Jurisdictional
errors
Jurisdiction ordinarily signifies the
competence of a court/ tribunals to entertain the dispute presented
before it, and grant reliefs prayed / claimed for. However, the concept of
jurisdiction is not confined in its application to Courts, but is also applied
to every Statutory / Administrative or Constitutional body, and to every Public
servant / instrumentality of the State, as contemplated under Article 12 of the
Constitution.
Jurisdiction
implies the authority of the Court / Tribunals / statutory or administrative
bodies, to “invoke” their powers, on a subject matter which comes before them,
in the regular discharge of their duties, and take action or pass Orders in
that behalf.
The errors of Jurisdiction, or to say
Jurisdictional error arises, broadly, for reasons of –
(i) Want of Jurisdiction / without
jurisdiction, that is to say, the Court/ Tribunals / statutory or
administrative bodies did not had the powers to “enter upon” the subject matter
which had come before it in the regular discharge of their duties; and will
include instances where the Court / Authorities etc. have usurped the powers of
another; and will also include instances where the condition precedents, for
the exercise of powers, were not complied with;
(ii) Excess of jurisdiction would
imply such actions / Order where the Court / Authorities etc. although have
lawfully assumed and exercised their vested powers, but in the course of
exercise of their powers, they travelled beyond their powers, and have done
acts or have passed Orders which they were not empowered under the law to act
or to pass;
(iii) Failure of jurisdiction would
include such cases where the Courts / Authorities, in a given situation, have
neglected / failed to exercise the discretion / powers conferred upon them. If
a law confers a public Officer with authority to do an act in a specified set
of circumstances, it is imperative upon him to exercise his authority in a
manner appropriate to the case when a party interested and having a right to
apply moves in that behalf and circumstances for exercise of powers and
authority are shown to exist. [AIR 1971 SC 33]
The significance of jurisdictional
errors:
The issue of jurisdictional errors becomes significant in instances –
(A) Challenge to Orders: When
actions / Orders of the Administrative / Statutory authorities / Courts /
Tribunals are challenged before any Appellate forum.
(B) Exercise of Writ Jurisdiction: The jurisdictional errors are one of the most
important grounds on which the High Courts exercise their plenary and
discretionary Writ jurisdiction under Article 226 & 227 of the Constitution
of India.
The Apex Court
have consistently held that, in spite of availability of the alternative
remedy, the High Court may still exercise its writ jurisdiction in at least
three contingencies : (i) where the writ petition seeks enforcement of any of
the fundamental rights; (ii) where there is failure of principles of natural
justice AIR 2010 SCW 7184; or (iii) where the orders or proceedings are wholly
without jurisdiction or the vires of an Act is challenged. [AIR 1970 SC 645; AIR
2010 SCW 7184; AIR 1999 SC 22; AIR 2012 SCW 616; AIR 2003 SC 2120; AIR 2005 SC 3936; AIR 1958 SC 86 (Constitution Bench Judg); (2011) 5 SCC 697;
AIR 1969 SC 556; (2015) 6 All MR 35 (BHC)]
(C) Bar created u/s 9 of CPC, 1908: When
Jurisdiction of Civil Court is invoked despite there being express bar created
under any statute (section 9 of CPC)
[AIR 1969 SC 78;
(1990) 4 SCC 90; (2015) 3 All MR 306 [BHC];
Kaizer S. Badami Versus State Of Maharashtra Judg date 10.04.2014];
Instances of actions without
jurisdiction:
Among other jurisdictional errors, the errors of “want of jurisdiction /
without jurisdiction of the Court / Authorities” is the most commonly occurred
phenomena in our land, Bharat, that is India; and these errors may take many
shapes and forms, as enunciated by our Apex Court in their various rulings. The
instances of acts of “without jurisdiction” may include –
a)
Breach of law: Where the
Courts / Authorities, etc, have acted without complying with the essential
requirements of law, which are aptly spelled out in the provision of law, and
which forms the conditions precedent for the exercise of powers; or where the
exercise of powers is in disregard of substantive and specific provision of
law, which has immediate bearing on the controversy at hand; or where the
exercise of powers was contrary to law of the land, in force, and that the said
exercise of said powers were without any legal support or sanction.. [AIR 1964
SC 322; (1990) 4 SCC 90]
b)
Breach of
procedure prescribed under the law: Where the Courts / Authorities, etc,
have acted or have passed an Order without following the procedure / or in
breach of the procedure established under the provision of law. [(1990) 4 SCC 90; AIR 2007 SC 3153; AIR 1964 SC 322]
c)
Breach of
principles of natural justice: It may be noted that the principles of
natural justice in many statutes forms part and parcel of procedure prescribed
under that statute / law; and disregard of any of these statutory provisions
would result in action / Order passed without following the procedure / or in
breach of the procedure established under the provision of law, resulting in
jurisdictional error.
d)
Disregarding
Precedents:
There are rulings of Apex Court which have laid down that, in the due exercise
of powers, if the Courts / Authorities disregards the precedents / judgments of
Apex Court, such action / Orders suffers from jurisdictional error. [AIR 2008
SCW 7153]. There is a
Bombay High Court ruling on the same lines. (1998) 1 Bom.C.R.397. It also amounts to contravention of the
fundamental policy of Indian law. [AIR 1994 SC 860; AIR 2015 SC 620]
e)
Discretion to
disobey:
The Apex Court in a case have gone to the extent of holding that, a person has
a “discretion to disobey” an Order of the Authority if in his view, the said Order
was without jurisdiction and which resulted in infringement of his fundamental
rights. [AIR 1974 SC 1471]
Other forms of Jurisdictional errors: The
jurisdictional error may also arise due to errors of law as held by Apex Court
in landmark Mafatlal Ruling. The Apex Court observed to say that the inferior
court or tribunal lacks jurisdiction / exceeds jurisdiction if it enters upon
such an inquiry or, having jurisdiction in the first place, it proceeds to
arrogate an authority withheld from it by perpetrating a major error of
substance, form or procedure, or by making an order or taking action outside
its limited area of competence. The Apex Court further said, A tribunal lacks
jurisdiction if (1) it is improperly constituted, or
(2) the
proceedings have been improperly instituted, or
(3) authority to
decide has been delegated to it unlawfully, or
(4) it is
without competence to deal with a matter by reason of the parties, the area in
which the issue arose, the nature of the subject matter, the value of that
subject matter, or the non-existence of any other prerequisite of a valid
adjudication. Excess of jurisdiction is not materially distinguishable from
lack of jurisdiction and the expressions may be used interchangeably. [(1997) 5
SCC 536]
Nevertheless, the fine distinction
between the jurisdictional errors and non jurisdictional errors must be clearly understood. Jurisdictional
errors are those errors which are committed whilst “entering into” the province
of the exercise of powers. The non jurisdictional errors are those errors which
are committed during the course of exercise of powers, amidst the lawful
invocation and lawful assumption of powers. [AIR 1954 SC 340; AIR 2003 SC 3789]
How to determine whether error is
jurisdictional or non jurisdictional:
The jurisdiction
of the Court / Authority, although is an issue of law, but ultimately it has to
be decided on the basis of facts of the case. Whether error in the Impugned
action / Order is a jurisdictional error or otherwise, is to be decided on the
basis of existence or the non existence of Jurisdictional facts.
The facts, the
existence of which empowers the Court or Authority to enter upon the province
of their exercise of powers over the subject matter, for adjudication or for
any other legal action, are called jurisdictional facts.
Therefore, if
the “jurisdictional fact” exists in the facts of the case, the Court / Tribunal
/ Authority had the jurisdiction; if it does not exist, the court, authority or
officer cannot act.
If the Court /
Authorities wrongly assume the existence of these jurisdictional facts, they
commit jurisdictional error.
A
“jurisdictional fact” is a fact which must exist before any Court, Tribunal or
an Authority assumes jurisdiction over a particular subject matter. [AIR 1962
SC 1621; AIR 2009 SC 713] It has been held that the cause of action is a
jurisdictional question of fact. [AIR 2008 SC 187]
Consequences of actions / Orders which
are suffering from the jurisdictional errors: The actions
/orders of Courts /Authorities suffering from jurisdictional errors may be
declared as nullity, void-ab-initio, non est in law. Such actions / Orders may
be challenged even in the execution proceedings. [AIR
1974 SC 1471; AIR 2010 SC 3823; AIR 2011 SC
514; AIR 1924 Cal 913; AIR 1954 SC 340; AIR 2003 SC 1475; AIR 2003 SC 3789; AIR
2009 SC (Supp) 923].
Sandeep
Jalan
Advocate
Mumbai
Mumbai
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