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9.11 In Gujarat Urja Vikas Nigam Ltd. v. ESSAR Power Ltd., (2016) 9 SCC 103 the Supreme Court held that "[D]irect appeals to this Court has the result of denial of access to the High Court. Such tribunals thus become substitute for High Courts without manner of appointment to such Tribunals being the same as the manner of appointment of High Court judges."

9.12 As a general rule, the statutory remedy should be exhausted before approaching the Writ Court. However, the writ court may entertain a petition if substantial injustice has ensued or is likely to ensue or there has been a breach of fundamental principle of justice. The existence of an equally efficacious, adequate and suitable legal remedy is a point of consideration in the matter of granting writs. Under the rule of self-imposed restraint, the writ court may refuse to entertain a petition if it is satisfied that parties must be relegated to the court of appeal or revision or asked to set right mere errors of law which do not occasion injustice in a broad and general sense, unless the order is totally erroneous or raises issues of jurisdiction or of infringement of fundamental right of the petitioner.186

In State of Himachal Pradesh v. Raja Mahendra Pal, AIR 1999 SC 1786 the Apex court held that the court is not debarred "from granting the appropriate relief to a citizen in peculiar and special facts notwithstanding the existence of alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article."

186 K S Rashid & Son v. Income Tax Investigation Commission, AIR 1954 SC 207; See also, Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India v. T R Varma, AIR 1957 SC 882; State of Uttar Pradesh v. Mohammed Nooh, AIR 1958 SC 86; and Thansingh Nathmal v. Superintendent of Taxes, AIR 1964 SC 1419.

9.13 In Harbanslal Sahnia v. Indian Oil Corporation Ltd., AIR 2003 SC 2120188 the Supreme Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion. The Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the writ seeks enforcement of any of the fundamental rights; where there is failure of principle of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged or the order is totally erroneous or of infringement of fundamental rights of the petitioner.189

188 See also, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, AIR 1999 SC 22.

189 Champalal Binani v. Commissioner of Income Tax, West Bengal, AIR 1970 SC 645.

9.14 The litigant having a grievance of civil nature has a right to institute a suit in the court of competent jurisdiction unless its cognizance is barred expressly or impliedly (section 9, Code of Civil Procedure, 1908). However, such power of ousting the jurisdiction cannot be exercised by an executive order. A Statute may have an express provision specifically excluding the jurisdiction of the Civil Court in respect of matters which otherwise are within its jurisdiction. Implied ouster would be where even without any express provision the jurisdiction of the Civil Court has been barred. However, presumption would be raised in favour of the jurisdiction of the Civil Court.

A provision of law deciding the jurisdiction of the Civil Court must be strictly construed. The onus lies on the party, seeking to oust the jurisdiction, to establish the same. The Court has to consider and construe the ouster of the jurisdiction of the Civil Court having regard to the scheme of the Act as well as the object it seeks to achieve. Where a particular Act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the Civil Court, the ouster is to be upheld.

The Court cannot readily infer exclusion of jurisdiction of the Civil Court as it is an exception to the general rule .190 In Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa, (2009) 4 SCC 299 it was held by the Supreme Court that even when the jurisdiction of the Civil Court is expressly barred, it cannot be readily inferred that Civil Court has no jurisdiction. Such ouster of jurisdiction must be established. Also even when the jurisdiction is expressly excluded, 'civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction'. A list of the Acts in which the jurisdiction of the Civil Courts is excluded/barred is annexed as Annexure-VI.

190 Firm and Illuri Subbayya Chetty v. State of Andhre Pradesh, AIR 1964 SC 322; See also, Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhai Rani Reddi, AIR 1967 SC 781; Dewaji v. Ganpatlal, AIR 1969 SC 560; Smt. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126; Prakash Narain Sharma v. Burmah Shell Coop. Housing Society Ltd, AIR 2002 SC 3062; Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508; Church of North India v. Lavajibhai Ratanjibhai, AIR 2005 SC 2544; Abdul Gafur v. State of Uttrakhand AIR 2009 SC 413; Ramesh Gobindram (dead) through L.Rs. v. Sugra Humayun Mirza Wakf, AIR 2010 SC 2897; Bhanwar Lal v. Rajasthan Board of Muslim Wakf, (2014) 16 SCC 51; and Gujarat Maritime Board v. G.C. Pandya, (2015) 12 SCC 403.

9.15 When a person wants to enforce a right, he has a choice to either approach under the Act or the Civil Court. In Premier Automobiles Ltd v. Kamlekar Shanta Ram Wadke of Bombay, AIR 1975 S.C. 2238 it was observed that:

'But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the Act or to approach the Civil Court.'

9.16 From the aforementioned discussion it is clear that the ouster of jurisdiction cannot be presumed, and in case of ambiguity the interpretation that maintains the jurisdiction must be preferred. The Apex Court in Dhulabhai v. State of M.P., AIR 1969 SC 78 enunciated certain principles for exclusion of the jurisdiction of the Court on certain grounds inter alia:

1. If the Statute provides adequate remedy and the remedies available in a special Tribunal are at par with the remedies normally available in a Civil Court.

2. The Civil Court may exercise its jurisdiction in case the Tribunal fails to comply with provisions of an Act or 'fundamental principles of judicial procedure'. Even in case where the jurisdiction of the Civil Court is expressly barred by the Statute, inadequacy of remedies in the scheme of the concerned Act will be a ground to sustain the jurisdiction of the Civil Court.

3. In cases where the exclusion of jurisdiction appears to be implied, the scheme of the Act should be analysed to determine the adequacy of the remedies and also whether the Act provides that all rights and liabilities arising out of it shall be determined by the Tribunal constituted under the concerned Act.

9.17 The Commission is of the view that whenever there is exclusion of jurisdiction of Courts, an equally effective alternative mechanism must be provided at grassroots level in order to ensure access to justice to the litigants. The Tribunals must have benches in different parts of the country so that people of every geographical area may have easy access to justice. There should be National Tribunals with Regional sittings and State-wise sittings to reduce the burden of Courts and to attain the objectives for which they have been established..