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TMI Blog1948 (9) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... Greater Bombay for the trying of all suits of a civil nature not exceeding ₹ 10,000 in value and arising within the Greater Bombay. In Section 3 of the Act certain kinds of suits are excluded from the purview of this new Court, but we are not concerned with those excepted. suits. Section 12 bars the jurisdiction of this Court in all those suits which are made cognizable by the City Civil Court. Therefore the position is that whereas before the passing of this Act the High Court had jurisdiction to try all suits from ₹ 1,000 upwards on its Original Side, now suits up to the value of ₹ 10,000 would be solely triable by the City Civil Court. Section 18 provides for the transfer of suits pending in the High Court, and the effect of that section is that all suits, which were pending in this Court in which issues had not been settled or evidence had not been recorded on or before the date of the coming into force of the Act, were to be transferred to the new Court which was established. 3. Now, the contention, very briefly put, of the plaintiff and the petitioner before us, is that it is not within the legislative competence of the Provincial Legislature to invest th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... novel features. The administration of justice is made a Provincial subject. It falls under List II, item 1, and the constitution and organisation of all Courts are also within the legislative competence of the Province. But Mr. Joshi contends that as far as the jurisdiction of the Courts set up by the Provinces is concerned, that is distributed between the Province and the Federation. Before the passing of the Act of 1985 India was governed by an unitary constitution and therefore the question of distribution of powers did not arise, and so by Section 223 of the Act the jurisdiction of existing High Courts has been saved. But according to Mr. Joshi, with regard to the future the Courts in India can only derive their power and their jurisdiction with regard to different subjects according as those subjects are Federal subjects or Provincial subjects or fall in the Concurrent List. It is pointed out to us that in List I, the Federal List, item 53 provides with regard to jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this List and, to such extent as is expressly authorised by Part IX of this Act, the enlargement of the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies or by legal phraseology which may conceal the true intent of the Legislature, but must fairly arrive at 8 conclusion as to what is the true nature and character of the legislation which it is considering. The Privy Council in a very recent case has very clearly enunciated this principle. The decision is to be found in Prafulla Kumar Mukherjee v. Bank of Commerce Lid., Khulna (1947) L.R. 74. IndAp 23. The judgment was delivered by Lord Porter, and it would indeed be audacity of the highest order for me to try and improve upon what has been so lucidly and succinctly stated by Lord Porter as the true principles which should govern the consideration of whether a particular piece of legislation is ultra vires or not. Reading the Privy Council case I find certain principles that emerge which I will briefly state. The first is that although it is not always wise to construe the Indian Constitution Act by analogy with the Canadian or the Australian Constitution Acts, even so both in the interpretation of the Canadian and the Australian Acts and in the Indian Act the pith and substance argument fully applies. The second principle that emerges is that when you have different subjects men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e whether the contention of the party challenging the legislation was sound, and these three questions were : (1) Does the Act in question deal in pith and substance with money lending ? (2) If it does, is it valid though it incidentally trenches on matters reserved for the Federal Legislature ? (3) Once it is determined whether the pith and substance is money lending, is the extent to which the Federal field is invaded a material matter ? And their Lordships' answer was that the Act dealt in pith and substance with money lending and therefore it was valid although it incidentally trenched on matters reserved for the Federal Legislature, and finally that once it was determined that the pith and substance was money lending, the extent to which the Federal field was invaded was not a material consideration. In connection with the second question their Lordships cited with approval an observation of Sir Maurice Gwyer, Chief Justice, in Subrahmanyan Chettiar v. Muttuswami Goundan [1940] F.C.R. 188 It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re outside the authorised field. The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field. And the Federal Court in Bank of Commerce Ltd. v. Amulya Krishna Basu : Bank of Commerce Ltd. v. Brojo Lal Mitra [1944] F.C. 126 have also considered what must be the true approach to legislation which is challenged as being beyond the competence of a. particular legislative authority, and the Chief Justice of India, Sir Patrick Spens, quotes with approval from Lefroy's Treatise on Canadian Constitutional Law. Lefroy says that : It seems quite possible that a particular Act, regarded from one aspect, might be intra vires of a Provincial Legislature, and yet, regarded from another aspect, might be also 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. And the learned author goes on to define what aspect means and says : The cases which illustrate 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 leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts 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 the matters in this List, and Mr. Mistree's argument is that item 1 is limited and conditioned by item 2 and what he contends is that the only power that the Provincial Legislature has is undoubtedly to create Courts, but to confer upon them only such jurisdiction as relates to items comprised in List II. I am unable to accept that contention or that interpretation of List II in the Seventh Schedule. Each item in List II is an independent item, supplementary of each other, and not limited by each other in any way. Item 1 having given the general power to the Provincial Legislature with regard to all matters of administration of justice and with regard to the constitution and organisation of all Courts, further gives the power to the Legislature to confer special jurisdiction, if needs be, and special power, if needs be, to these Courts with regard to any of the items mentioned in List II. It is impossible to read item 2 as curtailing and restricting the very wide power with regard to administration of justice given to the Provincial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature would be able to confer jurisdiction on the new Court set up with regard to all matters which may fall within the Federal field. I do not think that the argument is really sound because, as I have already pointed out, item 53 deals with the special jurisdiction and powers with regard to certain specified matters which the Federal Legislature has the power of conferring upon all Courts in the Dominion. That power is by no means taken away by the Provincial Legislature acting patently within its own sphere under item 1 of List II and creating a Court for the administration of justice and conferring upon that Court, not any special powers, not any special jurisdiction, but jurisdiction which every civil Court in the Province has under the Civil Procedure Code. This apprehension of the Provincial Legislature stealthily taking away the powers of the Federal Legislature, I am afraid, is based on a misunderstanding and misappreciation of the real effect and content of item 58 of List I of the Seventh Schedule. It is not disputed either by Mr. Joshi or by Mr. Mistree that if the legislation falls within item 1 of List II, then not only would the Provincial Legislature have the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of the determination of this issue, may be referred to in short. The Act has been enacted by the Provincial Legislature to establish an additional Civil Court for Greater Bombay. Section 3 of the Act enables the Provincial Government to establish for the Greater Bombay a Court, to be called the Bombay City Civil Court, and it enacts that 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 for certain exceptions which are not relevant in these proceedings. Section 4 empowers the Provincial Government by notification in the official Gazette, to invest the City Civil 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 therein. Section 12 of the Act says that notwithstanding anything contained in any law. the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court: Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature has not, power to make laws with respect to any of the matters enumerated therein. In respect of the Concurrent Legislative List, the Dominion Legislature, and, subject to the preceding sub-section, the Provincial Legislature also, have power to make laws with respect to any of the matters enumerated therein. And, lastly, with regard to the Provincial Legislative List, the Provincial Legislature has, and the Dominion Legislature has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated therein. These are the Lists which contain the distribution of powers between the Dominion and the Provincial Legislatures. Going to the respective Lists, there is one particular thing which has got to be observed, and it is this that in all the three Lists we have got laid down as specific items jurisdiction and powers of the Courts circumscribed as they are by the terms of those particular items. Item 53 of List I refers to the jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authorised by Part IX of this Act, the enlargement of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Dominion Legislature in regard to the enactment of the provisions as regards the jurisdiction and powers of all Courts in regard to item 28 of List I. It is urged that so far as the jurisdiction and powers of all Courts with regard to this item 28 of List I was concerned, any enactment in relation thereto or any amendment of existing powers which were vested in the High Court in relation thereto could only be made by the Dominion Legislature which only had legislative competence in regard to the items contained in List I, and in so far as the Provincial Legislature sought to enact provisions as regards the jurisdiction and powers of all Courts in relation to this item 28 of List I, it trenched upon the powers of the Dominion Legislature and was not competent to do so. No doubt, so far as legislative competence is concerned, it is to be found within the four corners of Section 100 of the Constitution Act and the Lists which have been annexed to the Seventh Schedule. If the Provincial Legislature had purported to enact in terms any provision which would affect the jurisdiction and powers of all Courts in relation to item 28 of List I, it certainly was not within its competence to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Provincial Legislature when establishing the City Civil Court to define its jurisdiction and powers, because it would not be possible to constitute a Court merely as a Court without enacting what the jurisdiction and powers of that Court should be. But while bringing into existence that Court and investing that Court with jurisdiction and powers it was, according to the strict letter of the law, not competent to the Provincial Legislature to trench on matters reserved for the Dominion Legislature within List I. In my opinion, therefore, in enacting these provisions in Sections 8 and 12 of the impugned Act the Provincial Legislature did trench on matters reserved for the Dominion Legislature. 16. The next point, however, to consider is, whether, even though in enacting these provisions the Provincial Legislature did trench on matters reserved for the Dominion Legislature, the provisions which have been enacted in this behalf by the Provincial Legislature are ultra vires the Provincial Legislature. It may be noted that the Provincial Legislature has not in terms purported to enact any provisions as regards the jurisdiction and powers of the City Civil Court in relation to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Legislature in items 28 and 38 of List I. Their Lordships in connection with this matter framed three particular questions which the Court should address itself to before arriving at a conclusion whether the provisions of the impugned Act are ultra vires, and adopting the very same phraseology I also would ask myself the same three questions in connection with the impugned Act before us, viz. (1) Does the Act in question deal in pith and substance with the jurisdiction and powers of the City Civil Court ? (2) If it does, is it valid though it incidentally trenches on matters reserved for the Dominion Legislature in item 28 of List I ? (3) Once it is determined whether the pith and substance is the enactment of jurisdiction and powers of the City Civil Court, is the extent to which the Dominion field is invaded a material matter? As regards the first question there is no doubt, on a consideration of items 1 and 2 of List II, that the impugned Act deals in pith and substance with the jurisdiction and powers of the City Civil Court. The main purpose of the enactment of Bombay Act XL of 1948 is the establishment of an additional civil Court for Greater Bombay. You cannot have the es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umerated in the Federal List has to be considered. No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act. The pith and substance of the impugned Act is not-again to state the proposition in terms of the question before us-the jurisdiction and powers of the Courts in relation to item 28 of List I but the jurisdiction and powers of the City Civil Court; once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content. The further observations of their Lordships of the Privy Council comprise the point of view which has got to be adopted in considering this aspect of the case : They observed (p. 44): 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 accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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