Presumptions against repeal by implications essay

The parties to a dispute can neither create by mutual consent jurisdiction of a court to try their dispute nor can they take it away by mutual consent if in fact a court is vested with jurisdiction in the matter.

Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals. 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 the liability and further lays down that all questions about the said right and liability shall be determined by tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

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

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When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other is likely to assist the achievement of the said policy, then the courts would prefer to adopt the latter construction.

Since jurisdiction is bestowed in a court by legislation, legislation alone can take away the same. The superior court can in a proper case exercise its jurisdiction even in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal, for example, by furnishing security required by the statute, when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fairly or the inferior court or tribunal acts wholly without jurisdiction or patently in excess of jurisdiction.

Where the state gives finality to the orders of the special tribunals the jurisdiction of the civil court must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit.

This case was followed in holding that for wrongs created by the Act the only remedy is what is provided in the Act. Questions of the correctness of the assessment apart from its constitutionalties are the decisions 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 inquiry.

An exclusion of the jurisdiction of the civil court is not to be readily inferred unless the conditions above set down apply.

The rule that the exclusion of jurisdiction of civil courts is not to be readily inferred is based on the theory that civil courts are courts of general jurisdiction and the people have a right, unless expressly or implicitly debarred, to insist for free access to the courts of general jurisdiction of the State.

There is a strong presumption that civil courts have jurisdiction to decide all questions of civil nature. The exclusion of jurisdiction of civil courts is therefore not to be readily inferred and such exclusion must either be explicitly expressed or clearly implied. The Supreme Court stated that the first and the primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself.

The presumption is that since the legislature ordinarily does not intend that justice should be out of bounds for the subjects, the courts must be presumed to have jurisdiction unless the legislature by clear words or by clear necessary implications have ousted jurisdiction.

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 amendment becomes necessary and the result of the inquiry may be decisive.

The Supreme Court has held the jurisdiction of the Court was not excluded and laid down the following principles: 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.

There is a strong presumption that a statute should not be given such an interpretation as takes away the jurisdiction of the courts unless the language of the statute unambiguously so states.

Mutual consent of parties, however, can create an arbitrator and the arbitrator may be a judge also. Where a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open.

It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purposes, to remedy and correct. The Supreme Court has held that if an industrial dispute relates to the enforcement of a right or an obligation created under the Act then the only remedy available to the suit is to get an adjudication under the Act.

The words used in the material provisions of the statue must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy, or object of the Act can legitimately arise.

As a necessary corollary of this rule, provisions excluding jurisdiction of civil courts and provisions conferring jurisdiction on authorities and tribunals other than civil courts are strictly construed. Indeed, the principle is not limited to civil courts alone, but applies to all courts of general jurisdiction including criminal courts.

But the rule against exclusion of jurisdiction of courts like other rules of construction is attached only where two or more reasonably possible construction are open on the language of the statute and not where the legislative intent is plain and manifest to oust the jurisdiction.

The Industrial Disputes Act, also furnishes an example of an Act which creates new rights and obligations and provides machinery for adjudication of disputes pertaining to them. 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.

Where the particular Act contains no machinery for refund of tax collected in excess of the constitutional limits or illegally collected, a suit lies. It is a principle by no means to be whittled down and has been referred to as a fundamental rule. If the word used are capable of one construction only then it would not been open for the courts to adopt any other hypothetical construction on the ground that such a construction is more consistent with the alleged object and policy of the Act.

Exclusion of jurisdiction of ordinary criminal courts can be brought about by setting up courts of limited jurisdiction in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative and there is an adequate machinery for the exercise of the limited jurisdiction.Here we've compiled a list matching the top essays in our database against "practical research essays".

each investigator is to start with certain assumptions and presumptions, which subsequent study may prove and disapprove. These are called hypothesis.

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Presumptions Against Repeal by Implications Essay by jrsappire, April download word file, 16 pages download word file, 16 pages 3 votes 1 reviews5/5(1). Sep 22,  · PRESUMPTION REGARDING JURISDICTION legislature by clear words or by clear necessary implications have ousted jurisdiction.

Since jurisdiction is bestowed in a court by legislation, legislation alone can take away REPEAL OF A STATUTE: COMMENCEMENT OF A STATUTE; EXPRESIO UNIUS EXCLUSION ALTERIUS.

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Presumptions against repeal by implications essay
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