THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN CONSTRUCTION CO. LTD.

55Copy pinpoint55. In paragraph 91 of the said judgment, in the concurring opinion, D it has been stated thus:- "91. It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised otherwise. So far as the position in this country is concerned conferment of jurisdiction is possible either by the provisions of the Constitution E or by specific laws enacted by the legislature. For instance, Article 129 confers all the powers of a conrt of record on the Supreme Court including the power to punish for contempt of itself. Articles 131, 132, 133, 134, 135, 137, 138 and 139 confer different jurisdictions on the Supreme Court while Articles 225, 226, 227, 228 and 230 deal with conferment of jurisdiction on the High F Courts. Instances of conferment of jurisdiction by specific law are very common. The laws of procedure both criminal and civil confer jurisdiction on different courts. Special jurisdiction is conferred by special statute. It is thus clear that jurisdiction can be exercised only when provided lower either in the Constitution G or in the laws made by the legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. In support of judicial opinion for this view reference may be made to the Permanent

1050 SUPREME COURT REPORTS [2017) 13 S.C.R.

A Edition of"Words und Phrases" Vol. 23-Aat page 164. It would be appropriate to refer to two small passages occurring at pages 174 and 175 of the volume. At page 174, referring to the decision in Carlile v. National Oil & Development Co. it has been stated. Jurisdiction is the authority to hear and determine, and in order B that it may exist the following are essential: (1) A court created by law, organized and sitting; (2) authority given to it by law to hear and determine causes of the kind in question; (3) power given to it by law to render a judgment such as it assumes to render; (4) authority over the parties to the case if the judgment is to bind them personally as a judgment in personam, which is acquired c over the plaintiff by his appearance and submission of the matter to the court, and is acquired over the defendant by his voluntary appearance, or by service of process on him; (5) authority over the thing adjudicated upon its being located within the court's territory, and by actually seizing it ifliable to be carried away; (6) D authority to decide the question involved, which is acquired by the question being submitted to it by the parties for decision."

56Copy pinpoint56. In Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and others", it has been expressed that the right of appeal is statutory and when conferred by a statute, it becomes a vested right. E Jurisdiction vested in an appellate court in a hierarchical system is to rectify the errors and that is why it is called "error jurisdiction" as has been held in Jlikas Yadav v. State of Uttar Pradesh and others". A similar view has been expressed in Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation".

57Copy pinpoint57. In Guru Nanak Foundation (supra), as noted earlier, the two-Judge Bench has distinguished the principle laid down in Garikapati Veeraya (supra) by stating that the door of this Court is not closed to the appellant. In fact, as has been stated, the door is being held wide ajar for him to raise all contentions which one can raise in a proceeding in an originating summons. The aforesaid statement of law is not correct G because the superior court is not expected in law to assume jurisdiction on the foundation that it is a higher court and further opining that all contentions are open. The legislature, in its wisdom, has provided an "(2003) 6 sec 659 "(2016) 9 sec 541 H " (2009) s sec 646

THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1051 CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]

appeal under Section 39 of the Act. Solely because a superior court appoints the arbitrator or issues directions or has retained some control over the arbitrator by requiring him to file the award in this Court, it cannot be regarded as a court of first instance as that would go contrary to the definition of the term 'court' as used in the dictionary clause as well as in Section 31 (4). Simply put, the principle is not acceptable because this Court cannot curtail the right of a litigant to prefer an appeal by stating that the doors are open to this Court and to consider it as if it is an original court. Original jurisdiction in this Court has to be vested in law. Unless it is so vested and the Court assumes, the court really scuttles the forum that has been provided by the legislature to a litigant. That apart, as we see, the said principle is also contrary to what has c been stated in Kumbha Mawji. It is worthy to note that this Court may make a reference to an arbitrator on consent but to hold it as a legal principle that it can also entertain objections as the original court will invite a fundamental fallacy pertaining to jurisdiction.

58Copy pinpoint58. InSurjit Singh Atwal (supra), a three-Judge Bench had opined D that applications under Section 8 and under Section 20, though clearly applications anterior to the reference, lead to a reference. Such applications are undoubtedly applications "in the matter ofa reference" and may fall within the purview of Section 31 (4) of the Act even though these applications are made before any reference has taken place. The purpose ofreferring to the said authority is that the principle stated in E Kumblta Mawji (supra) has been elaborated in Surjit Singlt Atwal (supra). It is to be borne in mind that the Court that has jurisdiction to entertain the first application is determinative by the fact as to which Court has the jurisdiction and retains the jurisdiction. In this regard, an example may be cited. When arbitrator is not appointed under the Act F and the matter is challenged before the High Court or, for that matter, the Supreme Court and, eventually, an arbitrator is appointed and some directions are issued, it will be inappropriate and inapposite to say that the superior court has the jurisdiction to deal with the objections filed under Sections 30 and 33 of the Act. The jurisdiction of a Court conferred under a statute cannot be allowed to shift or become flexible because of G a superior court's interference in the matter in a different manner.

59Copy pinpoint59. Thus analysed, we arrive at the irresistible conclusion that the decisions rendered in Saitlt and Skelton (supra) and G11r11 Nanak Foundation (supra) do not lay the correct position oflaw and, accordingly, H

1052 SUPREME COURT REPORTS [2017] 13 S.C.R.

A they are overruled. Any other judgment that states the law on the basis of the said judgments also stands overruled.

60Copy pinpoint60. Having so stated, we would have directed the matter to be listed before the appropriate Bench. But it is not necessary as we find the appellant-State has filed the objection before the Civil Court. If the B objection of the State is not there on record, liberty is granted to the State as well as the respondent to file their respective objections within thirty days from today. The objections shall be decided on their own merits.

61Copy pinpoint61. Resultantly, the appeal stands disposed of in above terms. c There shall be no order as to costs.

Nidhi Jain Appeal disposed of.