aHigh Court cannot be completely excluded by statute. If HighGCourt is tasked with being the final recourse to upholding therule of law within its territorial jurisdiction, it must necessarilyhave the power to examine any case before it and make adetermination of whether or not its writ jurisdiction is engaged.

Judicial review under Article 226 is an intrinsic feature of thebasic structure of the Constitution.[Paras 11-13] [313-B-C, G;314-D-F]

1.3 If the Respondent’s argument is accepted, the HighCourt of Madras would hear the present matter. Therefore, thealternate remedy (i.e. writ petition before the High Court ofMadras) is equal in every way to the present remedy sought bythe Appellant. The High Court of Madras is imbued with the samepowers in the exercise of its writ jurisdiction. The existence ofan alternate remedy, whether adequate or not, does not alter thefundamentally discretionary nature of the High Court’s writjurisdiction and therefore does not create an absolute legal baron the exercise of the writ jurisdiction by High Court. Thedecision whether or not to entertain an action under its writjurisdiction remains decision to be taken by the High Court onan examination of the facts and circumstances of particular case.The mere existence of alternate forums where the aggrieved partymay secure relief does not create legal bar on High Court toexercise its writ jurisdiction. It is factor to be taken intoconsideration by the High Court amongst several factors. Thus,the mere fact that the High Court at Madras is capable of grantingadequate relief to the Appellant does not create legal bar onthe Bombay High Court exercising its writ jurisdiction in thepresent matter. In the present case, the Bombay High Court hasrelied solely on Clause 21 of the Constitution and Bye Laws tohold that its own writ jurisdiction is ousted. It failed to examinethe case holistically and make considered determination as towhether or not it should, in its discretion, exercise its powersunder Article 226. The scrutiny to be applied to every writ petitionunder Article 226 by the High Court is crucial safeguard of therule of law under the Constitution in the relevant territorialjurisdiction. It is not open to High Court to abdicate thisresponsibility merely due to the existence of privatelynegotiated document ousting its jurisdiction. It is certainly opento the High Court to take into consideration the fact that theAppellant and the second Respondent consented to resolve alltheir legal disputes before the courts at Chennai. However, thiscan be factor within the broader factual matrix of the case. The

AHigh Court may decline to exercise jurisdiction under Article226 invoking the principle of forum non conveniens in anappropriate case. The sole and absolute reliance by the BombayHigh Court on Clause 21 of the Constitution and Bye Laws todetermine that its jurisdiction under Article 226 is ousted ishowever one such instance. The impugned judgment and orderBof the High Court is set aside.Writ Petition No. 7770 of 2017 isaccordingly restored to the file of the High Court for beingconsidered afresh. [Paras 15, 17, 18, 21 and 25-27] [316-C-F;317-G-H; 319-C-H; 320-A]

Laminart (P) Limited v. P Agencies, Salem(1989)C2 SCC 163 : [1989] 2 SCR 1 – distinguished.

V Venkateswaran, Collector of Customs, Bombay v.Ramchand Sobhraj Wadhwani [1962] 1 SCR 753;Stateof Uttar Pradesh v. Mohammad Nooh [1958] SCR 595–followed.

Uttar Pradesh State Sugar Corporation Limited v KamalSwaroop Tondon(2008) 2 SCC 41 : [2008] 1 SCR887;Minerva Mills v. Union of India (1980) 3 SCC625 : [1981] 1 SCR 206 ;L Chandra Kumar v. Unionof India(1997) 3 SCC 261:[1997] 2SCR 1186;ESangram Singh v. Election Tribunal, Kotah[1955] 2SCR 1;Uttar Pradesh State Spinning Co Limited v.R S Pandey (2005) 8 SCC 264 : [2005] 3 Suppl. SCR603 ; Aligarh Muslim University v. Vinay Engineering(1994) 4 SCC 710 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5654 of

From the Judgment and Order dated 25.09.2018 of the High Courtof Judicature at Bombay in Writ Petition No. 7770 of 2017

Vinay Navare, Sr. Adv., Ms. Neela Gokhale, Ms. Shradha Agarwal,Akshat Pradhan, Ms. Kamakshi S. Mehlwal, Advs. for the Appellant.

K.M. Natraj, ASG, Paras Kuhaad, Sr. Adv., Ms. Alka Agarwal,R. R. Rajesh, Arun Kumar Yadav, Raj Bahadur Yadav, Ms. Shalini Kaul,Sivanandaraaj, Ms. Aditi, Advs. for the Respondents.

The Judgment of the Court was delivered by

DR DHANANJAYA Y CHANDRACHUD, J.

1. The present appeal raises the issue of whether privateagreement entered into between the Appellant and the secondRespondent in the form of the Constitution and Bye Laws of the lattercan, by conferring exclusive jurisdiction on the courts at Chennai, oustthe writ jurisdiction of the Bombay High Court under Article 226 of theConstitution.

2 Clause 21 of the Constitution and Bye Laws of the secondRespondent is as follows:

“21. Legal Course

(i) The Federation shall sue and or be sued only in the name ofthe Hon. Secretary of the Federation.

(ii) Any Suits/Legal actions against the Federation shall be insti-tuted only in the Courts at Chennai, where the RegisteredOffice of All India Chess Federation is situated or at theplace where the Secretariat of the All India ChessFederation is functioning”

3. The second Respondent, the All India Chess Federation is asociety registered under the Societies Registration Act 1860[1]. It is acentral governing authority for chess in India. The Appellant is society

1“The Act of 1860”

Aregistered under the Act of 1860 and was an affiliated member of thesecond Respondent since 1978. On 25 December 2016, the CentralCouncil of the second Respondent passed resolution to disaffiliate theAppellant. After the institution of the writ proceedings, the thirdRespondent has been affiliated by the second Respondent in place ofthe Appellant.B

4. The Appellant had filed writ petition before the Bombay HighCourt under Article 226 of the Constitution impleading, inter alia thesecond Respondent. The second Respondent raised preliminaryobjection that the Bombay High Court did not have jurisdiction to entertainthe writ petition on the ground that Clause 21 of the Constitution andCBye Laws conferred exclusive jurisdiction on courts at Chennai in disputesinvolving the second Respondent and any other party to the Constitutionand Bye Laws, including the Appellant. The Bombay High Court heldthat Clause 21 ousted the jurisdiction of all other courts except the courtsat Chennai. The High Court held:D

“…In the facts of the present case when there is existence ofClause 21 which we have adverted to herein above, in our view,the jurisdiction of the other Courts except the Courts at Chennaiin respect of any Suits/Legal action which are brought againstRespondent No. 2 are ousted…”

E5. Mr Vinay Navare, learned Senior Counsel appearing on behalfof the Appellant submitted that:

(i) Article 226 provides constitutional remedy wherefundamental rights or other legal rights are violated or areunder threat of violation;

(ii) Parties cannot by privately negotiated agreement oust thewrit jurisdiction of the High Court;

(iii) Whether the writ jurisdiction under Article 226 should beexercised in the facts of given case has to be determinedby the High Court; and

(iv) In the present case, the High Court has manifestly erred inholding that Clause 21 of the Constitution and Bye Laws ofthe second Respondent created an absolute bar on theexercise 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 public law remedy as isembodied in Article 226;

(ii) Clause 21 of the Constitution and Bye Laws of the secondRespondent is non-statutory contract, the impact of whichhas to be considered by the Bombay High Court, which itfailed to do; and

(iii) Judicial review is part of the basic structure of theConstitution and can neither be confined nor abrogated.

7. Mr Paras Kuhad, learned Senior Counsel appearing on behalfof the second Respondent urged that in essence by the impugnedjudgment, the High Court has in its discretion, declined to entertain theWrit Petition. Hence, it is urged that properly construed, the High Courtdid not hold that there was an ouster of its jurisdiction but that in thefacts and circumstances, it was not appropriate to exercise the writjurisdiction when parties had agreed to submit their disputes for resolutionbefore the courts at Chennai.

8. The Constitution and Bye Laws of the second Respondent area private agreement between the Appellant and the second Respondent.The decision of the Bombay High Court relied solely on Clause 21 tohold that its own writ jurisdiction, and the jurisdiction of all other courts,is ousted. Whether private agreement can oust the writ jurisdiction ofa High Court merits further enquiry.

9. It is well settled principle of contract law that parties cannotby contract exclude the jurisdiction of all courts. Such contract wouldconstitute an agreement in restraint of legal proceedings and contraveneSection 28 of the Indian Contract Act 1872[2]. However, where parties toa contract confer jurisdiction on one amongst multiple courts having proper

2Section 28. Agreements in restraint of legal proceedings, void — Every agreement,-(a) by which any party thereto is restricted absolutely from enforcing his rights underor in respect of any contract, by the usual legal proceedings in the ordinary tribunals, orwhich limits the time within which he may thus enforce his rights; or

(b) which extinguishes the rights of any party thereto, or discharges any party thereto,from any liability, under or in respect of any contract on the expiry of specifiedperiod so as to restrict any party from enforcing his rights, is void to the extent.

Ajurisdiction, to the exclusion of all other courts, the parties cannot be saidto have ousted the jurisdiction of all courts. Such contract is valid andwill bind the parties to civil action. This principle was set out in CLaminart (P) Limited v P Agencies, Salem[3], (“A Laminart”)where this Court noted:

B“16. So long as the parties to contract do not oust the jurisdictionof all the Courts which would otherwise have jurisdiction todecide the cause of action under the law it cannot be said that theparties have by their contract ousted the jurisdiction of the Court.If under the law several Courts would have jurisdiction and theparties have agreed to submit to one of these jurisdictions and notCto other or others of them it cannot be said that there is totalouster of jurisdiction. In other words, where the parties to acontract agreed to submit the disputes arising from it to aparticular jurisdiction which would otherwise also be aproper jurisdiction under the law their agreement to theDextent they agreed not to submit to other jurisdictionscannot be said to be void as against public policy. If on theother hand the jurisdiction they agreed to submit to would nototherwise be proper jurisdiction to decide disputes arising out ofthe contract it must be declared void being against public policy.”

(Emphasis supplied)

The decision in Laminart has been followed in subsequentdecisions.[4]

10. Parties cannot by agreement confer jurisdiction on courtwhich lacks the jurisdiction to adjudicate. But where several courts wouldFhave jurisdiction to try the subject matter of the dispute, they can stipulatethat suit be brought exclusively before one of the several courts, to theexclusion of the others. Clause 21 does not oust the jurisdiction of allcourts. Rather, the Appellant and the second Respondent have agreedto submit suits or legal actions to the courts at Chennai. So long as theGcourts at Chennai have proper jurisdiction over dispute involving theAppellant and the second Respondent, Clause 21 is not in violation of

3 (1989) 2 SCC 163

4 Rajasthan State Electricity Board v Universal Petrol Chemicals Limited (2009) 3 SCCH107; Interglobe Aviation Limited v N Satchidanand (2011) 7 SCC 463

the principle set out in Laminart. However, the decision in BC Laminart was made in the context of an original suit and the jurisdictionof an ordinary civil court. The present case is materially different. TheAppellant approached the Bombay High Court under Article 226. Thesecond Respondent seeks to rely on Clause 21 to oust the writ jurisdictionof the High Court of Bombay.

11. Article 226 (1) of the Constitution confers on High Courts thepower to issue writs, and consequently, the jurisdiction to entertain actionsfor the issuance of writs.[5] The text of Article 226 (1) provides that aHigh Court may issue writs for the enforcement of the fundamentalrights 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 incases where her fundamental right may be infringed, but much widerarray of situations. Lord Coke, commenting on the use of writs bycourts in England stated:

“The Court of King’s Bench hath not only the authority to correcterrors in judicial proceedings, but other errors and misdemeanours[…] tending to the breach of peace, or oppression of the subjects,or raising of faction, controversy, debate or any other manner ofmisgovernment; so that no wrong or injury, public or private, canbe done, but that this shall be reformed or punished by due courseof law….”[6]

Echoing the sentiments of Lord Coke, this Court in Uttar PradeshState Sugar Corporation Limited v Kamal Swaroop Tondon[7]observed that:

“35…It is well settled that the jurisdiction of the High Court underArticle 226 of the Constitution is equitable and discretionary. Thepower under that Article can be exercised by the High Court “toreach injustice wherever it is found.”

12. The role of the High Court under the Constitution is crucial toensuring the rule of law throughout its territorial jurisdiction. In order toachieve these transcendental goals, the powers of the High Court underits writ jurisdiction are necessarily broad. They are conferred in aid ofjustice. This Court has repeatedly held that no limitation can be placedon the powers of the High Court in exercise of its writ jurisdiction. In

6 James Bagg’s Case (1572) 77 ER 1271

7(2008) 2 SCC 41

AV Venkateswaran, Collector of Customs, Bombay v RamchandSobhraj Wadhwani[8] Constitution Bench of this Court held that thenature of power exercised by the High Court under its writ jurisdiction isinherently dependent on the threat to the rule of law arising in the casebefore it:

“10…We need only add that the broad lines of the generalprinciples on which the court should act having been clearly laiddown, their application to the facts of each particular case mustnecessarily be dependent on variety of individual facts whichmust govern the proper exercise of the discretion of the Court,and that in matter which is thus pre-eminently one of discretion,Cit is not possible or even if it were, it would not be desirable to laydown inflexible Rules which should be applied with rigidity inevery case which comes up before the court.”The powers of the High Court in exercise of its writ jurisdictioncannot be circumscribed by strict legal principles so as to hobble theDHigh Court in fulfilling its mandate to uphold the rule of law.

13. While the powers the High Court may exercise under its writjurisdiction are not subject to strict legal principles, two clear principlesemerge with respect to when High Court’s writ jurisdiction may beengaged. First, the decision of the High Court to entertain or not entertainEa particular action under its writ jurisdiction is fundamentally discretionary.Secondly, limitations placed on the court’s decision to exercise or refuseto exercise its writ jurisdiction are self-imposed. It is well settledprinciple that the writ jurisdiction of High Court cannot be completelyexcluded by statute. If High Court is tasked with being the final recourseto upholding the rule of law within its territorial jurisdiction, it mustFnecessarily have the power to examine any case before it and make adetermination of whether or not its writ jurisdiction is engaged. Judicialreview under Article 226 is an intrinsic feature of the basic structure ofthe Constitution.[9]

14. These principles are set out in the decisions of this Court inGnumerous cases and we need only mention few to demonstrate theconsistent manner in which they have been re-iterated. In State ofUttar Pradesh v Indian Hume Pipe Co. Limited,[10] this Court

8 (1962) 1 SCR 7539 Minerva Mills v Union of India (1980) 3 SCC 625; L Chandra Kumar v Union of India(1997) 3 SCC 261H10 (1977) 2 SCC 724

MAHARASHTRA CHESS ASSOCIATION v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, J.] .

observed that the High Court’s decision to exercise its writ jurisdiction isessentially discretionary:

“4…It is always matter of discretion with the Court and if thediscretion has been exercised by the High Court notunreasonably, or perversely, it is the settled practice of this Courtnot to interfere with the exercise of discretion by the High Court.”

15. The principle was dwelt upon even prior to this. In SangramSingh v Election Tribunal, Kotah[11] the court highlighted thediscretionary nature of the High Court’s writ jurisdiction. The courtadded that courts had themselves imposed certain constraints on theexercise of their writ jurisdiction to ensure that the jurisdiction did notbecome an appellate mechanism for all disputes within High Court’sterritorial jurisdiction. The court stated:

“14… The High Courts do not, and should not, act as courts ofappeal under Article 226. Their powers are purelydiscretionary and though no limits can be placed upon thatdiscretion it must be exercised along recognized lines andnot arbitrarily; and one of the limitations imposed by thecourts on themselves is that they will not exercisejurisdiction in this class of case unless substantial injusticehas ensued, or is likely to ensue. They will not allow themselvesto be turned into courts of appeal or revision to set right mereerrors of law which do not occasion injustice in broad andgeneral sense, for, though no legislature can impose limitations onthese constitutional powers it is sound exercise of discretion tobear in mind the policy of the legislature to have disputes aboutthese special rights decided as speedily as may be.”

(Emphasis supplied)

The intention behind this self-imposed rule is clear. If High Courtswere to exercise their writ jurisdiction so widely as to regularly overridestatutory appellate procedures, they would themselves become inundatedwith vast number of cases to the detriment of the litigants in thosecases. This would also defeat the legislature’s intention in enactingstatutory appeal mechanisms to ensure the speedy disposal of cases.

16. The observation extracted above raises an importantconsideration with respect to the present case. If, by the self-imposed11(1955) 2 SCR 1

Arule, the writ jurisdiction of High Courts is circumscribed by the existenceof suitable alternate remedy, whether constitutional, statutory, orcontractual, then High Court should not exercise its writ jurisdictionwhere such an alternate remedy exists. Thus, before we address thequestion of whether or not Clause 21 of the Constitution and Bye Lawscompel the Bombay High Court to abstain from entertaining theBAppellant’s writ petition, we must first address ourselves to whether,even in the absence of Clause 21, the existence of an alternate remedywould create bar on the Bombay High Court entertaining the Appellant’swrit petition.

17. The case of the second Respondent is that the dispute shouldCbe heard and decided at Chennai. It follows that if the Respondent’sargument is accepted, the High Court of Madras would hear the presentmatter. Therefore, the alternate remedy (i.e. writ petition before theHigh Court of Madras) is equal in every way to the present remedysought by the Appellant. The High Court of Madras is imbued with the

Dsame powers in the exercise of its writ jurisdiction. The submission onthe above premises is that the Appellant can avail of the same relief atChennai as it may in Mumbai. Hence, the agreement between the partiesmust prevail and the writ jurisdiction of the Bombay High Court underArticle 226 stands ousted.

E18. This argument of the second Respondent is misconceived.The existence of an alternate remedy, whether adequate or not, doesnot alter the fundamentally discretionary nature of the High Court’s writjurisdiction and therefore does not create an absolute legal bar on theexercise of the writ jurisdiction by High Court. The decision whetheror not to entertain an action under its writ jurisdiction remains decisionFto be taken by the High Court on an examination of the facts andcircumstances of particular case.

19. This understanding has been laid down in several decisions ofthis Court. In Uttar Pradesh State Spinning Co Limited v R SPandey[12 ]this Court held:G

“11.Except for period when Article 226 was amended by theConstitution (Forty- Second Amendment) Act, 1976, the powerrelating to alternative remedy has been considered to be rule ofself imposed limitation. It is essentially rule of policy,

12(2005) 8 SCC 264H

MAHARASHTRA CHESS ASSOCIATION v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, J.] .

convenience and discretion and never rule of law. Despite theexistence of an alternative remedy it is within the jurisdiction ordiscretion of the High Court to grant relief under Article 226 ofthe Constitution. At the same time, it cannot be lost sight of thatthough the matter relating to an alternative remedy has nothing todo with the jurisdiction of the case, normally the High Court shouldnot interfere if there is an adequate efficacious alternativeremedy.”

20. The principle that the writ jurisdiction of High Court can beexercised where no adequate alternative remedies exist can be tracedeven further back to the decision of the Constitution Bench of this Courtin State of Uttar Pradesh v Mohammad Nooh,[13] where Justice VivianBose observed:

“10.In the next place it must be borne in mind that there is no rule,with regard to certiorari as there is with mandamus, that it will lieonly where there is no other equally effective remedy. It is wellestablished that, provided the requisite grounds exist, certiorariwill lie although right of appeal has been conferred by statute.(Halsbury’s Laws of England, 3rd Ed., Vol. 11, p. 130 and thecases cited there). The fact that the aggrieved party has anotherand adequate remedy may be taken into consideration by thesuperior court in arriving at conclusion as to whether it should,in exercise of its discretion, issue writ of certiorari to quash theproceedings and decisions of inferior courts subordinate to it andordinarily the superior court will decline to interfere until theaggrieved party has exhausted his other statutory remedies, ifany. But this rule requiring the exhaustion of statutory remediesbefore the writ will be granted is rule of policy, convenience anddiscretion rather than rule of law and instances are numerouswhere writ of certiorari has been issued in spite of the fact thatthe aggrieved party had other adequate legal remedies.”

21. The mere existence of alternate forums where the aggrievedparty may secure relief does not create legal bar on High Court toexercise its writ jurisdiction. It is factor to be taken into considerationby the High Court amongst several factors. Thus, the mere fact that theHigh Court at Madras is capable of granting adequate relief to theAppellant does not create legal bar on the Bombay High Courtexercising its writ jurisdiction in the present matter.131958 SCR 595

A22. This brings us to the question of whether Clause 21 itselfcreates legal bar on the Bombay High Court exercising its writjurisdiction. As discussed above, the writ jurisdiction of the High Courtis fundamentally discretionary. Even the existence of an alternateadequate remedy is merely an additional factor to be taken intoconsideration by the High Court in deciding whether or not to exerciseBits writ jurisdiction. This is in marked contradistinction to the jurisdictionof civil court which is governed by statute.[14] In exercising its discretionto entertain particular case under Article 226, High Court may takeinto consideration various factors including the nature of the injusticethat is alleged by the petitioner, whether or not an alternate remedyCexists, or whether the facts raise question of constitutional interpretation.These factors are not exhaustive and we do not propose to enumeratewhat factors should or should not be taken into consideration. It issufficient for the present purposes to say that the High Court must takea holistic view of the facts as submitted in the writ petition and make adetermination on the facts and circumstances of each unique case.D

23. At this juncture it is worth discussing the decision of this Courtin Aligarh Muslim University v Vinay Engineering.[15] In that case,the contract between the parties contained clause conferring jurisdictionon the courts at Aligarh. When the High Court of Calcutta exercised itswrit jurisdiction over the matter, this Court held:E

“2. We are surprised, not little, that the High Court of Calcuttashould have exercised jurisdiction in case where it had abso-lutely no jurisdiction. The contracts in question were executed atAligarh, the construction work was to be carried out at Aligarh,even the contracts provided that in the event of dispute the AligarhFCourt alone will have jurisdiction. The arbitrator was from Aligarhand was to function there. Merely because the respondent was aCalcutta-based firm, the High Court of Calcutta seems to haveexercised jurisdiction where it had none by adopting queer lineof reasoning. We are constrained to say that this is case ofGabuse of jurisdiction and we feel that the respondent deliberately

4Section 9. Courts to try all civil suits unless barred – The Courts shall (subject tothe provisions herein contained) have jurisdiction to try all suits of civil natureexcepting suits of which their cognizance is either expressly or impliedly barred.[15]15(1994) 4 SCC 710H

MAHARASHTRA CHESS ASSOCIATION v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, J.] .

moved the Calcutta High Court ignoring the fact that no part ofthe cause of action had arisen within the jurisdiction of that Court.It clearly shows that the litigation filed in the Calcutta High Courtwas thoroughly unsustainable.”

24. The court examined the facts holistically, noting that thecontract was executed and to be performed in Aligarh, and the arbitratorwas to function at Aligarh. It did consider that the contract conferredjurisdiction on the courts at Aligarh, but this was one factor amongstseveral considered by the court in determining that the High Court ofCalcutta did not have jurisdiction.

25. In the present case, the Bombay High Court has relied solelyon Clause 21 of the Constitution and Bye Laws to hold that its own writjurisdiction is ousted. The Bombay High Court has failed to examine thecase holistically and make considered determination as to whether ornot it should, in its discretion, exercise its powers under Article 226. Thescrutiny to be applied to every writ petition under Article 226 by theHigh Court is crucial safeguard of the rule of law under the Constitutionin the relevant territorial jurisdiction. It is not open to High Court toabdicate this responsibility merely due to the existence of privatelynegotiated document ousting its jurisdiction.

26. It is certainly open to the High Court to take into considerationthe fact that the Appellant and the second Respondent consented toresolve all their legal disputes before the courts at Chennai. However,this can be factor within the broader factual matrix of the case. TheHigh Court may decline to exercise jurisdiction under Article 226 invokingthe principle of forum non conveniens in an appropriate case. The HighCourt must look at the case of the Appellant holistically and make adetermination as to whether it would be proper to exercise its writjurisdiction. We do not express an opinion as to what factors should beconsidered by the High Court in the present case, nor the correspondinggravity that should be accorded to such factors. Such principles arewell known to the High Court and it is not for this Court to interfere inthe discretion of the High Court in determining when to engage its writjurisdiction unless exercised arbitrarily or erroneously. The sole andabsolute reliance by the Bombay High Court on Clause 21 of theConstitution and Bye Laws to determine that its jurisdiction under Article226 is ousted is however one such instance.

EFG

320SUPREME COURT REPORTS

[2019] 10 S.C.R.

A27. We accordingly allow the appeal and set aside the impugnedjudgment and order of the High Court dated 25 September 2018. WritPetition No. 7770 of 2017 is accordingly restored to the file of the HighCourt for being considered afresh. No costs.

Pending application(s), if any, shall stand disposed of

Divya Pandey

Appeal allowed.