Extracted from the PDF above. The PDF is authoritative.
2026:HHC:42215 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. :
475 of 2025 Reserved on : 04.08.2026 Decided on : 30.09.2026 Uploaded on
: 30.09.2026 Kamla Devi …Petitioner Versus Manta Devi & Others …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. R.L. Sood, Senior advocate assisted by Ms. Sanjeevani Sood and Ms. Tamanna, Advocates. For the respondents : Ms. Devyani Sharma, Senior Advocate with Ms. Srishti Negi, Advocate, for respondent No.1. Virender Singh, Judge (Oral) PetitionerKamla Devi has filed the present petition, under Article 227 of the Constitution of India, against the order dated 04.08.2025, passed by learned Senior Civil Judge, Kullu, District Kullu (hereinafter referred to as the ‘trial Court’), in Civil Suit No.7 of 2024, titled as ‘Manta Devi versus Kamla Devi & Others’. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
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2. Vide order dated 04.08.2025, the learned trial Court has dismissed the objections filed to the Local Commissioner’s report and accepted the demarcation report dated 04.01.2025.
3. Parties to the present lis are, hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.
4.
Brief facts, leading to the filing of the present petition before this Court, as borne out from the record, may be summed up, as under:
4.1. Manta Devi has filed the suit for the following relief: It is therefore, prayed that :
(A) IT MAY BE DECLARED THAT plaintiff is owner in possession of the land measuring 4 Biswa comprised in Khasra No.3292/559 contained in Khatouni No.780 of Khata No.610 incorporated in Jamabandi Phati Dhalpur Kothi Maharaja Tehsil and District Kullu for the year 20012002 on a portion of which plaintiff has constructed three storeyed RCC building, which building in the site plan attached with the plaint is shown by letters AEFD. 3 2026:HHC:42215 (B) IT MAY FURTHER BE DECALARED THAT the tatima of the aforesaid land as drawn up in revenue recod is wrong and contrary to the factual position of the land on the spot and it may be declared that the length of the western side of the said suit land is 10 Karam plus 6 karm and the same is wrongly recorded 6 karam plus 3 karam and similarly the length of the Eastern side of the suit land is 12 karam long and the same is wrongly recorded as 9 karam and the aforesaid wrong digits are liable to be corrected accordingly. (C) decree for possession of piece of land owned by the plaintiff which forms part and parcel of Khasra No.3392/559, which has been wrongly and illegally encroached upon by the defendants by raising stairs and extending the old structure by adding lintal roofed single storeyed room, which portion in th site plan attached with the plaint is shown by letters EBCF in red ink and the entire land encroached upon by the defendant is shown in red colour by way of demolition of the aforesaid illegal structure raised thereon and the cost and expenses of the defendants.”
5. The suit was contested by the defendants, controverting the stand taken by the plaintiff. They have also taken the plea that they are in possession of the suit land and as such, the suit for declaration is not maintainable; the plaintiff has no locus standi to file and maintain the present
4 2026:HHC:42215 suit; and the plaintiff is estopped by her acts and conduct to file and maintain the present suit. 6.
On merits, the suit has been contested by controverting the stand, as taken in the plaint. 7. On completion of the pleadings of the parties, the learned trial Court has framed the issues and thereafter, the parties to the lis were directed to adduce evidence. 8. After completion of the evidence and hearing
learned counsel for the parties, the learned trial Court has partly decreed the suit, vide judgment and decree dated 12.09.2007, by granting the following relief :
“15. In view of my findings on Issues No.1, 2, 3, 4, 5, 6 and 7, the suit of the plaintiff partly succeeds and partly fails and it is declared that the plaintiff is ownerinpossession of the land measuring 4 biswa comprised in Khasra No.3392/559 contained in Khatauni No.780, Khata No.610 situated at Phati Dhalpur Kothi Maharaja, Tehsil and Distt. Kullu and on a portion of which she has raised construction of three storeyed RCC building and the tatima of the suit land as entered into the revenue record/mutation is wrong and contrary to the factual position and it is declared that length of western side of the suit land is 10 karm plus 6 karm instead of 6 karm plus 3 karm and also the length of eastern side of the suit land is 12 karm instead of 9 karm. However, the plaintiff is not entitled for possession of a piece of the suit land as
5 2026:HHC:42215 she has not been able to prove any encroachment on it on the part of the defendants. However, in peculiar circumstances no order as to costs. A decre sheet be prepared accordingly. The file after its due completion be consigned to the record room.”
9. Against the said judgment and decree, the plaintiff has preferred appeal before the Court of learned Additional District Judge, Fast Track Court, Kullu (hereinafter referred to as ‘the First Appellate Court’), which was dismissed by the learned First Appellate Court, vide judgment dated
24.04.2008.
10. Thereafter, plaintiff Manta Devi, has preferred the appeal, bearing RSA No.372 of 2008, before this Court, which was allowed on 28.08.2023 and the following relief has been granted:
“31. In view of the above, the present appeal is allowed, and the judgments and decrees passed by the learned Courts below declining the relief of possession are set aside. The matter is remitted to the learned Trial court with the direction to appoint a Local Commissioner to carry out demarcation as per the decree passed by it for declaration as per the law and thereafter decide the prayer of the plaintiff to seek possession as per the report. The parties through their counsel are
directed to appear before the learned Trial Court
6 2026:HHC:42215 on 25th September 2023. Pending miscellaneous applications, if any, also stand disposed of.”
11. In pursuance of the said directions given by this Court, while deciding the above Regular Second Appeal, the learned executing Court has appointed Tehsildar Kullu, as Local Commissioner on 06.01.2024. The Local Commissioner has submitted the report and against the said report, objections were filed, which were considered by the learned executing Court on 11.11.2024 by accepting the objections of the plaintiff against the Local Commissioner’s report and the report of the Local Commissioner was set aside. 12. Thereafter, the Naib Tehsildar, Kullu was appointed as Local Commissioner with a direction to demarcate the suit land, as per the changed Tatima attached with mutation No.6398. The report was submitted by the Local Commissioner on 20.02.2025 and opportunity was given to the parties to file objections, against the report of the Local Commissioner. 13. Against the report, defendant No.1, filed the objections. Those were replied by the nonobjectors and
7 2026:HHC:42215 ultimately, vide order dated 04.08.2025, the learned executing Court, has dismissed the objections, by accepting the demarcation report dated 04.01.2025. 14. Against the dismissal of those objections, defendant No.1, has filed the present petition, under Article 227 of the Constitution of India, on the ground that the learned executing Court has erred in law, by dismissing the objections, so filed by the JD. 15. The order impugned herein has also been challenged on the ground that the learned executing Court has wrongly accepted the demarcation report, which, according to the JD, has been conducted by the Local Commissioner, without adhering to the law laid down by this Court in RSA 372 of 2008. 16. Pointing out the fault in the demarcation report, it has been pleaded that as per the document, demarcation was carried out, on the spot, in the presence of Phunchog Dolma, original defendant No.2, who, admittedly, had left for her heavenly abode on 28.05.2024. 8 2026:HHC:42215
17. According to the JD, no notice of the demarcation was ever issued to the legal representatives of Phunchog Dolma, original defendant No.1, as there is no proof of any service, having been effected, on them, as required in writing. 18.
It is the further case of the JD that the Local Commissioner has adopted a novel idea to give the alleged intimation of the demarcation, through WhatsApp, as, no names of LRs or their mobile numbers, have been mentioned in the report. The Local Commissioner is stated to have not fixed the three permanent points, before conducting the demarcation. The report of the Local Commissioner is totally silent about the fact as to how the measurement has been done on the spot. 19. On the basis of the grounds, so taken, in the petition, Shri R.L. Sood, learned Senior Advocate, assisted by Ms. Sanjeevani Sood and Ms. Tamanna, Advocates, has prayed that the demarcation has not been conducted properly, by the Local Commissioner, as such, the same may kindly be set aside, by accepting the objections, so raised and it has also
9 2026:HHC:42215 been pleaded that the order dated 04.08.2025, may kindly be set aside. 20. Per contra, Ms. Devyani Sharma, learned Senior Advocate, assisted by Ms. Srishti Negi, Advocate, appearing for the decree holder has supported the order passed by the learned executing Court, by rejecting the objections, and it has been pointed out that admittedly, there are a number of houses on the spot, as such, the triangular system cannot be followed. While arguing so, she has relied upon the decision of this Court in RSA No.148 of 2009 dated 10.03.2010 titled as Ramesh Chand vs. Basant Ram. 21. It has also been argued by the learner senior counsel appearing for the decree holder that despite service of the notices, the parties were not present there and their absence does not vitiate the proceedings. 22. Learned senior counsel for the decree holder has also relied upon the judgments of Hon’ble Supreme Court, as well as, the judgments of this Court, in Sadhana Lodh versus National Insurance Co.
Ltd. & Another, (2003)3
10 2026:HHC:42215 SCC 524; Garment Craft versus Parkash Chand Goel, (2022) 4 Supreme Court Cases 181; RSA No.148 of 2009, titled as Ramesh Chand versus Basant Ram; CMPMO No. 375 of 2019, titled as Ram Parkash (since dead) through LRs versus Sudesh Kumari; RSA No. 292 of 2013, titled as Suresh Kumar versus Shiv Kailash & Another; CWP No.2294 of 2026, titled as Balak Ram versus State of H.P. & Others; RSA No. 154 of 2015, titled as Som Dutt versus Ram Narayan & Another; RSA No. 389 of 2016, titled as M/s Sports Station India Pvt. Ltd. & Others versus Ajay Arrey; CMPMO No.100 of 2025, titled as Chander Jot Singh versus Dharam Singh & Others; and CMPMO No.86 of 2026, titled as Chuni Lal versus Rakesh Kumar & Another. 23. As per the record, earlier Tehsildar Kullu was appointed as Local Commissioner in pursuance of the orders passed, by this Court, however, his report has been set aside by the learned executing Court vide order dated 11.11.2024
11 2026:HHC:42215 and the Niab Tehsildar, Kullu, was appointed as Local Commissioner to demarcate the land. 24. As per the record, before conducting the demarcation, the Local Commissioner has issued the information report (Ittlanama), by mentioning the names of respondents, as Kamla Devi, wife of Om Prakash; and Smt. Phunchog Dolma, daughter of Chhering Tandup. In the said document, a report has been made that the respondent Phunchog Dolma has expired a few months ago and her legal representatives were informed through WhatsApp and telephone. Neither the names of those legal representatives have been mentioned, nor, the mobile number/WhatsApp number, upon which they had been informed, has been mentioned. 25. Before conducting the demarcation, the Local Commissioner was duty bound to issue notice to the parties to the Execution Petition.
Not only this, in the report, which was allegedly prepared by the Local Commissioner on the spot regarding fixing of pucca points, names of the person and her
12 2026:HHC:42215 presence, has also been mentioned, in the document, whereas, admittedly, Phunchog Dolma has been mentioned as deceased. Meaning thereby, this document was not prepared on the spot. 26. In the report fixing the pucca point, the Local Commissioner has mentioned that the above pucca points were considered as correct, by the person, who were present there, including Phunchog Dolma, who admittedly, was not in the living world, at the relevant time. 27. Merely, because the matter is old one and the demarcation was done in pursuance of the directions of this Court, does not imply that the basic principles of natural justice are to be given up by the Local Commissioner. 28. The learned executing Court has fallen into error by holding that the notices of the demarcation, which was conducted on the spot on 04.01.2025, were served upon the plaintiff and defendant No.1. Admittedly, defendant No.1, (Kamla) was present there, but, the apparent situation, as mentioned, in the documents, referred to above, qua the alleged service of the notices, upon the legal representatives of
13 2026:HHC:42215 Phunchog Dolma, and her alleged presence, at the time of fixing of pucca point, is sufficient to allow the present petition, as, under the garb of limited jurisdiction, under Article 227 of the Constitution of India, the principles of natural justice, cannot be ignored, as held by the Hon'ble Supreme Court, in Civil Appel No.2248 of 2025 , titled as Bhudev Mallick Allias Bhudeb Mallick & Another versus Ranahit Ghoshal & Others, 2025 INSC 175. Relevant paragraphs 53 to 58 of the judgment is reproduced as under:
“53.
We are a bit disappointed with the manner in which the High Court dealt with the present litigation, more particularly while deciding the revision application filed by the appellants herein against the order passed by the executing court. All that the High Court has said in one line is that it did not find any jurisdictional error in the
order passed by the executing court ordering arrest, detention in a civil prison and attachment of the property of the appellants. We fail to understand, why the High Court was not able to see the gross error in the order passed by the executing court, be it called an error of law or a jurisdictional error. Undoubtedly, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution must ascertain before interfering with any order passed by a subordinate court or tribunal whether the same suffers from any jurisdictional error. At times in litigation like the one on hand, the court should be guided by its conscience, more particularly
14 2026:HHC:42215 keeping in mind the peculiar facts and circumstances of the case and not strictly go by the term “jurisdictional error”. It is very easy for the High Court to say that there is no jurisdictional error and, therefore, no interference is warranted but before saying so, the High Court should be mindful of the consequences that would follow like arrest, detention in civil prison and attachment of property. 54. What is a jurisdictional error has been the subject of a legion of illuminating judicial decisions. In this case, however, we need concern ourselves with only one aspect of that matter and it is enough for us to refer in this connection to the decision of the Privy Council in the case of Joy Chand Lal Babu v. Kamalaksha Chaudhury, AIR 1949 PC 239, where Sir John Beaumont, delivering the judgment of the Board, observed inter alia as follows:
“although error in a decision of a Subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under Subsection (c). nevertheless if the erroneous decision results in the subordinate Court exercising a jurisdiction, not vested in it by law or failing to exercise a jurisdiction so vested, a case for revision arises under Subsection (a) or Subsection (b) and Sub section (c) can be ignored.”
55.
If, therefore, an error, be it an error of fact or of law, is such that the erroneous decision has resulted in the subordinate Court or tribunal exercising jurisdiction, not vested in it by law, or in its having failed to exercise jurisdiction, vested in it by law, that will come within the scope of Section 115 of the Code or, for the matter of that, of Article 227 of the Constitution, as the case may be. This error may have resulted from a violation of rules of natural justice, by taking into
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consideration matters which are extraneous and irrelevant, or by substituting judicial
consideration by bias, based on suspicion, arising from those extraneous matters or from any other cause whatsoever but if it has affected the assumption or exercise of jurisdiction, as envisaged above, it will be a jurisdictional error for purposes of the above Article.
56. There is no exhaustive list of jurisdictional errors, but case law has identified such an error exists when a decision maker has: identified a wrong issue; asked a wrong question; ignored relevant material; relied on irrelevant material; failed to observe a requirement of procedural fairness; made a decision involving fraud; made a decision in bad faith; made a decision without evidence; applied a policy inflexibly
57. The concept of jurisdiction has been drastically expanded after the decision of the House of Lords in Anisminic v. The Foreign Compensation Commission, 1967(2) AER 986. Now, every error of law is a jurisdictional error. If a decisive fact is wrongly understood, even then, the decision will be outside jurisdiction. This concept is best explained by K.S. Paripoornan, J., in His Lordship's separate Judgment in Mafatal Industries Ltd. v. Union of India, (1997) 5 SCC
536. The relevant portion of the said judgment reads, as follows:
“334. Opinions may differ as to when it can be said that in the “public law” domain, the entire proceeding before the appropriate authority is
16 2026:HHC:42215 illegal and without jurisdiction or the defect or infirmity in the order goes to the root of the matter and makes it in law invalid or void (referred to in Illuri Subbayya Chetty case [(1964) 1 SCR 752 :
AIR 1964 SC 322 : (1963) 14 STC 680 : (1963) 50 ITR 93] and approved in Dhulabhai case [(1968) 3 SCR 662 : AIR 1969 SC 78 : (1968) 22 STC 416] ). The matter may have to be considered in the light of the provisions of the particular statute in question and the factsituation obtaining in each case. It is difficult to visualise all situations hypothetically and provide an answer. Be that as it may, the question that frequently arises for
consideration, is, in what situation/cases the noncompliance or error or mistake, committed by the statutory authority or tribunal, makes the decision rendered ultra vires or a nullity or one without jurisdiction? If the decision is without jurisdiction, notwithstanding the provisions for obtaining reliefs contained in the Act and the
“ouster clauses”, the jurisdiction of the ordinary court is not excluded. So, the matter assumes significance. Since the landmark decision in Anisminic Ltd. v. Foreign Compensation Commission [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2 WLR 163, HL] the legal world seems to have accepted that any “jurisdictional error” as understood in the liberal or modern approach, laid down therein, makes a decision ultra vires or a nullity or without jurisdiction and the “ouster clauses” are construed restrictively, and such provisions whatever their stringent language be, have been held, not to prevent challenge on the ground that the decision is ultra vires and being a complete nullity, it is not a decision within the meaning of the Act. The concept of jurisdiction has acquired “new dimensions”. The original or pure theory of jurisdiction means “the authority to decide” and it is determinable at the commencement and not at the conclusion of the enquiry. The said approach
17 2026:HHC:42215 has been given a goby in Anisminic case [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2 WLR 163, HL] as we shall see from the discussion hereinafter [see De Smith, Woolf and Jowell — Judicial Review of Administrative Action (1995 Edn.) p. 238; Halsbury's Laws of England (4th Edn.) p. 114, para 67, footnote (9)]. As Sir William Wade observes in his book, Administrative Law (7th Edn.), 1994, at p. 299:
“The tribunal must not only have jurisdiction at the outset, but must retain it unimpaired until it has discharged its task.” The decision in Anisminic case [(1949) 76 IA 244 :
AIR 1949 PC 297] [(1949) 76 IA 244 : AIR 1949 PC 297] has been cited with approval in a number of cases by this Court: citation of a few such cases —Union of India v. Tarachand Gupta & Bros.
[(1971) 1 SCC 486 : AIR 1971 SC 1558] (AIR at p. 1565), A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] (SCC at p. 650), R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission (IT & WT) [(1989) 1 SCC 628 : 1989 SCC (Tax) 124] (SCC at p. 634), N. Parthasarathy v. Controller of Capital Issues [(1991) 3 SCC 153] (SCC at p. 195), Associated Engineering Co. v. Govt. of A.P. [(1991) 4 SCC 93 : AIR 1992 SC 232], Shiv Kumar Chadha v. Municipal Corpn. of Delhi [(1993) 3 SCC 161] (SCC at p. 173). Delivering the judgment of a two Member Bench in M.L. Sethi v. R.P. Kapur [(1972) 2 SCC 427 : AIR 1972 SC 2379] Mathew, J. in paras 10 and 11 of the judgment explained the legal position after Anisminic case [(1949) 76 IA 244 : AIR 1949 PC 297] [(1949) 76 IA 244 : AIR 1949 PC 297] to the following effect:
“10. The word ‘jurisdiction’ is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd. v. Foreign Compensation
18 2026:HHC:42215 Commission [(1949) 76 IA 244 : AIR 1949 PC 297] [(1949) 76 IA 244 : AIR 1949 PC 297], namely, the entitlement ‘to enter upon the enquiry in question’. If there was an entitlement to enter upon an enquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Dennan in R. v. Bolton [(1841) 1 QB 66 : 10 LJMC 49] . He said that the question of jurisdiction
is
determinable
at
the commencement, not at the conclusion of the enquiry. In Anisminic Ltd. [(1949) 76 IA 244 :
AIR 1949 PC 297] [(1949) 76 IA 244 : AIR 1949 PC 297], Lord Reid said: ‘But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make.
It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.’ In the same case, Lord Pearce said: ‘Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an
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order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its enquiry into something not
directed by Parliament and fail to make the enquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.’
11. The dicta of the majority of the House of Lords, in the above case would show the extent to which ‘lack’ and ‘excess’ of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of ‘jurisdiction’. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as ‘basing their decision on a matter with which they have no right to deal’, ‘imposing an unwarranted condition’ or ‘addressing themselves to a wrong question’. The majority opinion in the case leaves a court or tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the court is prepared to allow….” In a subsequent Constitution Bench decision, Hari Prasad Mulshanker Trivedi v. V.B. Raju [(1974) 3 SCC 415 : AIR 1973 SC 2602] delivering the judgment of the Bench, Mathew, J., in para
20 2026:HHC:42215 27 at page 2608 of the judgment, stated thus: (SCC pp. 42324, para 28)
“… Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic case [Anisminic Ltd. v. Foreign Compensation Commission, (1967) 3 WLR 382 : (1967) 2 All ER 986] , we do not think that the distinction between the two has been completely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it.
The difficulty has arisen because the word ‘jurisdiction’ is an expression which is used in a variety of senses and takes its colour from its context, (see per Diplock, J. at p. 394 in the Anisminic case [Anisminic Ltd. v. Foreign Compensation Commission, (1967) 3 WLR 382 : (1967) 2 All ER 986] ).Whereas the ‘pure’ theory of jurisdiction would reduce jurisdictional control to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry. ‘At bottom the problem of defining the concept of jurisdiction for purpose of judicial review has been one of public policy rather than one of logic’. [S.A. Smith, ‘Judicial Review of Administrative Action, 2nd Edn., p. 98. (1968 Edn.)]” The observation of the learned author, (S.A. De Smith) was continued in its 3rd Edn. (1973) at p. 98 and in its 4th Edn. (1980) at p. 112 of the book. The observation aforesaid was based on the then prevailing academic opinion only as is seen from the footnotes. It should be stated that the said observation is omitted from the latest edition of the book De Smith, Woolf and Jowell — Judicial Review of Administrative Action — 5th Edn. (1995) as is evident from p. 229; probably due to later developments in the law and the
21 2026:HHC:42215 academic opinion that has emerged due to the change in the perspective. 335. After 1980, the decision in Anisminic case [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2 WLR 163, HL] came up for further consideration before the House of Lords, Privy Council and other courts. The three leading decisions of the House of Lords wherein Anisminic principle was followed and explained, are the following: Racal Communications Ltd., In re [1981 AC 374 : (1980) 2 All ER 634 : (1980) 3 WLR 181, HL] , O'Reilly v. Mackman [(1983) 2 AC 237 : (1982) 3 All ER 1124 : (1982) 3 WLR 1096, HL] , Re. v. Hull University Visitor [1993 AC 682 : (1993) 1 All ER 97 : (1992) 3 WLR 1112, HL] .
It should be noted that Racal, In re case [(1968) 3 SCR 662 : AIR 1969 SC 78 : (1968) 22 STC 416] [(1964) 6 SCR 261 : AIR 1964 SC 1006 : (1964) 15 STC 450] the Anisminic principle was held to be inapplicable in the case of (superior) court where the decision of the court is made final and conclusive by the statute. (The superior court referred to in this decision is the High Court) [1981 AC 374 (383, 384, 386, 391)]. In the meanwhile, the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 :
(1984) 3 All ER 935 : (1984) 3 WLR 1174, HL] enunciated three broad grounds for judicial review, as “legality”, “procedural propriety” and
“rationality” and this decision had its impact on the development of the law in postAnisminic period. In the light of the above four important decisions of the House of Lords, other decisions of the court of appeal, Privy Council etc. and the later academic opinion in the matter the entire caselaw on the subject has been reviewed in leading textbooks. In the latest edition of De Smith on Judicial Review of Administrative Action — edited by Lord Woolf and Jowell, Q.C. [Professor of Public Law, 5 Edn. — 1995], in Chapter 5, titled as “Jurisdiction, Vires, Law and
22 2026:HHC:42215 Fact” (pp. 223294), there is exhaustive analysis about the concept “Jurisdiction” and its ramifications. The authors have discussed the pure theory of jurisdiction, the innovative decision in Anisminic case [(1969) 2 AC 147 : (1969) 1 All ER 208 : (1969) 2 WLR 163, HL] , the development of the law in the postAnisminic period, the scope of the “finality” clauses (exclusion of jurisdiction of courts) in the statutes, and have laid down a few propositions at pp. 250 256 which could be advanced on the subject.
The authors have concluded the discussion thus at p. 256:
“After Anisminic virtually every error of law is a jurisdictional error, and the only place left for nonjurisdictional error is where the components of the decision made by the inferior body included matters of fact and policy as well as law, or where the error was evidential (concerning for example the burden of proof or admission of evidence). Perhaps the most precise indication of jurisdictional error is that advanced by Lord Diplock in Racal Communications [1981 AC 374 :
(1980) 2 All ER 634 : (1980) 3 WLR 181, HL] , when he suggested that a tribunal is entitled to make an error when the matter ‘involves, as many do interrelated questions of law, fact and degree’. Thus it was for the county court judge in Pearlman [Pearlman v. Keepers and Governors of Harrow School, (1979) 1 All ER 365 : (1978) 3 WLR 736] to decide whether the installation of central heating in a dwelling amounted to a ‘structural alteration, extension or addition’. This was a ‘typical question of mixed law, fact and degree which only a scholiast would think it appropriate to dissect into two separate questions, one for decision by the superior court, viz., the meaning of these words, a question which must entail considerations of degree, and the other for decision by a county court, viz., the application of
23 2026:HHC:42215 words to the particular installation, a question which also entails considerations of degree. It is, however, doubtful whether any test of jurisdictional error will prove satisfact ory. The distinction between jurisdictional and non jurisdictional error is ultimately based upon foundations of sand. Much of the superstructure has already crumbled. What re mains is likely quickly to fall away as the courts rightly insist that all administrative action should be, simply, lawful, whether or not jurisdictionally lawful.”
336.
The jurisdictional control exercised by superior courts over subordinate courts, tribunals or other statutory bodies and the scope and content of such power has been pithily stated in Halsbury's Laws of England—4th Edn. (Reissue), 1989 Vol. 1(1), p. 113 to the following effect:
“The inferior court or tribunal lacks jurisdiction if it has no power to enter upon an enquiry into a matter at all; and it exceeds jurisdiction if it nevertheless enters upon such an enquiry or, having jurisdiction in the first place, it proceeds to arrogate an authority withheld from it by perpetrating a major error of substance, form or proced ure, or by making an order or taking action outside its limited area of competence. Not every error committed by an inferior court or tribunal or other body, however, goes to jurisdiction. Jurisdiction to decide a matter imports a limited power to decide that matter incorrectly. A tribunal lacks jurisdiction if (1) it is improperly constituted, or (2) the proceed ings have been improperly instituted, or (3) authority to decide has been delegated to it unlawfully, or (4) it is without competence to deal with a matter by reason of the parties, the area in which the issue arose, the nature of the subjectmatter, the value of that subjectmatter, or the nonexistence of any other prerequisite of a valid adjudication. Excess
24 2026:HHC:42215 of jurisdiction is not materially distinguishable from lack of jurisdiction and the expressions may be used inter changeably. 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, or as jurisdictional.(p. 114) There is a presumption in construing statutes which confer jurisdiction or discretionary powers on a body, that if that body makes an error of law while purporting to act within that jurisdiction or in exercising those powers, its decision or action will exceed the jurisdiction conferred and will be quashed.
The error must be one on which the decision or action depends. An error of law going to jurisdiction may be committed by a body which fails to follow the proper procedure required by law, which takes legally irrelevant considerations into account, or which fails to take relevant considerations into account, or which asks itself and answers the wrong question. (pp. 119120) The presumption that error of law goes to jurisdiction may be rebutted on the construction of a particular statute, so that the relevant body will not exceed its jurisdiction by going wrong in law. Previously, the courts were more likely to find that errors of law were within jurisdiction; but with the modern approach errors of law will be held to fall within a body's jurisdiction only in exceptional cases. The courts will generally assume that their expertise in determining the principles of law applicable in any case has not been excluded by Parliament.(p. 120) Errors of law include misinterpretation of a statute or any other legal document or a rule of common law; asking oneself and answering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the
facts; admitting inadmissible evidence or
25 2026:HHC:42215 rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfill an express duty to give reasons, and misdirecting oneself as to the burden of proof.” (pp. 121122)
337. H.W.R. Wade and C.F. Forsyth in their book —Ad ministrative Law, 7th Edn., (1994) — discuss the subject regarding the jurisdiction of superior courts over subordinate courts and tribunals under the head “Jurisdiction over Fact and Law” in Chapter 9, pp. 284 to 320. The decisions before Anisminic and those in the post Anisminic period have been discussed in detail. At pp. 319320, the authors give the Summary of Rules thus:
“Jurisdiction over fact and law: Summary At the end of a chapter which is topheavy with obsolescent material it may be useful to summarise the position as shortly as possible. The overall picture is of an expanding system struggling to free itself from the trammels of classical doctrines laid down in the past. It is not safe to say that the classical doctrines are wholly obsolete and that the broad and simple principles of review, which clearly now commend themselves to the judiciary, will entirely sup plant them. A summary can therefore only state the long established rules together with the sim pler and broader rules which have now superseded them, much for the benefit of the law. Together they are as follows: Errors of fact Old rule: The court would quash only if the erroneous fact was jurisdictional. New rule: The court will quash if an erroneous and decisive fact was — (a) jurisdictional
26 2026:HHC:42215 (b) found on the basis of no evidence; or (c) wrong, misunderstood or ignored. Errors of law Old rule: The court would quash only if the error was — (a) jurisdictional; or (b) on the face of the record. New rule: The court will quash for any decisive error, because all errors of law are now jurisdictional.”
58. For the benefit of the High Courts across the country, we may refer to a very erudite article authored by Krystal Cunning hamForan, a legal expert working as a senior associate in Colin Biggers & Paisley's Planning Government Infrastructure & Environment group, on the topic
“Jurisdictional Error”.
The learned author has discussed a judgment rendered by the High Court of Australia setting out practical guidance for establishing jurisdictional error in the context of judicial review proceedings in respect of a decision about the revocation of a decision to cancel a visa. Article reads thus:
“The case of LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs reported in [2024] HCA 12 concerned judicial review proceedings in the High Court of Australia (High Court) in which the High Court provided practical guidance about the threshold of materiality in the context of jurisdictional error. The test for establishing jurisdictional error is twofold. Firstly, it must be established that an error occurred and secondly, the error must be material such that the decision affected by error could realistically have been different if there was no error. The practical guidance provided by the
27 2026:HHC:42215 High Court in respect of this test is set out in this article. The judicial review proceedings relevantly concerned an allegation that the decision of the Administrative Appeals Tribunal (Tribunal) in respect of a decision made under section 501CA(4) of the Migration Act 1958 (Cth) (Migration Act) about the revocation of a decision to cancel the Appellant's visa (Cancellation Decision) was affected by jurisdictional error. There was no dispute that the Tribunal's decision involved an error because the Tribunal did not comply with a direction of the Minister in relation to the revocation of a mandatory cancellation of a visa under section 501CA (Direction) in breach of section 499(2A) of the Migration Act. In respect of the materiality of the error, the High Court held that the decision reached by the Tribunal could have been different if there was no error and thus the threshold of materiality was met.
The High Court allowed the appeal, set aside the decision of the Full Court of the Federal Court of Australia, and ordered the issue of a writ of certiorari quashing the Tribunal's decision and a writ of mandamus directing the Tribunal to determine the Appellant's request for revocation of the Cancellation Decision according to law. What is jurisdictional error? Jurisdictional error arises where a decision maker with authority to make a decision under statute is in breach of an express or implied condition of the decisionmaking authority, such that the decision made lacks legal force and is "in law…no decision at all". The High Court observed that the following categories of jurisdictional error often arise, but that the categories are not closed:
28 2026:HHC:42215 A breach by a thirdparty of a condition of a statutory process before a decision is made. A breach by a decisionmaker given authority under statute of a condition of making a decision. Common errors in this context include: the decision maker misunderstands the applicable law, asks the wrong question, identifies a wrong issue, ignores relevant material, relies on irrelevant material, exceeds the bounds of what is reasonable, denies a requirement of procedural fairness, or makes an erroneous finding or reaches a mistaken conclusion. Twopart test for jurisdictional error Not every breach of an express or implied condition of making a decision will render the decision no decision at all. The limits imposed by the relevant statute on the making of a decision must be understood to determine the following:
"…Whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decisionmaking authority)…"
"…Whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force)." Practical guidance for considering jurisdictional error The High Court stated the following practical guidance in respect of the test for jurisdictional error: Both parts of the test start with a consideration of the statute to understand the nature of the alleged error in its statutory context.
Both parts of the test are backwardlooking in that they are answered having regard to the
29 2026:HHC:42215 decision that was made, and if necessary, how that decision was made. Whilst the applicant has the onus of proof on the balance of probabilities, proving the facts ought not be difficult or contentious. In some cases the tendering of the decisionmaker's reasons is sufficient, whereas in others, for example those involving an allegation of a denial of procedural fairness, may require evidence of the content or information re quired to be provided to the decisionmaker. To establish materiality, it is not necessary that absent the error a different decision "would" have been made, rather it is whether a different decision "could realistically" have been made. The High Court observed that "realistic" is used to distinguish a possible different outcome from an outcome that is fanciful or improbable. The threshold of materiality is not onerous or demanding. What must be demonstrated to meet the threshold depends upon the error. A Court in deter mining whether the threshold is met must not assume the function of the decisionmaker and fall into a merits review of the decision made. Once the applicant establishes an error and that there is a realistic possibility of a different outcome if the error had not been made, the threshold of materiality is met and relief is justified subject to any utility and discretion. The High Court also observed that in some cases, such as those involving apprehended or actual bias, the alleged error will be jurisdictional regardless of any effect on the decision made, whilst in others, such as those involving unreasonableness, the potential for the decision to be effected is inherent in the nature of the error. In both of these examples, the error satisfies the requirement of materiality. 30 2026:HHC:42215 The practical guidance from the High Court set out above overrides any previous guidance of the Courts. Jurisdictional error established in this case The High Court was satisfied that the threshold of materiality was satisfied in this case because the Appellant established on the balance of probabilities that a different decision realistically could have been made if the Tribunal followed the process of reasoning required by the Direction in deciding whether the Cancellation Decision should be revoked.
Conclusion The High Court allowed the appeal, set aside the decision of the Full Court of the Federal Court of Australia, and ordered the issue of a writ of certiorari quashing the Tribunal's decision and a writ of mandamus directing the Tribunal to determine the Appellant's request for revocation of the Cancellation Decision according to law.” (Emphasis supplied)
29. Learned senior Counsel, appearing for the decree holder, has relied upon the judgments of the Hon’ble Supreme Court, as well as, of this Court, in Sadhana Lodh versus National Insurance Co. Ltd. & Another, (2003) 3 SCC 524; and Garment Craft versus Parkash Chand Goel, (2022) 4 Supreme Court Cases 181; RSA No.148 of 2009, titled as Ramesh Chand versus Basant Ram; CMPMO No. 375 of 2019, titled as Ram Parkash (since dead)
31 2026:HHC:42215 through LRs versus Sudesh Kumari; RSA No. 292 of 2013, titled as Suresh Kumar versus Shiv Kailash & Another; CWP No.2294 of 2026, titled as Balak Ram versus State of H.P. & Others; RSA No.154 of 2015, titled as Som Dutt versus Ram Narayan & Another; RSA No. 389 of 2016, titled as M/s Sports Station India Pvt. Ltd. & Others versus Ajay Arrey; CMPMO No.100 of 2025, titled as Chander Jot Singh versus Dharam Singh & Others; CMPMO No.86 of 2026, titled as Chuni Lal versus Rakesh Kumar & Another. With due respect to the law laid down by the Hon’ble Supreme Court, as well as, by this Court, in the aforesaid cases, the same, in no way, help the case of the decree holder. 30.
Considering the above facts, the present petition is allowed, by setting aside the order dated 04.08.2025, and the matter is remanded back to the learned executing Court with a direction to appoint the Local Commissioner, afresh particularly, a retired senior Revenue Officer, not below the rank of Tehsildar to conduct the demarcation, after adhering
32 2026:HHC:42215 to the principles of natural justice and as per the rules occupying the field. 31. The entire process be completed within a period of three months from today, i.e., on or before 31.12.2026. 32. With these observations, the present petition is
disposed of.
33. Pending application(s), if any, shall also stand
disposed of.
34. Record be sent back immediately.
( Virender Singh ) September 30, 2026( ps ) Judge