Case: Jamshed N. Guzdar Vs. State Of Maharashtra


Decision:
0[ds]As is clear from the Entries extracted above, Entry 77 in List I deals with the constitution, organization, jurisdiction and powers of the Supreme Court. Entry 78 relates to only constitution and organization of the High Courts and not with the jurisdiction and powers of the High Courts unlike in Entry 77 dealing with the jurisdiction and powers of Supreme Court in addition to constitution and organization. Jurisdiction and powers of High Court are dealt with as a separate topic under Entry 11A of List III, which was in Entry 3 of List II prior to 42nd Constitution Amendment Act. The general jurisdiction of the High Courts falls in administration of justice, i.e. under Entry 11A in the Concurrent List. Entry 95 of the Union List, Entry 65 of the State List and Entry 46 of the Concurrent List refer to special jurisdictions of the courts relating to the matters contained in the respective lists. Entry 95 deals with the power of Parliament to confer jurisdiction and powers of all the courts except the Supreme Court with respect to any of the matters in List I. Similarly, Entry 65 of the List II deals with the power of State Legislature to confer jurisdiction and powers on all the courts except the Supreme Court with respect to the matters contained in the said list. Entry 46 in the Concurrent List refers to the power and jurisdiction of all the courts except the Supreme Court with respect to all the matters contained in the Concurrent List. It may be noted here that one of the items in the Concurrent List is Civil Procedure under Entry 13.In our view, the State Legislature has power to confer general jurisdiction on all the courts except the Supreme Court under Entry 11A in the Concurrent List falling within the meaning of administration of justice. Hence, the 1987 Act is within the competence of the State Legislature in the light of the discussion and reasons to follow.The State Legislature was the sole repository of power to confer jurisdiction on all the courts except the Supreme Court and High Court under Entry 3 of the State List prior to Forty-second Amendment) of 1976 and thereafter the Parliament as well as the State Legislatures have power to confer general jurisdiction on all the courts including the High Courts under Entry 11A of the Concurrent List. Entry 46 of the Concurrent List deals with the special jurisdiction in respect of the matters in the Concurrent List. One of the matters in the Concurrent List is the Civil Procedure Code. The combined reading of the Entry 11A, Entry 13 and Entry 46 of the Concurrent List makes the position clear that the 1987 Act is not beyond the legislative competence of the State Legislature when it deals with pecuniary jurisdiction of civil courts.From careful reading of Entries 77 and 78 of the Union List it is clear that Entry 77 not only deals with the constitution and organization but also with jurisdiction and powers in respect of Supreme Court falling within the exclusive domain of the Parliament. Entry 11A in the Concurrent List deals with the administration of justice in all the courts and the constitution and organization of all courts, except the Supreme Court and the High Courts. Thus, it is clear that the Parliament is the sole repository of powers as far as the constitution, organisation, jurisdiction and powers of the Supreme Court is concerned. Conscious omissions of the words jurisdiction and powers in Entry 78, looking to the said words included in Entry 77, it is clear that the jurisdiction and power of the High Courts are dealt with as a separate topic under the caption administration of justice under Entry 11A of the Concurrent List. The exclusion of jurisdiction and powers from Entry 78 appears to be meaningful and intended to serve a definite purpose in relation to bifurcation or division of legislative powers relating to conferment of general jurisdiction of High Courts.Entries 77 and 78 of the Union List deal with constitution and organization of the Supreme Court and the High Courts because after coming into force of the Constitution, the Supreme Court was required to be set up and so also the High Courts were required to be established and/ or reconstituted. The expressions constitution and organization of the High Courts in Entry 78 are referable to Articles 2, 3 and 4 of the Constitution. Article 2 empowers the Parliament to admit into the Union or establish new States, Article 3 deals with the formation of new States and alterations of areas, boundaries or names of the existing States and Article 4 provides that laws made under Articles 2 and 3 may provide for amendment of the First and Fourth Schedules and supplemental, incidental and consequential matters. The words constitution and organisation have their own meaning as against expressions jurisdiction and powers, but in the scheme of the Constitution the subject constitution and organisation of Supreme Court and High Courts rests with the Union.The general jurisdiction of the High Courts is dealt with in Entry 11A under caption administration of justice, which has a wide meaning and includes administration of civil as well as criminal justice. The expression administration of justice has been used without any qualification or limitation wide enough to include the powers and jurisdiction of all the courts except the Supreme Court. The semicolon (;) after the words administration of justice in Entry 11A has significance and meaning. The other words in the same Entry after administration of justice only speak in relation to constitution and organisation of all the courts except the Supreme Court and High Courts. It follows that under Entry 11A State Legislature has no power to constitute and organize Supreme Court and High Courts. It is an accepted principle of construction of a constitution that everything necessary for the exercise of powers is included in the grant of power. The State Legislature being an appropriate body to legislate in respect of administration of justice and to invest all courts within the State including the High Court with general jurisdiction and powers in all matters, civil and criminal, it must follow that it can invest the High Court with such general jurisdiction and powers including the territorial and pecuniary jurisdiction and also to take away such jurisdiction and powers from the High Court except those, which are specifically conferred under the Constitution on the High Courts. It is not possible to say that investing the city civil court with unlimited jurisdiction taking away the same from the High Court amounts to dealing with constitution and organisation of the High Court. Under Entry 11A of List III the State Legislature is empowered to constitute and organize city civil court and while constituting such court the State Legislature is also empowered to confer jurisdiction and powers upon such courts inasmuch as administration of justice of all the courts including the High Court is covered by Entry 11A of List III, so long as Parliament does not enact law in that regard under Entry 11-A. Entry 46 of the Concurrent List speaks of the special jurisdiction in respect of the matters in List III. Entry 13 in List III is "... Code of Civil Procedure at the commencement of the Constitution..".From Entry 13 it follows that in respect of the matters included in the Code of Civil Procedure and generally in the matter of civil procedure the Parliament or the State Legislature, as provided by Article 246(2) of the Constitution, acquire the concurrent legislative competence. The 1987 Act deals with pecuniary jurisdiction of the courts as envisaged in the Code of Civil Procedure and as such the State Legislature was competent to legislate under Entry 13 of List III for enacting 1987 Act.In this view of the matter, we are unable to accept the contention that Parliament alone has the exclusive competence to invest the High Court with the "general jurisdiction" referable to "constitution and organization of the High Court".It is true that there are several provisions in Articles 216, 217, 221, 222, 223, and 224 wherein the President of India and the Government of India alone have been given powers, in the matters stated therein. This by itself does not militate against the view that we are inclined to take.This Court in Narothamdas and Indu Bhushan De (supra) clearly laid down that power of legislature to confer or take away general jurisdiction of all courts excepting the Supreme Court is a separate topic and forms part of the "administration of justice" and not part of `constitution and `organisation of High Courts.It may be added that the State Legislature was also competent to enact the 1987 Act under Entry 13 read with Entry 46 of List III. Entry 13 of List III relates to Civil Procedure Code. The jurisdiction of civil court, particularly pecuniary jurisdiction of civil courts, was specially covered by the Civil Procedure Code on the date of commencement of the Constitution. Entry 46 of List III relates to jurisdiction and power of all courts except the Supreme Court i.e. including the city civil court and High Court with respect to any matter in List III including Civil Procedure Code in Entry 13. The contention that merely constituting and organizing High Courts without conferring jurisdiction to deal with the matters on them does not serve any purpose, cannot be accepted. The Constitution itself has conferred jurisdiction on High Courts, for instance, under Articles 226 and 227. This apart, under various enactments both the Central and State, certain jurisdiction is conferred on High Courts. The High Courts have power and jurisdiction to deal with such matters as are conferred by the Constitution and other statutes. This power of "Administration of Justice" has been included in the Concurrent List after 3.1.1977 possibly to enable both Centre as well as States to confer jurisdiction on High Courts under various enactments passed by the Centre or the State to meet the needs of the respective States in relation to specific subjects. Thus, viewed from any angle, it is not possible to agree that the 1987 Act and 1986 Act are beyond the competence of the State Legislature.We are, therefore, of the view that there is no merit in the contention that the State Legislature did not have competence to enact the two legislations, the constitutionality of which has been challenged before us.Dealing with the contention that a writ could not be issued to the Government to bring or not to bring the law into force, relying on the decision in A.K. Roy vs. Union of India AIR 1982 SC 710 , the High Court noticed the facts in that case. That was a case in which one of the questions considered with regard to Central Government issuing a notification for bringing the provisions of Section 3 of the Constitution (44th Amendment) Act, 1978 into force. This Court on the facts of the case observed, "The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to do that which according to the mandate of the Parliament lies in its discretion to do when it considers it opportune to do it". There, the writ of mandamus was sought to the Central Government to issue a notification to bring into force the provisions of Section 3 of the 44th Amendment Act. In the case on hand the position is entirely different. Here is a case pursuant to statutory provisions the State Government has acted and issued the Notification dated 20th August, 1991 for implementation of the provisions of the 1987 Act.Merely because an appeal is not provided in any statute, that by itself does not render a statute constitutionally invalid. It is well settled that the right of appeal is to be provided by a statute. In other words, right of appeal is statutory and not a constitutional right. This apart, if a statute does not provide an appeal in respect of certain matter, the party still will have remedy in approaching the High Court or this Court, as the case may be, in exercise of power of judicial review including under Article 136 of the Constitution. Moreover the difficulty in the case only relates to a class of cases as indicated in paragraph 18 of this judgment to such decrees, which may be passed after the commencement of the 1987 Act and 1986 Act in any suit or other proceedings pending in the High Court since before the commencement of the said Acts. This apart, as stated in paragraph 18, the State of Maharashtra is willing to take steps to provide an appeal by amending Section 3 of the 1986 Act.As regards the other contention that the Notification has been issued due to pressure brought about by a section of lawyers and for extraneous considerations, it may be stated that no particulars were given and no material was placed on record before the High Court and even before us except repeating this ground. We do not find any good ground to accept this contention advanced on behalf of the appellant. Hence, it is rejected.The argument that the 1986 Act or Adhiniyam encroaches upon the legislative power of Parliament, cannot be accepted, in the view we have taken that it was competent for the State Legislatures to pass law relating to general jurisdiction of the High Courts dealing with the topic administration of justice under Entry 11-A of List III. Assuming that incidentally 1986 Act and the Adhiniyam touch upon the Letters Patent, the 1986 Act and Adhiniyam cannot be declared either as unconstitutional or invalid applying doctrine of pith and substance having due regard to the discussion already made above while dealing with the legislative competence of the State in passing the 1987