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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