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Jurisdictional issues

Jurisdiction - basic attributes – contours of –

The significance of concept of Jurisdiction is fundamental to the existence of our operational Universe, our The Earth, the moons and various millions and billions of Planets, who move within their specified Orbit, i.e. to say, they move / rotate strictly within their “Jurisdiction”.

In legal parlance, Jurisdiction ordinarily signifies the authoritative competence of a particular court/ tribunal to adjudicate dispute presented before it. AIR 1969 SC 823; it means the authority of a court to inquire into the facts, apply the applicable law, administer the justice by means of law, and pronounce the judgment and to carry out its execution. AIR 1962 SC 1621.

However, the concept of jurisdiction is not confined in its application to Courts, but can safely be applied to every Statutory or Constitutional body, to every Public servant / instrumentality of the State, the State as contemplated under Article 12 of the Constitution.

There are three kinds of jurisdiction of courts, viz, pecuniary, territorial and jurisdiction as to subject matter.

The parties while entering into contractual / business relationship, may ascertain the place, where the Courts / Arbitration shall have the jurisdiction to adjudicate upon the disputes that may arise in the future or may be in the present, with the rider, that the place of jurisdiction of the Court so agreed, must have otherwise the jurisdiction to adjudicate upon the parties before it, independent of their contract. No parties by mere their contract. Confer jurisdiction on courts, which otherwise do not have.


Nullity of Orders of the Court – Some Instances

1.      When there is inherent lack of jurisdiction, no consent can confer jurisdiction – AIR 1954 SC 340; AIR 1978 SC 1062.

2.      A decree passed by a Court inherently lacking jurisdiction, the decree is a nullity and the said decree can be challenged even in execution proceedings – AIR 2003 SC 1475.

3.      Where the Decree is passed by a court lacking inherent (subject matter) jurisdiction – it can be challenged at any stage – (2011) 11 SCC 198 – Paras 20, 24 and even Application under Article 227 can be maintained before the High Court concerned.

4.      Distinction between illegal decree and void decree – AIR 2003 SC 3789; Illegal decree cannot be challenged in execution proceedings.


5.      Distinction between null and void Order and an illegal or irregular Order – (2008) 7 SCC 748, Paras 18, 19.

6.      Whenever jurisdiction is given by a Statute upon certain specified terms, those terms should be complied with, or else there will be inherent lack of jurisdiction – AIR 2003 SC 942 : (2003) 3 SCC 128.

7.      A restrain Order issued by a Civil Court which is a Court of general jurisdiction, cannot be ignored by a Court or tribunal of limited jurisdiction, on the ground that it is a nullity – AIR 2002 SC 3062.

8.      The principle that void Orders may have legal consequences – AIR 2000 SC 434 : (2000) 2 SCC 139.

9.      The Courts decides a jurisdictional question of fact or of law and question of fact or law which are not jurisdictional. If a question of fact or law is of former category, the tribunal though competent to inquire into that question, cannot decide it conclusively, and a wrong determination of such a question, results in making the final decision, in excess of jurisdiction. In other words, a tribunal, cannot by a wrong determination, of a jurisdictional question of fact or law, exercise a power which the legislature did not conferred upon it – AIR 1962 SC 1621. [In my view, the purport of the ruling is that – the tribunal, whilst interpreting and applying the law under which it is exercising jurisdiction, cannot grant reliefs beyond the scope of the mandate of the Statute.

10.  Lack of jurisdiction may arise in various ways – AIR 1986 SC 872 : (1986) 1 SCC 133, Pg.219;

11.  Landmark Anisminic Ltd versus Foreign Compensation Commission – (1969) 1 All ER 208.

12.  In respects of Courts of limited jurisdiction, it has been held that such courts, cannot by wrong determination of “jurisdictional question of fact” or of law”, give to themselves a jurisdiction, which they do not possess, and the ultimate decision in such cases, has been held to be Revisable by the HC, being in excess of jurisdiction – AIR 1949 PC 239; AIR 1959 SC 492; AIR 1962 SC 647; AIR 1965 SC 540, Para 16; AIR 1966 SC 1431; AIR 1970 SC 1193; AIR 1999 SC 958.

13.  A wrong determination on question of limitation or res Judicata, which results in assumption of jurisdiction, which the Court did not possess, or declining to exercise jurisdiction, which the Court possessed, would thus be the error of jurisdiction, amenable to correction u/s 115 of CPC, 1908 – AIR 1966 SC 153, Para 10; AIR 2007 SC 1491 : (2007) 4 SCC 451, Para 17.

14.  Special Acts gives much wider Revisional jurisdiction – AIR 1993 SC 1616; AIR 2000 SC 1261; AIR 2002 SC 2562;

15.  What is a jurisdictional fact – (2007) 1 SCC 732; (1985) 1 SCC 565 : AIR 1985 SC 602.

16.  Cause of action is a jurisdictional question of fact. AIR 2008 SC 187, Para 21 : (2007) 8 SCC 559.

17.  High court can set aside Order of the tribunal which is obtained by fraud, in the exercise of power as a Court of Record under Article 215 of the Constitution of India – AIR 2006 SC 3028 : (2006) 7 SCC 416.

18.  Failure to exercise jurisdiction – If a bonafide application is rejected erroneously, there is a failure to exercise jurisdiction – AIR 1973 AP 203;

19.  Cases of nullity may also arise –
a         When the tribunal has wrongly determined a jurisdictional question of fact or law;
b        When it has failed to follow the fundamental principles of judicial procedure, for example, have passed an Order without giving an opportunity of hearing to the affected party;
c         When it has violated the fundamental provisions of the Statute;
d        When it fails to take into account matters which it, is required to take into account, or when it takes into account matters which are extraneous and irrelevant;
e         When it has acted in bad faith;
f         When it grants a relief or makes an Order which it has no authority to grant or make;
g        When by misapplication of law, it has asked itself the wrong questions –
AIR 1992 SC 232;
(2006) 3 SCC 208 : AIR 2006 SC 1204;
(1997) 5 SCC 536.


20.       Jurisdictional errors / questions
(2008) 14 SCC 58 – Paras 68, 75, 77, 78, 37, 40 to 43, 47
(2009) 5 SCC 162, Paras 41, 43, 49;
(2007) 13 SCC 387, Para 10;
AIR 1957 Mad 60, Para 15 (the learned judge pointed out….)

21.       Jurisdictional facts
(2007) 8 SCC 559, Paras 27, 28, 29, 36; Basic rule is that the rights of the parties should be determined on the basis of the date of the institution of the Suit, Para42;
AIR 1955 All 569, Para 10
AIR 1954 SC 340, Para 6 (decree passed by court without jurisdiction is a nullity


22.       Territorial Jurisdiction
Concept of forum convenience – AIR 2011 Del 174, Paras 31, 32;

23.       Excess of jurisdiction – A Court acting beyond the limits of its powers, usually in one of the three ways: (i) When the Court has no power to deal with the kind of matter at issue; (ii) When the Court has no power to deal with the particular person concerned; (iii) When the judgment or order issued, is of a kind that the court has no power to issue. Error in ruling of the Court is not the same as excess of jurisdiction by the Court.

24.       Section 40, 44 of Evidence Act r/w Article 95 of Limitation Act 1908
AIR 1955 Pat 66, Paras 13, 31, 21, 22, 25, 29, 30
AIR 1955 All 569, Paras 11, 12, 14, 16, 18
Article 14 of limitation Act 1908 does not apply to void and ultra vires Orders – it does not applies where jurisdiction has been usurped and the Order is ultra vires, an Order made without jurisdiction is a nullity and need not be set aside – AIR 1924 Cal 913

25.       Carona Ltd versus Parvathi Swaminathan – (2007) 8 SCC 559 (Lack of jurisdiction of the Court)

26.       Recall of Orders / Judgments – Inherent Jurisdiction of every Court of Justice –
If the order / judgment is alleged to have been obtained by fraud – suppression of facts – misrepresentation; or in breach of principles of natural justice, or where it is brought to the notice of the Court that the Court itself has committed a mistake. Every court has inherent powers to recall such judgment /order. – S P Chengalverau versus Jagannath – (1994) 1 SCC 1; Indian Bank versus satyam Fibres – (1996) 5 SCC 550 – Paras 40, 38, 39, 26, 43, 44. Recall of HC order – (2007) 4 SCC 221 *********

In Criminal trials, if a judgment / order has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it; or where an order was obtained by abuse of the process of the court which would really amount to its being without jurisdiction, a Miscellaneous Application can be made before the Trial Court concerned for the recall such order, for the reason, that in such eventuality the order becomes a nullity and the provisions of section 362 CrPC would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. State of Punjab versus Davinder Pal Singh Bhullar – 2012 AIR SCW 207 – Para27. Other judgmenrs relied upon are – 1970 CrLJ 378; 1985 CrLJ 23; AIR 1987 Raj 83 (FB); AIR 1972 SC 1300; AIR 1981 SC 1156; (2009) 2 SCC 703; AIR 2011 SC 1232.

27.       The principle that where a specific remedy is given, it thereby deprives the person who insists upon a remedy of any other form, than that is given by the Statute; is one which is very familiar, and which runs through the law – AIR 1975 SC 2238; (1976) 2 SCC 82

28.       Justice Lord Denning, in the case of Baldwin & Francis Ltd versus Patent Appeal Tribunal [1959] AC 663, had given a wider interpretation to “error of law”. This is what he said – there are many case in the books which show that if a tribunal bases its decision on extraneous considerations which it ought not to have taken into account, or fails to take into account a vital consideration which it ought to have taken into account, then its decision may be quashed on certiorari and a mandamus issued for it to hear the case afresh. No Tribunal it is said has any jurisdiction to be influenced by extraneous consideration or to disregard vital matters.

29.       Justice Lord Denning, in the case of  Pearlman versus Governor of Harrow School, [1978] 3 WLR 736, Whenever a tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and its decision is void, because Parliament only conferred jurisdiction on the tribunal on the condition that it decided in accordance with the law.

What is to be done when Tribunal does not observe the law? The Tribunals could disregard the law, it means that.


Some other important Judgments on Jurisdiction


Harpal Singh versus State of Punjab – (2007) 13 SCC 387

At this stage it will be useful to refer to the dictionary meaning of the word 'Jurisdiction': Black's Law Dictionary: "Court's power to decide a case or issue a decree".

Words and Phrases - Legally defined - Third Edition (p.497) : "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. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by similar means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction extends."

Law Lexicon by P. Ramanatha Aiyar - 2nd Edn. Reprint 2000 : "An authority or power, which a man hath to do justice in causes of complaint brought before him (Tomlin's Law Dic.). The power to hear and determine the particular case involved; the power of a Court or a judge to entertain an action, petition, or other proceeding; the legal power of hearing and determining controversies. As applied to a particular claim or controversy, jurisdiction is the power to hear and determine the controversy."

Jurisdiction, therefore, means the authority or power to entertain, hear and decide a case and to do justice in the case and determine the controversy. In absence of jurisdiction the court has no power to hear and decide the matter and the order passed by it would be a nullity.


Budhia Swain versus Gopinath Deb – (1999) 4 SCC 396

Lack of jurisdiction. The former strikes at the every root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni V/s. Kali Nath, AIR 1962 SC 199, it was held (Para 4) :-

". . . . . . . .The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizing of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it."


Mafatlal Industries versus Union of India – (1997) 5 SCC 536 –

In the case of Dhulabhai V/s. State of M.P., after analyzing the leading decisions in the field, this court laid down the following propositions with a view to determining the extent to which the jurisdiction of civil courts can be ousted: [S.9 CPC]

(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."


Church of South India Trust Assn. versus Telugu Church Council – (1996) 2 SCC 520

Juridically speaking, the concept of jurisdiction of a Court comprehends (i) pecuniary jurisdiction, (ii) territorial jurisdiction, and (iii) jurisdiction of the subject-mater.

When Sec. 11 of the present Code talks of the competence of the Court, does it mean the competence in all the three aspects of the jurisdiction of the Court including the territorial jurisdiction of the Court? In order to answer this question, it is necessary to take note of some other provisions of the present Code which gives an indication that the present Code makes a distinction between territorial jurisdiction and other aspects of the jurisdiction of the Court.

In Sec. 21 of the present Code, it has been provided that "no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of Justice.

"Having regard to the said provision, it has been held that though the defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of subject-matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties, the policy of the Legislature has been to treat objections to territorial jurisdiction as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.

In that case, this Court has also taken note of Sec. 11 of the Suits Valuation Act, 1887, to hold that even objection as to the pecuniary jurisdiction is technical in nature and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.

To the same effect is the decision in Hiralal Patni V/s. Kali Nath (1962 (2) SCR 747 wherein it has been held that "the objection to its territorial jurisdiction is one which does not go to the competence of the Court and can, therefore, be waived."

In the context, reference may also be made to Sec. 21(A) introduced by the Code of Civil Procedure (Amendment) Act, 1976, which lays down that "no suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing."

Under sub-clause (a) of sub-sec. (1) of Sec. 24 of the Code, the High Court or the District Court can transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it or competent to try or dispose of the same. Similarly, under sub-clause (ii) of clause (b) of sub-sec. (1) of Sec. 24, the High Court or the District Court can withdraw any suit, appeal or other proceeding in any Court subordinate to it and transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same. There is near unanimity amongst the High Courts that the words "competent to try" in Sec. 24 refer to pecuniary competence of the Court only and do not comprehend the territorial aspect of jurisdiction.

In some cases, the competence of the Court for the purpose of Sec. 11 of the present Code has been construed to refer to pecuniary jurisdiction and not to territorial jurisdiction.

Reference may also be made to Sec. 13 of the present Code which relates to conclusiveness of foreign judgments. Under that Section, except in cases falling under clauses (a) to (f), a foreign judgment is conclusive as to matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title, Exception (a) denies such conclusiveness to a foreign judgment where it has not been pronounced by a Court of competent jurisdiction.

In the Code of 1882 provisions relating to conclusiveness of foreign judgments were part of the provisions regarding res judicata contained in Sec. 13 and in Explanation VI to the said Section it was prescribed that where a foreign judgment is relied on the production of the judgment duly authenticated is presumptive evidence that the Court which made it had competent jurisdiction, unless the contrary appear on the record: but such presumption may be removed by proving the want of jurisdiction.

In Babanbhat V/s. Narharbhat (1889) ILR 13 LBom 224, a Division Bench of the Bombay High Court has held that a Court of competent jurisdiction to try such subsequent suit in Sec. 13 of the Code of 1882 means the" Court having concurrent jurisdiction with the Court trying the subsequent suit, whether as regards the pecuniary limit of its jurisdiction or the subject-matter of the suit, to try it with conclusive effect."

Construing the expression "Court of competent jurisdiction" in Explanation VI to Sec. 13, the Court rejected the contention that it means the Court of jurisdiction competent to try the subsequent suit and held that such an interpretation would restrict the application of Sec. 13 in a way which could not have been intended and would deprive Explanation VI of all meaning.

In that case, the decree of the Court of a native State in respect of property situate within the jurisdiction of the native State deciding the question of adoption in favour of the plaintiff was held to operate as res judicata in a suit filed in British India in respect of property situate therein on the basis of the plaintiff being of the adopted son.

In R. Viswanathan V/s. Rukn-ul-Mulk Syed Abdul Wajid, (1963) 3 SCR 22; this Court has laid down that "Section 13 incorporates a branch of the principle of res judicata and extends it within certain limits to judgments of foreign Courts if competent in an international sense to decide the dispute between the parties.


Union of India versus Tarachand Gupta – AIR 1971 SC 1558

The principle thus is that exclusion of the jurisdiction of the civil Courts is not to be readily inferred. Such exclusion, however, is inferred where the of statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the Courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conform with the fundamental principles of judicial procedure. The word "jurisdiction" has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.


Official Trustee versus Sachindra Nath Chaterjee – AIR 1969 SC 823 –

From the above discussion it is clear that before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties. Therefore the fact that Ram, J., had jurisdiction to pass certain orders either under the Indian Trusts Act, 1882 or under the Official Trustees Act, 1913 or under the Trustees and Mortgagees Powers Act 1866 or under his inherent power is not conclusive of the matter. What is relevant is whether he had the power to grant the relief asked for in the application made by the settler. That we think is the essence of the matter. It cannot be disputed that if it is held that the learned Judge had competence to pronounce on the issue presented for his decision then the fact that he decided that issue illegally or incorrectly is wholly besides the point.


Anowar Hussain versus Ajoy Kumar Mukherjee – AIR 1965 SC 1651

In this appeal, the only question raised is that in ordering the arrest of the respondent the appellant acted in discharge of his judicial duties, and he was on that account protected by the Judicial Officers' Protection Act, 1850. sec. 1 of the Act, in so far as it is material provided :

"No Judge, Magistrate, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of;. ".

The statute is clearly intended to grant protection to Judicial Officers against suits in respect of acts done or ordered to be done by them in discharge of their duties as such officers. The statute, it must be noticed, protects a Judicial Officer only when he is acting in his judicial capacity and not in any other capacity. But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the discharge of judicial duties is within his jurisdiction, the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, irregularly or even illegally, or was done or ordered without believing in goods faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act complained of, he in good faith believed himself to have jurisdiction to do or order the act. The expression "jurisdiction" does not mean the power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter: Tayen V/s. Ram Lal, ILR 12 All 115.


CIT versus Pearl Mech Engineering & Foundry Works (P) Ltd – AIR 2004 SC 2345

The word "jurisdiction" implies the court or tribunal with judicial power to hear and determine a cause, and such tribunal cannot exist except by authority of law. Jurisdiction always emanates directly and immediately from the law; it is a power which nobody on whom the law has not conferred it can exercise. In other words, "jurisdiction" has reference to the power of the court or tribunal over the subject matter, over the res or property in contest, and to the authority of the court to render the judgment or decree it assumes to make. It is in this sense that the publication of the notice in the official gazette confers jurisdiction on the competent authority to take proceedings for acquisition of immovable properties under Chapter XXA of the Act. The service of notice under sub-sec. (2) of section 269D upon the transferor and transferee meets the requirement of natural justice so that they may file objections in writing against the action which is proposed to be taken, namely for acquisition of property. Any error or mistake committed in the service of the notice does not in any manner affect the jurisdiction conferred upon the competent authority to take proceedings for acquisition of property. The service of notice prior to the publication in the official gazette is merely an irregularity committed during the course of the proceedings and cannot have the effect of nullifying the entire proceedings which are validly commenced by publication in the official gazette. In fact, no prejudice is occasioned to the transferor or transferee by service upon them of the notice prior to the publication of the gazette. We are, therefore, of the opinion that prior service of notice under sub-sec. (2) of section 269D is at best an irregularity but it cannot have the effect of rendering the proceedings either illegal or without jurisdiction.


Nawab Shaqufat Ali Khan versus Nawab Imdad Jah Bahadur – (2009) 5 SCC 162 – Maintainability of civil revision –

A civil revision application although must necessarily having regard to the terminologies used in Sec. 115 of the Code of Civil Procedure involve the question of jurisdiction, the question which would arise is as to what are the jurisdictional questions.

A jurisdictional question may arise not only when a court acts wholly without jurisdiction but also in a case where jurisdictional errors are committed while exercising jurisdiction.

There are various facets of `jurisdictional errors'. Taking into consideration any irrelevant fact or non-consideration of a relevant fact would involve jurisdictional issue. This aspect of the matter has also been considered in Ajantha Transports (P) Ltd., Combatore V/s. M/s. T.V.K. Transports, Pulampatti, Combatore District, 1975 1 SCC 55 in the following terms:

"27. Relevancy or otherwise of one or more grounds of grant or refusal of a permit could be a jurisdictional matter. A grant or its refusal on totally irrelevant grounds would be ultra vires or a case of excess of power. If a ground which is irrelevant is taken into account with others which are relevant, or, a relevant ground, which exists, is unjustifiably ignored, it could be said to be a case of exercise of power u/s. 47 of the Act, which is quasi-judicial, in a manner which suffers from a material irregularity. Both will be covered by Sec. 115 of the Civil Procedure Code."

It is not correct to contend that even if the revisional jurisdiction is not available, a remedy in terms of Articles 226 and 227 of the Constitution of India would also not be available in law. This aspect of the matter has been considered by this Court in Surya Dev Rai V/s. Ram Chander Rai and Others, 2003 6 SCC 675 opining that not only the High Court can exercise its supervisory jurisdiction for the purpose of keeping the subordinate courts within the bounds of its jurisdiction as envisaged under Article 227 of the Constitution of India; even a writ of certiorari can be issued wherefor the subordinate or inferior courts would be amenable to the superior courts exercising power of judicial review in terms of Article 226 thereof.

Strong reliance has been placed by Mr. Rao on a decision of this Court in Taherakhatoon (supra) wherein it was opined that the discretionary jurisdiction of this Court under Article 136 of the Constitution of India can be denied even after grant of leave unless exceptional and special circumstances exist that substantial and grave injustice has been done. It was held:

"20. In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error -- still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion..."

There is another aspect of the matter which cannot also be lost sight of. Applications were filed before the District Court also under Ss. 56 and 61 of the Indian Trusts Act praying for issuance of directions to the trustees. Such directions if issued ordinarily would be binding on them. The trustees, therefore, would be entitled to take recourse to a remedy available before a superior court, if they are aggrieved by such direction. If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other conditions, could even convert a revision application or a writ petition into an appeal or vice- versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out.

Furthermore, this trust deed is not an ordinary one. It is a part of a statute. In the case of a wrong interpretation of a statute relating to jurisdiction of a court enabling it to issue a direction, it would amount to a jurisdiction error. In that sense, the courts were required to exercise their jurisdiction with more care and caution.


Ramesh Chandra Sankla versus Vikram Cement – (2008) 14 SCC 58

A 'jurisdictional fact' is one on existence of which depends jurisdiction of a Court, Tribunal or an Authority. If the jurisdictional fact does not exist, the Court or Tribunal cannot act. If an inferior Court or Tribunal wrongly assumes the existence of such fact, a writ of certiorari lies. The underlying principle is that by erroneously assuming existence of jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not possess.

The counsel referred to a recent decision of this Court in Arun Kumar V/s. Union of India, 2007 1 SCC 732. Speaking for the Court, one of us (C.K. Thakker, J.) observed:

"A 'jurisdictional fact' is a fact which must exist before a Court, Tribunal or an Authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a Court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not posses".

It was further observed:

"The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a court of limited jurisdiction".

Drawing the distinction between 'jurisdictional fact' and 'adjudicatory fact', the Court stated:

"[I]t is clear that existence of 'jurisdictional fact' is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on existence of 'jurisdictional fact', it can decide the 'fact in issue' or 'adjudicatory fact'. A wrong decision on 'fact in issue' or on 'adjudicatory fact' would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present".

The principle was reiterated in Carona Ltd. V/s. Parvathi Swaminathan & Ors., 2007 1 SCC 559.

The learned counsel for the workmen, on the other hand, supported the view taken by the Courts below. He submitted that the issues sought to be raised by the Company are mixed issues of law and fact. It is the allegation of the workmen that they had not voluntarily accepted the scheme but they were compelled to accept it under duress and coercion. Moreover, it is their case in the claim petitions that they were not paid full amount even under the scheme. They, therefore, did not cease to be workmen of the Company and the relationship of master and servant between the parties continued. If it is so, an action not allowing them to work would amount to termination of service or removal from employment. In that eventuality, remedy u/s. 31 of the Act is available and accordingly they had filed claim petitions. The question will have to be decided by the Labour Court on the evidence adduced by the parties and the issue as to maintainability cannot be decided in isolation and as preliminary issue as suggested by the Company.


Shrisht Dhawan vesus Shaw Bros – AIR 1992 SC 1555
What, then, is an error in respect of jurisdictional fact? A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority.

In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case.

Mistake of fact in relation to jurisdiction is an error of jurisdictional fact.

No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends, the court or tribunal exercises the jurisdiction then the order is vitiated.

Error of jurisdictional fact renders the order ultra vires and bad.

In Raza Textiles it was held that a court or tribunal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrongly.

What are those facts which can be said to be jurisdictional fact under sec. 21?

Although the section visualizes four a conditions, namely, that the landlord does not require the whole or part of premises for a particular period, the landlord must obtain the permission of the Controller in the prescribed manner, letting of the whole or part of the premises must be for residence and such letting must be for such period as may be agreed between the landlord and the tenant in writing.

But the jurisdictional fact can be said to be two, availability of vacant premises which are not required by the landlord for the particular period and its letting out for residential purpose.

For instance a permission obtained under sec. 21 may be vitiated if the premises were not vacant on the date of application. Similarly if the permission is obtained in respect of non-residential premises.

What is significant is that the declaration by the landlord that the premises were available for letting out for short period is not required to be backed by any reason. And an application filed under sec. 21 with or without reasons is neither bad nor contrary to law. It may be accompanied by statement of reasons or the application may merely state that the landlord does not require the premises for the period mentioned therein. In either case the application shall be in accordance with law. And if the Controller is satisfied that what was stated was correct he is obliged to grant permission. This satisfaction may be arrived at by believing the statement or requiring a landlord to give reasons or furnish such information as the Controller may consider necessary to satisfy himself that the statement made by landlord was correct. But once satisfaction is arrived at and the order is passed it becomes operative and final. It cannot be reopened because of mere mistake or error or in the circumstances a more reasonable approach should have been to reject the application or allow it after obtaining better details. Error in assumption of jurisdiction should not be confused with mistake, legal or factual in exercise of jurisdiction.
In the former the order is void whereas in the latter it is final unless set aside by higher or competent court or authority. An order which is void can be challenged at any time in any proceeding.

A permission granted under sec. 21 once permitted to attain finality becomes unassailable on error in exercise of jurisdiction. It could be challenged later or in execution only if it could be brought in the category of a void or ultra vires permission. Such invalidity can arise if jurisdiction is exercised by misrepresentation of facts either about existence of vacancy or nature of premises.

In other words what attains finality in accordance with law cannot be permitted to be re-agitated or reopened except in the larger social interest of preventing a person from practising deceit.

Therefore an error of jurisdictional fact which could entitle a Controller to re-examine the matter in the context of sec. 21 is the same, namely, fraud or collusion. Ratio in a Noronah to this extent was reiterated and accepted as correct exposition of law in Shiv Chander Kapoor. It has to be understood as such.

Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Sec. 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representation about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case what constitutes fraud was described thus:

"Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false."

But fraud in public law is not the same as fraud in private law. Nor can the ingredients which establish fraud in commercial transaction be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja that it is dangerous to introduce maxims of common law as to effect of fraud while determining fraud in relation to statutory law.

In Pankaj Bhargava it was observed that fraud in relation to statute must be a colourable transaction to evade the provisions of a statute. "If a statute has been passed for some one particular a purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. "

Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations.

The colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised.

That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions nondisclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain." In public law the duty is not to deceive.

For instance non-disclosure of any reason in the application under sec. 21 of the Act about its need after expiry of period or failure to give reason that the premises shall be required by son, daughter or any other family member does not result in misrepresentation or fraud. It is not misrepresentation under sec. 21 to state that the premises shall be needed by the landlord after expiry of the lease even though the premises in occupation of the landlord on the date of application or, after expiry of period were or may be sufficient. A non-disclosure of fact which is not required by law to be disclosed does not amount to misrepresentation. sec. 21 does not place any positive or comprehensive duty on the landlord to disclose any fact except that he did not need the premises for the specified period. Even the Controller is not obliged with a pro-active duty to investigate. Silence or non-disclosure of facts not required by law to be disclosed does not amount to misrepresentation. Even in contracts it is excluded as is clear from explanation to sec. 17 unless it relates to fact which is likely to affect willingness of a person to enter into a contract. Fraud or misrepresentation resulting in vitiation of permission in context of sec. 21 therefore could mean disclosure of false facts but for which the Controller would not have exercised jurisdiction.


Carona Ltd versus Parvathy Swaminathan & Sons – (2007) 8 SCC 559

Stated simply, the fact or facts upon which the jurisdiction of a Court, a Tribunal or an Authority depends can be said to be a 'jurisdictional fact'. If the jurisdictional fact exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist, a Court, Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not posses.

In Halsbury's Laws of England, (4th Edn.), Vol.1, para 55, p.61; Reissue, Vol.1(1), para 68, pp.114- 15, it has been stated:

"Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive".

The existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a Court or Tribunal.

But there is distinction between 'jurisdictional fact' and 'adjudicatory fact' which cannot be ignored. An 'adjudicatory fact' is a 'fact in issue' and can be determined by a Court, Tribunal or Authority on 'merits', on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish 'jurisdictional fact' and 'fact in issue' or 'adjudicatory fact'. Nonetheless the difference between the two cannot be overlooked.

In Halsbury's Laws of England, (4th Edn.), Vol.1, para 55, p.61; Reissue, Vol.1(1), para 68, pp.114- 15, it is stated:

"There is often great difficulty in determining whether a matter is collateral to the merits or goes to the merits. The distinction may still be important; for an erroneous decision on the merits of the case will be unimpeachable unless an error of law is apparent on the face of the record of the determination or unless a right of appeal lies to a court in respect of the matter alleged to have been erroneously determined. An error of law or fact on an issue collateral to the merits may be impugned on an application for an order of certiorari to quash the decision or in any other appropriate form of proceedings, including indirect or collateral proceedings. Affidavit evidence is admissible on a disputed issue of jurisdictional fact, although the superior courts are reluctant to make an independent determination of an issue of fact on which there was a conflict of evidence before the inferior tribunal or which has been found by an inspector after a local inquiry".

It is thus clear that for assumption of jurisdiction by a Court or a Tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the Court or Tribunal has power to decide adjudicatory facts or facts in issue.


National Thermal Power Corporation versus Siemens – (2007) 4 SCC 451

In the larger sense, any refusal to go into the merits of a claim may be in the realm of jurisdiction. Even the dismissal of the claim as barred by limitation may in a sense touch on the jurisdiction of the court or Tribunal. When a claim is dismissed on the ground of it being barred by limitation, it will be, in a sense, a case of the court or Tribunal refusing to exercise jurisdiction to go into the merits of the claim.

In Pandurang Dhoni Chougule V/s. Maruti Hari Jadhav, 1966 1 SCR 102, this Court observed that:

"It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S. 115 of the Code."

In a particular sense, therefore, any declining to go into the merits of a claim could be said to be a case of refusal to exercise jurisdiction.

The expression 'jurisdiction' is a word of many hues. Its colour is to be discerned from the setting in which it is used. When we look at Sec. 16 of the Act, we find that the said provision is one, which deals with the competence of the Arbitral Tribunal to rule on its own jurisdiction.

SBP & Co. V/s. Patel Engineering Ltd. & Anr., 2005 8 SCC 618 in a sense confined the operation of Sec. 16 to cases where the Arbitral Tribunal was constituted at the instance of the parties to the contract, without reference to the Chief Justice u/s. 11(6) of the Act.

In a case where the parties had thus constituted the Arbitral Tribunal without recourse to Sec. 11(6) of the Act, they still have the right to question the jurisdiction of the Arbitral Tribunal including the right to invite a ruling on any objection with respect to the existence or validity of the arbitration agreement.

It could therefore rule that there existed no arbitration agreement, that the arbitration agreement was not valid, or that the arbitration agreement did not confer jurisdiction on the Tribunal to adjudicate upon the particular claim that is put forward before it.

Under sub-sec. (5), it has the obligation to decide the plea and where it rejects the plea, it could continue with the arbitral proceedings and make the award.

Under sub-sec. (6), a party aggrieved by such an arbitral award may make an application for setting aside such arbitral award in accordance with Sec. 34.

In other words, in the challenge to the award, the party aggrieved could raise the contention that the Tribunal had no jurisdiction to pass it or that it had exceeded its authority, in passing it. This happens when the Tribunal proceeds to pass an award.

It is in the context of the various sub-sections of Sec. 16 that one has to understand the content of the expression 'jurisdiction' and the scope of the appeal provision. In a case where the Arbitral Tribunal proceeds to pass an award after overruling the objection relating to jurisdiction, it is clear from sub-sec. (6) of Sec. 16 that the parties have to resort to Sec. 34 of the Act to get rid of that award, if possible. But, if the Tribunal declines jurisdiction or declines to pass an award and dismisses the arbitral proceedings, the party aggrieved is not without a remedy. Section 37 (2) deals with such a situation. Where the plea of absence of jurisdiction or a claim being in excess of jurisdiction is accepted by the Arbitral Tribunal and it refuses to go into the merits of the claim by declining jurisdiction, a direct appeal is provided. In the context of Sec. 16 and the specific wording of Sec. 37(2)(a) of the Act, it would be appropriate to hold that what is made directly appealable by Sec. 37(2)(a) of the Act is only an acceptance of a plea of absence of jurisdiction, or of excessive exercise of jurisdiction and the refusal to proceed further either wholly or partly.


Jurisdiction - Waiver - Acquiescence - Estoppel

Contract ousting jurisdiction using word “Only”, in a Suit based on Bills of Exchange, cause of action being independent, ouster clause would not apply – 2001 AIHC 3724, 3725, 3726 (Cal).

Jurisdiction – acquiescence to – (2011) 12 SCC 632

Submitting to jurisdiction of an authority – waived your right to object – estoppel – cause and effect – (2011) 2 SCC 654


Section 20 of CPC
Om Prakash Srivastava Vs. UOI & Anr 2006 6 SCC 207




Sandeep Jalan

Advocate

https://vakeelkanumber.com/

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