Ab.Rahim Rather & Ors. vs J & K Special Tribunal & Ors.

On the ground of lack of jurisdiction of the Joint Agrarian Reforms Commissioner Srinagar (hereinafter referred to first appellate authority) this

petition is filed seeking to quash order dated 15th July 2000 passed by the said authority as also order dated 4th July 2002 passed by J&K

Special Tribunal Srinagar. Further prayer is made that writ of prohibition be issued to restrain the Additional Deputy Commissioner Budgam from

proceeding in the appeal filed against order on mutation No.489 dated 11th Sept. 2000 titled ""Abdul Rahim Rather and ors v. Mohd. Akbar and

ors"".

The facts in brief are summarized which have given rise to filing of this writ petition. The petitioners' claim that they were recorded tenants in

possession of land measuring 15 Kanals and 121/2 marlas covered by survey Nos. 15 min, 27,63 min, 98 min, 142 min, 147 min, 202 min, 288

min and 290 min situated at Village Garind Kalan Tehsil and District Budgam. The petitioners further claim that orders on mutation No.383 dated

12.2.1975 and 384 dated 15.2.1975 were passed by then Circle Officer Budgam which had the effect of making correction of Girdawari entries

in the revenue records and such exercise undertaken favoured the petitioners and they were shown to be in possession of the above said land w.e.f

1971 and through these mutation orders rent of the land was also charged. The two orders of mutation however, were challenged by one

Mohammad Qazi predecessorininterest of the respondents 4 to 7 by filing two appeals before Commissioner Agrarian Reforms J&K Srinagar and

by composite order dated 27.09.1980 the appeals were accepted and order of mutations were setaside and Tehsildar Budgam was directed to

conduct fresh enquiry in presence of concerned parties and pass fresh orders in accordance with Agrarian Reforms Laws. It is further pleaded by

the petitioners that Tehsildar Budgam passed orders in accordance with provisions of Agrarian Reforms Act of 1976 and declared that out of land

measuring 15 Kanals and 121/2 marlas, the petitioners were tillers of land measuring 13 Kanals and 18 Marias from Kharief 1971 and remaining

land measuring 1 Kanal 41/2 marlas covered under Survey Nos. 63 and 98 being barren land was not covered under the provisions of Act of

1976. The enquiry of the Tehsildar resulted in passing of orders on mutation No. 489 u/s 4 of the Act of 1976 in favour of the petitioners declaring

them as prospective owners of the land measuring 13 Kanals and 18 marlas.

Against the said order of mutation No.489 appeal was filed by respondents 4 to 7 before Joint Agrarian Reforms Commissioner Kashmir and the

appeal remained pending on the files of the said authority till 15th July 2002. It is further pleaded by the petitioners that during pendency of the

appeal before Joint Agrarian Reforms a notification under SRO 59 dated 3.2.1997 was issued by Government in exercise of powers conferred by

Sub Sec. 1 of Sec. 18 read with Sec. 19 of the Agrarian Reforms Act of 1976 hereinafter referred to Act of 1976, which notification had affect of

appointing various revenue officers for the purpose of discharging their duties under the Act of 1976. The Joint Agrarian Reforms Commissioner

(Settlement Officer) Jammu/Srinagar was authorized to hear appeals, as Commissioner in the areas notified and taken up for settlement operations

falling within their respective jurisdiction. Every additional Dy. Commissioner was authorized to hear appeals, as commissioner within his respective

jurisdiction excluding the areas notified and taken up for settlement operations. Further case of the petitioners is that notification SRO 511 dated

19.11.1999 was issued and the Government in exercise of powers conferred by Sub Section (1) of Sec. 18 read with Sec19 of the Act of 1976

made amendments in notification SRO 59 dated 3.2,97. For the disposal of this case the amendment's relevant are referred to; in Sr. No. 2 in

Column 2 words ""(Settlement officer)"" were deleted, likewise for words ""falling within their respective jurisdiction"" appearing against serial No.2 in

column (4) ""falling within Jammu/Srinagar"" were substituted. The words ""excluding the areas notified and taken up for settlement operations

appearing against serial No.3 in column (4) have also been deleted. The words ""excepting Additional Deputy Commissioner Jammu/Srinagar

were added after the words ""every Additional Deputy Commissioner"" appearing against serial No.3 in column (2).

The petitioners further case is that the Joint Agrarian Reforms Commissioner Srinagar on 19.04.2000 observed in the interim order that in view

of the SRO 511 of 1999 the appeal is required to be send to Additional Dy. Commissioner Budgam for disposal and the date for appearance of

parties was fixed on 26.04.2000 However, immediately after dictating said order the ld. counsel for the parties appeared before the Joint Agrarian

Reforms Commissioner (appellate authority) and requested him to retain the case on his files and decide the same, as same being old one and its

disposal as such could not brook further delay. The Joint Agrarian Reforms Commissioner Srinagar accepted the appeal of the respondents and

set aside the order on mutation No. 489 dated 29.06.1982 and case was remanded to Tehsildar settlement Budgam for fresh enquiry. The

Tehsildar settlement Budgam as is pleaded in the writ petition has already passed fresh order on mutation No.489 dated 11.09.2000 which has

favoured the respondents, and petitioners have challenged the said order by filing statutory appeal before Additional Dy Commissioner Budgam.

After giving all these details in the writ petition, petitioners submit that after passing of the order on mutation No.489 in compliance to the orders

dated 15th July 2000 passed by Joint Agrarian Reforms Commissioner and after having challenged the same by filing statutory appeal before

Additional Deputy Commissioner Budgam revision petition was filed on 5th Oct. 2000 before J&K Special Tribunal Srinagar calling in question

order dated 15th July 2000 passed by Joint Agrarian Reforms Commissioner. The J&K Special Tribunal however, dismissed the revision petition

of the petitioners on 4th July 2002, and the petitioners have thus filed this petition before this court. Notices were issued to the other side, and

private respondents have filed the objections to the maintainability of the writ petition.

The respondents besides taking other pleas have also raised objection that order dated 19th April 2000 vide which Joint Agrarian Reforms

Commissioner retained the appeal case on its files at the request of the ld. counsel for parties having not been challenged the petitioners had thus

waived the objections, if any, about the jurisdiction of the Joint Agrarian Commissioner to hear and decide the appeal. It has been further pleaded

that the petitioners after filing appeal against the order of mutation No. 489 dated 11.09.2000 had assured the Additional Dy. Commissioner

Budgam (appellate authority) that they will withdraw the revision petition pending before Special Tribunal. The respondents have further stated that

the objection so raised about jurisdiction of the Joint Agrarian Reforms Commissioner to hear and decide the appeal is not available to the

petitioners in the fact situation of the case. They further stated that appeal against mutation order having been filed by petitioners, the present

proceedings are misconceived.

Heard learned counsel for parties. Considered the matter.

The entire case of the petitioner hinges on the ground of jurisdiction of Joint Agrarian Reforms Commissioner to hear and decide the appeal after

issuance of SRO 511 dated 19th Nov. 1999. The contention of the learned counsel for the petitioners is that after issuance of the said SRO Joint

Agrarian Reforms Commissioner Srinagar had lost jurisdiction to hear and decide the appeal and orders passed either by Joint Agrarian Reforms

Commissioner and thereafter by other authorities being without jurisdiction are rendered nullity in law and are to be quashed by issuance of writ of

certiorari. The learned counsel for the petitioners though had pleaded some more grounds based on procedural proprietary about conducting of

proceedings in the writ petition to challenge the impugned orders, but at the time of hearing of this case the learned counsel restricted his

submission only in respect of the jurisdiction issue.

The ld. counsel for petitioners in support of his contention has referred to case titled ""Narinder Mohan Arva v. United India Insurance co. Ltd

reported in AIR 2006 SC 1748 and case titled ""U.P. State v. Mohd. Nooh"" reported in AIR 1958 SC 86, to canvass the point and pursue this

court that when a judgment/order is passed by a court/authority having no jurisdiction then writ of certiorari is to be issued for correcting the

jurisdictional error.

In response Mr. H.I. Hussain ld. Sr. Advocate appearing for private respondents has submitted that mere creation of appellate authority under

the Act of 1976 for a particular area by SRO 511 of 1999 would not denude the Joint Agrarian Reforms Commissioner Srinagar of his jurisdiction

to hear and decide the appeal more so when Joint request was made by ld. counsel for parties for retaining the case on his files and for deciding

the same. The ld. counsel further submitted that unless the orders would have been passed by government or it would have been provide by SRO

511 of 1999 that pending cases stand transferred then it could be assumed though, not conclusively said, that Joint Agrarian Reforms

Commissioner had lost the jurisdiction to hear and decide the appeal. The learned counsel further submitted that the appeal having been heard and

decided at the request of ld. counsel for parties, the objection about jurisdiction of the appellate authority at Srinagar stands waived and petitioners

cannot be heard to raise said objection again. The ld. counsel in support of his submissions referred to case titled ""Th. Kartar Singh v. Abdul Ahad

Burza"" reported in (1971) JKLR 512 and case titled ""Hira lal, appellant v. Shri Kali Nath, respondent, reported in AIR 1962 119

In order to appreciate the contention raised by learned counsel for the parties it becomes appropriate to refer to some provisions of Act of

1976.

Sec. 2 (2) of the Act of 1976 defines Commissioner, to mean any person appointed to be the Agrarian Reforms Commissioner under section

18 and includes any person appointed to be the Joint Agrarian Commissioner under that section. The relevant clause is reproduced as under:

[(2) ""Commissioner"" means any person appointed to be the Agrarian Reforms Commissioner under section 18 and includes any person appointed

to be the Joint Agrarian Commissioner under that section. Section 18 falls in Chapter III of the Act of 1976 with nomenclature (Jurisdiction and

Procedure), the relevant part of the said section is reproduced as under:

18Appointment, superintendence and control of Revenue Officer. [(1) There shall be following class of officers for the purposes of this act who

shall be appointed by the Government, by notification in the Government Gazette, namely:

(a) Commissioner Agrarian Reforms and Joint Commissioner Agrarian Reforms;

(b) Collector;

(c) Assistant Commissioner;

(d) Tehsildar; and

(e) NaibTehsildar.

Every officer appointed by the Government under this sub section shall be deemed to be a Revenue officer within the meaning of section 6 of the

Jammu and Kashmir Lan Revenue Act, Samvat 1996 and shall exercise such powers within such jurisdiction as the Government may, by

notification in the Government gazette, specify.

Section 19 of the Act of 1976 refers to powers of revenue officers. Sub section (1) and (2) where of is reproduced as under:

(1) Unless the class of revenue officers, by whom any function is to be discharged or any power is to be exercised, is specified by or under this

Act, the Government may, be notification, determine the functions to be discharged or the powers to be exercised under this Act by any class of.

Revenue officers.

(2) The manner and procedure for the performance of duties, the exercise and conferment of powers, distribution of business and withdrawal and

transfer of cases under this Act shall, save as otherwise provided by or under this Act, be regulated by the Jammu and Kashmir Land Revenue

Act, Samvat 1996 and the rules made thereunder.

Section 20 of the Act of 1976 refers to Special powers of officers which is reproduced as under:

The Revenue officers and the appellate and the revisional authorities, appointed by or under this Act, shall have all the powers of a Civil Court

while trying a suit under the Code of Civil Procedure, Samvat 1977 in respect of the following matters, namely:

(a) Summoning and enforcing the attendance of any person and examining him on oath or on solemn affirmation;

(b) Production and recovery of documents;

(c) Proof on facts by affidavits; and

(d) Any other matter which may prescribed;

any every such officer or authority shall be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Code of Criminal

Procedure, Samvat 1989.

Section 21 refers to appeals and revisions. Sub section (1) thereof is reproduced as under:

(1) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector may prefer an appeal to the

Commissioner having jurisdiction in the area to which the appeal relates.

What emerges from pleadings of the parties and the provisions of law is that the Joint Agrarian Reforms Commissioner Srinagar is an appellate

authority created by Act of 1976 (for short first appellate authority). The first appellate authority undoubtedly had jurisdiction to entertain, hear and

decide the appeals at the time the appeal was filed by the private respondents before the first appellate authority. The first appellate authority in

terms of sub section (2) of Section 2 of the Act of 1976 would mean Commissioner and under sub section (1) of section 18 the first appellate

authority could be appointed by the Government by notification in the Government gazette for discharging duties and functions under the Act of

1976. In terms of SRO 59 of 1997 first appellate authority was declared to be Commissioner for hearing of appeals in the areas notified and taken

up for settlement operations falling within his jurisdiction. Sub section (1) of Section 19 refers to the functions to be discharged or powers to be

exercised under the Act of 1976 by any class of revenue officers which would be specified by issuance of notification. Reading section 18 and 19

in conjunction, the first appellate authority was constituted as an authority for hearing appeals under the Act of 1976.

Section 20 of the Act of 1976 refers to some powers which appellate and revisional authority could exercise as a Civil court by invoking

provisions of Code of Civil Procedure Samvat 1977.

Section 21 of the Act of 1976 provides when any person aggrieved by a final order of Collector or a Revenue Officer of a class lower than

that of Collector may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates.

The conjunctive reading of these provisions of the Act of 1976 make it writ large on the face of the record that Joint Agrarian Reforms

Commissioner Srinagar was created as appellate authority to hear the appeals. The Joint Agrarian Reforms Commissioner Srinagar was thus

possessed of basic and inherent jurisdiction under the Act of 1976 to hear and decide the appeals filed by aggrieved persons against orders passed

by subordinate revenue authorities under the Act of 1976.

The admitted fact position in the case is that appeal against the order of subordinate revenue officer was filed before Joint Agrarian Reforms

Commissioner who in terms of the Act of 1976 was possessed of basic and inherent jurisdiction to hear and decide the appeals and was also

possessed of territorial jurisdiction over the subject matter of dispute in this case.

The moot question which has cropped for the consideration of the court in this case is to whether in terms of SRO 511 of 1999, the Joint

Agrarian Reforms Commissioner lost basic and inherent jurisdiction to hear and decide the appeals under the Act of 1976. In view of the legal

position stated hereinabove, there can't be any dispute in the proposition of law that Joint Agrarian Reforms Commissioner continued to possess

the basic and inherent jurisdiction to hear and decide the appeals under the Act of 1976. The first appellate authority on the plain interpretation of

SRO 511 of 1999 read with SRO 59 of 1997 could not be said to have been deprived of its territorial jurisdiction over areas for which the first

appellate authority was created and the cases whereof were pending on its files when SRO 511 of 1999 was issued. This finding is strengthen

byreferring to Sub section (1) of section 18 and sub section (1) & (2) of section 19 of the Act of 1976. Sub section (1) of section 18 refers to the

appointment of Joint Agrarian Reforms Commissioner by government by issuance of notification and in view of the nomenclature Chapter III under

which the section of 18 falls, Joint Commissioner Agrarian Reforms when appointed by issuance of notification gets jurisdiction to hear and decide

the appeal under the Act of 1976 against the orders passed by subordinate authorities.

Sub section (1) of section 19 refers to the determination of functions to be discharged or powers to be exercised under the Act of 1976, and it

has no reference to the jurisdiction of the authority. Sub section (2) of Section 19 refers to the manner and procedure for the performance of

duties, the exercise and conferment of powers, distribution of business and withdrawal and transfer of cases under the Act of 1976 to be regulated

by Jammu and Kashmir land Revenue Act, Samvat 1996 and the rules made there under save as otherwise provided by and under the Act of

1976. Considering the SRO 511 of 1999 on touch stone of said provisions of Act of 1976 the business and cases pending on the files of the first

appellate authority having not been ordered to be transferred to the Additional Deputy Commissioner, would not even take out the case in hand,

from the territorial jurisdiction of the first appellate authority. The first appellate authority retained his power to hear and decide the appeal firstly,

being an authority created by the Act of 1976 thus, possessed of basic and inherent jurisdiction to hear and decide the appeal under the Act of

1976, and secondly, the appeal when filed the first appellate authority was having even territorial jurisdiction over the parties and subject matter of

the dispute. The first appellate authority has had basic and inherent jurisdiction to try and decide appeals pending on the files at the time of issuance

of SRO 511 of 1999. Having held that first appellate authority was possessed of inherent and basic jurisdiction to hear and decide the appeal

under the Act of 1976 and further the business/cases having not been taken away by specific order he continued to have even the territorial

jurisdiction to decide and hear the case.

Assuming for the argument's but not admitting the same, that first appellate authority after issuance of SRO 511 of 1999 had ceased to have

territorial jurisdiction over the subject, but objections about the territorial jurisdiction would not be fatal for the case as the first appellate authority

was possessed of the basic and inherent jurisdiction to hear appeals under the Act of 1976. The orders passed by the first appellate authority,

J&K Special Tribunal and the subordinate Revenue Authority cannot be declared to be a nullity. In this case the position of the petitioners is further

weekend as it was at the request of ld. counsel for the parties that the first appellate authority decided and heard the appeal on its merits. The

petitioners have thus, acquiesced in the territorial jurisdiction of the first appellate authority and cannot be permitted to raise any objection about

the same at this stage.

The petitioners have not challenged order vide which the first appellate authority had retained the appeal case on its files with the consent of the

learned counsel for the parties, they are estopped both in fact and law to raise objection about the same. At the same time, more so, when they

were initially satisfied by remand order passed by the first appellate authority and participated in the proceedings before concerned Tehsildar and

when orders from Tehsildar didn't favour them they challenged same in statutory appeal before Additional Deputy Commissioner. It is during

pendency of the said statutory appeal that revision was filed before J&K Special tribunal calling into question the order of remand of first appellate

authority. The ld. counsel for the petitioners in this factual backdrop cited the abovereferred two judgments which will be considered to find out as

to whether the said judgments support the contention of ld. counsel for the petitioners.

The first case referred to by ld. counsel for the petitioners is Narinder Mohan's case. The facts of the said case are that the said Narinder

Mohan was working as inspector in United India Insurance company Ltd. and on some allegations enquiry was initiated against him and he was

ordered to be Removed from service. He filed appeal against the order of removal which was also dismissed and thereafter filed writ petition.

Objection was raised. In a civil suit the allegations, which became subject matter of departmental enquiry, were found to be not correct. The writ

petition as also LPA, were dismissed.

Before Hon'ble Supreme Court reference was made to Mohd Nooh's case that if an inferior Court or tribunal of first instance acts wholly

without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rule of

justice and all accepted rules of procedure and which offends the superior court's sense of fair play, the superior Court may act in exercise of its

power to issue prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court

or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what exercise was a nullity for reasons stated.

This would be so also if tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals. Mohd

Nooh's judgment is based on the facts that in departmental proceedings an order of dismissal was passed by District Superintendent of Police,

who had himself appeared as witness at two stages in the said proceedings. The appellate authority dismissed the appeal of Mohd Nooh and even

revision application filed was dismissed. Thereafter writ petition u/s 226 of the Constitution was filed and main contention raised and urged before

the High Court was that District Superintendent of Police who presided over the trial and made an order of dismissal had himself appeared as

witness in the proceedings at two stages and had thus become disqualified for continuing as Judge and would be biased against Mohd Nooh.

Preliminary objection was taken before High Court about the maintainability of the writ petition on the ground that even if it would be assumed that

the dismissal order was rendered bad as the authority who passed the order had himself appeared as witness and would be rendered a nullity but

appeal having been heard by competent authority and orders even passed affirming the order of dismissal, the question of jurisdiction could not be

raised.

In support of the said contention raised by ld. counsel for U.P State appellant before Hon'ble Supreme Court reliance was placed on a

judgment in case titled ""Janardan Reddy v. State of Hyderabad reported in (1951) SCR 344 (AIR 1951 SC 217). The Hon'ble S.C in the said

authority had stated as under:

Assuming, however, that it is open even in such cases to investigate the question of jurisdiction, as was held in In re, Authers, (1889) 22 QBD

345 (c), it appears to us that the learned Judges who decided that case went too far in holding that notwithstanding the fact that the conviction and

sentence had been upheld on appeal by a Court of competent jurisdiction, the mere fact that the trial Court had acted without jurisdiction would

satisfy interference, treating the appellate order as a nullity. Evidently, the Appellate Court, in a case which properly comes before it on appeal, is

fully competent to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the matter rightly as well as wrongly. If

it affirms the conviction and thereby decide wrongly that the trial Court had the jurisdiction to try and convict, it cannot be said to have acted

without jurisdiction, and its order cannot be treated as a nullity.

The contention raised by ld. counsel for U.P State for non maintainability of the writ petition on the basis of above quoted para from the

judgment of Janardan Reddy's case was shown to be not applicable in Mohd Nooh's case by observing that the judgment in Janardan Reddy's

case the orders were passed by Special tribunal which had not merely trappings of the court but was the court of law presided over by the judge

whereas, in the departmental proceedings in Mohd Nooh's case were held by officer of the department without any legal training and orders were

also passed by superior officers in the same department. It is in this factual backdrop that at para (11) of Mohd Nooh's case the Hon'ble Supreme

court ruled that the order having been passed wholly without jurisdiction are patently in excess of jurisdiction or any proceedings which are

contrary to the rule of natural justice even if appeal is available against the said order and no recourse has been had to it or even if recourse was

had to it, it confirmed what exfacie was a nullity will be nullity even if merged in order of superior officers. The said observation have been made in

the backdrop of the facts of the case as the departmental proceedings were conducted by the government officers and superior authorities holding

the said proceedings not being legal proceedings. In the present case the proceedings were filed and pending before properly constituted statutory

authority which in terms of section 20 of the Act would function as civil Court for the purposes mentioned therein.

On facts the law laid down in the said judgment cannot be applied to the facts of this case. Even otherwise in the present case, petitioners are

not questioning the basic or inherent lack of jurisdiction of first appellate authority but are claiming that first appellate authority lost territorial

jurisdiction over the subject matter. Deciding of case not having the territorial jurisdiction does not render the order/judgment nullity in law. This

legal position is reported in Hira lal Patni's case para (4) of the said judgment is reproduced as under:

The only ground on which the decision of the High Court is challenged is that the suit instituted on the original side of the Bombay High Court was

wholly incompetent for want of territorial jurisdiction and that therefore, the award that followed on the reference between the parties and the

decree of Court, under execution, were all null and void. Strong reliance was placed upon the decision of the Privy Council in the case of Ledgard

v. Bull, 13 Ind. App. 134 (P.C).In our opinion, there is no substance in this contention. There was no inherent lack of jurisdiction in the Bombay

High Court where the suit was instituted by the plaintiffdecreeholder. The plaint had been filed after obtaining the necessary leave of the High Court

under Cl.12 of the Letters Patent. Whether the leave obtained had been rightly obtained or wrongly obtained is not a matter which can be agitated

at the execution state. The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the

decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject matter was wholly foreign to its

jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have

the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. But in the instant

case there was no such inherent lack of jurisdiction.

The decision of the Privy Council in the case of 13 Ind. App. 134 (P.C) is an authority for the proposition that the consent or waiver can cure

defect of jurisdiction but cannot cure inherent lack of jurisdiction. In that case, the suit had been instituted in the court of the Subordinate Judge,

who was incompetent to try it. By consent of the parties, the case was transferred to the court of the District Judge for convenience of trial. It was

laid down by the Privy Council that as the Court in which the suit had been originally instituted was entirely lacking in jurisdiction, in the sense that it

was incompetent to try it, whatever happened subsequently was null and void because consent of parties could not operate to confer jurisdiction

on court which was incompetent to try the suit. That decision has no relevance to a case like the present where there could be no question of

inherent lack of jurisdiction in the sense that the Bombay High Court was incompetent to try a suit of that kind. The objection to its territorial

jurisdiction is one which does not go to the competence of the court and can, therefore, be waived. In the instant case, when the plaintiff obtained

the leave of the Bombay High Court on the original side, under Cl. 12 of the Letters patent, the correctness of the procedure or of the order

granting the leave could be questioned by the defendant, or the objection could be waived by him.

When he agreed to refer the matter to arbitration through court, he would be deemed to have waived his objection to the territorial jurisdiction of

the court, raised by him in his written statement. It is well settled that the objection as to local jurisdiction of a court does not stand on the same

footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction,

and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be

waived and this principle has been given a statutory recognition by enactments like S.21 of the Code of Civil Procedure. Having consented to have

the controversy between the parties resolved by reference to arbitration through court, the defendant deprived himself of the right to question the

authority of the court to refer the matter to arbitration or of the arbitrator to render the award. It is clear, therefore, that the defendant is estopped

from challenging the jurisdiction of the Bombay High Court to entertain the suit and to make the reference to the arbitrator. He is equally estopped

from challenging the authority of the arbitrator to render the award. In our opinion, this conclusion is sufficient to dispose of the appeal. It is not,

therefore, necessary to determine the other points in controversy, including the question whether the Decrees, and Orders Validating Act, 1936

(Act V of 1936) had the effect of validating what otherwise may have been invalid.

Thokur Kartar Singh's case also support the same contention.

Viewing from any angle, the only conclusion which is arrived at, is that, this petition is meritless and is dismissed.