Munia Goundar vs Palani Goundar and Others

K.S. Palaniswamy, J.—The Office of the headman of Ariyapadi village, Arni taluk, North Arcot District, fell vacant consequent on the death

of the Isum headman of that village. The Revenue Divisional Officer of Cbeyyar invited applications and by order dated 3rd August, 1966,

appointed Palani Goundar, the first respondent herein, as the headman of the said village temporarily, but on long term basis. Against that order

two of the unsuccessful candidates, Munia Goundar, the petitioner herein, and one Ramaswamy Goundar, preferred appeals to the District

Revenue Officer, North Arcot. By order dated 20th September, 1966, the District Revenue Officer set aside the order of the Revenue Divisional

Officer and appointed the petitioner herein, as the headman of the said village. Against this order, Palani Goundar, the first respondent, preferred

an appeal to the Board of Revenue. After hearing the Counsel for the petitioner herein, and perusing the records,the Board of Revenue came to the

conclusion that Palani Goundar was a preferential candidate having better qualifications and in that view set aside the order of the District Revenue

Officer and restored that of the Revenue Divisional Officer. Against this order of the Board of Revenue, the present petitioner filed a revision

before the Government of Madras, who by order dated 24th February, 1969, declined to interfere. The petitioner filed a review petition to the

State Government for re-consideration of the said order. But the State Government by an order dated 3rd April, 1969, declined to reconsider its

former decision. The petitioner filed this writ petition on 25th April, 1969, for the issue of writ of certiorari to quash the order of the Board of

Revenue and to pass such orders as this Court may seem fit.

The main contention urged in support of this writ petition is that the Board of Revenue had no jurisdiction to entertain a second appeal under the

provisions of Madras Act III of 1895 (The Madras Hereditary Village Offices Act, 1895). It is submitted that the error committed by the Board of

Revenue is apparent on the face of the record and that therefore the order of the Board of Revenue should be set aside.

Among the several contentions raised on behalf of the first respondent, one is that the petitioner not having raised before the Board of Revenue

the contention that it had no jurisdiction and the petitioner having acquiesced in the jurisdiction of the Board of Revenue and having preferred a

revision to the Government against the order of the Board of Revenue and a further petition for review of the order of the Government is estopped

from raising that question in this writ petition. In my view this objection raised on behalf of the first respondent is well-founded. The petitioner did

not raise the objection before the Board of Revenue that it had no jurisdiction. He did not make mention of the want of jurisdiction of the Board of

Revenue when he preferred a revision to the Government, nor did he do so when he applied for review of the order of the Government. It is only

in this writ petition that it is mentioned for the first time that the Board of Revenue had no jurisdiction. It is unnecessary to go into the question

whether the Board had jurisdiction or not in the view which I take about the right of the petitioner to invoke the writ jurisdiction of this Court in this

proceeding. It is true that consent of a party cannot confer jurisdiction upon a Tribunal. But the question is whether this Court in the exercise of its

writ jurisdiction should apply the same principle and grant relief to a party who submitted to the jurisdiction of a Tribunal but who later finding that

the order of the Tribunal was against him, turns round and begins to question its jurisdiction. In Lakshmana Chettiar v. Commissioner of

Corporation of Madras I.L.R.(1927) Mad. 130 : 1927 51 M.L.J. 742, a Bench of this Court held:

Failure to object to jurisdiction before the lower Court is a bar to obtaining a writ of certiorari, whether the objection to jurisdiction is based on a

pure point of law or based on facts which were or should have been within the knowledge of the applicant during the proceedings in the lower

Court.

In support of this proposition the learned Judges referred to a number of English decisions. Dealing with a petition under Article 32 of the

Constitution the Supreme Court observed in Pannalal Binjraj Vs. Union of india (UOI), , that if the petitioners before it had acquiesced in the

jurisdiction of the Income Tax Officers to whom their cases were transferred they were not entitled to raise the objection before the Supreme

Court under that Article. The Court observed at page 412:

It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this Court.

On behalf of the petitioner strong reliance was placed upon the decision of a Bench of this Court in Gajendra Transports (P) Ltd., Tiruppur Vs.

Anamallais Bus Transports (P) Ltd., Pollachi and Another, . In that case the Bench was dealing with the question as to the validity of the

notification issued u/s 57(3) of the Motor Vehicles Act, 1939, without a prior order u/s 47(3) of that Act. But in the course of the hearing before

the Regional Transport Authority none raised the objection that there was no prior order u/s 47(3) of that Act. That objection was sought to be

raised for the first time before the State Transport Appellate Tribunal. The question arose before the Bench whether he objection could be allowed

to be raised at that stage. Placing reliance upon the Full Bench decision in Lakshmanan Chettiar v. Commissioner of Corporation of Madras I.L.R.

(1927) Mad. 130 : 1927 51 M.L.J. 742, it was contended before the Bench that the point regarding jurisdicion should not be allowed to be taken

when it was not raised before the lower authority. Dealing with this objection, the Bench observed at page 577:

In that case, a Full Bench of this Court held that failure to object to jurisdiction before the iower Court was a bar to obtaining a writ of certiorari,

whether the objection to jurisdiction is based on a pure point of law or based on facts which were or should have been within the knowledge of the

applicant during the proceedings in the lower Court. That case was decided long before the Constitution came into force, and the position then was

that this Court was following the practice of the King''s Bench in England in certiorari, and on that hypothesis, rules laid down by the English Court

in the decided English cases as to the scope and limitation of its jurisdiction in certiorari were applied. But that is not the case now, as Article 226

of the Constitution is of a much wider scope and confers powers on the High Court to make any direction including writs in the nature of certiorari.

That was not a case of total want of jurisdiction, and on the facts, the Court proceeded on the basis that the objection as to jurisdiction could have

been taken at the early stage, and the point having not been raised, certiorari could not issue ex debito justitiae...That the first respondent had

participated in the contest for the permit before the Regional Transport Authority without raising objection of want of a prior order u/s 47(3) did

not, therefore, disentitle it from raising the point on its appeal before the Tibunal. Even if it had not raised the point in such an appeal, but raised, for

the first time in certiorari or prohibition, in this Court, we would be prepared to entertain it in proceedings under Article 226 of the Constitution,

and it would not be shut out from raising it.

The learned Chief Justice who rendered this Judgment himself had to deal with a similar question in Swami Motor Transports (P) Ltd., Tanjore Vs.

Raman and Raman (P) Ltd. Kumbakonam and Another, . In that case also the writ petitioner raised the question of jurisdiction of the State

Transport Appellate Tribunal for the first time in the writ proceeding. After referring to the Full Bench decision and the decision of (he Supreme

Court in Pannalal Binjraj Vs. Union of india (UOI), , the learned Judge observed:

Learned Advocate-General however urges that since the question of jurisdiction went to the root of the matter, this Court could deal with it under

Article 226 of the Constitution. But the point is not so much of the Court''s power but the conduct of the party who invokes the jurisdiction of this

Court under that Article.

In this view the learned Judge declined to entertain the objection regarding jurisdiction. The attention of the learned fudge while dealing with the

similar question in Gajendra Transports (P) Ltd., Tiruppur Vs. Anamallais Bus Transports (P) Ltd., Pollachi and Another, , does not appear to

have been drawn to the decision of the Supreme Court which deals with the discretion of the Court in considering the question of objection

regarding jurisdiction, not raised before the lower authority but raised for the first time in the writ proceedings. To use the language of the learned

Chief Justice the point is not so much of the Court''s power, but the conduct of the party who invokes the jurisdiction of this Court under writ

jurisdiction. If a party does not raise my objection to jurisdiction but acquiesces in the jurisdiction of a Tribunal or Authority and takes further

proceedings on the basis that the Tribunal or Authority had jurisdiction but fails ultimately he should not be allowed to invoke the writ jurisdiction of

this Court as a last resort by contending that the Tribunal or Authority had noti jurisdiction. His conduct disentitles him from asking for the

discretionary relief at the hands of the Court even though consent or acquiescence may not confer jurisdiction upon an Authority or Tribunal if it

lacked inherent jurisdiction. Following the decision of the Supreme Court, I hold that the petitioner is disentitled from invoking the writ jurisdiction

of this Court after having failed to raise this, objection at the proper time and also after having acquiesced in the jurisdiction, of the Board of

Revenue. This does not however mean that Board to Revenue had jurisdiction. As already observed I express no opinion on that question and I

dismiss the writ petition in the view that the petitioner is not entitled to raise this question of jurisdiction at this stage. There will be no order as to

costs.