JURISDICTIONAL FACT.

[Mr. M. GOVINDARAJAN]

                        A jurisdictional fact is one on existence or non existence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority.   In ‘Black’s Legal Dictionary’ it is explained as a fact which must exist before a court can property assume jurisdiction of a particular case.   Mistake of fact in relation to jurisdiction is an error of jurisdictional fact.   No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated.   

                        In ‘Halsbury’s Laws of England’ it has been stated that where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of the issue.   If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the Tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive.

                        In ‘Arun Kumar V. Union of India’ – 2006 (9) TMI 115 – (SUPREME COURT) it was held that a ‘jurisdictional fact’ is a fact which must exist before a Court, Tribunal or an authority assumes jurisdiction over a particular matter.  A jurisdictional fact is one on existence or non existence of which depends upon the jurisdiction of a court, a tribunal or an authority.  It is the fact upon which an administrative agency’s power to act depends.   If the jurisdictional fact does not exist, the court, authority or order cannot act.   If a court or authority wrongly assumes the existence of such fact the order can be questioned by a writ of certiorari.   The underlying principle is that the erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess.                    

                        In ‘Siemens Limited V. State of Maharashtra; - (2006 (12) TMI 203 - SUPREME COURT OF INDIA) the demand of payment of cess was issued to the company which was challenged in the High Court on the ground that no jurisdictional fact exists for the levy.  By the notice the appellant was directed to make payment of cess with interest.   The writ petition was dismissed by the High Court on the ground that the petitioner may file reply to the show cause notice.   The Supreme Court held that although the writ court may not exercise its discretionary jurisdiction in entertaining a writ petition challenging the notice unless the same appears to have been without jurisdiction.  When a notice is issued with premeditation, a writ petition would be maintainable.   In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose.

                        In ‘Raza Textiles Limited V. Income Tax Officer’ – 1972 (9) TMI 15 – (SUPREME COURT) it was held that a court or tribunal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrongly.   Error in assumption of jurisdiction should not be confused with mistake, legal or factual in exercise of jurisdiction.   In the former the order is void whereas in the latter it is final unless set aside by higher or competent court or authority.   An order which is void can be challenged at any time in any proceedings.

                        In this case the Income Tax Officer directed X to pay certain amount of tax rejecting the contention of X that he is not a non resident firm.   The Tribunal confirmed the order.   A single judge of the High Court of Allahabad held X as nonresident firm and nor liable to deduct tax at source.   The Division Bench set aside the order observing that the Income Tax Officer had jurisdiction to decide the question either way.   It cannot be said that the officer assumed jurisdiction by a wrong decision on this question of residence.   Therefore X approached the Supreme Court.

                        The Supreme Court held that the appellate bench appears to have been under the impression that the Income Tax Officer was the sole judge of the fact whether the firm in question was resident or non resident.  This conclusion, in our opinion, is wholly wrong.   No authority, much less a quasi judicial authority, can confer jurisdiction on itself by deciding a jurisdictional fact wrongly.  The question whether the jurisdictional fact has been rightly decided or not is a question that is open for examination by the High Court in an application for a writ of certiorari.   If the High Court comes to the conclusion that the Income Tax Officer has clutched at the jurisdiction by deciding a jurisdictional fact erroneously then the assessee was entitled for the writ of certiorari prayed for by him.  It is incomprehensible to think that a quasi judicial authority like the Income Tax Officer can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen.

                        It is clear that existence of jurisdictional fact is sine qua non for the exercise of power.   If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with the law.  Once the authority has jurisdiction in the matter on existence of jurisdictional fact, it can decide the ‘fact in issue’ or ‘adjudicatory fact’.   A wrong decision on ‘fact in issue’ or on ‘an adjudicatory fact; would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present.