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Shankar and ors. Vs. Dy. Director of Consolidation, U.P., Lucknow and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 169 of 1966
Judge
Reported inAIR1968All407
ActsConstitution of India - Article 226
AppellantShankar and ors.
RespondentDy. Director of Consolidation, U.P., Lucknow and ors.
Appellant AdvocateHargur Charan Srivastava, Adv.
Respondent AdvocateK.N. Misra, Adv.
DispositionAppeal dismissed
Excerpt:
.....no jurisdiction at all and, therefore, failure to object to the jurisdiction will not clothe the tribunal with jurisdiction. but it does not assist in deciding the question if or not the discretionary relief under article 226 of the constitution may be refused even though founded on a plea of lack of jurisdiction for the reason that the party seeking the relief having failed to raise it before the subordinate tribunal and further having failed to make out any good and sufficient cause for his aforesaid failure was precluded from raising it in the writ petition for the first time. ordinarily if we were satisfied that the high court had no jurisdiction at all to interfere we would have allowed this question to be raised even at this late stage. now if this point had been raised before..........lordships proceed in the very next sentence:'it was not until the decision of the high court in writ appeal no. 107 of 1955 that it became the considered view of that court that the regional transport officer had no jurisdiction to make any such variation. when the law was so declared by the high court it could not reasonably be said that the high court erred in allowing the respondent to take this point, although in its petition under article 226 the point had not been taken. this was obviously because the decision of the high court in writ appeal no. 107 of 1955 had not been given at the time of the filing of the petition. since the question went to the root of the matter and it involved the question whether the regional transport officer had jurisdiction to vary the conditions of a.....
Judgment:

Lakshmi Prasad, J.

1. This special appeal is directed against the order dated 6-7-1966 by which our brother Jagdish Sahai dismissed the appellants' petition under Article 226 of the Constitution.

2. The appellants preferred an objection under Section 9 U. P. Consolidation of Holdings Act which was decided in their favour by the Consolidation Officer by his order dated 15-5-1964. Respondents Nos. 3 to 5 preferred an appeal from that order of the Consolidation Officer and the same was dismissed on 20-6-1964 by an Assistant Settlement Officer (Consolidation). Even though the provisions of the Act as it stood prior to its amendment by U P. Act VIII of 1963 applied to the case and as such a second appeal should have been preferred from the order dated 20-6-1964, respondents Nos. 3 to 6 preferred a revision and the same was allowed by a Deputy Director. Aggrieved by the order passed in revision the appellants approached this court by a petition under Article 226 praying for the quashing of the order dated 5-1-1965 passed by respondent No. 1 mainly on the ground that it was passed without jurisdiction.

3. The petition was opposed by respondent No. 4 on whose behalf a counter affidavit was filed. One of the pleas taken in the counter affidavit was that the appellants having failed to raise the plea of want of jurisdiction before respondent No. 1 were not entitled to the discretionary relief of writ under Article 226 of the Constitution by raisins that plea for the first time in this Court This plea found favour with the learned Single Judge who accordingly dismissed the petition. Hence the petitioners have come up in appeal.

4. We have heard the learned counsel for the parties at some length. The main contention of the learned counsel for the appellants is that the learned Single Judge erred in holding that a plea, even though it went to the root of the matter on the basis of the lack of jurisdiction, could not be taken for the first time in a petition under Article 226 of the Constitution if not taken before the authority concerned. A perusal of the judgment under appeal shows that the learned Single Judge did not attempt to lay down any such broad proposition of law. What he says is that the fact that the appellants did not raise the plea of want of jurisdiction before the Deputy Director is admitted and as such he is not prepared to hear the appellants in respect of that point in the writ petition. In support of his stand he places reliance on Pannalal Binjrai v. Union of India : [1957]1SCR233 and Kailash Nath v. Registrar Co-operative Society, U. P., : AIR1960All294 . So the real point to be seen is if or not the learned Single Judge exercised his discretion in the matter properly by not allowing the appellants to raise the plea of want of jurisdiction in the writ petition because of their having failed to raise it before the Deputy Director. However, before coming to that question cases cited by the learned counsel for the appellants may be examined.

5. The case of Superintendent of Police, Mirzapur v. Ram Murat Singh : AIR1959All710 was decided by a Division Bench of this Court. What is held in this case is that the fact that the petitioner has not raised the question of jurisdiction before the subordinate tribunal is not necessarily a bar to the objection being taken for the first time in a writ petition and the question in such a case will be whether he has by his conduct precluded himself from obtaining the relief which he asks. In paragraph 5 of the report it is said:

'It is however a very salutary rule... ... .that a petitioner must show that he has taken his objection to jurisdiction before the tribunal whose order he is seeking to have quashed or state in his affidavit that he had no knowledge of the facts which would enable him to do so'.

6. The case of Badridass Kanhaiyalal v. Appellate Tribunal of State Transport Authority, Rajasthan, AIR 1960 Raj 105 was decided by a Division Bench. As appears from the head note it was held in that case that where an objection goes to the root of the jurisdiction of the authority rendering its decision a nullity no walver or consent can confer jurisdiction on the authority. In such a case objection can be raised for the first time in the writ petition against the decision of the authority even though it was not raised before the authority. It may not be possible to quarrel with this statement of law but it is difficult to see as to how it assists the appellants. This case is clearly distinguishable in so far as the decision under appeal proceeds not on the basis that a plea relating to patent lack of jurisdiction if not taken before the authority concerned cannot be taken in the writ petition for the first time. On the other hand it proceeds on the basis that having regard to the facts of the case the appellants must be taken to be precluded from raising the plea of want of jurisdiction because of their having failed to raise it before the Deputy Director.

7. In the case of Arunachalam Pillai v. Southern Roadways Ltd. : [1960]3SCR764 :

'In our opinion, although the respondent had submitted to the jurisdiction of the Regional Transport Officer and had not in his petition under Article 226 in the High Court taken the objection that that officer had no jurisdiction to vary the conditions of a permit, the High Court acted rightly in allowing the respondent to urge that the Regional Transport Officer had no jurisdiction to vary the conditions of a permit'. Learned counsel for the appellants places reliance on the above cited observation in support of his appeal. These observations may appear to lend support to the contention of the learned counsel if considered bereft of what is said in the following sentences in the same paragraph. After making the aforesaid observations their Lordships proceed in the very next sentence:'It was not until the decision of the High Court in Writ Appeal No. 107 of 1955 that it became the considered view of that Court that the Regional Transport Officer had no jurisdiction to make any such variation. When the law was so declared by the High Court it could not reasonably be said that the High Court erred in allowing the respondent to take this point, although in its petition under Article 226 the point had not been taken. This was obviously because the decision of the High Court in Writ Appeal No. 107 of 1955 had not been given at the time of the filing of the petition. Since the question went to the root of the matter and it involved the question whether the Regional Transport Officer had jurisdiction to vary the conditions of a permit the High Court faced with a Division Bench decision of its own on the matter, could not very well refuse permission to the respondent to rely on that decision in support of its petition questioning the validity of the order of the Government of Madras made under Section 64-A of the Act.'

It is amply clear from the foregoing observations that the observations relied on by the learned counsel came to be made in the peculiar circumstances of the case indicated in the foregoing observations. However as already indicated it is not possible to maintain as a cut and dry proposition of law that a plea of patent lack of jurisdiction can in no circumstance be permitted for the first time in a writ petition if not taken before the subordinate authority. Learned Single Judge has not attempted any such proposition of law in the judgment under appeal.

8. In the case of Shree Shew Sakti Oil Mills Ltd. v. Judge, Second Industrial Tribunal : (1961)IILLJ36Cal :

'On the well-known authorities both of the Privy Council and of the Supreme Court... it is clear that consent will not create jurisdiction. In this case, there was no jurisdiction at all and, therefore, failure to object to the jurisdiction will not clothe the Tribunal with jurisdiction.'

The proposition laid down in the foregoing observations cannot possibly be disputed. But it does not assist in deciding the question if or not the discretionary relief under Article 226 of the Constitution may be refused even though founded on a plea of lack of jurisdiction for the reason that the party seeking the relief having failed to raise it before the subordinate tribunal and further having failed to make out any good and sufficient cause for his aforesaid failure was precluded from raising it in the writ petition for the first time. In the case of Pioneer Traders v. Chief Controller of Imports and Exports. Pondicherry : 1983(13)ELT1376(SC) :

'Where an authority whether judicial or quasi-judicial has in law no jurisdiction to make an order, the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction'.

These observations also do not appear to assist the appellants for the reasons indicated just in the foregoing paragraph.

9. In the case of Har Prasad v. Deputy Director of Consolidation, Mathura 1966 All LJ 123 a learned single judge of this Court has held that a ground raising a question which goes to the root of the matter as to jurisdiction of power of an authority, whose acts or orders have been brought before the High Court in a petition under Article 226 of the Constitution, can be allowed to be raised if it otherwise, does not require any further enquiry and no prejudice if caused to the opposite parties at the hearing. It may be so. But that itself does not imply that a party seeking relief under Article 226 of the Constitution can always insist on such a plea being allowed to be raised for the first time in a writ petition, which in fact is the contention of the learned counsel for the appellants.

10. In the case of Cantonment Board, Ambala v. Pyare Lal : 1966CriLJ93 the material observations which occur in paragraph 3 of the report on pages 109 and 110 are:

'The question as to the jurisdiction of the Sessions Judge and High Court was never raised before the appeal in this Court... .The case cited on behalf of the appellant certainly supports the contention put forward; but in the circumstances of this case we are not prepared to allow this contention to be raised at this stage. It is true that a question of jurisdiction not depending on facts to be investigated, can be allowed to be raised at any stage. Ordinarily if we were satisfied that the High Court had no jurisdiction at all to interfere we would have allowed this question to be raised even at this late stage. But we are of opinion that though the High Court may not have jurisdiction to interfere under Sections 435/439 Code of Criminal Procedure it could certainly interfere with the order of the Magistrate under Article 227 of the Constitution. Now if this point had been raised before the High Court it may very well be that the High Court might have considered the reference as if it was an application before it under Article 227 of the Constitution, in which case the High Court would have jurisdiction to interfere with the order of the Magistrate, if it came to the conclusion that the Magistrate had no jurisdiction in such circumstances under Section 259 of the Act. In these circumstances we are not prepared to permit the appellant to raise this point before us at this late stage'.

As shall be indicated hereafter at the appropriate stage, these observations far from assisting the appellants, appear to be helpful to the respondents.

11. Now the question indicated above which alone appears to arise in this special appeal may be examined with reference to the authorities cited by the learned counsel for the respondents.

12. In the Case of Latchmanan Chettiar v. Commissioner, Corporation of Madras, AIR 1927 Mad 130 (FB) the Full Bench ruled that if the applicant who armed with a point either of law or of fact could oust the jurisdiction of the lower court, has elected to argue a case on its merits before that court, he must be taken to have submitted himself to a jurisdiction which he cannot be allowed afterwards to seek to repudiate by applying for a certiorari. This the Court held on the reasoning that in the matter of issuing a writ of certiorari the High Court acts not under statute but under the inherent powers which devolve upon it from the old Supreme Court and the High Court therefore stands with regard to prerogative writs in the same position as the Court of King's Bench in England and it ought to follow the rules laid down by that Court.

13. In the case of Basant Singh v. Janak Singh : AIR1954All447 a Division Bench of this Court held:

'When the Additional District Magistrate heard the revision, the applicant did not challenge his jurisdiction to hear it. If he had no jurisdiction to hear the revision application his jurisdiction ought to have been challenged there and then by the applicant. When he failed to challenge it, he cannot be permitted to challenge it for the first time through an application for a writ of certiorari.... .If he acquiesced in the Additional District Magistrate's jurisdiction in the hope of getting a favourable decision from him the doctrine of estoppel should be applied against him and the discretionary writ of certiorari should not be issued at his instance when he is disappointed.'

14. In the case of Gandhinagar Motor Transport Society v. State of Bombay : AIR1954Bom202 a Division Bench of the Bombay High Court held that before a question of jurisdiction of a tribunal is raised in a petition under Articles 226 and 227, objection to Jurisdiction must be taken before the tribunal whose order is being challenged. The discussion appears in paragraph 4 of the report. Material observations are:

'Now, as we shall presently point out, the English Courts have taken the view, and in our opinion rightly, that before a question of jurisdiction is raised on a petition, objection to jurisdiction must be taken before the tribunal whose order is being challenged. It is not as if by the petitioner not challenging the jurisdiction of the tribunal that he confers jurisdiction upon that tribunal if that tribunal has no jurisdiction. But what the English Courts have said is that the High Court has been asked to exercise a special jurisdiction, not an ordinary jurisdiction and the High Court is entitled to know what the tribunal has to say on the question of jurisdiction which the petitioner wants to agitate before the Court. There is another principle underlying this view, and that is that the tribunal which is brought before the Court should itself be given an opportunity to decide that it has no jurisdiction, before the High Court is called upon to give its decision.'

Reliance in this case is placed on the decision in Rex v. Williams, (1914) 1 KB 608. The relevant observations reproduced from that English case which occur in paragraph 5 of the report are:

'. . .A party may by his conduct preclude himself from claiming the writ 'ex debito justitiae' no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the courts act in granting or refusing the writ of certiorari. This special remedy will not be granted 'ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relied to impugn them'.

15. In the case of : [1957]1SCR233 it is held that where none of the petitioners raised any objection to their cases being transferred under Section 5(7-A) of the Income-tax Act, and in fact admitted to the jurisdiction of the Income Tax Officers to whom their cases had been transferred, the petitioners were not entitled to invoke the jurisdiction of the Supreme Court under Article 32, as it is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of the Supreme Court.

16. In the case of Manak Lal v. Dr. Prem Chand Singhvi : [1957]1SCR575 the Supreme Court ruled that on the facts and circumstances of the case the appellant knew the material facts and must be deemed to have been conscious of his legal rights in that matter and therefore his deliberate failure to raise the objection to the constitution of the tribunal on ground of bias before the tribunal at the earlier stage of the proceedings created an effective bar of waiver against him and he was precluded from raising it before the High Court for the first time. It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report he adopted the device of raising the present technical point.

17. In the case of Swami Motor Transports (P) Ltd. Tanjore. v. Raman and Raman (P) Ltd., Kumbakonam : AIR1965Mad321 a learned Single Judge following the Full Bench decision of this High Court in AIR 1927 Mad 130 referred to above held that objection cannot be permitted in proceedings to obtain writ of certiorari either on the ground of acquiescence or from the stand point of certiorari.

18. In the case of Babu v. Dist. Deputy Director of Consolidation, 1986 R. D. 90 (HC) a learned Single Judge of this Court held that where the point that the District Deputy Director of Consolidation has no jurisdiction to hear the revision was not at all taken up before the District Deputy Director of Consolidation and therefore, the petitioner submitted to his jurisdiction, it is not open to him to raise the point in writ petition that he had no jurisdiction to hear the application in revision.

19. From an examination of the various cases discussed above it seems well settled that though there is no absolute bar against a plea going to the root of the matter being allowed to be raised for the first time in a petition under Article 226 of the Constitution, in appropriate circumstances, the Court may refuse to permit such a point being raised for the first time in a writ petition on the ground that having regard to the facts and circumstances of the case the petitioner stands precluded from challenging the jurisdiction of the authority passing the impugned order. Thus arises the question if the facts and circumstances of the case in hand justify refusal on the part of the learned Single Judge to hear the appellants on the plea that the revision was incompetent and as such the impugned order must be taken to have been passed without jurisdiction. The facts of the case have been indicated above. That the provisions of the unamended Act applied to the case was within the knowledge of the appellants is not in dispute. At any rate the appellants have nowhere asserted to the contrary, and the presumption is that everybody knows law.

Under the provisions of the unamended Act there lay a second appeal from the order passed by the Assistant Settlement Officer (Consolidation) and not a revision. Such a second appeal could be heard by the District Deputy Director or a Deputy Director authorised in that behalf by the Director as provided in Section 11 (2) of the unamended Act. It has not been suggested anywhere in the petition that the particular Deputy Director who passed the impugned order did not have authority to hear a second appeal. However, in the course of arguments before us the learned counsel for the appellants placed reliance on the decision of this Court dated January 3, 1967 in Writ Petn. No. 273 of 1965 (All), Ram Krishna Singh v. Ram Khelawan for the contention that the particular Deputy Director namely Sri S. G. Misra who passed the impugned order dated 5-1-1965 did not have the requisite authority for hearing a second appeal in so far as the same had been conferred not by the Director but by the Consolidation Commissioner on whom all the powers of the Director had been conferred. Certain cases were cited before us to indicate that there is conflict of opinion in this Court on the question if the authority conferred on a Deputy Director under Section 11 (2) of the Act by the Consolidation Commissioner on whom all the powers of the Director had been conferred was good enough to entitle such Deputy Director to hear second appeals. It is unnecessary to enter into this controversy in any detail because it is sufficient to point out that in such circumstances it cannot be paid to be a case of patent lack of jurisdiction.

As ruled by the Supreme Court in the case of Lekhraj Sathramdas v. N. M. Shah : [1966]1SCR120 , when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other rule, and the validity of the order should be judged on a consideration of its substance and not of its form. The principle underlying the decision as indicated by their Lordships is that the Court must ascribe the act of a public servant to an actual existing authority under which it would have validity rather than to one under which it would be void. That the appellants participated in the revision is an admitted fact. It would thus appear that the appellant deliberately omitted to raise the plea of want of jurisdiction or of the revision being incompetent in the course of the hearing of the revision, may be because they thought they might set an adjudication in their favour. So if they chose after they found that the adjudication had gone against them to challenge its validity on the score of want of jurisdiction or of the revision being incompetent they could not be permitted to do it in the writ petition having deliberately failed to raise such a plea before the Deputy Director. This view finds support from the decision of the Supreme Court in the case of : 1966CriLJ93 We are thus satisfied that if the learned Single Judge on the facts of the present case declined to grant the discretionary relief of writ to the appellants, he acted rightly and there is no good reason why we should interfere with his order in this special appeal.

20. In the end the special appeal is dismissed with costs.


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