dedol-hf/india-case-legal-rag huggingface dataset:
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  legisla-
tion within the meaning  of the decision in R., v. Burah(2).
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
(1)  A.I.R.  1949 F.C. 175,               (.2) L.R.  5  I.A.
178.
118
Act. 1948 and, therefore, that decision of the Federal Court
can have no application to the case before us.
    The  learned  Attorney-General 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  ex-
pressed  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(1) 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  Gov-
ernment 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 to any of the  matters
enumerated  in List I in the Seventh Schedule to  that  Act.
Likewise,  the Provincial Legislature had, and  the  Federal
Legislature  had not, power to make laws the  Province  with
respect  to my of the matters enumerated in List II in  that
Schedule.   It will be noticed that'the section,  while  af-
firmatively giving legislative power with respect to certain
matters to one Legislature, expressly excluded the  legisla-
tive  power of the other Legislature with respect  to  those
matters. Lastly, section 100 gave concurrent power of legis-
lation to the Federal as well as to the Provincial  Legisla-
ture with respect to matters enumerated in List III in  that
Schedule. Section 107 of that Act made provision for resolv-
ing the inconsistency, if any, between a Provincial law  and
a Federal law or the existing Indian
(1) A.I.R. 1949 F.C. 175
119
law  with respect to  any of the matters in  the  Concurrent
List  (i.e., List III).  Turning now to the three  lists  we
find  several entries relating to Courts, the relevant  por-
tions of which are as follows :
                      List I.
    Entry 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  Limita-
tion and all matters included in the Code of Civil Procedure
at the date of the passing of this
    Entry 15: Jurisdiction and powers of all Courts,  except
the  Federal  Court, with respect to any of the  matters  in
this list.
    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  argument
are that there could be no administration of justice  unless
Courts were constituted and organised, that the constitution
and organisation of Courts would be  meaningless enterprises
for  the Provincial Legislatures to indulge in,  unless  the
Courts so constituted and organised were
120
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 consti-
tute 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  admin-
istration of justice was entirely a provincial responsibili-
ty  and  the Provincial Legislature was authorised  to  make
laws with respect to administration of justice.  Administra-
tion  of justice, so the argument' proceeds, is  inseparable
from Courts and Courts without jurisdiction is an  incompre-
hensible  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  deter-
mine   all suits and other proceedings.  If entry 1 in  List
II  stood alone and entry 53 in List I, entry 2 in  List  II
and  entry 15 in List HI were not in the  Seventh  Schedule,
the argument would have been unanswerable. In Section 92  of
the  British North America Act, 1867, there was no  separate
provision  authorising  the making of laws with  respect  to
jurisdiction  and powers of Courts and, therefore,  the  au-
thority  to make laws with  respect to the jurisdiction  and
powers  of Courts had of necessity to be found in and  spelt
out  of the words' 'administration of justice" occurring  in
section  92  (14) of that Act. There is,  however,  no  such
pressing  or compelling necessity for giving such  wide  and
all  embracing meaning to the words "administration of  jus-
tice" in entry 1 of List 11. The expression  "administration
of  justice"  may be an expression of wide  import  and  may
ordinarily,  and in the absence of anything  indicating  any
contrary  intention,  cover  and include  within  its  ambit
several things as component parts of it, namely, the consti-
tution  and organisation of Courts, jurisdiction and  powers
of the Courts and the laws to be administered by the Courts.
But the legislative
(1) 51 Bom. L.B. 86.
121
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 i Patent of  the  Bombay
High Court, 1865, and also the different Civil Courts  Acts.
Of  these,  one  topic, namely, "constitution and  organisa-
tion  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 organ-
isation  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  Coun-
cil in Meghraj v. Allah Rakhia(1). Further, entry 2 in  List
II  would  have been wholly unnecessary  if  the  expression
"administration of justice" in entry 1 in List II were to be
given  the wide meaning contended for by the learned  Attor-
neyGeneral, for if under entry 1' in List II the  Provincial
Legislature  had plenary powers to make laws conferring  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
16
122
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  been  included in entry  1 in List II  along  with  the
topic of "constitUtion and organization of Courts", but  the
legislative  powers with respect to the topic of  "jurisdic-
tion and powers of the Courts" had been distributed  between
the  Federal and the Provincial Legislatures in  the  manner
set  forth  in entry 53 in List I, entry 2 in  List  II  and
entry  15 in List III.  The inclusion of "constitution   and
organisation  of  Courts" as a separate item in entry  1  in
List  II,  the omission of the topic  of  "jurisdiction  and
powers of Courts" from entry 1 and the deliberate  distribu-
tion of powers to make laws with respect to jurisdiction and
powers of  Courts with respect to the several matters speci-
fied in the three lists clearly indicate to my mind that the
intention  of Parliament was not, by entry 1 in List  II  by
itself, to authorise the Provincial Legislature  to make any
law with respect to the jurisdiction  and powers of  Courts.
In my judgment, 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 "admin-
istration 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(1).
    It  is  next said that entry 1 in List II  gave  general
powers to the Provincial Legislature to make laws
 (1) [1912] A.C. 880
123
conferring general jurisdiction and powers on Courts consti-
tuted 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
already pointed out, if entry 1 in List II conferred plenary
powers  on  the  Provincial Legislature to  make  laws  with
respect  to  jurisdiction  and powers of  Courts  in  widest
terms, entry 2 in List II would be wholly redundant, for the
wider    power    itself   would    include    the    lesser
power.Further,the  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  Pro-
vincial  Legislature under entry 1 in List II.   We,  there-
fore, come back to the same conclusion that entry 1 in  List
II should be construed and read as conferring on the Provin-
cial  Legislature all powers with respect to  administration
of justice and constitution and organisation of Courts minus
the power to make laws with respect to the jurisdiction  and
powers of Courts.
    It  is pointed out that under entry 1 in List II it  was
only the Provincial Legislature which alone could
124
constitute  and organise a new Court and if that  entry  did
not empower the Provincial Legislature to vest in
such  new  Court the-general jurisdiction and power  to  re-
ceive,  try  and  dispose of all kinds of  suits  and  other
proceedings, then no new Court of general jurisdiction could
be  established  at  all.  As will be  seen  hereafter,  the
Provincial   Legislature   has, under entry 2  in  List  II,
power to make laws conferring wide general jurisdiction  and
powers  on  a  newly constituted Court  and  consequently  a
forced  construction need not be placed on entry 1  in  List
II.   It  is said that if the Provincial  Legislature  could
not, under entry 1  in List II, confer jurisdiction on a new
Court set up by     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 jurisdic-
tion 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 Legisla-
ture  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.
    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 rounded on that doctrine. Shortly  put,
the argument, as advanced, is that under entry 1 in List  II
the  Provincial  Legislature had power to  make  laws   with
respect  to administration of justice; that, therefore,  the
Provincial  Legislature had power, under entry 1 itself,  to
make  laws  conferring general  jurisdiction and  powers  on
Courts  constituted and organised by it under  that   entry;
that  if in  making such law
125
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  argu-
ment  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  inciden-
tally  encroached  upon  the legislative  field  of  another
Legislature.    The   doctrine saves  this   incidental  en-
croachment  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 pith and substance might have arisen.   I  have
already pointed out that, on a proper construction, entry  1
of  List  II did not empower the Provincial  Legislature  to
confer  any jurisdiction or power on the Court and  the  ex-
pression  "administration  of  justice" had to  be  read  as
covering matters relating to administration of justice other
than jurisdiction and powers of Court and, if that were  so,
the  discussion of the doctrine of pith and  substance  does
not  arise at all.  I find it difficult to support the  rea-
sonings adopted by the Bombay High Court in Jagtiani's case.
    The argument as to the applicability of the doctrine  of
pith and substance to the impugned Act can, however, be well
maintained in the following modified form:  Under entry 2 in
List  II the Provincial Legislature had power to  make  laws
with  respect to the jurisdiction and powers of Courts  with
respect  to any of the matters enumerated in List  II;  that
"administration of justice" in entry 1 is one of the matters
in
126
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  11  when
applied  to  entry 1 did not mean "over"  but  really  meant
"relating to" or "touching" or "concerning" or "for"  admin-
istration  of justice, and so read and understood, entry  2,
read with entry 1 in List 11, clearly authorised the Provin-
cial Legislature to make a law conferring on or taking  away
from a Court general jurisdiction and powers relating to  or
touching  or  concerning or for administration  of  justice.
This  line of reasoning has been so very fully  and  lucidly
dealt  with by my brother Sastri J. that I have  nothing  to
add  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 consti-
tuted  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  ena-
bled  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  judg-
ment,  be  well supported as a law made  by  the  Provincial
Legislature under
127
entry 2 read with entry 1 in List II and I hold accordingly.
I,  therefore, concur in the order that this appeal  be  al-
lowed.
    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 on that point.
Appeal allowed.
Agent for the appellant: P.A. Mehta.
Agent for the respondents: Rajinder Narain.
PETITIONER:
CHIRANJIT LAL CHOWDHURI
        Vs.
RESPONDENT:
THE UNION OF INDIA AND OTHERS.
DATE OF JUDGMENT:
04/12/1950
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION:
 1951 AIR   41            1950 SCR  869
 CITATOR INFO :
 F          1951 SC 318  (19)
 RF         1952 SC  59  (5)
 F          1952 SC  75  (8,21,43,54,70)
 RF         1952 SC 123  (45)
RF         1952 SC 252  (101,106)
 E          1953 SC 215  (6)
 F          1953 SC 404  (7)
 R          1954 SC  92  (5)
 D          1954 SC 119  (1)
 E          1954 SC 314  (4)
 F          1955 SC  74  (7)
 R          1955 SC 191  (5)
 R          1956 SC  20  (13)
 F          1956 SC 246  (50,65)
 E          1956 SC 479  (5)
 F          1957 SC 503  (15,16)
 R          1957 SC 877  (16)
 D          1957 SC 927  (9)
 E          1958 SC 538  (11,12,17)
 RF         1958 SC 578  (211)
R          1958 SC 731  (15)
 RF         1958 SC 956  (15)
 R          1959 SC 648  (26)
 RF         1959 SC 725  (11,12)
 F          1960 SC 356  (8)
 R          1960 SC 457  (9)
 R          1960 SC 554  (9)
 D          1960 SC1080  (28)
 R          1962 SC 458  (21)
 F          1962 SC1044  (5)
 R          1963 SC 222  (22)
 R          1963 SC 864  (27)
 F          1963 SC1241  (84)
 HO         1963 SC1811  (13,28,84,104,105,112)
 RF         1965 SC 190  (4)
 F          1970 SC 564  (16,54,78)
E          1970 SC2182  (7)
 F          1971 SC1594  (7,8,9)
 R          1971 SC1737  (45)
 RF         1973 SC 106  (11)
 RF         1973 SC1461  (227,265,2130)
 RF         1973 SC2720  (9)
R          1974 SC 849  (10)
 RF         1974 SC1389  (251)
 R          1975 SC 583  (39)
 R          1978 SC 327  (6)
 F          1978 SC 597  (189)
 F          1978 SC 771  (44)
 R          1980 SC 161  (10)
 RF         1983 SC   1  (168)
 F          1983 SC  75  (5)
 F          1984 SC 866  (4)
 R          1984 SC1707  (17)
 RF         1986 SC1370  (77,78)
 R          1988 SC1487  (31)
 RF         1991 SC 672  (33)
RF         1992 SC   1  (132,133)
 R          1992 SC1277  (22,85,87,96)
ACT:
    Sholapur Spinning and Weaving Company (Emergency  Provi-
sions) Act (XXVIII of 1950)--Act dismissing managing  agents
of  a company, removing its  directors, authorising  Govern-
ment   to  appoint new directors, and curtailing  rights  of
shareholders in the matter of voting, etc.--Validity--Wheth-
er infringes fundamental rights--Right not to be deprived of
property  save by authority of law--Right to  acquire,  hold
and  dispose  of  property--Right  to  equal  protection  of
law--Constitution of India, Arts. 14, 19 (1) (f), 19(5),  1,
32--"  Deprivation  of property ", "Property.,  ,,  acquisi-
tion",  "taking possession., "equal protection  ",  meanings
of--Right  to  apply under Art. 32--Corporation's  right  to
apply--Shareholders' right.
HEADNOTE:
The  Governor-General of India, finding that on  account  of
mismanagement  and  neglect a situation had  arisen  in  the