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TMI Blog1950 (12) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ns the second question, whereas the first respondent attacked it in so far as it concerns the first and the third questions. The Bombay City Civil Court Act purports to create in additional civil court for Greater Bombay having jurisdiction to try, receive and dispose of all suits and other proceedings of a civil nature not exceeding a certain value, subject to certain exceptions which need not be referred to here. It was contended on behalf of the respondents that the Act is ultra vires the Legislature of the State of Bombay, because it confers jurisdiction on the new court not only in respect of maters which the Provincial Legislature is competent to legislate upon under List II of the 7th Schedule to the Government of India Act, 1935, but also in regard to matters in respect of which only the Central or Federal Legislature can legislate under List I (such as, for instance, promissory notes, which is one of the subjects mentioned in entry 28 of List I). To understand this argument, it is necessary to refer to entry 53 of List , entries 1 and 2 of List II and also entry 15 of List II. These entries run as follows :-- Entry 53, List I :--- Jurisdiction and powers of all c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -matter may be. This power must necessarily include the power of defining, enlarging, altering, amending and diminishing the jurisdiction of the courts and defining their jurisdiction territorially and pecuniarily. The question then arises as to the exact meaning of entry 2 of List II and entry 53 of List I, which are said to militate against the above construction. These entries, in my opinion, confer special powers on Provincial and Central Legislatures, as opposed to the general power conferred on the Provincial Legislature by entry 1 of List II, the special powers being the logical consequence or concomitant of the power of the two Legislatures to legislate with regard to the matters included in their respective Legislative Lists. The effect of these entries is that while legislating with regard to the matters in their respective Legislative Lists, the two Legislatures are competent also to make provisions in the several Acts enacted by them, concerning the jurisdiction and powers of courts in regard to the subject-matter of the Acts, because otherwise the legislation may not be quite complete or effective. The words used in entry 2 of List II and entry 53 of List I are wide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een able to bar the jurisdiction of the ordinary courts in regard to them, however necessary or desirable such a course might have appeared to them. It should be noted that the words used in these entries are: jurisdiction and power . Power is a comprehensive word, which includes all the procedural and substantive powers which may be exercised by a court, but the full significance of the use of the word in the context can be grasped only by reading a large number of local and special Acts in which power has been given to Courts to pass certain special and unusual orders. For example, section 13 of the Indian Aircraft Act, 1934, provides that- where any person is convicted of an offence punishable under any rule made under clauses ...... the Court by which he is convicted may direct that the aircraft or article or substance, as the case may be, in respect of which the offence has been committed, shall be forfeited to His Majesty. Reference may also be made to section 24 of the Indian Arms Act, 1878, which provides that- when any person is convicted of an offence punishable under this Act, committed by him in respect of any arms, ammunition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other Provincial Legislatures, but, in my opinion, the instances I have quoted are sufficient to show (1) that the practice which prevailed before the Government of India Act has continued even after its enactment, and (2) that the words jurisdiction and powers have been consistently construed to bear the meaning which I have attributed to them. The interpretation which is sought to be put on the entries by the respondent is in my opinion open to the following objections :- (1).It involves the curtailment of the meaning of the expression administration of justice in such a way as to rob it of its primary content--the jurisdiction and powers of the court, without which justice cannot be administered. (2) It makes it necessary to read entry 2 of List II as part of entry 1 of the same List, though it has been separately numbered as an independent entry. This is opposed to the scheme followed in the three Legislative Lists, which seems to be that each particular entry should relate to a separate subject or group of cognate subjects, each subject or group of subjects being independent of the others (subject only to incidental overlapping). The construction suggested by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be pushed, and in order to avoid the criticism of taking for granted what is in controversy, we may take a very extreme example, because the soundness of the respondents' contention can be tested only by trying to find out what would happen if we were to stretch it to the utmost limit to which it can be stretched. Entry 13 in List I is: the Banaras Hindu University and the Aligarh Muslim University. Under entry 53 of List I, the Central Legislature has power to legislate in regard to the jurisdiction and powers of courts in respect of the subject-matter of entry 13. It may therefore be supposed, having regard to the wide language used in entry 13, that it is open to the Central Legislature to enact that suits in which these Universities are concerned as plaintiff or as defendant, will be triable only by the particular court mentioned in the enactment concerned and that no other court shall have jurisdiction in regard to such suits, It is difficult to think that until such a legislation is made, a court which would otherwise be the proper court, has no jurisdiction to try any suit in which one of these Universities is a party, no matter what the subject-matter of the suit m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnor-General, it would be permissible to see what powers the Provincial Legislature could exercise under Lists II and III taken together. If the course which he suggests is adopted, then the subjects on which the Provincial Legislature can legislate would be: (1) administration of justice; (2)constitution and organization of courts; and (3) civil procedure, including all matters included in the Code of Civil Procedure at the date of the passing of the Government of India Act, 1935. One of the matters included in the Civil Procedure Code is the jurisdiction of courts, Section 9 of the Code provides, as I have already stated, that the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. There are are also provisions in the Code dealing with the territorial and pecuniary jurisdiction of the courts. The three entries will thus cover exactly the field which is covered by item 14 of section 92 of the Canadian Constitution which comprises the following matters: administration of justice in the Provinces, including constitution, maintenance and organization of provincial courts both of civil an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try 53, as already stated, relates to jurisdiction and powers of courts with respect to any of the matters in List I. It is contended on behalf of the respondent that the effect of these two entries, when they are read together, is that no court can try a suit relating to a promissory note, unless it is invested with the jurisdiction to try such a suit by the Central Legislature by virtue of the power given by entry 53 of List I. The question so raised is covered by the answer to the first question, and I shall only add that the answer already given to that question finds some support in the case of Prafulla Kumar Mukherjee and Others v. Bank of Commerce Limited Khulnal, in which the arguments of the respondents before the Privy Council proceeded on the same lines as the arguments of the respondents before us. The question raised in that case was as to the validity of the Bengal Money-lenders' Act, 1940, which limited the amount recoverable by a money-lender on his loans and interests on them, and prohibited the payments of sums larger than those permitted by the Act. The validity of the Act was questioned by the respondent Bank in certain suits brought by them to recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction by virtue of the Act itself. As several of my learned colleagues have pointed out, the case of Queen v. Burah (1), the authority of which was not questioned before us, fully covers the contention raised, and the impugned provision is an instance of what the Privy Council has designated as conditional legislation, and does not really delegate any legislative power but merely prescribes as to how effect is to be given to what the Legislature has already decided. As the Privy Council has pointed out, legislation conditional on the use of particular powers or on the exercise of a limited discretion entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing, and in many instances it may be highly convenient and desirable. Examples of such legislation abound in England, America and other countries. As some of the American Judges have remarked, there are many things upon which wise and useful legislation must depend which cannot be known to the law-making power and must therefore be the subject of enquiry and determination outside the halls of legislation (Field v. Clark (2). Mr. Setalvad, the learned Attorney-General who appeared on behalf of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst respondent urged that section 100 of the Government of india Act, 1935, read with entries 53 of List I, 2 of List II and 15 of List III, the relevant parts of which are in identical terms, namely, jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this List , conferred power on Legislatures in British India to make laws with respect to jurisdiction of courts only in relation to matters falling within their respective legislative fields, and that, therefore, the expressions administration of justice and constitution and organisation of courts in entry 1 of List II, although they might be wide enough, if that entry stood alone, to include the topic of jurisdiction and powers of courts , should not be construed in that comprehensive sense as such construction would give no effect to the limiting words in entry 2 which would then become meaningless indeed if those expressions in entry 1 included the power to legislate with respect to jurisdiction also, there would be no need for entry 2, while, on the other hand, without including such power, they would still have ample content, as various other matters relating to administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited sense as excluding jurisdiction and powers of courts. After referring to the decision of the Judicial Committee in In re Marriage Reference(3) where marriage ,and divorce in the Dominion List was construed as excluding matters relating to the solemnisation of marriage in the province because the latter topic was specifically included in the Provincial List, the learned Judges observed: The position is similar here. 'Civil procedure' in the Concurrent Legislative List must be held to exclude matters relating to jurisdiction and powers of courts since special provision is made for those matters elsewhere in the lists. To hold otherwise , they pointed out, would be completely to wipe out the second entry in the Provincial Legislative List. Learned counsel for the first respondent strongly relied on that decision and suggested that, if it had been brought to the notice of the learned Judges in Mulchand v. Raman, their decision might well have been the other way. On the other hand, the Attorney-General submitted that there could be no question of conflict between two entries in the same list and that the natural meaning of one should not be restricted simply be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept, of course, matters excluded expressly or by implication either by an existing law continued in force or by a statute passed by the appropriate legislature under the entries in the three Lists relating to jurisdiction and powers of courts. In other words, though administration of justice in entry 1 does not authorise legislation with respect to jurisdiction and powers of courts, the legislative power under entry 2 in regard to the tatter topic, which can be legitimately exercised with respect to any of the matters in this List, can be exercised with respect to administration of justice, one of the matters comprised in that List, with the result that the subject of general jurisdiction is brought within the authorised area of provincial legislation. This view thus leaves a field in which entry 2 could apply. When once the Provincial Legislature is found competent to make a law with respect to the general jurisdiction of courts, the apparent conflict with the central legislative power under entry 53 of List I can be resolved in a given case by invoking the doctrine of pith and substance and incidental encroachment. For, that rule, though not of much assistance in construi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er what the substance of an Act is and whatever its ancillary effect, attribute it to the appropriate list according to its true character ? In their Lordships' opinion the latter is the true view. The test for determining whether in pith and substance a particular enactment falls within one list or another is further elucidated in a passage quoted with approval from Lefroy's Treatise on Canadian Constitutional Law in the judgment of the Federal Court in the Bank of Commerce case(1). It seems quite possible says the learned writer, summarising the effect of the Privy Council decisions on the point that a particular Act regarded from one aspect might be intra vires of a Provincial Legislature and yet regarded from another aspect might also be intra vires of the Dominion Parliament. In other words, what is properly to be called the subject-matter of an Act may depend upon what is the true aspect of the Act. The cases which illustrated this principle show. by 'aspect' here must be understood the aspect or point of view of the legislator in legislating--the object, purpose and scope of the legislation. The word is used subjectively of the legislator rather than o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary and territorial limits rather than to the nature and kind of the subject-matter which they are empowered to deal with. It is reasonable to presume that this system of organisation of courts in British India was known to the framers of the Government of India Act, 1935, and it cannot be readily supposed that they wanted to introduce a radical change by which the power of constituting courts and providing for administration of justice is to be vested in the Provincial Legislatures, while jurisdiction has to be conferred by piecemeal legislation by the Federal and Provincial Legislatures with respect to specific matters falling within their respective legislative fields which are by no means capable of c]ear demarcation. The constitutional puzzles which such a system is likely to pose to the legislatures no less than to the courts and the litigant public in the country whenever a new court is constituted in finding out by searching through the legislative lists, whether jurisdiction to deal with a particular matter or power to make a particular order is validly conferred by the appropriate legislature must make one pause and examine the relevant provisions of the Government of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res the Provincial Legislature and the notification issued under it was consequently inoperative and that the High Court had jurisdiction to hear the suit. The first respondent thereupon took out summons for judgment against the second respondent. On the application of the AdvocateGeneral, the State of Bombay was impleaded as defendant at this stage and the proceedings were transferred to a Division Bench of the High Court. The Division Bench upheld the view of the Judge in Chambers and returned the cause to him for disposal on the merits. The State of Bombay, dissatisfied with this decision, has preferred the present appeal. Two questions have been canvassed in this appeal: (1) whether the City Civil Court Act is ultra vires the legislature of the Province of Bombay in so far as it deals with the jurisdiction and powers of the High Court and City Civil Court with respect to matters in List I of the Seventh Schedule of the Government of India Act, 1935; and (2) whether section 4 of the Act is void as it purports to delegate to the Provincial Government legislative authority in the matter of investing the City Civil Court with extended jurisdiction. Bombay Act of 1948 came int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction of the High Court to try the present suit. On the first question the High Court placed reliance on its own earlier decision in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah(1), and held that the Act was intra vires the Bombay Legislature. The appellant assails the correctness of the decision of the High Court on the second point and supports the decision on the first point. The first respondent, on the other hand, while supporting the decision of the High Court on the second question, challenges its correctness in regard to the first question. The learned Attorney-General contends that the High Court placed an erroneous construction on sections 3 and 4 of the Act; that reading the two sections together the effect is that the legislature has set up the City Civil Court with an initial jurisdiction of ₹ 10,000 and has placed an outside limit of ₹ 25,000 on its pecuniary jurisdiction and that it has left to the discretion of the Provincial Government the determination of the circumstances under which this extension of the pecuniary jurisdiction between ₹ 10,000 to ₹ 25,000 is to take place. It was said that section 4 is in the nature of a conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction of the new court will be subject to the provisions contained in the exceptions to section 3. I am therefore of the opinion that the learned Chief Justice was not right in saying that the legislative mind was never applied as to the conditions subject to which and as to the amount up to which the new court could have pecuniary jurisdiction. All that was left to the discretion of the Provincial Government was the determination of the circumstances under which the new court would be clothed with enhanced pecuniary jurisdiction. The vital matters of policy having been determined, the actual execution of that policy was left to the Provincial Government and to such conditional legislation no exception could be taken. The section does not empower the Provincial Government to enact a law as regards the pecuniary jurisdiction of the new court and it can in no sense be held to be legislation conferring legislative power on the Provincial Government. In Queen v. Burah, section 9 of Act XXII of 1869, which was a piece of legislation analogous to section 4 of the City Civil Court Act, was held intra vires by their Lordships of the Privy Council. By the 9th section power was confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be supposed that the Imperial Parliament did not, when constituting the, Indian Legislature, contemplate this kind of conditional legislation as within the scrape of the legislative powers which it from time to time conferred. certainly used no words to exclude it. These observations appositely apply to the legislative provision contained in section 4 of the impugned Act. The true distinction is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. Objection may be taken to the former but not to the latter. Reference in this connection may also be made to the decision of the Supreme Court of America in Field v. Clark wherein referring to Locke's case(2) the following observations were made :- To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative authority by the Provincial Legislature, it goes further and amounts to setting up a parallel Legislature for enacting a modified Bihar Maintenance of Public Order Act and for enacting a provision in it that that Act has to be enacted for a further period of one year. A careful analysis of the proviso bears out the above conclusion. It may be asked what does the proviso purport to do in terms and in substance? The answer is that it empowers the Provincial Government to issue a notification saying that the Provincial Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification ...... Modification of statute amounts to re-enacting it partially. It involves the power to say that certain parts of it are no longer parts of the statute and that a statute with X sections is now enacted with Y sections. In the act of modification is involved a legislative power as a discretion has to be exercised whether certain parts of the statute are to remain law in future or not or have to be deleted from it. The power to modify may even involve a power to repeal parts of it. A modified statute is not the same original sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Provincial legislature. In this view the notification issued under section 4 must be held to be effective. That being so, it is unnecessary to go into the question raised by the learned Attorney-General that assuming that section 4 of the Act was delegation of legislative power, it was still valid. The next question to decide is whether the Act is ultra vires the Bombay Legislature. In order to appreciate Mr. Seervai's contention on this point it is necessary to set out some of the provisions of the Government of India Act, 1935. relevant to the enquiry. These are contained in section 100. and in the Seventh Schedule in entries 28 and 53 of List I, entries 1 and 2 of List II, and entries 4 and 15 of List III. They are in these terms:-- Sec. 109. (1) Notwithstanding anything in the two next succeeding sub sections, the Federal Legislature, has, and a Provincial Legislature has not power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the Federal Legislative List. ) (2) Notwithstanding anything in the next succeeding sub section, the Federal Legislature, and, subject to the preceding subsection, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression all cases of a civil nature presumably brings within the ambit of the Act suits in respect to subjects contained in List I. He urged that the three similar entries in the three is, name]y, entry 53 in List I, entry 2 in List II and entry 15 in List III indicated that in respect to the subjects covered by the three fields of legislation demarcated for the two Legislatures the Parliament empowered each of them respectively to make laws in respect to jurisdiction and power of courts and that in view of the provisions of section 100 of the Constitution Act the Provincial Legislature had no power to make any law conferring jurisdiction on courts in respect to subjects covered by List I. In other words, the Federal Legislature alone could legislate on the jurisdiction and powers of a court in regard to the subjects in List I. Similarly in respect of subjects contained in the Provincial List, jurisdiction and power of courts could only be determined by a law enacted by the Provincial Legislature and that in respect of items contained in List III, both Legislatures could make laws on the subject of jurisdiction and powers of courts. It was said that the exceptions and the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Justice of Bombay on this point in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah. The learned Chief Justice when dealing with this point said as follows:- If, therefore, the Act deals with administration of justice and constitutes a court for that purpose and confers ordinary civil jurisdiction upon it, in my opinion, the legislation clearly falls within the legislative competence of the Provincial Legislature and is covered by item 1 of List 11 of Schedule 7. That item expressly confers upon the Provincial Legislature the power to legislate with regard to the administration of justice and the constitution and organization of all courts except the Federal Court. It is difficult to imagine how a court can be constituted without any jurisdiction, and if Parliament has made the administration of justice exclusively upon the Provincial Legislature the power to constitute and organize all courts, it must follow, that the power is given to the Provincial Legislature to confer the ordinary civil jurisdiction upon the courts to carry on with their work. Item 2 of List II deals with jurisdiction and power of all courts except the Federal Court with respect to any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and decide causes. It is difficult to visualise a statute dealing with administration of justice and the subject of constitution and organization of courts without a definition of the jurisdiction and powers of those courts, as without such definition such a statute would be like a body without a soul. To enact it would be an idle formality. By its own force it would not have power to clothe a court with any power or jurisdiction whatsoever. It would have to look to an outside authority and to another statute to become effective. Such an enactment is, so far as I know, unknown to legislative practice and history. The Parliament by making administration of justice a provincial subject could not be considered to have conferred power of legislation on the Provincial Legislature of an ineffective and useless nature. Following the line of argument taken by Mr. Mistree before the High Court of Bombay, Mr. Seervai strenuously contended that the only legislative power conferred on the Provincial Legislature by entry 1 of List II was in respect to the establishment of a court and its constitution and that no legislative power was given to it to make a law in respect to jurisdiction and po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing necessary for the exercise of powers is included in the grant of power. Everything necessary for the effective execution of power of legislation must therefore be taken to be conferred by the constitution with that power. It may be observed that in exercise of legislative power under item 1 of List 11 a provincial Legislature can alter the constitution of the existing courts, can abolish them, reorganize them and can establish new courts. If the construction contended for by Mr. Seervai is accepted, then the existing courts re-established or re-organised by the provincial Legislature would not be able to function till legislation under item 53 of List I, under item 2 of List II or item 15 of List III also simultaneously was made. I do not think that such a result was in the contemplation of parliament. Mr. Seervai with some force argued that it full effect is given to the comprehensive phraseology employed in item 1 of List II, then it would result in making the provisions of item 2 of List II, of item 53 of List I and item 15 of List III nugatory. in other words, if the provincial Legislature could bring into existence a court of general jurisdiction which could hear all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s acting under those powers in respect to their divided fields of legislation. Instances of conferment of powers and jurisdiction on courts to hear cases on particular subjects were well known to Parliament. Such powers had been conferred on different courts in respect of testamentary and intestate jurisdiction, admiralty jurisdiction, under the Indian Companies Act, under the Succession Act, Guardians and Wards Act and under the various. Rent Acts and Acts dealing with relief of indebtedness. In view of the division of powers in respect to different subjects, power was given under item 53 of List I, item 2 of last II and item 15 of List III to the different Legislatures when dealing with those subjects also to legislate on the question of jurisdiction and powers of the courts. This conferment of legislative power to create special jurisdiction in respect to particular subjects does not in any way curtail the legislative power conferred on the Provincial Legislature under item 1 of List II. As soon as special legislative power under item 53 of List I, under item 2 of List II and item 15 of List III is exercised, the causes that arise in respect to those subjects would then only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction of the new court all cases which the High Court can hear under any special law. Special law has been defined as a law applicable to a particular subject. If under List 1 of the Seventh Schedule the Federal Legislature by any law determines that a case has to be heard by the High Court, section 5 will not affect the jurisdiction of that court in any manner whatsoever. The result, therefore, is that the Bombay City Civil Court Act is a statute which is wholly within the legislative field of the Province under item 1 of List II and its validity cannot be affected even if it incidentally trenches on other fields of legislation. It is not a statute dealing with any of the subjects mentioned in List I and therefore it cannot be said that the Provincial Legislature has in any way usurped the power demarcated for the Centre. In view of this conclusion I think it unnecessary to pronounce any opinion on the other points raised by the learned Attorney-General. For the reasons given above I allow the appeal preferred by the Government of Bombay and set aside the decision of the High Court holding that section 4 of the City Civil Court Act (XL of 1948) is void. In the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time at which and the extent to which, within the limits fixed by the Legislature, the jurisdiction of the court should be extended. This is a species of conditional legislation which comes directly within the principle enunciated by the Judicial Committee in The Queen v. Burah, where the taking effect of a particular provision of law is made to depend upon determination of certain facts and conditions by an outside authority. The learned Judges of the Bombay High Court in coming to their decision on the point seem to have been influenced to some extent by the pronouncement of the Federal Court in Jatindranath Gupta v. Province of Bihar(2), and the learned. Counsel for the respondents naturally placed reliance upon it. I was myself a party to the majority decision in that case and expressed my views in a separate judgment. I do not think that there is anything in my judgment which lends support to the contention which the respondents have put forward. I stated expressly in course of, my Judgment on the authority of the well known American decision in Locke's appeal(3) that a legislature may not (1) 5 I.A. 178. (3)-13 American Reports delegate its powers to make law-but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I may state here that a question in the broad form as to whether a Provincial Legislature exercising its legislative powers within the limits prescribed by the Imperial Parliament in the Government of India Act, 1935, could delegate its legislative functions in any manner to an outside authority as it thought proper, was neither raised nor decided in Jatindranath Gupta's case. The learned Attorney-General has not very properly invited any final decision on that point in the present case and I would refrain from expressing any opinion upon it. ' The second point appears to be of some complexity and it was decided by the Bombay High Court adversely to the respondents on the basis of an earlier pronouncement of the same Court in Mulchand v. Raman. The arguments of Mr. Seervai are really directed at assailing the correctness of this earlier decision which the learned Judges held to be binding on them in the present case. The contention of Mr. Seervai, in substance, is, that the Bombay City Civil Court Act, which is a piece of provincial legislation, is ultra vires the legislature inasmuch as it purports to endow the City Court, which it brings into existence, with jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature the right to regulate and provide for the whole machinery connected with the administration of justice. Section 92, of the North America Act deals with the exclusive powers of the Provincial Legislatures and clause (14) of the section speaks of the administration of justice in the Provinces as including the constitution, maintenance and organization of Provincial Courts. In interpreting this provision of the constitution it has been held in North America that the words constitution, maintenance and organization of courts plainly include the power to define the jurisdiction of such courts territorially as well as in other respects(2). Mr. Seervai argues that this might be the normal meaning of the words if they stood alone. But if Items 1 and 2 of the Provincial List are read together, the conclusion cannot be avoided that the expressions administration of justice and constitution of courts do not include jurisdiction and powers of courts which are separately dealt with under Item 2. To find out, therefore, the extent of powers of the Provincial Legislature in respect conferring jurisdiction upon courts, the relevant item to be looked to is not Item 1 but Item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by the other. Mr. Seervai suggests that the proper way of reconciling this apparent conflict would be to read the words administration of justice and constitution of courts occurring in entry 1 of the Provincial List as exclusive of any matter relating to jurisdiction of courts. The Provincial Legislature can only set up or constitute courts but their jurisdiction or power of deciding cases must be derived from the Central or the Provincial Legislature or, from either of them in accordance with the subjects to which such jurisdiction relates. The Provincial Legislature can endow the court with jurisdiction in respect to any matter in List II and the Central Legislature can do the same with regard to subjects specified in List I. So far as matters in the Concurrent List are concerned, either of the Legislatures can make provisions in respect of them subject to the conditions laid down in section 107 the Constitution Act. This argument, though apparently plausible, cannot, in my opinion, be accepted as sound. It is to be noted that the right to set up courts and to provide for the whole machinery of administration of justice has been given exclusively to the Provincial L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The other three items on the other hand relate to particular matters appearing in the three Lists and what they contemplate is the vesting of jurisdiction in courts with regard to such specific items only. In one case the jurisdiction is 'general' as is implied in the expression administration of justice , while in the other three the jurisdiction is 'particular' as limited to particular matters and hence exclusive. I agree with my learned brother Patanjali Sastri J. that one approved way of determining the scope of a legislative topic is to have regard to what has been ordinarily treated as embraced within that topic in the legislative practice of the country(2); and if that test is applied, the interpretation suggested above would appear to be perfectly legitimate. The distinction between general and particular jurisdiction has always been recognised in the legislative practice of this country prior to the passing of the Constitution Act of 1935 and also after that. There have been always in this country civil courts of certain classes and categories graded in a certain manner according to their pecuniary jurisdiction and empowered to entertain and decide all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of incidental encroachment by the Provincial Legislature upon Central subjects in regard to conferring jurisdiction upon courts. If the expression 'jurisdiction' in entry 53 of List I means and refers to special jurisdiction only, there cannot be even an incidental encroachment upon such special jurisdiction by reason of the conferring of general jurisdiction upon courts by the Provincial Legislature under entry 1 of List II. As I have said already what is 'special' or made so, will automatically cease to be in the category of what is 'general' and no question of a conflict would at all arise. It may be pointed out in this connection that in the Canadian Constitution also, the general scheme is to carry on administration of justice throughout Canada through the medium of provincial courts. Subject to the residuary power reserved to the Dominion Parliament under section 101 of the North America Act, the Constitution has assigned to the provinces the exclusive power in relation to administration of justice including the maintenance, constitution and organization of courts. There is no limitation in any provincial court along the line of division that exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, or as a Court having testamentary, intestate or matrimonial jurisdiction, or (b) by the High Court for the relief of insolvent debtors, or (c) by the High Court under any special law other than the Letters Patent, or (d) by the Small Cause Court: Provided that the Provincial Government may, from time to time, after consultation with the High Court, by a like notification extend the jurisdiction of the City Court to any suits or proceedings of the nature specified in Clauses (a) and (b). 4. Subject to the exceptions specified in section 3, the Provincial Government may, by notification in the Official Gazette, invest the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Greater Bombay and of such value not exceeding twenty-five thousand rupees as may be specified in the notification. 12. Notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court: Provided that the High Court may, for any special reason, and at any stage, remove for trial by itself any suit or proceeding from the City Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay City Civil Court Act, 1048, was ultra vires and (2) at least section 4 of that Act and the notification issued thereunder were ultra vires. Having some doubts as to whether in view of the notification issued 1 by the Provincial Government under section 4 of the Act the plaint could be admitted in the High Court, the Prothonotary placed the matter under the rules of the Court before Bhagwati J. who was then the Judge in Chambers. By his judgment delivered on February 23, 1950, Bhagwati J. held that section 4 of the Act and the notification issued thereunder were ultra vires and void and that the High Court, therefore, had jurisdiction to entertain the suit. The plaint was accordingly received and admitted. The first respondent thereupon took out a summons under the rules of the Court for leave to sign judgment against the second respondent. The State of Bombay was, on its own application, added as a party to the suit. The matter was put up before a Division Bench (Chagla C.J. and Tendolkar J.) for trial of the following issues: (1) Whether Act XL of 1948 is ultra vires of the Legislature of the State of Bombay. (2) Whether, Section 4 of Act XL of 1948 is in any event ul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance of conditional legislation at all. The use of the word invest in section 4 was considered by the High Court to be very significant and the difference between the language in section 3 and that in section 4 appeared to them to be very marked and striking. According to the High Court while by section a the Legislature itself set up a Court with a particular pecuniary jurisdiction, under section 4 the Legislature itself did not invest the Court with any higher jurisdiction but left it to the Provincial Government to exercise the function which the Government of India Act laid down should be exercised by the Provincial Legislature. The learned Chief Justice expressed the view that the Legislature never applied its mind to the question as to whether the new Court which it was setting up should have a jurisdiction higher than that of ₹ 10,000, and that section 4 was not a section which merely directed the Provincial Government to carry out the policy laid down by the Legislature, but that it was a section which conferred upon the Provincial Government the power to confer jurisdiction upon the Court. Then, after referring to R.V. Baruha(1) andseveral other cases and purporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms part of British India, Every such notification shall specify the boundaries of the territories to which it applies. On October 14, 1871, the Lieutenant-Governor of Bengal issued a notification in exercise of the powers conferred on him by section 9 extending the provisions of that Act to the territory known as the Khasi and Jaintia Hills and excluded therefrom the jurisdiction of the Courts of civil and criminal justice. The respondent Burah and another person having been convicted by the Deputy Commissioner of the Khasi and Jaintia Hills of murder and sentenced to death, which was later on commuted to transportation for life, they from jail sent a petition of appeal against their conviction. The provisions of Act XXII of 1869 having been extended, by notification under section 9, to the Khasi and Jaintia Hills, the High Court would have no jurisdiction to entertain the appeal, unless section 9 and the notification were ultra rites and void. The majority of the Judges of the Full Bench constituted for considering the question took the view that section 9 was really not legislation but was an instance of delegation of legislative power. The Crown obtained special leave to app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Council. Their whole operation is, directly and immediately, under and by virtue of this Act XXII of 1869 itself. The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an imperial or in a provinciall Legislature, they may, in their Lordships' judgment be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. If the reasonings underlying the observations of the' Bombay High Court were correct then on those very reasonings it could be held in Burah's case(1) that while in enacting sections 1 to 8 the Legislature had applied its mind and laid down its policy as to the exclusion of the Garo Hills from the jurisdiction of the Courts the Legislature did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also prescribed the limits of such extension. The efficacy of the Act of extension of jurisdiction is, therefore, not due to any other legislative authority than that of the Legislature itself. The expression invest does not appear to me to have any special significance. It only implies or indicates the result of the fulfilment of the condition which the Legislature itself laid down. To use the language of Lord Selborne the extension of jurisdiction is directly and immediately under and by virtue of this very Act itself. Here there is no effacement of the Legislature, no abdication of the legislative power. On the contrary, the proper Legislature has exercised its judgment as to the possible necessity for the extension of the pecuniary jurisdiction of the new Court and the result of that judgment has been to legislate conditionally as to such extension and that the condition having been fulfilled by the issue of the notification by the Provincial Government the legislation has now become absolute. In my judgment the construction put upon sections 3 and 4 by the High Court was erroneous and cannot be supported either on principle or on authority. When properly construed in the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wants to go further and contend that under the Government of India Act, 1935, it was permissible for the Legislatures, Central or Provincial, while acting within their respective legislative fields, to delegate their legislative powers. In the view I have expressed above, namely, that section 4 of the Bombay City Civil Court Act, 1948, does not involve any delegation of legislative power, I do not consider it necessary, on this occasion, to go into that question and I reserve my right to consider and decide that question including the question of the correctness of the decision of the Federal Court in Jatindra Nath Gupta's case on that point as and when occasion may arise in future. Learned counsel for the first respondent then raises before us the larger question as to whether the Bombay City Civil Court Act, 1948, as a whole was or was not within the legislative competence of the Provincial Legislature of Bombay. Legislative powers were by section 100 of the Government of India Act, 1935, distributed amongst the Federal and the Provincial Legislatures. Under that section the Federal Legislature had, and the Provincial Legislature had not, power to make laws with respect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts would be meaningless enterprises for the Provincial Legislatures to indulge in, unless the Courts so constituted and organised were vitalised by being invested with jurisdiction and powers to receive, try and determine suits and other proceedings. The argument, therefore, is that entry 1 in List II by itself gave power to the Provincial Legislature not only to constitute and organise Courts but also to confer jurisdiction and powers on them. The learned Attorney-General relies on Jagtiani's case(1) and points out that under entry 1 administration of justice was entirely a provincial responsibility and the Provincial Legislature was authorised to make laws with respect to administration of justice. Administration of justice, so the argument' proceeds, is inseparable from Courts and Courts without jurisdiction is an incomprehensible notion. The conclusion sought to be established. therefore, is that under entry 1 alone of List II the Provincial Legislature had power to make a law not merely constituting a new Court but, investing such new Court with general jurisdiction and powers to receive, try and determine all suits and other proceedings. If entry 1 in List II sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferring on, or taking away from, Courts, existing or newly constituted, 0jurisdiction and powers of the widest description, such power would also include the lesser power of conferring jurisdiction and powers with respect to any of the matters enumerated in List II, such as is contemplated by entry 2 in List II. The greater power would certainly have included the lesser. I do not say that the presence of entry 2 in List II by itself cut down the ambit of the expression administration of justice in entry 1, for if there were only entries 1 and 2 in List II and there were no entries like entry 53 in List I and entry 15 in List III, it might have been argued with some plausibility that in framing the two entries in the same list not much care was bestowed by the draftsman to prevent overlapping and that as (1) L.R. 74 I.A. 12, at p.20 16 both the entries in one and the same list gave legislative power to the same Legislature the overlapping caused no confusion or inconvenience and that it was not necessary, therefore, to construe entry 1 of List II as cut down by entry 2 in the same List. The important thing to notice is that the topic of jurisdiction and powers of Courts had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he very concession that entry 53 in List 1, entry 2 in List II and entry 15 in List III gave special powers to the Legislature to confer special jurisdiction and powers necessarily amounts to an admission that the powers conferred on the Provincial Legislature by entry 1 in List II were exclusive of the powers conferred under entry 53 in List I, entry 2 in List II and entry 15 in List III, for if entry 1 in List II gave power to the Provincial Legislature to make laws conferring general jurisdiction of the widest kind which included jurisdiction and powers with respect to all matters specified in all the Lists, then the utility of entry 53 in List I, entry 2 in List II and entry 15 in List III as giving special powers to make laws conferring special jurisdiction would vanish altogether. Special power to confer special jurisdiction would be meaningless if it were included in the general power also. This circumstance by itself should be sufficient to induce the Court to assign a limited scope and ambit to the power conferred on the Provincial Legislature under entry 1 in List II. We, therefore, come back to the same conclusion that entry 1 in List II should be construed and read as c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it under that entry; that if in making such law the Provincial Legislature incidentally enroached upon the legislative field assigned to the Federal Legislature under entry 58 in List I with respect to the jurisdiction and powers of Court with respect to any of the matters specified in List I, such incidental encrochment did not invalidate the law, as in pith and substance it was a law within the legislative powers. In my judgment, this argument really begs the question. The doctrine of pith and substance postulates, for its application, that the impugned law is substantially within the legislative competence of the particular Legislature that made it, but only incidentally encroached upon the legislative field of another Legislature. The doctrine saves this incidental encroachment if only the law is in pith and substance within the legislative field of the particular Legislature which made it. Therefore, if the Provincial Legislature under entry 1 had power to vest general jurisdiction on a newly constituted Court, then if the law made by it incidentally gave jurisdiction to the Court with respect to matters specified in List I the question of the applicability of the doctrine of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereto and I respectfully adopt his reasonings and conclusion on the point. This argument, in my opinion, resolves all difficulties by vesting power in the Provincial Legislature to confer general jurisdiction on Courts constituted and organised by it for effective administration of justice which was made its special responsibility. Any argument as to deliberate encroachment that might have been rounded on the Proviso to section 3 of the Act which enabled the Provincial Government to give to the City Court even Admiralty jurisdiction which was a matter in List I has been set at rest by the amendment of the Proviso by Bombay Act XXVI of 1950. The impugned Bombay Act may, in my judgment, be well supported as a law made by the Provincial Legislature under entry 2 read with entry 1 in List II and I hold accordingly. I, therefore, concur in the order that this appeal be allowed. In the view I have taken, it is not necessary to discuss the contention of the learned Attorney-General that the Bombay City Civil Court Act may be supported as a piece of legislation made by the Provincial Legislature of Bombay under entry 4 read with entry 15 in Part I of List III and I express no opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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