To understand this first let us see the concerned Section of RERA.
- 79. BAR OF JURISDICTION
No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act. 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 this Act.
Are there any other such statutes which oust Jurisdiction of Civil Court? Answer is Yes.
Section 9 of Code of Civil Procedure,1908 says that
- 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.
[Explanation I].- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
[Explanation ll].- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.].
Similar provision is there in MAHDA, 1976 Act
SECTION 71: BAR OF JURISDICTION OF CIVIL COURT
No civil court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person from any Authority premises under the Chapter, or the recovery of the arrears of rent, compensation, amount or damages for use and occupation of such premises, or in respect of any order made or to be made or any action taken or to be taken by the Competent Authority or the appellate officer in the exercise of any power conferred by or under this Chapter, or to grant any injunction in respect of such order or action.
Similarly Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 creates a bar of jurisdiction.
- Bar of Jurisdiction
Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction is respect of any matter which the Administrator, Competent Authority or Tribunal is empowered by or under this Act, 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 this Act.
This issue was dealt with by Supreme Court in Dulabhai vs State 1969 AIR (SC)78
The result of this inquiry into the diverse views expressed in this court may be stated as follows :
(1) Where the statute gives a finality to the orders of the special tribunals the Civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(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. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High court cannot go into that question on a revision or reference from the decision of the tribunals.
(4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) 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. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil court is not readily to be inferred unless the conditions above set down apply.
This is still a good law.
There is also Bar on filing Appeal
- 43. ESTABLISHMENT OF REAL ESTATE APPELLATE TRIBUNAL
(1) The appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notification establish an Appellate Tribunal to be known as the — (name of the State/Union territory) Real Estate Appellate Tribunal.
(2) The appropriate Government may, if it deems necessary, establish one or more benches of the Appellate Tribunal for various jurisdiction in the State or Union territory, as the case may be.
(3) Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative to Technical Member.
(4) The appropriate Government of two or more States or Union territories may, if it deems fit, establish one single Appellate Tribunal:
Provided that, until the establishment of an Appellate Tribunal under this section, the appropriate Government shall designate, by order, any Appellate Tribunal Functioning under any law for the time being in force to be the Appellate Tribunal to hear appeals under the Act:
Provided further that after the Appellate Tribunal under this section is established all matters pending with the Appellate Tribunal designated to hear appeals shall stand transferred Establishment of Central Advisory Council. Functions of Central Advisory Council to the Appellate Tribunal so established and shall be heard from the stage such appeal is transferred.
(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter:
Provided that where a promoter files an appeal with the Appellate Tribunal is shall not be entertained without the promoter first having deposited with the Appellate Tribunal at least thirty percent of the penalty or such higher percentage as may be determined by the Appellate Tribunal or the total amount to be paid to the allottee including interest and compensation imposed on him if any or with both, as the case may be before the said appeal is heard.
Explanation.— For the purpose of this sub-section “person” shall include the association of allottee or any voluntary consumer association registered under any law for the time being in force.
It is well known that in the wake of 42nd Amendment to the Constitution of India, incorporating Article 323A and 323B of the Constitution under Part XIVA, various Tribunals have been set up. The Tribunals constitute alternative institutional mechanism for dispute resolution. The declared objective of such Tribunals is inability of the existing system of courts to cope up with the volume of work. This Court has gone into the question of validity of scheme under which the High Court is bypassed without the alternative institutional mechanism being equally effective for the access to justice which was necessary component of rule of law and this Court being over burdened with routine matters in several judgments to which reference may be made
In Chandra Kumar v. Union of India, (1997) 3 SCC 261 in the course of considering the constitutional validity of exclusion of jurisdiction of the High Courts in service matters against the orders of the Central Administrative Tribunal, this Court observed that the manner in which justice is dispensed with by the Tribunals left much to be desired. The remedy of appeal to this Court from the order of the Tribunals was too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such remedy was that the docket of this Court was crowded with decisions of the Tribunals and this Court was forced to perform the role of a first appellate court. It was necessary that High Courts are able to exercise judicial superintendence over decisions of the Tribunals. With these observations this Court directed that “all” decisions of the Tribunals will be subject to High Court’s writ jurisdiction under Article 226/227[2*]. It was further observed that the then existing position of direct appeal to this Court from orders of Tribunal will stand modified
In Madras Bar Association v. Union of India, (2014) 10 SCC 1 composition of tribunals which were like courts of first instance whose decisions are amenable to challenge under Article 226/227 and which are subservient to jurisdiction of the High Court stood on a different footing from the Tribunals whose appeals were directly provided to Supreme Court. Such Tribunals were practically substitute for the High Courts. Process of selection and appointment of Chairperson and members of such Tribunals could not be different from the manner of selection of the High Court Judges
In the judgment of Gujarat Urja Vikas Nigam Ltd vs Essar Power Limited (2008) 5 SCC 755court referred to an Article by Shri T.R. Andhyarujina former Solicitor General of India, titled “Restoring the Character and Stature of the Supreme Court of India, (2013) 9 SCC (J) 43 “ learned author states that it was necessary to restore the character and stature of the Supreme Court. The jurisdiction of the Supreme Court should by and large be limited to matters of constitutional importance and matters involving substantial questions of law of general importance. The Supreme Court of India, like apex Courts in other jurisdictions, was not to be a final court to decide ordinary disputes between parties. The highest court has its unique assigned role. But after the year 1990, the Supreme Court is losing its original character and becoming a general court of appeal by entertaining and deciding cases which do not involve important constitutional issues or issues of law of national importance. The adverse effect of this trend is that matters of constitutional importance are not getting the due priority and are pending for several years. Reference has been made to the Statement of Objects for amending the Supreme Court (Number of Judges) Act, 1956 in the year 2008, to the effect that “it has not been possible for the Chief Justice of India to constitute a five-judge Bench on a regular basis to hear the cases involving interpretation of constitutional law as doing that would result in constitution of less number of Division Benches which in turn would result in delay in hearing of other civil and criminal cases”. In spite of the said amendment to increase strength of judges to 31, larger Benches to decide constitutional and important cases have not been regularly functioning. On account of increase in number of issues other than constitutional law or substantial questions of general importance, all the Benches are engaged in handling the heavy routine work. The court rooms are so crowded that it is hardly possible to enter a court room or to pass through the corridors. “No other Supreme Court presents such an undignified sight.” Further reference has been made to functioning of other Supreme/highest courts in the world to emphasize that the highest courts are engaged in deciding cases of national importance by larger benches of 9/11 judges while the Supreme Court of India is deciding most of the cases by Benches of two-judges, which has its own adverse implications. Reference has also been made to the discussion between Sir B.N. Rau, the Constitutional Advisor and Justice Frankfurter of the U.S. Supreme Court that the jurisdiction exercisable by the Supreme Court should be exercised by Full Court. It is further stated that the highest court should have limited number of cases and should not be overloaded. On an average, in a year 80 cases are decided by Supreme Court of U.K., the Canadian Supreme Court and the Australian High Court. 38 cases are decided by Constitutional Court of South Africa in a year. Supreme Court of India is deciding large number of cases and the reports in the cases sometimes run upto 19 volumes in a year with only a few cases of real constitutional or of national importance. In Australia there is no appeal to the highest court as of right and the cases are entertained only if they are of public importance. They are to resolve difference of opinion in different courts. This was necessary to preserve efficiency and standing. Reference is also made to the expert opinion that no litigant should get more than two chances in litigation. It is further stated that “The Supreme Court of India must cease to be a mere court of appeal to litigants and a daily mentor of the Government, if it is to preserve its pristine character, dignity and stature comparable to the Supreme Court in other jurisdictions.” The Article ends with observation “This requires a national debate by Judges, Lawyers, jurists and informed public.”
In Mathai alias Joby v. George, (2010) 4 SCC 358 this Court referred to the R.K. Jain Memorial Lecture delivered on 30th January, 2010 by Shri K.K. Venugopal, senior advocate to the effect that “an alarming state of affairs has developed in this Court because this Court has gradually converted itself into a mere court of appeal which has sought to correct every error which it finds in the judgments of the High Courts of the country as well as the vast number of tribunals. The court has strayed from its original character as a constitutional court and the apex court of the country. Failure to hear and dispose of cases within reasonable time erode confidence of the litigants in the apex court. Reference was made to an Article by Justice K.K. Mathew to the effect that time, attention and energy should be devoted to matters of larger public concern. Functioning of Supreme Court was not to remedy a particular litigant’s wrong, but consideration of cases involving principles of wide public or governmental interest which ought to be authoritatively declared by the final court. The docket of the court should be kept down so that its volume did not preclude wise adjudication. The matter was referred for consideration of the larger Bench for interpretation of Article 136. By the time, the matter came up for consideration of the larger Bench on 11th January, 2016, the SLP became infructuous as the suit in which the impugned interim order was passed itself had been decided. This Court while dismissing the SLP as infructuous observed that while Article 136 could be used with circumspection but its scope could not be limited.
In Justice H.R. Khanna Memorial Lecture delivered on 8th September, 2014 by Hon’ble Mr. Justice J. Chelameswar of this Court, the topic was “the Supreme Court of India, its jurisdiction and problem of arrears”. It was stated that “The law declared by the Supreme Court in Hindustan Commercial Bank Ltd. v. Bhagwan Dass AIR 1965 SC 1142 was that normally a party should approach the Supreme Court with a certificate of the High Court. Only in exceptional circumstances would the Supreme Court relax that requirement, is simply ignored. The exception has become the rule now. The result is more and more unsuccessful people getting encouraged to have another go at it by approaching the Supreme Court. In most of the cases, what is sought is a simple second or third “guess on facts” or taking another plausible view of the matter.
Coming to matters where the rights and obligations of the parties are purely founded upon a local law i.e. a law made by the legislature of a State, etc., I do not see any harm befalling the nation, if the judgment of the High Court is to become final. At least in these areas of litigation, the time worn cliché “we are not final because we are infallible, but we are infallible only because we are final” might as well be extended to the decisions of the High Courts which are equally constitutional courts.”
In Gujarat Urja Vikas Nigam Limited Vs Essar Power Limited 2016 DGLS(SC) 809 and suggested to refer this issue to Law Commission with following observation:
While there may be no lack of legislative competence with the Parliament to make provision for direct appeal to the Supreme Court from orders of Tribunals but the legislative competence is not the only parameter of constitutionality. It can hardly be gainsaid that routine appeals to the highest court may result in obstruction of the Constitutional role assigned to the highest court as observed above. This may affect the balance required to be maintained by the highest court of giving priority to cases of national importance, for which larger Benches may be required to be constituted. Routine direct appeals to the highest court in commercial litigation affecting individual parties without there being any issue of national importance may call for reconsideration at appropriate levels. Further question is composition of Tribunals as substitutes for High Courts and exclusion of High Court jurisdiction on account of direct appeals to this Court. Apart from desirability, constitutionality of such provisions may need to be gone into. We are, however, not expressing any opinion on this aspect at this stage.
In M/S.Sea Princess Realty vs Mr.Rajesh Mehta in para 73 held that, “ 73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100″. (emphasis supplied) 24] In the case of Ashok Rangnath Magar vs. Shrikant Govindrao Sangvikar, [(2015) 16 SCC 763], also in the light of the provisions contained in Section 100 CPC, and ratio laid down by the Apex Court in various authorities, it was held in paragraph No.18 as follows :-
“18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:
(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;
(ii) In cases where the High Court after hearing the appellate is satisfied that the substantial question of law is involved, it shall formulate that question and then the 909 SAST 13781 OF 2018.odt appeal shall be heard on those substantial questions of law, after giving notice and opportunity of hearing to the Respondent;
(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure”.
Similar Provision is there in Income Tax Act,1961 in Section 260A
Appeals to High Court 260A. Appeal to High Court.—(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal 4 [before the date of establishment of the National Tax Tribunal], if the High Court is satisfied that the case involves a substantial question of law. (2) [Principal Chief Commissioner or Chief Commissioner] or the [Principal Commissioner or Commissioner] or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be— (a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the 6[Principal Chief Commissioner or Chief Commissioner] or [Principal Commissioner or Commissioner]; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. [(2A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.
(5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.
(6) The High Court may determine any issue which— (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). [(7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.]
260B. Case before High Court to be heard by not less than two Judges.—(1) When an appeal has been filed before the High Court under section 260A, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (2) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall then be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.]
They took serious note of frivolous Appeal and the cost incurred by the Government in defending such Appeals. It says “Government must cease to be a compulsive litigant. The philosophy that matters should be left to the courts for ultimate decision has to be discarded. The easy approach, ‘let the court decide’, must be eschewed and condemned.”
CBDT came out with Circular following is the link