9911796707
TMI Blog1950 (12) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... cerns the second question, whereas the first respondent attacked it in so far as it concerns the first and the third questions. 4. The Bombay City Civil Court Act purports to create an 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 matters 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 I, entries 1 and 2 of List II and also entry 15 of List III. These entries run as follows :- 5. Entry 53, List I :- "Jurisdiction and powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as criminal nature, irrespective of who the parties to the suit or proceeding or what is subject-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 pecuniary 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the courts in regard to the matters set out in the Legislative Lists, nor could they have been 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. 11. 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." 12. Reference may also be made to Section 24 of the Indian Arms Act, 1878, which provides that - "when any person i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions which exclude the jurisdiction of courts under certain circumstances. Similar instances may be multiplied from the Acts of the Central Legislature 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. 16. 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 sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e us by the respondent, the Provincial civil courts will not be competent to try such a suit, unless they are empowered to do so by the Central Legislature. In order to show to what absurd result this doctrine may 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 thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the appellant, in supporting the impugned Act, argued before us that for the purpose of deciding this appeal, we might also refer to entry 4 of List III. His contention was that the impugned Act having had the assent of the Governor-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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction to try a suit based on a promissory note. So far as this point is concerned, the respondent bases his contention on entries 28 and 33 of List I. Entry 28 relates to "cheques, bills of exchange, promissory notes and other like in instruments". Entry 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 Other v. Bank of Commerce Limited, Khulna [1947] F.C.R. 28, 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&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this larger jurisdiction, for which the limit had been fixed. It is clear that if and when the New Court has to be invested with the larger jurisdiction, that jurisdiction would be due to no other authority than the Provincial Legislature itself and the court would exercise that jurisdiction by virtue of the Act itself. As several of my learned colleagues have pointed out, the case of Queen v. Burah 3 A.C. 889, 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizable by the City Court apart from the impeached notification, was held to have been properly laid in the High Court. Both these findings have been challenged before us as erroneous, the first by the first respondent and the second by the appellant. 27. On the first point, learned counsel for the first 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislate generally with respect to the jurisdiction and powers of courts. The greater power must include the less. A similar difficulty in construing entry 4 of List III and entry 2 of List II arose in Stewart v. Brojendra Kishore AIR1939Cal628 and led a Division Bench of the Calcutta High Court to construe the expression "civil procedure" occurring in the former entry in a "limited sense" as excluding jurisdiction and powers of courts. After referring to the decision of the Judicial Committee in In re Marriage Reference [1912] A.C. 880 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen read with entry 1. It should be remembered - and this is what the argument for restricting the legislative power of provinces in regard to jurisdiction overlooks - that "administration of justice" is one of the matters mentioned in List II itself. The Provincial Legislature, therefore, is competent under entry 2 to legislate conferring jurisdiction on courts with respect to administration of justice, that is to say, general jurisdiction to administer justice by adjudicating on all matters brought before them, except, 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 latter 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, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;. In answering the objection that the view does not give sufficient effect to the words of precedence used in Section 100 of the Government of India Act as between the three Lists, their Lordships went on to say "No doubt where they come in conflict List I has priority over List III and II, and List III has priority over List II; but the question still remains priority in what respect ? Does the priority of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may incidentally affect any item in its list or in each case has one to consider 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." 32. 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 [[1944] F.C.R. 126, 139.]. "It seems quite possible" says the learned writer, summarising the eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified cases or matters either on the ordinary courts in addition to their general jurisdiction or on tribunals set up to deal with such matters exclusively. The various Provincial Civil Court Acts as well as the provisions of the Civil and Criminal Procedure Codes invest the courts, both civil and criminal, with general jurisdiction, that is to say, power to adjudicate in respect of all persons and all matters except those that are specifically excluded or brought within the cognizance of tribunals with special or limited jurisdiction extending only to those matters. The grading of the court too in their hierarchy has reference to the pecuniary 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 Indian 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 legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary and Senior Master of the High Court for filing a summary suit against the second respondent to recover a sum of ₹ 11,704-2-4 alleged to be due under promissory notes. This suit was instituted in the High Court, in contravention of a notification dated the 20th January, 1950, issued under Section 4 of the City Civil Court Act, under which suits up to the pecuniary limit of ₹ 25,000 could be heard only by the City Civil Court, and not by the High Court. As the question of jurisdiction was of importance, the matter was referred to the sitting Judge in Chambers. On 23rd February, 1950, the learned Judge admitted the plaint holding that Section 4 of the Act was ultra vires 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 Advocate-General, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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." 40. On the second question the High Court held that Section 4 of the Act was inoperative as it purported to delegate the law-making powers of the legislature to an outside authority and hence the notification issued in pursuance of it had no effect whatsoever and did not take away the jurisdiction 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 51 Bom. L.B. 86, 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the result of exercise of legislative will, as without arriving at this judgment it would not have been able to determine the outside limit of the pecuniary jurisdiction of the new court. The policy of the legislature in regard to the pecuniary jurisdiction of the court that was being set up was settled by Sections 3 and 4 of the Act and it was to the effect that initially its pecuniary jurisdiction will be limited to ₹ 10,000 and that in future if circumstances make it desirable - and this was left to the determination of the Provincial Government - it could be given jurisdiction to hear cases up to the value of ₹ 25,000. It was also determined that the extension of the pecuniary jurisdiction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Provincial Legislature, they may (in their Lordship's 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. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative power which it from time to time conferred. It certainly used no words to exclude it." 43. 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 necessaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 178 inasmuch as it authorised the Provincial Government to modify the Act and also to re-enact it. It was pointed out that "distinction between delegation of power to make the law which necessarily involves a discretion as to what it shall be, and conferring discretion or authority as to its execution to be exercised under and in pursuance of the law is a true one and has to be made in all cases where such a question is raised." The following observations made by me there pointedly bring out the distinction between the two cases :- "The proviso which has been assailed in this case, judged on the above test, comes within the ambit of delegated legislation, and is thus an improper piece of legislation and is void. To my mind, it not only amounts to abdication of legislative 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 25,000 as soon as circumstances necessitate it. The Provincial Government was constituted the judge of those circumstances. What the limit of that jurisdiction was to be was in unmistakable terms enacted in Section 4 of the Act. It was not left to the will of the Provincial Government to confer on that court any pecuniary jurisdiction that it liked to confer upon it. It would be by force of the legislative power of Section 4 that the City Civil Court will be vested with enhanced jurisdiction but that vesting cannot take place till a notification is issued by the Provincial Government. It is conditional on that event only. 49. For the reasons given above, in my judgment, the High Court was in error in holding that Section 4 of the City Civil Court Act was void and ultra vires the 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. 50. The next question to decide is whether the Act is ultra vires the Bombay Legislature. In order to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and Revenue Courts. 52. List III. 4. Civil Procedure, including the Law of Limitation and all matters included in the Code of Civil Procedure at the date of the passing of this Act; the recovery in a Governor's Province or a Chief Commissioner's Province of claims in respect of taxes and other public demands, including arrears of land revenue and sums recoverable as such, arising outside that Province. 15. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list. 53. Mr. Seervai contends that Section 3 of the impugned Act is void because it directly trenches on the exclusive legislative powers of the Centre conferred on it by List I of the Seventh Schedule inasmuch as it confers jurisdiction on the new court in respect to all cases of a civil nature. The expression "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 lists, namely, 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of List I, entry 2 of List II and entry 15 of List III of the Schedule, it was said that these conferred legislative power on the respective Legislatures to confer special jurisdiction on established courts in respect of particular subjects only if it was considered necessary to do so. In other words, the argument was that the Provincial Government could create a court of general jurisdiction legislating under entry 1 of List II and that it was then open to both the Central and the Provincial Legislatures to confer special jurisdiction on courts in respect to particular matters that were covered by the respective lists. In my opinion, the contention of the learned Attorney-General that the Act is intra vires the Bombay Legislature under entry 1 of List II is sound and I am in respectful agreement with the view expressed by the Chief Justice of Bombay on this point in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah 51 Bom. L.R. 86. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative power conferred on the Provincial legislature by item 1 of List II has been conferred by use of language which is of the widest amplitude (administration of justice and constitution and organization of all courts). It was not denied that the phrase employed would include within its ambit legislative power in respect to jurisdiction and power of courts established for the purpose of administration of justice. Moreover, the words appear to be sufficient to confer upon the Provincial Legislature the right to regulate and provide for the whole machinery connected with the administration of justice in the Province. Legislation on the subject of administration of justice and constitution of courts of justice would be ineffective and incomplete unless and until the courts established under it were clothed with the jurisdiction and power to hear 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 forma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under powers conferred under other items of the different lists. I am unable to read items 53, 2 and 15 of the three respective lists as imposing limitations on legislative power conferred on the Province by item 1 of List II. Such a construction of the Act would not only do violence to the plain language of item 1 of List II but would be contrary to its scheme under which administration of justice was made a provincial subject. It is significant that no other Legislature has been given the power to bring into existence a court. A court without powers and jurisdiction would be an anomaly as it would not be able to discharge the function of administration of justice and the statute establishing such a court could not be said to be a law on the subject of administration of justice. It is a fundamental principle of the construction of a constitution that everything 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 II a Provincial Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this division of legislative power it was necessary to provide by way of a complementary provision a legislative power specifically on the two Legislatures in respect to the jurisdiction and powers of courts on subjects which were within their exclusive legislative field. If a Legislature could exclusively legislate in respect to particular subjects, as a necessary consequence it should also have the power to legislate in respect to jurisdiction and power of the court dealing with that subject. It is this power that has been conferred by entries 53, 2 and 15 above mentioned on the two Legislatures. Entries 42 and 99 of List I, entries 37 and 42 of List II and entries 25 and 36 of List III are of a similar consequential character. The respective Legislatures are therefore competent to confer special powers on courts and can create special jurisdictions 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 jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether a limited construction is to be placed on items 53, 2 and 15 of the three lists. I have no hesitation in holding that both in the light of principles of construction of statutes and principles of legislation, the course to adopt is the one that I have indicated above. 59. Finally, it was contended that Section 12 of the Act in any case was a void piece of legislation as it deprived the High Court of its jurisdiction even in respect to subjects contained in List I of the Seventh Schedule. In view of the construction that I have placed on item 1 of List II this argument has no force. If the Legislature has power to bring into existence a court and confer jurisdiction and power on it, a fortiori it has power to take away the jurisdiction and power that already exist in other courts. Moreover, the Bombay City Civil Court Act in Section 3 has excepted from the 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 aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment of India Act, 1935. 64. As regards the first point, I agree that the contention of the appellant is sound and must prevail. I have no hesitation in holding that the Legislature in empowering the Provincial Government to invest the City Court, by notification, with jurisdiction of such value not exceeding ₹ 25,000 as may be specified in the Notification, has not delegated its legislative authority to the Provincial Government. The provision relates only to the enforcement of the policy which the Legislature itself has laid down. The law was full and complete when in left the legislative chamber permitting the Provincial Government to increase the pecuniary jurisdiction of the City Court up to a certain amount which was specified in the Statute itself. What the Provincial Government is to do is not to make any law; it has to execute the will of the Legislature by determining the time at which and the extend 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 5 I.A. 178, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act should be continued for another year but whether the Act itself was to be modified in any way or not. It was conceded by the learned Counsel appearing for the Province of Bihar that to authorise another body to modify a statute amounts to investing that body with legislative powers. What the learned Counsel contended for, was that the power of modification was severable from the power of extending the duration of the statute and the invalidity of one part of the proviso should not affect its other part. To this contention my answer was that the two provisions were inter-related in such a manner in the statute that one could not be severed from the other. Obviously, the facts of this case are quite different, and all that I need say with regard to my pronouncement in Jatindranath Gupta's case is that the principle upon which that case was decided is not applicable and cannot be attracted, to the present case. 67. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjects included in Item 1 of the Provincial List are "the administration of justice and constitution and organization of all courts except the Federal Court", and these expressions obviously include within their ambit the conferring of general jurisdiction to hear and decide cases upon courts which are set up by the Provincial Legislature, and without which they cannot function as courts at all. It is said that Item 2 of the Provincial List which mentions "jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this List" does not in any way limit or curtail the ordinary connotation of the expressions "administration of justice and constitution of courts" as used in Item I of the said List referred to above. 70. It cannot be disputed that the words "administration of justice" occurring in Item 1 of the Provincial List, unless they are limited in any way, are of sufficient amplitude to confer upon the Provincial Legislature 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses when we come to entry 53 of List I. Under this entry, it is the Central Legislature that has been given the power of legislating in regard to jurisdiction and powers of all courts except the Federal Court in respect to any of the matters in List I. The difficulty that one is confronted with, is that if Item 1 of the Provincial List is taken to empower the Provincial Legislature to invest a court with jurisdiction with respect to all subjects no matter in whichever List it might occur, a clear conflict is bound to arise between Item 1 of the Provincial List and Item 53 of the Central List; and a Provincial legislation trespassing upon the exclusive field of the center would be void and inoperative under Section 100 of the Constitution Act. This being the position, a way would have to be found out to avoid the conflict. As the Privy Council observed in the case of the Citizens Insurance Company of Canada v. Parsons 7 A.C. 96 "it could not have been the intention that a conflict should exist and in order to prevent such a result the two sections must be read together and the language of the one interpret and where necessary modified by the other." 73. Mr. Seervai sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an ordinary Provincial Court established to decide civil suits would be entitled to entertain all money claims but not a claim on a promissory note; nor could it entertain a suit for recovery of corporation tax, for Negotiable Instruments and corporation tax are subjects of the Central List. This certainly was not the scheme of the Constitution Act. In my opinion, the proper way to avoid a conflict would be to read entry 1 of the Provincial List, which contains the only provision relating to constitution of courts and administration of justice, along with the group of three entries, viz., entry 53 of List I, entry 2 of List II and entry 15 of List III with which it is supposed to be in conflict, and to interpret the language of one by that of the other. Entry 1 of List II uses the expressions "administration of justice and constitution of all courts" in a perfectly general manner. No particular subject is specified to which the administration of justice might relate or for which a court might be constituted. It can, therefore, be legitimately interpreted to refer to a general jurisdiction to decide cases not limited to any particular subject. The other three items on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese powers can be exercised under entry 1 of List II. If the Central Legislature or the Provincial Legislature chooses to confer special jurisdiction on certain courts in respect to matters enumerated in their appropriate legislative lists, they can exercise such powers under the three entries specified above. But the exercise of any such powers by the Central Government would not in any way conflict with the powers exercisable by the Provincial Legislature under entry 1 of List II. The expression 'general' must always be understood as being opposed to what is 'special' or exclusive. If the Central Legislature vests any particular jurisdiction upon a court in respect to a Central matter, that matter would cease to be a general matter and consequently the court having general jurisdiction would no longer deal with that, but the general jurisdiction of such courts would not be affected thereby. The contents of general jurisdiction are always indeterminate and are not susceptible of any specific enumeration. In this view, I do not think that it would be at all necessary to invoke 'the pith and substance' doctrine in avoiding the possibility of incidental encro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider it right to state my reasons for coming to that conclusion. 79. The salient facts, as to which there is no dispute, are as follows : On May 10, 1948, the Provincial Legislature of Bombay passed Act No. XL of 1948, called the Bombay city Civil Court Act, 1948. It was passed with a view "to establish an additional Civil Court for Greater Bombay." The provisions of that Act which will be relevant for the purposes of the present appeal may now be set out : "1. (2) It shall come into force on such date as the Provincial Government may, by notification in the Official Gazette, appoint in this behalf. 3. The Provincial Government may, by notification in the Official Gazette, establish for the Greater Bombay a Court, to be called the Bombay City Civil Court. Notwithstanding anything contained in any law, such Court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding ten thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are cognizable - (a) by the High Court as a Court of Admiralty or Vice-Admiralty or as a Colonial Court of Admiralty, or as a Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 205 of the Government of India Act, 1935, to appeal to the Federal Court but no such appeal appears to have been filed. 82. On January 20, 1950, the Provincial Government of Bombay issued the following notification No. 2346/5 in the Official Gazette : "In exercise of the powers conferred by Section 4 of the Bombay City Court Act, 1948 (Bombay Act XL of 1948), the Government of Bombay is pleased to invest, with effect from and on the date of this notification, the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding twenty-five thousand rupees in value, and arising within the Greater Bombay subject, however, to the exceptions specified in Section 3 of the said Act." 83. On February 6, 1950, the first respondent Narothamdas Jethabhai presented a plaint before the Prothonotary of the Bombay High Court for recovery of ₹ 11,704-5-4 with further interest due by the second respondent Aloysious Pinto Phillips upon three several promissory notes. In paragraph 4 of this plaint it was expressly pleaded that the High Court had jurisdiction to receive, try and dispose of that suit because (1) the Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up before us in appeal from this decision of the High Court. 86. The Advocate-General of Madras has intervened in support of this appeal and for maintaining the validity of the Madras City Civil Court Act (VII of 1892) Section 3A of which inserted in 1935 by way of amendment is in identical terms with Section 4 of the Bombay Act except that the amount of the value was fixed at ₹ 10,000 in Section 3A of the Madras Act instead of ₹ 25,000 fixed in Section 4 of the Bombay Act. 87. The distinction between conditional legislation and delegation of legislative power has been well-known ever since the decision of the Privy Council in R. v. Burah L.R. 5 IndAp 178 and the other Privy Council cases cited in the judgments of the High Court. It is firmly established that conditional legislation is not only permissible but is indeed in many cases convenient and necessary. The difficulty which confronts the Courts is in ascertaining whether a particular provision of a Statute constitutes a conditional legislation as explained in the decisions of the Privy Council. In the present case the High Court, on a construction of Section 4 of the Bombay City Civil Court Act, came to the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (No. XXII of 1869) purporting, first, to remove a district called Garo Hills from the jurisdiction of the Courts of civil and criminal jurisdiction and from the law prescribed for such Courts by Regulations and Acts and, secondly, to vest the administration of civil and criminal justice, within the same territory, in such officers as the Lieutenant-Governor of Bengal might, for the purpose of tribunals of first instance, or of reference and appeal, from time to time appoint. The Act was to come into operation on such day as the Lieutenant-Governor of Bengal should, by notification in the Calcutta Gazette, direct. The 8th section authorised the Lieutenant-Governor of Bengal by notification in the Calcutta Gazette to extend to the said territory, any law or any portion of any law then in force in other territories subject to his government or which may thereafter be enacted by the Council of the Governor-General or of himself. The 9th section of that Act provided : "The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied, it was expedient, on that point also, to entrust a discretion to the Lieutenant-Governor. His Lordship then proceeded to state the true meaning and effect of the provisions of Section 9 : "This having been done as to the Garo Hills, what was done as to the Khasi and Jaintia Hills ? The Legislature decided that it was fit and proper that the adjoining district of the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts, and brought under the same provisions with the Garo Hills, not necessarily and at all events, but if and when the Lieutenant-Governor should think it desirable to do so; and that it was also possible that it might be expedient that not all, but some only, of those provisions should be applied to that adjoining district. And accordingly the Legislature entrusted for these purposes also, a discretionary power to the Lieutenant-Governor." 90. Finally, his Lordship concluded at p. 195 : "Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant-Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings arising within the Greater Bombay of the value up to ₹ 10,000 leaving it, by Section 1(2), to the Provincial Government to say at what time that change should take place. Likewise, it may be said that in enacting Section 4 the Legislature itself has decided that it is fit and proper to extend the pecuniary jurisdiction of the new Court, not necessarily and at all events or all at once but, if and when the Provincial Government should think it desirable to do so and accordingly entrusted a discretionary power to the Provincial Government. It is entirely wrong to say that the Legislature has not applied its mind or laid down any policy. Indeed, the very fact that the extension of pecuniary jurisdiction should not exceed twenty-five thousand rupees, that the extension should be subject to the exceptions specified in Section 3 clearly indicate that the Legislature itself has decided that the extension of the pecuniary jurisdiction of the new Court should be made, not necessarily or at all events or all at any one time but when the Provincial Government may consider it desirable to do so and while entrusting a discretionary power with the Provincial Government to determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the proviso and the notification there under were ultra vires and void. They laid particular emphasis on the power given to the Provincial Government to make any modification in the Act when extending its life as indicating that it was a delegation of legislative power. Another learned Judge did not decide this point but agreed to set aside the order of detention on another ground not material for our present purpose and the remaining learned Judge took a different view of the effect of the proviso and held that it was a conditional legislation within the meaning of the decision in R. v. Burah [L.R. 5 IndAp 178]. I do not find it necessary, for the purposes of the present appeal, to express any view as to the correctness of the decision of the Federal Court in that case. Assuming, but without deciding, that the entrustment with the Provincial Government of the power to extend the life of an Act with such modifications as the Provincial Government in its unfettered discretion thought fit to make was nothing but a delegation of legislative powers, there is no such power of modification given to the Provincial Government by Section 4 of the Bombay City Civil Court Act, 1948, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 53 : Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list... List II. Entry 1 : .......... the administration of justice, constitution and organisation of all Courts, except the Federal Court, and fees taken therein;.... Entry 2 : Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts. List III. PART 1. Entry 2 : Criminal Procedure, including all matters included in the Code of the Criminal Procedure at the date of the passing of this Act. Entry 4 : Civil Procedure, including the law of Limitation and all matters included in the Code of Civil Procedure at the date of the passing of this Act;........ Entry 15 : Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list. 96. Learned Attorney-General urges that entry 1 in List II clearly indicates that administration of justice had been expressly made a provincial subject and that it was only the Provincial Legislature which could make laws with respect to administration of justice. The next steps in the arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction and powers of the Courts and the laws to be administered by the Court. But the legislative practice in England as well as in India has been to deal with these topics separately in legislative enactments : see for example Indian High Courts Act 1861 (24 and 25 Vic., c. 104) Sections 2 and 19; Government of India Act, 1935, Sections 220 and 223, the Letters Patent of the Bombay High Court, 1865, and also the different Civil Courts Acts. Of these, one topic, namely, "constitution and organisation of Courts" had been expressly included in entry 1 of List II in addition to "administration of justice", a fact of some significance which must be noted although I do not say that the inclusion of the words "constitution and organisation of all Courts" in entry 1 of List II by itself and in the absence of anything else cut down the generality of the meaning of the expression "administration of Justice" which preceded those words, for such a construction may militate against the principle laid down by the Privy Council in Meghraj v. Allah Rakhia L.R. 74 IndAp 12. Further, entry 2 in List II would have been wholly unnecessary if the expression & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment, entry 1 in List II cannot be read as at all giving any power to the Provincial Legislature to confer any jurisdiction or power on any Court it might constitute or organise under that entry and that the expressions "administration of justice" and "constitution and organisation of Courts" occurring in entry 1 in List II should be read as exclusive of "the jurisdiction and powers of Courts" the powers of legislation with respect to which were distributed under entry 53 in List I, entry 2 in List II and entry 15 in List III. Such a construction will be consonant with the principle of construction laid down by the Privy Council in the case of In re Marriage Legislation in Canada [1912] A.C. 880. 97. It is next said that entry 1 in List II gave general powers to the Provincial Legislature to make laws conferring general jurisdiction and powers on Courts constituted by it under that entry while entry 53 in List I, entry 2 in List II and entry 15 in List III conferred special powers on the Federal and Provincial Legislatures to make laws conferring special jurisdiction and powers with respect to matters specified in their respective Lists. As I have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if the Provincial Legislature could not, under entry 1 in List II, confer jurisdiction on a new Court set up by it under that entry, the result would have been that the Provincial Legislature would have had to set up a new Court by one law made under entry 1 of List II without conferring on it any jurisdiction whatever and would have had to make another law with respect to the jurisdiction and powers of such Court. I see no force in this, for the Provincial Legislature could by one and the same law have set up a Court under entry 1 in List II and vested in the Court jurisdiction and powers with respect to any of the matters specified in List II and, subject to Section 107 of the Act, with respect to any of the matters enumerated in List III. It is wrong to assume that the Provincial Legislature could not make one law under both entry 1 and entry 2 in List II and entry 15 in List III at one and the same time. 99. A good deal of argument was advanced before us as to the applicability of the doctrine of pith and substance and, indeed, the decision of the Bombay High Court in Jagtiani's case was practically founded on that doctrine. Shortly put, the argument, as advanced, is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters enumerated in List II; that "administration of justice" in entry 1 is one of the matters in List II; that, therefore, the Provincial Legislature had power to confer the widest general jurisdiction on any new Court or take away the entire jurisdiction from any existing Court and there being this power, the doctrine of pith and substance applies. It is suggested that this argument cannot be formulated in view of the language used in entry 2 in List II. It is pointed out that entry 2 treats "any of the matters in this List" as subject-matter "with respect to" which, i.e., "over" which the Court may be authorised to exercise jurisdiction and power. This construction of entry 2 is obviously fallacious, because jurisdiction and powers of the Court "over" administration of justice as a subject-matter is meaningless and entry 2 can never be read with entry 1. This circumstance alone shows that the words "with respect to" occurring in entry 2 in List II when applied to entry 1 did not mean "over" but really meant "relating to" or "touching" or "concerning" or "for" administr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
