Ouster Clauses And

Jurisdiction Of Civil Courts

By

Anuja Aiyappan

anujaaiyappan@gmail.com

Jurisdiction: Meaning and Scope

The word jurisdiction is derived from Latin terms “juris” and “dicto” which means “I speak by law”.

Jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it: in other words, by jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.

When a court has jurisdiction to decide a dispute, the same cannot be taken away or ousted by consent of parties.

contd.

A Civil Court has got jurisdiction in respect of all civil matters except those of which tribunals are constituted under special statutes; and such tribunals have limited jurisdiction.

Whenever the jurisdiction of the court is challenged, the court has inherent jurisdiction to decide the said question.

Types of Jurisdiction

Civil and Criminal jurisdiction

Territorial or local jurisdiction

Pecuniary jurisdiction

Subject Matter jurisdiction

Original jurisdiction

Appellate jurisdiction

Foreign jurisdiction

Jurisdiction of Civil Courts

A civil court has jurisdiction to try a suit if two conditions are satisfied:

The suit must be of a civil nature; and The cognizance of such suit should not have

been

expressly or impliedly barred.

The suits can be divided into two classes – Those of a civil nature, and Those not of a civil nature.

contd.

A suit is of a civil nature if the principal question therein relates to a civil or legal right.

If the principal or only question in the suit is a caste question or a question relating to religious rites or ceremonies, the suit is not of a civil nature for it deals not with the rights of the citizen but with matters that are purely social.

A suit relating to a religious office is maintainable whether or not it carries any fees or whether or not it is attached to a particular place.

contd.

“Expressly barred”, means barred by the any enactment for the time being in force passed by the Legislature.

If the right has got to be taken away, that must be taken away by express terms or by necessary implication.

“Impliedly barred” means barred by general principles of law and equity or on ground of public policy.

Where an act creates an obligation and enforces its performance in a specified manner, that performance cannot be enforced in any other manner.

contd.

General Principles of Jurisdiction of Civil Court

A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is barred either expressly or impliedly.

Consent can neither confer nor take away jurisdiction of a court.

A decree passed by a court without jurisdiction is a nullity and the validity thereof can be challenged at any stage of the proceedings, in execution proceedings or even in collateral proceedings.

Every court has inherent power to decide the question of its own jurisdiction.

A statute ousting jurisdiction of a court must be strictly construed.

Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.

Ouster Clause: Meaning and Scope

– An Ouster or Finality Claus is a provision in an Act of Parliament to restrict or eliminate judicial review in the interests of the smooth administration of justice.

– It is sometimes provided by a particular statute that a decision taken under it ‘shall be final’, or ‘shall be final and conclusive’, or ‘shall not be appealable’, or ‘shall not be questioned in any legal proceedings whatsoever’

– They make the original decision final by attempting to oust the jurisdiction of the courts

contd.

Ouster clauses may be classified under three

heads:

1. Constitutional ouster clauses;

2. Statutory ouster clauses;

3. Non-statutory ouster clauses;

contd.

A Valid Ouster Jurisdiction Clause

– A statute may confer exclusive jurisdiction on the authorities constituting the machinery to decide finally a jurisdictional fact

– The authority must act under the Act and not outside it

– A suit to question the validity of an order made outside the Act, would certainly lie in a civil court.

contd.

– In A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem, AIR 1989 SC 1239

“From the foregoing decisions it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like “alone”, “only”, “exclusive” and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim “expressio unius est exclusio alterius” -- expression of one is the exclusion of another -- may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.”

Ousting Jurisdiction and Statute• The principles regarding the exclusion of civil court’s jurisdiction

as summarized in Dhulabhai and Ors. v. The State of Madhya Pradesh,AIR 1969 SC 78 :1. Where the statute gives finality to the orders of the special

tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit.

2. Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

3. Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act.

contd.

4. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open.

5. Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act.

6. An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

Ouster of Jurisdiction of Civil Courts by Statutes

– Where a right is created by statute which also prescribes the manner in which the right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute.

1. Civil Liability for Nuclear Damage Bill, 2010

2. Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010

3. Educational Tribunals Bill, 2010

4. Industrial Disputes Act, 1947

1. Civil Liability for Nuclear Damage Bill, 2010

The Clause 35 of the proposed Act contains provisions for exclusion of jurisdiction of civil courts, it provides that no civil court shall have jurisdiction to entertain any suit or proceedings in respect of which the Claims Commissioner or the Nuclear Damage Claims Commission is empowered to adjudicate under the proposed legislation and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the proposed legislation.

contd.

2. Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010

The Clause 20 of the proposed Act provides for exclusion of jurisdiction of civil courts. It provides that no civil court shall have jurisdiction in respect of any matter which the Competent Authority is empowered by or under the proposed legislation to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the proposed legislation.

contd.

3. Educational Tribunals Bill, 2010

The Section 47 of the proposed Act contains provisions for exclusion of jurisdiction of civil courts, it provides that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the State Educational Tribunal or the National Educational Tribunal is empowered by or under the proposed legislation to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by the proposed legislation.

contd.

4. Industrial Disputes Act, 1947

1. If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil Court.

2. If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

3. If the industrial dispute relates to the enforcement of a right or an obligation created under the Act then the only remedy available to the suitor is to get adjudication under the Act.

4. If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute as the case may be.

Summary of Conclusions

1. A judgement passed by a court without jurisdiction is ultra vires or illegal which cannot be enforced.

2. Civil court has jurisdiction to entertain a suit of civil nature except when its cognizance is expressly barred or barred by necessary implication.

3. Civil court has jurisdiction to examine whether tribunal and quasi- judicial bodies or statutory authority acted within their jurisdiction.

4. The general rule is that if the court rendering a judgement suffers from want of jurisdiction then its judgement is nullity and may be ignored.