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Judgment
K.V. Gopalakrishnan Nair, J.—The Petitioner is a refugee from Tehsil Bagh of Poonch which is now in the occupation of Pakistan. Being a
refugee, he was allotted certain land in Chhanni Tehsil Hiranagar within the State of Jammu and Kashmir. The second Respondent, who is a
refugee from West Pakistan, also obtained an allotment of land in village Chak Alawal, Tehsil Ranbirsinghpura of the State. This allotment,
according to the Petitioner, was secured by fraudulently concealing the fact that the second Respondent had already obtained land in East Punjab
by virtue of his being a refugee from West Pakistan.
The Petitioner, therefore, moved the Provincial Rehabilitation Officer at Jammu for cancelling the allotment in favour of the second Respondent and
allotting that land to him. This application was allowed on 2-.10-1956, and the Petitioner was given the land which had been previously allotted to
the second Respondent. And the land which was allotted to the Petitioner in Chhanni village was resumed and given over to another person. The
second Respondent preferred a revision to the Dy. Custodian General against the order of the Provincial Rehabilitation Officer, but it was
dismissed on 30-5-1957.
He, thereupon, moved the Custodian General who is the first Respondent herein, in further revision. This revision was accepted by the Custodian
General on 22-4-1958. The result was that the land in village Chak Alwal which had been originally allotted to the second Respondent was
ordered to be restored to him. No direction was, however, made for restoration of the land in village Chhanni to the Petitioner.
The Petitioner applied to the Custodian General for review of his order, but that was dismissed on 14-1-1959. The Petitioner has, therefore,
approached this Court for a writ of certiorari to quash the orders of the Custodian General dated 22-4-1958 and 14-1.-1959.
The ground on which certiorari is claimed is that the Custodian General had absolutely no jurisdiction to interfere with the orders of the Dy.
Custodian General.
The Respondents contest the petition on the main ground that the Petitioner having submitted to the jurisdiction of the Custodian General without
demur, cannot be permitted to repudiate that jurisdiction in writ, proceedings. Furthermore it is stressed that the Petitioner himself applied to the
Custodian General for review of his order dated 22-4-1958; he thus took the chance of a decision in his favour by the Custodian General and has
come to this Court only when that decision went against him.
It is not the case of the Respondents that the Custodian General had jurisdiction to entertain the revision preferred to him by the second
Respondent. It is conceded that the provisions of the Evacuees' (Administration of Property) Act did not confer any jurisdiction on the Custodian
General to interfere with the order passed by the Dy, Custodian General in favour of the Petitioner. Nor does there exist any other provision of law
to justify such interference. The question then is whether acquiescence by submission to the jurisdiction of the Custodian General could cure the
want of jurisdiction in this case? The learned Advocate-General appearing for the first Respondent and Mr. Dogra appearing for the second
Respondent have strenuously urged that the defect of jurisdiction was cured by the Petitioner's submission to the jurisdiction and that the Petitioner
cannot now be allowed to seek to repudiate that jurisdiction by applying for a certiorari. The learned Counsel for the Petitioner, Mr. Lok Nath
Sharma, has, on the other hand, contended that consent of parties cannot confer jurisdiction and that, therefore, the Petitioner's conduct before the
Custodian General is altogether immaterial in the present case for the purpose of quashing the orders of the Custodian General by certiorari.
In Ledgard v. Bull ILR 9 All 191 (PC) at p. 203, Lord Watson observed:
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 Moore v. Gamgee (1890) 25 QBD 244, also a distinction was drawn between cases where there is a total want of jurisdiction, i. e., where
under no circumstances can the court entertain the particular kind of action, and cases where there is no want of jurisdiction over the subject-
matter of the action but jurisdiction in the particular case is contingent, for instance, on leave to sue being obtained. It was held that in the latter
class of cases the objection of want of jurisdiction may be waived.
In Dwarka Prasad v. Jai Barham AIR 1922 Pat 322, it was held that where the want of jurisdiction is not apparent on the face of the
proceedings but the absence of jurisdiction depends on a fact in the knowledge of a party, then if he does not bring that fact forward but allows the
proceedings to be carried to completion, he ought not to be permitted to impeach the jurisdiction in a collateral proceeding. The same view was
reiterated in Girwar Narayan Mahton and Others Vs. Kamla Prasad and Others, .
A Division Bench of the Bombay High Court in Umabai Shankar v. Shankar Hari AIR 1910 Bom 44 has taken the same view.
These decisions clearly point out that there are some defects of jurisdiction which may be waived by submission to the jurisdiction. But the
position is entirely different when there is an inherent want of jurisdiction. In the latter case the court or tribunal would not under any circumstances
be competent to try the case and consent or acquiescence by submission to jurisdiction cannot cure the total lack of jurisdiction. In such a case, the
Tribunal would really be usurping jurisdiction while being devoid of even the semblance of a jurisdiction.
There would be cases where the want of jurisdiction is not apparent on the face of the proceedings, but some fact would have to be proved or
some action taken by the party to make out the defect of jurisdiction. In such cases, if the party does not allege and prove the fact or does not take
the action to bring out the want of jurisdiction, but elects to take the chance of a decision in his favour without bringing forward the question of
jurisdiction his conduct would disentitle him to repudiate the jurisdiction by way of a writ. There may also be cases where a tribunal has jurisdiction
to decide a matter, but in the course of the proceedings it exceeds the ambit of its jurisdiction. In such cases, the party who knew the excess of
jurisdiction but kept deliberately quiescent, will not be permitted to rake up the defect of jurisdiction in subsequent writ proceedings. As pointed
out by the Supreme Court in the The United Commercial Bank Ltd. Vs. Their Workmen, at page. 237:
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...no question of acquiescence or consent can affect the decision.
In Halsbury's Laws of England (Simonds Edition) Vol. 11, Paragraph 222 the position is stated thus:
Parties cannot by agreement or otherwise confer jurisdiction upon or oust the jurisdiction of a court, but a jurisdiction may be contingent on the
absence of, an objection taken at the proper time, and an irregularity of procedure may be the subject of waiver of acquiescence so as to preclude
the grant of prohibition after judgment....
In paragraph 220 it is stated:
Where the objection to the jurisdiction of an inferior court appears on the face of the proceedings, prohibition lies at any time, even after judgment
or sentence, in spite of the laches or acquiescence of the applicant; this rule applies, even if the application is merely to avoid payment of the costs
of the applicant's own vexatious suit.
And in paragraph 221 the following passage occurs:
Where the objection to the jurisdiction is not apparent, and depends upon some fact in the knowledge of the applicant which he had an opportunity
of bringing forward in the court below, and he has thought proper, without excuse, to allow that court to proceed to judgment without setting up
the objection and without applying for a prohibition in the first instance, although the jurisdiction to grant prohibition is not taken away, yet,
considering the conduct of the applicant, the importance of making an end of litigation, and that the order, though of right, is not of course, the
court will decline to interpose, except perhaps upon an irresistible case and an excuse for the delay, such as disability, malpractice, or matter newly
come to the knowledge of the applicant.
This passage is a substantial reproduction of the opinion delivered by Willes, J. to the House of Lords in London Corporation v. Cox (1867) LR 2
HL 239 at p. 283.
In Marsden v. Wardle (1854) 118 ER 1302 : 23 LJQB 263, the reason of the distinction between cases in which excess of jurisdiction appears on
the face of the proceedings and where it does not so appear is explained by Coleridge J. in the following words:
There is reason for refusing the writ after judgment in the courts where the proceedings set forth the detail of the matter and the party has the
opportunity of moving before judgment. Then, if he chooses to wait and take the chance of judgment in his favour, he may be held incompetent to
complain of excess of jurisdiction if judgment is against him. There is however, good reason for departing from this principle where the defect is
apparent on the face of the proceedings below because the complaint in that case does not rest on the evidence of the complainant, and, if such a
defective record were allowed to remain and to support a judgment, it might become a precedent, that which was in truth an excess of jurisdiction
might be considered to have been held to be legal.
Lord Mansfield in Buggin v. Bennett (1767) 4 Burr 2035 (quoted by Lord justice Davev in Farquharson v. Morgan (1894) 1 QB 552 at page
expounded the position as under:
If it appears upon the face of the proceedings that the courts below have no jurisdiction, a prohibition may be issued at any time, either before or
after sentence, because all is a nullity, it is coram non judice. But where it does not appear upon the face of the proceedings, if the Defendant will
lie by and suffer that court to go on under an apparent- jurisdiction, as upon a contract made at sea ""(the was dealing with an Admiralty case)"" it
would be unreasonable that this party, who when Defendant below has thus lain by and concealed from the court below a collateral matter, should
come hither after sentence against him there and suggest that collateral matter as a cause of prohibition, and obtain a prohibition upon it after all this
acquiescence in the jurisdiction of the court below.
The principle has been very clearly laid down in (1894) 1 QB 552. Lord Halsbury at page 556-pointed out:
In this case, with every disposition to decline to interfere with the proceeding in the country court on the ground that, if it is possible for a person to
render himself incapable of applying for a prohibition in such a case as this, the Appellant has done so, I feel nevertheless constrained to decide
that the writ must issue to prohibit further proceedings on the order of the country court so far as it is applicable to that portion of the award which
is in respect of matters outside the Agricultural Holdings Act. It has been long settled that, where an objection to the jurisdiction of an inferior court
appears on the face of the proceedings, it is immaterial by what means and by whom the court is informed of such objection. The court must
protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior court from proceeding in matters
as to which it is apparent that it has no jurisdiction. The objection to the jurisdiction does not in such a case depend on some matter of fact as to
which the inferior court may have been deceived or misled, or which it may have unconsciously neglected to observe, and the Judge of such court,
therefore, must or ought to have known that he was acting beyond his jurisdiction. I find no authority justifying the withholding of a writ of
prohibition in such a case.
Lord Justice Lopes observed at p. 557:
It seems to me that there has always been recognized a distinction between what I will call a latent want of jurisdiction, i.e. something becoming
manifest in the course of the proceedings, and what I will call a patent want of jurisdiction, i.e., a want of jurisdiction apparent on the face of the
proceedings.
Whilst in cases of latent want of jurisdiction there has always been a great conflict of judicial opinion, as to whether the grant of the writ was
discretionary or not, the authorities seem unanimous in deciding that, where the want of jurisdiction is patent, the grant of the writ of prohibition is
of course.
Again at page 559 he summed up the result of the authorities as follows:
The result of the authorities appears to me to be this: that the granting of a prohibition is not an absolute right in every case where an inferior
tribunal exceeds its jurisdiction, and that, where the absence or excess of jurisdiction is not apparent on the face of the proceedings, it is
discretionary with the court to decide whether the party applying has not by laches or misconduct lost his right to the writ to which, under other
circumstances, he would be entitled. The reason why, notwithstanding such acquiescence, a prohibition is granted where the want of jurisdiction is
apparent on the face of the proceedings, is explained by Lord Denman in Bodenham v. Richetts 6 N & M 170, to be for the sake of the public,
lest ""the case might become a precedent if allowed to stand without impeachment,"" and, I will add for myself, because it is a want of jurisdiction of
which the court is informed by the proceedings before it, and which the Judges should have observed, and of which he himself should have taken
notice.
The authorities cited above make it un mistakably clear that where there is a patent want of jurisdiction, i.e., a want of jurisdiction apparent on
the face of the proceedings, acquiescence by submission to jurisdiction will not cure it, and the proceedings are eminently liable to be quashed by
certiorari. No doubt, the English decisions noticed above related to issue of prohibition, but the principle Underlying prohibition and certiorari in
this regard is the same. As has been said:
Certiorari lies where the usurption of jurisdiction is a fait accompli, while prohibition lies when usurption of jurisdiction has not yet taken place, but
is merely proposed and there is still something to operate upon.
Turning to the facts of the instant case, it is abundantly clear that the Custodian General was utterly devoid of jurisdiction to interfere with the
order passed by the Dy. Custodian General. This is a case of inherent lack of jurisdiction which clearly appeared on the face of the proceedings; it
could not be said that the Custodian General proceeded under an apparent jurisdiction. The want of jurisdiction did not at all depend upon any fact
to be alleged or proved by the party or any action to be taken by him. It did not emerge merely in the course of the proceedings which it could be
said were competently instituted before the Custodian General. This is a case where the tribunal ""must or ought to have known that he was acting
beyond his jurisdiction"" in the words of Lord Halsbury at page 556 of (1894) 1 QB 552. The want of jurisdiction was so total and so patent on the
face of the proceedings that no assent or submission to the jurisdiction could cure it.
Considerable reliance has been placed by the learned Advocate General on Rex v. Williams; Ex parte Philips (1914) 1 KB 608. But this
authority does not appear to be of assistance to him in the present case. The facts of that case are briefly that a baker was convicted u/s 4 of the
Bread Act, 1836, by two Justices of the Peace. By Section 15 of the Bread Act, no person who was concerned in the business of a baker was
qualified to act as a Justice of the Peace under that Act. One of the Justices of the Peace was concerned in the business of a baker and was
therefore disqualified from acting as a Justice of the Peace. But the objection was not raised by the accused person. After the conviction, he
moved the High Court for a certiorari to quash his conviction on the ground of the aforesaid incapacity of one of the Justices of the Peace. The
High Court declined to issue a certiorari holding that as the Petitioner had not taken the point before the Justices of the Peace, he was not entitled
to a certiorari on the basis of the very same point. Channell J., at page 613 observed as follows:
No objection was taken to the jurisdiction of the court below at the hearing before that court, that being so it is the rule of this Court not to grant a
writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the court below of the facts
on which he bases his objection. That rule is established on good grounds. It applies equally whether the objection is on grounds which makes the
act of the Justice voidable or void.
At page 614 the learned Judge further observed:
In my view the writ is discretionary. 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 consideration
do not affect the principles on which the court acts 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 relies to impugn them.
(sic)wlatt J., observed at page 615:
It is a very salutary rule that a party aggrieved must either show that he has taken his objection at the hearing below or state in his affidavit that he
had no knowledge of the facts which would enable him to do so.
It will be noticed that (1914) 1 KB 608 was not a case of patent lack of jurisdiction apparent on the face of the proceedings. The lack of
jurisdiction in that case could be established only on allegation and proof of the fact that one of the Justices of the Peace was concerned in the
business of a baker. The Petitioner was not unaware of that fact when he was being tried by the Justices of the Peace; but he chose not to raise the
question to oust the jurisdiction of the Justice of the Peace. But when he was convicted by them he attempted to impeach their jurisdiction on the
basis of the very fact which he chose not to put forward before them.
The High Court, therefore, held that he by his conduct precluded himself from obtaining relief by certiorari. The Justices of the Peace tried and
convicted the Petitioner in that case in exercise of their apparent jurisdiction which could be ousted only on certain facts being alleged and proved
by the Petitioner or certain action being taken by him. He having failed to do so at the proper time and having taken the chance of a decision in his
favour he was held not entitled to seek the special remedy of a certiorari.
In the case on hand, the lack of jurisdiction was patent and total and did not depend upon any fact being set up by the party or any action
being taken by him.
The other case relied upon by the Advocate General is Latchmanan Chettiar v. Corporation of Madras AIR 1927 Mad 130: ILR Mad 130
(FB). This decision also does not avail the Respondents. In that case the applicant armed with a point either of law or of fact elected to argue the
case on merits before the inferior Tribunal and was consequently held to be not entitled to a writ of certiorari, he having submitted to the
jurisdiction of the Tribunal without putting forward the objection as to its jurisdiction which he was aware of.
Further, the facts, of that case show that there was no lack of initial jurisdiction in the tribunal: the tribunal merely exceeded the ambit of the matters
to be heard by it, without any objection by the party who was aware of the excess of jurisdiction. The defect of jurisdiction was, therefore, only
latent and acquiescence could neutralise it for purposes of certiorari.
The Respondents have also relied upon the decision in Gandhinagar Motor Transport Society Vs. State of Bombay, . This decision followed
(1914) 1 KB 608, which I already adverted to. The matter is not, therefore, carried further by this decision. It is also well to notice in this context
that the same learned Chief Justice who delivered the judgment in Gandhinagar Motor Transport Society Vs. State of Bombay, . has discussed
with clarity, if I may say so with respect, the other line of cases which deal with patent lack of jurisdiction in S.C. Prashar and Another Vs.
Vasantsen Dwarkadas and Others, .
The Advocate General has further cited the decision in N. Gopalan Vs. Central Road Traffic Board, Trivandrum, . But the facts of that case
show, that no question of inherent lack of jurisdiction was involved in that case. Vaidialingam J., has observed in more than one place in his
judgment that ""it is not the case of a Tribunal functioning without any jurisdiction whatsoever."" In view of this, that ruling cannot successfully be
harnessed for use in the instant case.
The next point raised on behalf of the Respondents is that the Petitioner himself applied to the Custodian General for review of his orders. This
is urged to be tantamount to the Petitioner having voluntarily invoked the jurisdiction of the Custodian General. The argument proceeds that the
Petitioner cannot take advantage of his own fault or error. I am not satisfied this contention ought to prevail. The Petitioner was obliged by force of
circumstances to approach the Custodian General for a review of his previous order. This course was pursued by him because the Custodian
General had previously passed an order against the Petitioner at the instance of the second Respondent. It is not as if the Petitioner moved the
Custodian General in the first instance. He was brought before the Custodian General by the action taken by the second Respondent, and, as the
result of that action became adverse to the Petitioner, he sought to get rid of that result by asking the Custodian General to set aside his order. This
certainly is not a case where the Petitioner is seeking to take advantage of his own deliberate error. The decision of the Division Bench in Nisar
Ahmad Vs. Additional Commissioner, Jodhpur Division and Another, is an almost similar case. Wanchoo C.J., observed in that case that the
Petitioner was compelled by force of circumstances not only to move the Addl. Commissioner for review but also the Minister in revision. Neither
the Addl. Commissioner nor the Minister had even the semblance of a jurisdiction in the matters yet the Petitioner's conduct was held not to
disentitle him to succeed in the High Court on the point of jurisdiction of the inferior tribunal. The important circumstance in that case on which the
High Court relied was that the inferior tribunal totally lacked jurisdiction and the lack of jurisdiction appeared on the face of the proceedings.
The several authorities referred to above amply bear out that acquiescence or consent cannot clothe a Tribunal with jurisdiction where it is
inherently devoid of jurisdiction. It is pointed out that proceedings by way of certiorari are ""not of course"" and that it is discretionary with the court
to grant or refuse a writ of certiorari. It may be taken that failure of a party to raise the question of jurisdiction before an inferior Tribunal will
ordinarily disentitle him to raise that question before this Court in an application for a writ of certiorari, unless he is able to show that the facts on
which the plea of lack of jurisdiction could be founded were not known to him when the proceedings were pending before the inferior Tribunal.
This rule, which may legitimately be called a salutary rule of practice, cannot properly be applied to a case where under no circumstances the
inferior Tribunal could have assumed jurisdiction, that is to say, where the proceedings were ab initio void. But even if it be assumed that the above
mentioned rule of practice may be applied to both the classes of cases, I consider that the proper exercise of discretion in the latter class of cases
where there is total lack of jurisdiction throughout will be for the court to overlook the failure of the party to raise the question of jurisdiction before
the inferior Tribunal. The inferior Tribunal in such cases would be much more to blame than the unfortunate party who was brought before it by his
adversary because it plainly usurped jurisdiction when in fact it did not have even a vestige of jurisdiction.
In the case on hand, the Petitioner has stated expressly in his affidavit that he was altogether unaware that the Custodian General was totally
devoid of jurisdiction in the matter. This government in the affidavit has not been contradicted by the Respondents. It is clear that the Petitioner's
failure to raise the point of jurisdiction before the Custodian General was not deliberate but was the result of his ignorance. This circumstance,
without anything more, appears to me to be sufficient to redeem the Petitioner from the alleged sin of submission to the jurisdiction of the Custodian
General, even on the assumption that submission to jurisdiction may have the same impact on latent as well as patent want of jurisdiction.
In view of the foregoing, the Petitioner is untitled to a writ of certiorari to quash the orders passed by the Custodian General on 22-4-1958
and 4-1-1959, The result is that the order in favour of the Petitioner passed by the Provincial Rehabitation Officer which was confirmed by the Dy.
Custodian General will stand.
The Petitioner will get costs which are ssessed at Rs. 60/- from the Respondents.