Jurisdictional Error and the Collateral Fact Doctrine
Chapter Forty-One
Syllabus topic 3, "Jurisdiction"
Pages 124 to 127 of 430
In one line
A jurisdictional error is a mistake that destroys the power to decide, so the decision is not a bad decision but no decision at all.
In the wording a student can write in an exam: a jurisdictional error is an error which goes to the authority's power to enter upon or to continue the enquiry, as distinct from an error made in the course of a lawful enquiry; a decision affected by such an error is a nullity, is unprotected by a finality clause, and may be quashed by certiorari or ignored.
The old picture: two kinds of error
Error going to jurisdiction. The authority never had power, or lost it, so its decision is void.
Error within jurisdiction. The authority had power and used it wrongly, so the decision stands unless corrected on appeal or, where the error is apparent on the record, by certiorari.
That distinction is the foundation of the whole subject, and it is why the same wrong answer can be fatal in one case and harmless in another.
The collateral fact doctrine
A statute often makes the power depend on a fact. Where it does, that fact is called a jurisdictional or collateral fact, and its existence is for the court and not for the authority.
The classic illustration is a section permitting an officer to requisition premises which are vacant. Whether the premises are vacant is not part of what the officer decides; it is the condition on which he may decide anything. If he decides wrongly that they are vacant, he does not make a wrong decision within his power, he assumes a power he never had.
The difficulty, and the reason the doctrine has always been slippery, is that a statute rarely says which of its conditions are jurisdictional. Courts decide by construction, and the same words have been read both ways in different statutes.
Ujjam Bai and the classification of errors
Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621.
Facts. A sales tax authority, acting under a valid statute and within its jurisdiction, misconstrued a notification and taxed goods which were arguably exempt. The assessee moved the Supreme Court under Article 32, saying that an illegal tax infringed her fundamental rights.
Held. The petition failed. A quasi-judicial authority acting under a valid law and within its jurisdiction does not violate a fundamental right merely by deciding a question of fact or of construction wrongly; the error is within jurisdiction, and the remedy is an appeal or certiorari under Article 226. An order may be attacked as ultra vires in three situations: where the statute under which it is made is unconstitutional; where the authority acts outside its jurisdiction; and where it violates a fundamental right independently of the statute.
Jurisdictional Error and the Collateral Fact Doctrine
Why it matters here. It is the Indian classification of errors, and it is the answer to the student who thinks every illegality is a jurisdictional one.
Anisminic and the collapse of the distinction
Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147.
Facts. Anisminic owned mining property in Egypt which was damaged in 1956, sequestrated, and sold to an Egyptian organisation. A 1959 treaty produced a compensation fund, and an Order in Council laid down who could claim from it. The Foreign Compensation Commission rejected Anisminic's claim because it treated the nationality of the successor in title as a condition of the claim, although on the true construction of the Order it was not. Section 4(4) of the Foreign Compensation Act 1950 provided that a determination by the Commission of any application shall not be called in question in any court of law.
Held. The determination was a nullity and the ouster clause did not protect it. Determination means a real determination and does not include a purported determination which in law has no existence, so a person who says a determination is a nullity is not calling a determination in question at all. A tribunal may have jurisdiction to enter on an enquiry and yet do something in the course of it which makes its decision a nullity: asking the wrong question, taking into account something it was not entitled to consider, or refusing to take into account something it was required to consider. There are no degrees of nullity.
Why it matters here. It widened jurisdictional error until almost any error of law could be brought inside it, and in doing so it made ouster clauses very hard to draft. The Indian equivalent, decided on an ordinary finality clause, is Union of India v. Tarachand Gupta and Bros., AIR 1971 SC 1558, worked in [The Finality Clause].
The Indian position today
Indian courts continue to use the language of jurisdictional error, but the practical position is close to the English one. An authority which asks itself the wrong question, acts on irrelevant material, ignores relevant material, or misconstrues the provision that defines its power is treated as having gone outside its jurisdiction. What survives of the distinction is chiefly in the operation of ouster clauses and in Article 32, where Ujjam Bai still bars a petition founded on an error within jurisdiction.
A worked example
A statute allows a Collector to cancel the registration of a dealer who has "failed to file returns for three consecutive quarters". The Collector cancels the registration of a dealer who has filed all three returns but filed two of them late.
Jurisdictional Error and the Collateral Fact Doctrine
Whether the returns were filed is the jurisdictional fact, and it existed in the dealer's favour, so the Collector had no power at all: the cancellation is a nullity. Suppose instead the returns were genuinely not filed, and the Collector cancelled without giving the hearing the section requires. That too is a nullity on the Anisminic reasoning, because he did in the course of the enquiry something that made the decision void. Now suppose he heard the dealer and then wrongly held that a return filed by post on the last day was out of time. That is an error within jurisdiction, and the dealer must show that it is apparent on the face of the record before certiorari will lie.
Distinctions that carry marks
| Jurisdictional error | Error within jurisdiction | |
|---|---|---|
| Effect on the decision | Nullity | Valid until set aside |
| Ouster clause | No protection | Protected by clear words |
| Certiorari | Available | Only if the error is apparent on the record |
| Article 32 | Available where a fundamental right is infringed | Not available: Ujjam Bai |
| May the order be ignored | Yes, in principle | No |
What this does NOT mean
It does not mean the authority decides its own jurisdiction. A body cannot confer power on itself by wrongly finding that the jurisdictional fact exists.
It does not mean every error is now jurisdictional. Ujjam Bai still stands for Article 32, and a pure error of fact remains outside review on Syed Yakoob.
It does not mean a nullity may safely be ignored in practice. A person who ignores an order takes the risk that a court will hold it merely voidable, which is why the point is worked in [Void or Voidable: The Effect of a Breach of Natural Justice].
Quick revision
Two kinds of error: going to jurisdiction, which makes a nullity, and within jurisdiction, which does not. A jurisdictional or collateral fact is a fact on which the power depends, and its existence is for the court. Ujjam Bai classifies the three situations in which an order is ultra vires and holds that a wrong construction within jurisdiction infringes no fundamental right. Anisminic widened jurisdictional error to asking the wrong question, considering the irrelevant and ignoring the relevant, and said there are no degrees of nullity.
Test yourself
1. What is the practical importance of calling an error jurisdictional? The decision is a nullity, so it is unprotected by an ouster clause, is quashable by certiorari without more, and in principle may be ignored.
2. Give Lord Reid's three examples from Anisminic. Asking the wrong question, taking into account something the tribunal was not entitled to consider, and refusing to take into account something it was required to consider.
Jurisdictional Error and the Collateral Fact Doctrine
3. Why did Ujjam Bai fail under Article 32? Because the authority acted under a valid law and within jurisdiction, and a wrong construction in those circumstances is an error within jurisdiction which infringes no fundamental right.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.