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H.R. Khanna, J.—This case was referred to the Full Bench in pursuance of an order of Mahajan, J. and the question which arises for determination is whether a Petitioner in a writ petition under Article 226 of the Constitution can raise an objection about an order of tribunal being without inherent jurisdiction, even though the want of such jurisdiction is patent on the record, if he had not raised such an objection before the tribunal. It has arisen in the following circumstances:
The two Petitioners Devinder Singh and Surinder Singh are the grandsons of Hari Singh who was brother of Kartar Singh husband of Lakshmi Devi while Daya Lata and Prem Lata Respondents 4 and 5 are the sisters and legal representatives of Ishwar Chander Parkash who was the brother''s son of Lakhshmi Devi Kartar Singh husband of Lakhshmi Devi died in 1900. Lakhshmi Devi held a large area of land in district Jhelum now situated in Pakistan. The estate of Lakshmi Devi was under the Court of Wards from 1934 till the partition of the country. Lakhshmi Devi was killed during the communal disturbances in 1947 without leaving any issue. After the partition of the country 154 standard acres of land in tehsil Sirsa, district Hissar, was allotted in the name of Lakhshmi Devi in 1949-50 even though she was dead at that time. This was in accordance with the instructions contained in the Land Resettlement Manual compiled by Shri Tarlok Singh.
The Petitioners along with their uncle Darshan Singh then made an Application to the Financial Commissioner that they were the reversioners of Lakhshmi Devi and as such the allotment sanad and the possession of the land allotted in her name be given to them. The Financial Commissioner then passed an order on June 23, 1950 directing that the allotment would stand in the name of Lakhshmi Devi and the matter be left to the civil Courts to determine the rights of the parties and in the meantime possession of the allotted land be given to the Petitioners as they appeared to be the most eligible heirs of Lakhshmi Devi. At this stage Iswar Chander Parkash claimed that Lakhshmi Devi had executed a will in his favour and, therefore, he was entitled to get possession of the allotted land. The Petitioners thereupon contended that Lakhshmi Devi could not dispose of her property by means of a will without the permission of the Court of Wards and the will, alleged to have been executed by her, was consequently invalid.
The Financial Commissioner then passed an order on May 21, 1951 that the land be given to the beneficiaries under the aforesaid will. Reference was then made to the authorities in Pakistan on the point as to whether the approval of the Court of Wards authorities had'' been accorded for the execution of the aforesaid will. Ultimately the matter was referred to the Custodian General who directed that the land should be taken from Ishwar Chander Parkash and be leased out to the parties till they got their rights determined by a civil Court. In pursuance of this decision land was leased out by the rehabilitation department half and half to the contesting parties at the rate of six times the land revenue on the understanding that the accumulated rent would be paid to the party who ultimately won the succession case in the Court of law. On May 19, 1958 the Deputy Secretary, Rural Rehabilitation, Punjab, sent letter, copy of which is annexure ''D'', on behalf of the Settlement Commissioner, to the District Judge, Hissar wherein it was stated that succession to the landed property of Lakshmi Devi was in dispute between Ishwar Chander Parkash and the Petitioners.
It was requested that the dispute as to who was the successor-in-interest of the aforesaid landed property might be decided by the District Judge u/s 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The records of the case were also sent along with the letter to the District judge. The learned District Judge then called upon the parties to submit their claims. After the claims had been submitted a number of issues were framed. Ultimately, it was held as per order dated August 20, 1962 that Lakshmi Devi was the sole owner of the property and was competent to bequeath her estate. It was further held that Lakhshmi Devi duly executed the will propounded on behalf of the Respondents and got it registered. The will was also held not to be invalid because of want of any sanction. The beneficiaries named in the will were, accordingly, held entitled to succeed to the land allotted in the name of Lakshmi Devi.
The Petitioners thereupon filed the present petition under Articles 226 and 227 of the Constitution of India for quashing the above order of the learned District Judge and the principal ground taken by them was that the aforesaid order was without jurisdiction because no reference u/s 9 of the Displaced Persons (Compensation and Rehabilitation) Act could be made in respect of the above dispute.
When the writ petition came up for hearing before Mahajan, J. contention was, accordingly raised on behalf of the Petitioners that the Settlement Commissioner had no jurisdiction to refer the dispute between the parties to this petition for decision by the District Judge. Mr. Kaushal on behalf of the Respondents then urged that before the District Judge no objection had been taken on the question of jurisdiction. It was, accordingly, contended that as both parties had invited the decision, the party who had failed could not raise the question of jurisdiction in petition under Article 226 of the Constitution of India and seek to get the order of District Judge set aside on the ground of being without jurisdiction. As the authorities cited revealed some conflict of view the learned Judge directed that the papers might be laid before my Lord, the Chief Justice, for constituting a larger Bench. The case has, accordingly, been referred to the Full Bench.
Mr. Wasu, learned Counsel for the Petitioners, has at the outset argued that only a dispute about verified claim can be referred to the District Judge u/s 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 which reads as under:
Where there is any dispute as to the person or persons who are entitled to the compensation (including any dispute as to who are the successors-in-interest of any deceased claimant to compensation) or as to the apportionment of compensation among persons entitled thereto, such dispute shall, after such enquiry as may be prescribed, be decided:
(a) Where the value of the verified claim does not exceed twenty thousand rupees, by the Settlement Officer;
(b) Where the value of the verified claim exceeds twenty thousand rupees, by the Settlement Commissioner:
Provided that the Settlement Officer or the Settlement Commissioner, as the case may be, may refer any such dispute to the District Judge nominated in this behalf by the State Government, whose decision thereon shall be final.
Verified claim has been defined in Clause (e) of Section 2 of the above Act and the definition goes to show that it relates to those claims which have not been satisfied wholly or partially by allotment of any evacuee land under the relevant notification specified in Section 10 of the Act. As evacuee land was allotted in the name of Lakhshmi Devi in lieu of her land left in Pakishtan, the present dispute, it: is contended, does not relate to a verified claim. Reliance in this connection has been placed upon case Charanji Lal Jagannath Arora and Another Vs. Smt. Inder Devi and Another, , wherein a Division Bench of this Court held after referring to the definition of the verified claim that Section 9 of the Displaced Persons (Compensation and Rehabilitation) Act did not apply to the dispute relating to agricultural land allotted to a claimant as it did not fall within the definition of verified claim.
The learned Judges while arriving at that conclusion relied upon two earlier Division Bench decisions in Narain Singh v. Deputy Secy. Rehabilitation L.P.A. No. 277 of 1958, 23-9-1959 (Punj) and Smt. Wiran Bai v. Jaisa Ram, R.S.A. No. 150-P of 1954, D/- 12-11-1959 (Punj) in which similar view had been taken. Mr. Kaushal, learned Counsel for the contesting Respondents in view of the above authorities, has frankly conceded that the dispute between the parties did not relate to a verified claim and was such as could not be referred to the District Judge u/s 9 of the Displaced Persons (Compensation and Rehabilitation) Act. It is also, in the circumstances, not disputed by Mr. Kaushal that the order dated August 20, 1962 made by learned, District Judge, Hissar, is without jurisdiction. Indeed, the case has been argued by the learned Counsel for the parties on the assumption that the above order is without jurisdiction and the only point on which the parties are at variance is whether this Court should grant a writ in favour of the Petitioners for quashing the aforesaid order on the ground of being without jurisdiction when such an objection was not raised on behalf of the Petitioners before the learned District Judge. A large number of authorities have been cited at the Bar but before considering the other authorities it would be pertinent to refer to the two-authorities which were cited before Mahajan, J., on account of the supposed divergence of views in which the present case was referred to the Full Bench.
The first of those two cases is Jagatjit Cotton Textile Mills Ltd., Phagware Vs. Industrial Tribunal, Patiala and Others, In that case the award of an Industrial Tribunal was challenged in a petition under Article 226 of the Constitution on the ground of want of jurisdiction. The contention of the Petitioner was that the Tribunal had been appointed for six months and became functus officio on the expiry of that period. The term of the Tribunal was extended subsequently but according to the Petitioner that did not make the award valid as a fresh reference u/s 10 of the Industrial Disputes Act was necessary to clothe the Tribunal with jurisdiction. As no such reference had been made the entire proceedings before the Tribunal were coram non judice and the award of the Tribunal was claimed to be null and void. Objection was taken on behalf of the Respondents that the question of the lack of jurisdiction should have been raised by the Petitioner before the Tribunal itself and as it was never raised there and the Petitioner took part in the proceedings it was not open to the Petitioner to agitator the question of jurisdiction under Article 226 of the Constitution. The learned Judges upheld the objection of the Respondents and in doing so enunciated the following four principles:
The Court has always the power and the discretion to grant or refuse to grant the writ and while exercising discretion it will take into consideration all the relevant factor.
The failure to raise objection to defect or lack of jurisdiction of the Tribunal be-fore it is always, a material and relevant factor and must be taken into account and it makes no difference whether such a defect is patent or latent.
Ordinarily such a conduct would preclude the Petitioner from claiming the writ unless a cogent explanation is furnished by stating the necessary facts upon affidavit which should satisfy the Court that the failure to raise the objection relating to jurisdiction was not deliberate or that the Petitioner had no knowledge of facts on which, the objection could be based.
It would naturally depend on the facts of each case whether such conduct has been established as would disentitle the Petitioner'' to any such relief.
Pritam Singh v. District Judge Hoshiarpur 1961-63 Pun LR 444, was the other case referred to by the learned Single Judge. In this case the facts were similar to those of the present case and the matter related to a reference to the District Judge u/s 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Dua, J., after referring to the earlier authorities on the subject, held that as the dispute did not relate to a verified claim the same could not be, referred under the above provision of law to the District Judge. Contention was, however, raised on behalf of the Respondents that the point about the want of jurisdiction had not been raised before the District Judge and as such the Petitioners could not raise it in a writ petition. Repelling this contention it was observed that the power, of the High Court to entertain a new point which goes to the jurisdiction of the Tribunal whose order is impugned is well established. It was further observed that if an order is made without jurisdiction it is never too late, in the absence of some supervening consideration, to give effect to, the plea that it is a nullity. The order of the; District Judge, in the circumstances, was quashed.
Before proceeding further it would be useful to observe that the proposition of law is well established that consent can never give jurisdiction and a decision made without jurisdiction is void and cannot be validated by the express or implied consent of a party to the proceedings. Total want of jurisdiction is an infirmity which is fatal to the proceedings and no amount of consent can cure it. There is also a distinction between want of inherent jurisdiction and irregular exercise or assumption of jurisdiction, and While consent cannot clothe a Tribunal with jurisdiction where none exists, irregular exercise or assumption of jurisdiction can always be waived. The leading case on the subject is Ledgard v. Bull 1886-II AC 648, decided by the Judicial Committee of the Privy Council in 1886. This was a suit for damages and ah injunction for infringement of a patent under the Patents and Designs Act.
Such a suit could only be brought in a District Court but it was brought in the Court of the Subordinate Judge who had no jurisdiction to entertain it. The suit was eventually transferred from the Subordinate Judge''s Court to the District Court and was heard there and decided. The contention of the Defendant was that an order for transfer of the suit from one Court to another could not be made unless the suit had been brought in a Court having jurisdiction. The Judicial Committee held that the suit haying been instituted in a Court which had no jurisdiction, no order of; transfer could be made but that the District Judge being competent to entertain and try the case, if it were competently brought, the Defendant could waive the objection to the irregularities of its institution. The decree of the District Judge was accordingly, set aside. Lord Watson in delivering the judgment of the Board, said:
When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the Defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure which, if objected to at the time would have led to the dismissal of the suit.
In The United Commercial Bank Ltd. Vs. Their Workmen, , the order Of an Industrial Tribunal was assailed on the ground of having been made without jurisdiction. The contention of the Appellant was that the services of a member of a Tribunal other than the Chairman had ceased to be available and the rest of the members by themselves had no right to act as a Tribunal without the Government reconstituting the Tribunal. The award of the Tribunal was consequently stated to be without jurisdiction Kania C.J., who spoke for the majority of the judges, accepted this contention. Dealing with the question as to what was the effect of the appearance of the Appellant before the Tribunal, the'' learned Chief Justice observed at page 237:
Nor can consent give a Court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed'' or fulfilled. No appearance or consent can give a jurisdiction to a Court of limited jurisdiction which it does not possess. In our opinion, the; position here clearly is that the responsibility to work and decide being the joint responsibility of all the three members, if proceedings are conducted and discussion on several general issues took place in the presence of only two, followed by an award made by three, the question, goes to the root of the jurisdiction of the Tribunal and is not a matter of irregularity in the conduct of those proceedings. The absence of a condition necessary to found the jurisdiction to make the award or give a decision deprives the award or decision of any conclusive effect. The distinction clearly is between the jurisdiction to ?decide matters and the ambit of the matters to be heard by a Tribunal having jurisdiction to deal with the same. In the second case, the question of acquiescence or irregularity may be considered and overlooked. When however the question is of the jurisdiction of the Tribunal to make the award under the circumstances summarized above, no question of acquiescence or consent can affect the decision.
I may now advert to the other authorities which have been cited at the hearing. Gandhinagar Motor Transport Society Vs. State of Bombay, , was a case decided by a Division Bench of Bombay High Court in which the decision of the Government against the order of the Regional Transport Officer was challenged in the High Court by means of a writ petition. The contention raised on behalf of the Petitioners was that the Government had no jurisdiction to interfere with the order of the Regional Transport Officer. Chagla C.J. who spoke for the Court, held that the petition was liable to be dismissed on ground of delay. It was further observed that before a question of jurisdiction of a Tribunal can be raised in a writ petition objection to jurisdiction must be taken before the Tribunal whose order was being challenged. The question as to what is the effect of the failure of a Petitioner to raise objection about want of jurisdiction before a Tribunal again arose in a Division Bench of Bombay High Court in S.C. Prashar and Another Vs. Vasantsen Dwarkadas and Others, In that case the Appellants challenged a notice issued by the Income Tax Officer u/s 34 of the Income Tax Act and prayed for a writ of prohibition restraining the Income Tax Officer from proceeding further pursuant to that notice. It was held that the notice in question was issued out of time and was, therefore, invalid. The act of the Income Tax Officer in issuing the aforesaid notice was held to be without jurisdiction. Dealing with the question of acquiescence it was observed by Chagla C.J. as under:
Therefore, these authorities clearly establish that a patent want of jurisdiction entitles the Petitioner to obtain immediate relief from the High Court even though he could raise the plea of want of jurisdiction in a higher tribunal and even though, a the English cases point out, he may have acquiesced in the want of jurisdiction.
Latchmanari Chettair v. Corporation of Madras is a Fall Bench case decided by the Madras High Court and reported in AIR 1927 Mad 130. It would be necessary to scrutinise the facts of this case because the dictum laid down therein was approved by their Lordships of the Supreme Court in Pannalal Binjraj Vs. Union of india (UOI), , to which a reference would be made hereinafter. In that case one. Lakshmanan Chettiar, filed his nomination paper to seek election to the Municipal Corporation of the City of Madras. It; was not in dispute that his nomination paper was valid on the face of it but it was urged that he was disqualified from contesting the election, because of his being an Honorary Presidency Magistrate. Lakshmanan Chettiar then tendered his resignation from the office of Presidency Magistrate and thereupon his powers as Magistrate were withdrawn. The Commissioner of Corporation upheld the objection of the contesting candidates and rejected the nomination paper of Lakshmanan Chettiar. Revision filed by Lakshmanan Chettair before Chief Judge of the Court of Small Causes was also rejected.
Lakshmanan Chettiar then filed a writ of certiorari before the High Court of Madras and it was urged on his behalf that the Commissioner and the Chief Judge of the Court of Small Causes were only empowered to enquire into disabilities appearing on the face of the nomination paper and that they travelled outside their jurisdiction when they went into matters which did not appear on the face of the nomination paper. The Respondents then took an objection that certiorari would not lie where the person who applied for the writ had by his conduct taken chance of pronouncement in his favour by the lower Courts on the merits. It was held that the Petitioner having submitted himself to the jurisdiction could not be allowed subsequently to repudiate it. The Petitioner was further held to have so conducted himself as to preclude the Court from exercising a discretionary jurisdiction in his favour. Perusal of the facts of that case goes to show that there was no inherent lack of jurisdiction in the officers whose orders wore in question.
This aspect of the case was emphasised in a latter Full Bench case of the Madras High Court, M.S. Madhava Rao and Others Vs. D.V.K. Surya Rao, Member of the Pithapuram Co-operative Bank, Pithapuram and Others, , as well as in a Full Bench case of Sheik Hussain and Sons Vs. State of Andhra Pradesh and Others, . In M.S. Madhava Rao and Others Vs. D.V.K. Surya Rao, Member of the Pithapuram Co-operative Bank, Pithapuram and Others, the Full Bench of the Madras High Court held that the fact that the Petitioners did not object to the jurisdiction of a Deputy Registrar of Co-operative Societies, did not preclude him from questioning that jurisdiction which went to the root of the matter. In Sheik Hussain and Sons Vs. State of Andhra Pradesh and Others, the Petitioner in a petition under Article 226 of the Constitution for a writ of certiorari urged that the order of the State Transport Authority was without jurisdiction having regard to the provisions of Section 44 of the Motor Vehicles Act as it was passed by the Chairman sitting alone. This contention was upheld and it was observed that as there was article initial lack of jurisdiction it rendered the entire proceedings void. Dealing with the question about the failure of the Petitioners to raise objection about want of jurisdiction it was observed as under:
The only question then is whether the Tribunal has or has not jurisdiction; and immediately this Court is satisfied that the Tribunal has exceeded its jurisdiction, a writ of certiorari must issue in spite of the acquiescence of the Applicant or want of objection on his part. The principle in such a case is that the exercise of an unauthorised jurisdiction amounts to an usurpation of jurisdiction and renders the decision of the Tribunal a nullity. It is the duty of the Court to remove the void order by issuing a writ of certiorari.
In (S Pannalal Binjraj Vs. Union of india (UOI), to which a reference has been made earlier, the Commissioner of Income Tax and the Central Board of Revenue transferred cases of the Petitioners from the file of one Income Tax Officer to that of another. The as-sessees never raised any objection to their cases being tried by the transferee Income Tax Officer and in fact submitted to his jurisdiction. It was under these circumstances that their Lordships of the Supreme Court held that the Petitioners had acquiesced in the jurisdiction of the Income Tax Officer to whom the cases were transferred and the Assessees were not entitled to invoke the jurisdiction of the Supreme Court under Article 32 of the Constitution. Here again there was no inherent want of jurisdiction in the transferee Income Tax Officer who disposed of the cases of the Petitioners.
Manak Lal Vs. Dr. Prem Chand, , was a case under the Bar Councils Act where the question of bias was raised. Bias did not affect the inherent jurisdiction of the tribunal under the Bar Councils Act but only disqualified the member who had such bias and, therefore it was held that deliberate failure to raise objection after knowledge of the bias would create an effective bar of waiver against the Petitioner from challenging the decision of the tribunal on the ground of bias. It would thus follow that this was not a case of inherent lack of jurisdiction.
A Division Bench case of Rajasthan High Court Barkatali Vs. Custodian General of Evacuee Property of India, has also a bearing on that matter. In that case the impugned order under the Administration of Evacuee Property Act had been made by a Naib Tahsildar even though only Tahsildars were authorised in the matter. The order was held to be without jurisdiction. Wanchoo, C.J., as he then was, further observed-
But this is a case where the lack of jurisdiction is patent, and the mere fact that no objection was taken before the Custodian or the Custodian General would not disable the Applicant from raising the point before us. The matter would have been different if the question of jurisdiction depended upon the allegation and proof of certain facts. In that case, if no objection had been taken, we would not have heard the Applicant.
In Babu Ram Vs. Peragi and Another, , a Division Bench of the Allahabad High Court considered the question of the right of a party to challenge the jurisdiction of an inferior Tribunal in a writ petition when that party had omitted to challenge that jurisdiction before the Tribunal itself. It was held that where the objection went to the root of jurisdiction the Court was competent to quash the order in spite of the fact that a plea of want of, jurisdiction was not raised at the earliest opportunity or before the Tribunal.
It would appear from the above that there is preponderance of authority for the view that where there is inherent lack of jurisdiction in an inferior Tribunal and the matter is patent on the record, the failure of a party to raise objection on the point of jurisdiction would not by itself debar it from getting relief on; that score in a writ petition. It would also follow from the above that most of the cases, in which the failure of a party to raise objection before a Tribunal about want of jurisdiction was held to preclude that party from raising such objection in a writ petition, were not cases of inherent lack of jurisdiction patent on the record. The reason for that is obvious. Want of inherent or initial jurisdiction goes to the very root of the matter and neither consent nor acquiescence of a party can vest a Tribunal with jurisdiction where none exists. Nor can such consent or acquiescence confer validity upon the order of the Tribunal where the order in the very nature of things is a nullity having been made by a Tribunal without any jurisdiction in the matter.
The third proposition in Jagatjit Cotton Textile Mills Ltd., Phagware Vs. Industrial Tribunal, Patiala and Others, seems to be too broadly stated and the correct position, in my opinion, is that where the lack of inherent jurisdiction in a Tribunal is patent on the record, the failure of a party to raise objection about want of such jurisdiction before the Tribunal would not by itself stand in the way of the High Court granting relief to the party concerned on that score. If, however, because of the failure of the Petitioner to raise such an objection there arise certain equities in favour of the opposing party or some other circumstances supervene which make it inexpedient to grant relief to the Petitioner, the Court would in the exercise of its discretion refuse to grant such a relief.
Coming to the facts of the present case I find that a suit has been filed by the Petitioners'' about the land in dispute with a view to restrain Respondents 4 and 5 from taking possession of the same; An affidavit to that effect has been filed on behalf of the Respondents at the time of arguments and the filing of such a suit has also been-admitted by the learned Counsel for the Petitioners. As a suit about the land in dispute has been filed, the issuance of a writ would be plainly inexpedient because the whole matter can be effectively gone into in the suit. It may, however, be observed, as stated earlier, that the learned Counsel for both parties are agreed that the order of District Judge, Hissar, dated August 20, 1962, is a nullity having been made by a Court without jurisdiction. It has also been agreed between the parties that they would suitably amend their pleadings in the suit already filed so as to bring to the forefront the matters in controversy for effectual adjudication of the dispute. The learned Subordinate Judge, before whom the suit is pending, would, in the circumstances, allow the necessary amendment. With these remarks, I would dismiss the writ petition Keeping in view the facts of the case, I would Jeaye the parties to bear their own costs of the writ petition;
I.D. Dua, J.
I fully join in the opinion expressed by my learned brother Khanna, J., with some additional observations. Article 32(2) and Article 226(1) of our Constitution are framed in substantially similar language except that the latter empowers the High Court, in addition, to issue directions, orders or writs, including writs in the mature of what are known in the English common law as prerogative writs, as distinguished from judicial writs or writs of right, for purposes other than of enforcing fundamental rights. So far as the language of Article 226 is concerned, it imposes no limitation on the exercise of the power by the High Court. But despite its wide language, the power and jurisdiction under this Article, as the decisions of the Supreme Court suggest, is not unlimited. This power is apparently intended co-enable the High Court in grave cases to remedy manifest injustice, and seems to have its roots in the fact that justice finds place as the first objective in the solemn declaration in the Preamble of our Constitution. Justice undeniably stands high and mighty in the moral hierarchy and has always been thought of by philosophers as belonging to the noblest part of man and by theologians as partaking of divinity itself. Power conferred on High Courts under this Article has, therefore, largely to be construed so as to promote the cause of justice by enforcing the rule of law.
The main stream of binding judicial precedents has, however, established that the jurisdiction under this Article is discretionary though in certain cases suitable writs, directions or orders may issue almost as of right, and one of the basic considerations which normally weigh with the Court is to interfere only if there is manifest injustice resulting from jurisdictional or grave and material legal infirmities apparent on the face of the record. The High Court, as a rule, does not under this Article review findings of fact of inferior tribunals; nor does it ordinarily investigate into disputed questions of fact except perhaps in some special cases which it is unnecessary on this occasion to examine. The conduct of the aggrieved party invoking the High Court''s jurisdiction under Article 226, inter alia, by unduly delaying approach to the Court or by acquiescing in or submitting without protest to the jurisdiction of the inferior tribunal which it does not possess, or by suppressing material facts, and the existence of equally adequate efficacious alternative remedy, statutory or by way of suit, are some of the grounds which the Court takes into consideration in the process of reaching judgment whether or not to adjudicate upon the Petitioner�s grievance. These factors, if I may BO put it, do not rigidly go to the jurisdiction of the writ Court but are merely relevant considerations to be given due weight, depending on the facts and the setting of circumstances of each case in the process of judicial thinking in arriving at just decisions.
In the case in hand, reference to the larger Bench has been necessitated solely on account of the Petitioner having failed to raise before the inferior tribunal objection on the score of want of inherent jurisdiction. The matter has been exhaustively dealt with by Khanna, J., with whose opinion I completely concur. I would, however, like to point out that the true ratio decidendi of the decision in the case of Jagatjit Cotton Textile Mills Ltd., Phagware Vs. Industrial Tribunal, Patiala and Others, was not construed by a later Bench in the Atlas Cycle Industries Ltd. v. State, Civil Writ No. 1378 of 1959, D/- 6-1-1961 (Punj) so as to shut out plea of want of jurisdiction of the inferior tribunal on a ground not raised before the tribunal itself. No doubt in that case, the jurisdiction of the inferior tribunal had been questioned on a ground different from the One raised in the High Court and in that sense the Petitioner could not be said to have acquiesced in the jurisdiction of the tribunal, but the Division Bench speaking through Gosain, J., (who was also a party to the earlier decision) considered it unfair in the circumstances before the Bench to shut out the argument based on want of jurisdiction in the tribunal in making the impugned order. Here, 1 may also profitably reproduce the following passage from another decision of the Supreme Court in A.S.T. Arunachalam Pillai Vs. Southern Roadways (Private) Ltd., , which seems to throw some helpful light on the approach to the question of the exercise of discretion in permitting in writ petition new points questioning the jurisdiction of the inferior tribunals:
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. It was not until the decision of the High Court in Writ Appeal No. 107 of 1955 (Mad) 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 (Mad) 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 u/s 64-A of the Act.
In, that case, even though ''the point was not taken in the writ petition it was allowed by the High Court to be raised as'' it went to the root of the matter involving jurisdiction of the officer concerned and the Supreme Court approved the course adopted by the High Court.
The Respondents learned Counsel in the course of arguments also suggested that this Bench should formulate a clear cut precise rule on the point for the future exercise of discretion in. giving relief under Article 226. In my opinion, it is hardly possible and in any event, it is neither desirable nor practicable to attempt to formulate an inflexible and rigid rule capable of serving as a straight jacket for the exercise of discretion in every case which may arise in future. Inherent imperfection of language and of human vision would seem to frustrate any such attempt. Broad guide-posts or lines of general principles are well known and their Application must, from the very, nature of things, depend on a variety of individual facts and settings of circumstances which must govern the proper exercise of the Court''s judicial discretion consistently with the rule of law in which the Indian democracy is based.
On the facts of this case, as now disclosed, however, in view of a suit, having actually teen instituted in which the controversy can be properly settled, it is not necessary to issue any direction, order or writ. I, therefore, agree with the reasons and the conclusion of Khanna, J.
D.K. Mahajan, J.
I agree with the views expressed by my learned brothers and have nothing to add.