Decided on December 23,1960

TULCHA RAM Appellant

Cited Judgements :-



MODI, J. - (1.)THIS is a writ application by Tulcharam under Articles 226 and 227 of the Constitution by which a simple money decree for Rs. 100/- passed against the petitioner by the Tehsil Panchayat Bikaner dated the 21st November, 1957, affirming a decree of the Gram Panchayat Palana dated the 15th May, 1957, is sought to be quashed.
(2.)THE circumstance leading up to this writ application may shortly be described as follows. THE respondent Rugharam filed a suit for recovery of a sum of Rs. 100/- against the petitioner Tulcharam in Gram Panchayat Barsinghsar on the 8th September, 1956. As the petitioner happened to be a Panch of the aforesaid Gram Panchayat, the Sarpanch, Gram Panchayat Barsinghsar, directed that the case be forwarded to the Tehsil Panchayat Bikaner In its turn, the Tehsil Panchayat, Bikaner transferred the suit to the Gram Panchayat Palana for disposal according to law. THE Gram Panchayat Palana eventually passed a decree in favour of the respondent Rugharam against the petitoner on the 15th May, 1957. THE petitioner preferred an appeal against that decree to the Tehsil Panchayat, Bikaner, and the latter dismissed the appeal by its judgment dated the 21st November, 1957. THEreafter, the petitioner moved a revision application before the District Judge Bikaner who dismissed it by his order dated the 31st October, 1958. THE petitioner has now come up to this Court in the present writ application.
The main contention of the petitioner before this Court is that the Gram Panchayat Barsinghsar had no jurisdiction whatever to take cognizance of this suit and, therefore, it had no business to send lit on to the Tehsil Panchayat Bikaner and likewise the Tehsil Panchayat Bikaner had also no jurisdiction to transfer the same for trial to the Gram Panchayat Palana, and consequently, the last-mentioned Panchayat had also no jurisdiction to try this suit and therefore the entire proceedings taken against the petitioner by the aforesaid Panchayat are patently void for want of jurisdiction and these should be quashed.

The question for determination in these circumstances is whether the objection as to jurisdiction set out above is well founded. Sec. 39 of the Rajasthan Panchayat Act (No. XXI) of 1953 (hereinafter referred to as the Act of 1953) governs the matter. The first part of this section gives four categories of suits which are cognizable by a Panchayat. These are: - (i) suits for ascertained sums not exceeding one hundred rupees; (ii) suits for damages not exceeding one hundred rupees for breach of contract not affecting immovable property; (iii) suits for compensation for wrongly taking or injuring movable property not exceeding one hundred rupees in value; and (iv) suits for specific movable property or for the value thereof not exceeding one hundred rupees. Then there is a proviso and that is important, for it completely bars a Panchayat from taking cognizance of any suit inter alia where it has been filed by or against the Sarpanch or any Panch of the same Panchayat. That being so, the contention that the Barsinghsar Panchayat had no jurisdiction whatsoever to take cognizance of the suit (out of which the present writ application arises) because the petitioner was a Panch thereof has force. In this connection it may also be pointed 011 that under S. 38 of the Act of 1953, the Panchayat has a concurrent jurisdiction with that of the Civil Courts within the Panchayat circle for the trial of such suits as are specified in sec. 39 already referred to above. The proper course for the Barsinghsar Panchayat in such circumstances was to return the plaint to the respondent, "who was plaintiff before it, for presentation to the proper court. But unfortunately that was submitted to the Tehsil Panchayat Bikaner and thereafter it took the course which has already been set out above at length, resulting in a decree against the petitioner.

Accepting that that is normally the correct legal position in a case of this character, the next question which at once arises is whether this Court should quash this decree in the circumstances in which it came to be passed. And while on this aspect of the case it is important to mention that the objection as to jurisdiction was not raised by the petitioner either before the primary Panchayat namely that of Barsinghsar, or in appeal before the Tehsil Panchayat Bikaner, nor did it appear to have been pressed before the learned District Judge in revision. It seems to me that in the:e circumstances it would be indeed very harsh on the respondent if this objection is allowed to be raised at this fag-end of the case. As already stated above, the present suit was filed on the 8th September, 1956, the cause of action having arisen about two months before that, and the Gram Panchayat decreed the suit on the 15th May, 1957. The Tehsil Panchayat upheld that decree on the 21st November, 1957 in appeal and the learned District Judge dismissed a revision against the same on the 31st October 1958, and the present writ came to be filed on the 3rd April, 1959, and came up for disposal before me in the end of 1960. It is obvious that if the decree obtained by the respondent is thrown out on the ground of want of jurisdiction, the respondent would be faced with fresh litigation and interminable difficulties may arise with the result that his suit may fall to be thrown out on the ground of limitation, or, at any rate, it will be very difficult for him, if at all it is possible, to get over the bar of limitation. Learned counsel for the petitioner strongly urges that this Court has no alternative except to quash these entire proceedings where the tribunal deciding the matter suffered from the infirmity of a patent lack of jurisdiction and that being so, this Court must throw out the suit irrespective of the consequences. |

Now it was held in J. K. Iron & Steel Co. Vs. L. A. Tribunal of India (1) that the writ of certiorari, which is in the discretion of the court to issue under Art. 226 should not be issued ordinarily in cases where the applicant had failed to raise a question of jurisdiction before the subordinate tribunals where he could have properly raised it, unless he could show that he was unaware of that ground when the matter was before these tribunals.

Again in Surya Rao Vs. Board of Revenue (2) Subba Rao J. as he then was, held, with respect to a question as to the jurisdiction of the Government to delegate its power-under sec. 18 of the Madras Estates (Abolition and Conversion into Ryotwari) Act (No. 26) of 1948 to the Revenue Board, that the petitioner was precluded from questioning the jurisdiction in a writ of 'certiorari' as he had failed to raise that question at the proper time.

In an earlier case reported as M. U. M. Services Ltd. Vs. R. T. Authority, Malabar (3), the same learned Judge held that 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 petitioners during the proceedings in the lower court, and reliance was placed in coming to this conclusion on the full bench case of Latchmanan Vs. Madras Corporation (4)

In the last-mentioned case, a Full Bench of the Madras High Court had upheld the view that where the petitioner armed with a point either of law or of fact which would have ousted the jurisdiction of the lower court has elected to argue a case on its merits before that court, he must be taken to have submitted himself to a jurisdiction which he cannot be allowed afterwards to seek to repudiate by applying for a certiorari.

(3.)SIMILARLY in Gopalan vs. CRT Board (5), it was held that it was not open to a party to raise the question of jurisdiction of a subordinate tribunal for the first time in a certiorari proceeding unless he had challenged the jurisdiction before that tribunal itself or he satisfied the court that he was unaware of the circumstance which should have put him on an enquiry as to the lack of jurisdiction of the subordinate tribunal.
Reference may also be made in support of the same view to Rex Vs. Williams. Phillips, Expate. (6) where Channell J. observed thus: - "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 considerations 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. By failing so to do a party grieved precludes himself from the right to have the writ ex debito justitiae and reduces his position to that of one of the public having no particular interest in the matter To such a one the granting of the writ is discretionary. " Atkin J. who concurred in the conclusion arrived at by Channell J. observed that - "the applicant must shew that he has not precluded himself by his conduct from claiming the special relief he asks for. He has failed to shew this, and therefore the rule nisi must be' discharged. " Applying the rule of law which is deducible from the cases referred to above the points which emerge may be summarized thus. In the first place, it is obvious that the petitioner did not raise the question of jurisdiction in any of the subordinate tribunals before which this suit came up for decision and in the second place, there is nothing to show that the petitioner had no knowledge of the facts which would have enabled him to raise the question of jurisdiction at the proper time. In the premises, I have no hesitation in holding that the petitioner has precluded himself from raising the question of jurisdiction in certiorari before this Court and I hold accordingly.

For the reasons mentioned above, this writ application fails and is hereby dismissed with costs. .


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