MAHARASHTRA CHESS ASSOCIATION versus UNION OF INDIA & ORS.
[2019] 10 S.C.R. 304, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
A
B
C
D
E
F
G
H
304
SUPREME COURT REPORTS
[2019] 10  S.C.R.
MAHARASHTRA CHESS ASSOCIATION
v.
UNION OF INDIA & ORS.
(Civil Appeal No.5654 of 2019)
JULY 29, 2019
[DR DHANANJAYA Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
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
[2019]  10 S.C.R. 304
 304
A
B
C
D
E
F
G
H
305
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.
MAHARASHTRA CHESS ASSOCIATION  v. UNION OF INDIA
.
A
B
C
D
E
F
G
H
306
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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.
A
B
C
D
E
F
G
H
307
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
MAHARASHTRA CHESS ASSOCIATION  v. UNION OF INDIA
.
A
B
C
D
E
F
G
H
308
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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.
Case Law Reference
[1989] 2 SCR 1
     distinguished
Para 9
[2008] 1 SCR 887
     relied on
Para 11
(1962) 1 SCR 753
followed
Para 12
[1981] 1 SCR 206
     relied on
Para 14
[1997] 2 SCR 1186
     relied on
Para 14
[1955] 2 SCR 1
     relied on
Para 15
[2005] 3 Suppl. SCR 603   relied on
Para 19
A
B
C
D
E
F
G
H
309
[1958] SCR 595
       followed
Para 20
(1994) 4 SCC 710
       relied on
Para 23
CIVIL APPELLATE JURISDICTION: Civil Appeal No.5654 of
2019
From the Judgment and Order dated 25.09.2018 of the High Court
of 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 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 the Bombay High Court under Article 226 of the
Constitution.
2 Clause 21 of the Constitution and Bye Laws of the second
Respondent is as follows:
     “21. Legal Course
(i)  The Federation shall sue and or be sued only in the name of
the 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 Registered
Office of All India Chess Federation is situated or at the
place where the Secretariat of the All India Chess
Federation is functioning”
3.
The second Respondent, the All India Chess Federation is a
society registered under the Societies Registration Act 18601. It is a
central governing authority for chess in India. The Appellant is a society
 1“The Act of 1860”
MAHARASHTRA CHESS ASSOCIATION  v. UNION OF INDIA
.
A
B
C
D
E
F
G
H
310
SUPREME COURT REPORTS
[2019] 10  S.C.R.
registered under the Act of 1860 and was an affiliated member of the
second Respondent since 1978. On 25 December 2016, the Central
Council of the second Respondent passed a resolution to disaffiliate the
Appellant. After the institution of the writ proceedings, the third
Respondent has been affiliated by the second Respondent in place of
the Appellant.
4. The Appellant had filed a writ petition before the Bombay High
Court under Article 226 of the Constitution impleading, inter alia the
second Respondent. The second Respondent raised a preliminary
objection that the Bombay High Court did not have jurisdiction to entertain
the writ petition on the ground that Clause 21 of the Constitution and
Bye Laws conferred exclusive jurisdiction on courts at Chennai in disputes
involving the second Respondent and any other party to the Constitution
and Bye Laws, including the Appellant.  The Bombay High Court held
that Clause 21 ousted the jurisdiction of all other courts except the courts
at Chennai.  The High Court held:
“…In the facts of the present case when there is existence of
Clause 21 which we have adverted to herein above, in our view,
the jurisdiction of the other Courts except the Courts at Chennai
in respect of any Suits/Legal action which are brought against
Respondent No. 2 are ousted…”
5. Mr Vinay Navare, learned Senior Counsel appearing on behalf
of the Appellant submitted that:
(i)  Article 226 provides a
constitutional remedy where
fundamental rights or other legal rights are violated or are
under a threat of violation;
(ii)  Parties cannot by a privately negotiated agreement 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.
A
B
C
D
E
F
G
H
311
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 hold that there was an ouster of its jurisdiction but that in the
facts and circumstances, it was not appropriate to exercise the writ
jurisdiction when parties had agreed to submit their disputes for resolution
before the courts at Chennai.
8. The Constitution and Bye Laws of the second Respondent are
a private agreement between the Appellant and the second Respondent.
The decision of the Bombay High Court relied solely on Clause 21 to
hold that its own writ jurisdiction, and the jurisdiction of all other courts,
is ousted.  Whether a private agreement can oust the writ jurisdiction of
a High Court merits further enquiry.
9. It is a well settled principle of contract law that 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 18722.  However, where parties to
a 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 under
or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or
which 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 a specified
period so as to restrict any party from enforcing his rights, is void to the extent.
MAHARASHTRA CHESS ASSOCIATION  v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, J.] .
A
B
C
D
E
F
G
H
312
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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.  This principle was set out in A B C
Laminart (P) Limited v A P Agencies, Salem3, (“A B C Laminart”)
where this Court noted:
“16. So long as the parties to a contract do not oust the jurisdiction
of all the Courts which would otherwise have jurisdiction to
decide the cause of action under the law it cannot be said that the
parties have by their contract ousted the jurisdiction of the Court.
If under the law several Courts would have jurisdiction and the
parties have agreed to submit to one of these jurisdictions and not
to other or others of them it cannot be said that 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.”
              (Emphasis supplied)
The decision in A B C Laminart has been followed in subsequent
decisions.4
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 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
3 (1989) 2 SCC 163
4 Rajasthan State Electricity Board v Universal Petrol Chemicals Limited  (2009) 3 SCC
107; Interglobe Aviation Limited v N Satchidanand (2011) 7 SCC 463
A
B
C
D
E
F
G
H
313
the principle set out in A B C Laminart.  However, the decision in A B
C Laminart was made in the context of an original suit and the jurisdiction
of an ordinary civil court.  The present case is materially different.  The
Appellant approached the Bombay High Court under Article 226.  The
second Respondent seeks to rely on Clause 21 to oust the writ jurisdiction
of the High Court of Bombay.
11. 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.5  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.  Lord Coke, commenting on the use of writs by
courts in England stated:
“The Court of King’s Bench hath not only the authority to correct
errors 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 of
misgovernment; so that no wrong or injury, public or private, can
be done, but that this shall be reformed or punished by due course
of law….”6
Echoing the sentiments of Lord Coke, this Court in Uttar Pradesh
State Sugar
Corporation Limited v Kamal Swaroop Tondon7
observed that:
“35…It is well settled that the jurisdiction 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
6 James Bagg’s Case (1572) 77 ER 1271
7(2008) 2 SCC 41
MAHARASHTRA CHESS ASSOCIATION  v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, J.] .
A
B
C
D
E
F
G
H
314
SUPREME COURT REPORTS
[2019] 10  S.C.R.
V Venkateswaran, Collector of Customs, Bombay v Ramchand
Sobhraj Wadhwani8 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 which
must govern the proper exercise of the discretion of the Court,
and that in a matter which is thus pre-eminently one of discretion,
it is not possible or even if it were, it would not be desirable to lay
down inflexible Rules which should be applied with rigidity in
every case which comes up before the court.”
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.
13. 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.  It is a well settled
principle that 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.9
14. These principles are set out in the decisions of this Court in
numerous cases and we need only mention a few to demonstrate the
consistent manner in which they have been re-iterated.  In State of
Uttar Pradesh v Indian Hume Pipe Co. Limited,10 this Court
8 (1962) 1 SCR 753
9 Minerva Mills v Union of India (1980) 3 SCC 625; L Chandra Kumar v Union of India
(1997) 3 SCC 261
10 (1977) 2 SCC 724
A
B
C
D
E
F
G
H
315
observed that the High Court’s decision to exercise its writ jurisdiction is
essentially discretionary:
 “4…It is always a matter of discretion with the Court and if the
discretion has been exercised by the High Court not
unreasonably, or perversely, it is the settled practice of this Court
not to interfere with the exercise of discretion by the High Court.”
15. The principle was dwelt upon even prior to this. In Sangram
Singh v Election Tribunal, Kotah11 the court highlighted the
discretionary 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.”
   (Emphasis supplied)
The intention behind this self-imposed rule is clear.  If  High Courts
were to exercise their writ jurisdiction so widely as to regularly override
statutory appellate procedures, they would themselves become inundated
with a vast number of cases to the detriment of the litigants in those
cases.  This would also defeat the legislature’s intention in enacting
statutory appeal mechanisms to ensure the speedy disposal of cases.
16. The observation extracted above raises an important
consideration with respect to the present case.  If, by the self-imposed
11(1955) 2 SCR 1
MAHARASHTRA CHESS ASSOCIATION  v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, J.] .
A
B
C
D
E
F
G
H
316
SUPREME COURT REPORTS
[2019] 10  S.C.R.
rule, the writ jurisdiction of High Courts is circumscribed by the existence
of a suitable alternate remedy, whether constitutional, statutory, or
contractual, then a High Court should not exercise its writ jurisdiction
where such an alternate remedy exists.  Thus, before we address the
question of whether or not Clause 21 of the Constitution and Bye Laws
compel the Bombay High Court to abstain from entertaining the
Appellant’s writ petition, we must first address ourselves to whether,
even in the absence of Clause 21, the existence of an alternate remedy
would create a bar on the Bombay High Court entertaining the Appellant’s
writ petition.
17. The case of the second Respondent is that the dispute should
be heard and decided at Chennai.  It follows that 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 submission on
the above premises is that the Appellant can avail of the same relief at
Chennai as it may in Mumbai. Hence, the agreement between the parties
must prevail and the writ jurisdiction of the Bombay High Court under
Article 226 stands ousted.
18. This argument of the second Respondent is misconceived.
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.
19. This understanding has been laid down in several decisions of
this Court.  In Uttar Pradesh State Spinning Co Limited v R S
Pandey12 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,
12(2005) 8 SCC 264
A
B
C
D
E
F
G
H
317
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 Pradesh v Mohammad Nooh,13 where Justice Vivian
Bose 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 lie
only where there is no other equally effective remedy. It is well
established that, provided the requisite grounds exist, certiorari
will lie although a right of appeal has been conferred by statute.
(Halsbury’s Laws of England, 3rd Ed., Vol. 11, p. 130 and the
cases cited there). The fact that the aggrieved party has another
and adequate remedy may be taken into consideration by the
superior court in arriving at a conclusion as to whether it should,
in exercise of its discretion, issue a writ of certiorari to quash the
proceedings and decisions of inferior courts
subordinate to it and
ordinarily the superior court will decline to interfere until the
aggrieved party has exhausted his other statutory remedies, if
any. But this rule requiring the exhaustion of statutory remedies
before the writ will be granted is a rule of policy, convenience and
discretion rather than a rule of law and instances are numerous
where a writ of certiorari has been issued in spite of the fact that
the aggrieved party had other adequate legal remedies.”
21. 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.
131958 SCR 595
MAHARASHTRA CHESS ASSOCIATION  v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, J.] .
A
B
C
D
E
F
G
H
318
SUPREME COURT REPORTS
[2019] 10  S.C.R.
22. This brings us to the question of whether Clause 21 itself
creates a legal bar on the Bombay High Court exercising its writ
jurisdiction.  As discussed above, the writ jurisdiction of the High Court
is fundamentally discretionary.  Even the existence of an alternate
adequate remedy is merely an additional factor to be taken into
consideration by the High Court in deciding whether or not to exercise
its writ jurisdiction.  This is in marked contradistinction to the jurisdiction
of a civil court which is governed by statute.14  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.15  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 the High Court of Calcutta
should have exercised jurisdiction in a case where it had abso-
lutely no jurisdiction. The contracts in question were executed at
Aligarh, the construction work was to be carried out at Aligarh,
even the contracts provided that in the event of dispute the Aligarh
Court alone will have jurisdiction. The arbitrator was from Aligarh
and was to function there. Merely because the respondent was a
Calcutta-based firm, the High Court of Calcutta seems to have
exercised jurisdiction where it had none by adopting a queer line
of reasoning. We are constrained to say that this is a case of
abuse of jurisdiction and we feel that the respondent deliberately
4Section 9. Courts to try all civil suits unless barred – The Courts shall (subject to
the provisions herein contained) have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or impliedly barred.15
15(1994) 4 SCC 710
A
B
C
D
E
F
G
H
319
moved the Calcutta High Court ignoring the fact that no part of
the cause of action had arisen within the jurisdiction of that Court.
It clearly shows that the litigation filed in the Calcutta High Court
was thoroughly unsustainable.”
24. The court examined the facts holistically, noting that the
contract was executed and to be performed in Aligarh, and the arbitrator
was to function at Aligarh.  It did consider that the contract conferred
jurisdiction on the courts at Aligarh, but this was one factor amongst
several considered by the court in determining that the High Court of
Calcutta did not have jurisdiction.
25. 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.  The Bombay High Court has 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.
26. 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 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.  We do not express an opinion as to what factors should be
considered by the High Court in the present case, nor the corresponding
gravity that should be accorded to such factors.  Such principles are
well known to the High Court and it is not for this Court to interfere in
the discretion of the High Court in determining when to engage its writ
jurisdiction unless exercised arbitrarily or erroneously.  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.
MAHARASHTRA CHESS ASSOCIATION  v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, J.] .
A
B
C
D
E
F
G
H
320
SUPREME COURT REPORTS
[2019] 10  S.C.R.
27. We accordingly allow the appeal and set aside the impugned
judgment and order of the High Court dated 25 September 2018. Writ
Petition No. 7770 of 2017 is accordingly restored to the file of the High
Court for being considered afresh. No costs.
Pending application(s), if any, shall stand disposed of
Divya Pandey
                                Appeal allowed.
1