REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 5654  of 2019 @Special Leave Petition (C) No  29040 of 2018

Maharashtra Chess Association                                         .... Appellant  

Versus

Union of India & Ors.             ....Respondents  

J U D G M E N T

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.  

1

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  instituted  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 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

1 “The Act of 1860”

2

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.

6 Mr K M Natraj, learned Additional Solicitor General submitted that:

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(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

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Indian  Contract  Act  18722.   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.   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  

2 Section 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.

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

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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 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

5 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].

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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 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

6 James Bagg’s Case (1572) 77 ER 1271  7 (2008) 2 SCC 41 8 (1962) 1 SCR 753  

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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

9 Minerva Mills v Union of India (1980) 3 SCC 625; L Chandra Kumar v Union of India (1997) 3 SCC 261

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which they have been re-iterated.  In  State of Uttar Pradesh v  Indian Hume

Pipe  Co.  Limited,10 this  Court  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 appea l 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)

10 (1977) 2 SCC 724 11 (1955) 2 SCR 1

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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 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

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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, 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.”

12 (2005) 8 SCC 264

11

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.  

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

13 1958 SCR 595  

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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 absolutely  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

14 Section 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 (1994) 4 SCC 710  

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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  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

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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.

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   

…….……..…...…...….......………………........J.                                                      [DR DHANANJAYA Y CHANDRACHUD]

……....…..…....…........……………….…........J.                [INDIRA BANERJEE]

New Delhi;  

July 29, 2019.

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