dedol-hf/india-case-legal-rag huggingface dataset:
the  proper Legislature; Central or Provincial, barring  the
jurisdiction of courts or conferring jurisdiction  or  power
on  special  courts with regard to the matters  included  in
the  appropriate   Legislative  Lists, should there  be  any
occasion  for such  special  legislation. Under the  Govern-
ment of India Act, 1935, every Province became more or  less
an autonomous unit with a complete machinery for administer-
ing justice to the fullest extent.  In my opinion, there  is
nothing in the Act of 1935 to show that there was any inten-
tion  on the part of its framers to affect the machinery  so
drastically as to confine it to the administration of a mere
partial  or truncated kind of justice relating only to  mat-
ters specified in List II.
    Mr.  Setalvad,  the ]earned Attorney-Genera],   who  ap-
peared  on  behalf of the appellant, in supporting  the  im-
pugned Act, argued before us that for the purpose of  decid-
ing  this appeal, we might also refer to entry 4  List  III.
His contention was that the impugned
63
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 organiza-
tion  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  jurisdic-
tion  to try all suits of a civil nature excepting suits  of
which  their  cognizance is either  expressly  or  impliedly
barred.   There are are also provisions in the Code  dealing
with  the  territorial  and pecuniary  jurisdiction  of  the
courts.    The  three entries will thus  cover  exactly  the
field  which  is  covered by item 14 of section  92  of  the
Canadian Constitution which comprises the following matters:
"administration   of  justice in  the  Provinces,  including
constitution,  maintenance  and organization  of  provincial
courts  both  of civil and criminal  jurisdiction  including
procedure  in civil matters in those courts."  It  has  been
held in Canada that the words referred to above include  the
power and jurisdiction of courts, and, under that item,  the
provincial  Legislature can confer the widest power  on  the
courts.   It seems to me that the approach suggested by  the
learned Attorney-General is useful for testing whether entry
2 of List II was intended to be treated as the sole and only
basis of the power of the Provincial  Legislature to  confer
jurisdiction   on the provincial courts and whether  it  was
really  the intention of the British Parliament  to  empower
the  Provincial Legislature to confer jurisdiction  of  only
such a limited character as can be conferred on the  provin-
cial  courts  under  entry 2 of List II, if  that  entry  is
treated  as  a self-sufficient entry.  In  my  opinion,  the
correct  view  is to hold that it is not necessary  to  call
into aid either entry 4 of List III or any of the
64
provisions  of the Canadian Constitution in this  case,  and
that the words "administration of justice; constitution  and
organization  of  courts" are by  themselves  sufficient  to
empower  the Provincial  Legislature to invest a  new  court
with  all the power which has been conferred upon it by  the
impugned  Act. It is of course open to the Central  Legisla-
ture  to bar the jurisdiction of the new court by a  special
enactment  with regard to any of the matters in List I,  but
so  long as such jurisdiction is not barred, the court  will
have  jurisdiction try all suits and proceedings of a  civil
nature  as enacted in the Act in question.  I think that  if
the Provincial Legislature had merely enhanced the pecuniary
jurisdiction of any of the existing civil courts there could
have  been  no  objection to that course.  Why  then  should
there,  be any objection when, instead of investing  one  of
the existing courts with power to try suits and  proceedings
of a civil nature not exceeding a certain amount, the Legis-
lature has created a new court and invested it with the same
power.
    Perhaps,  it will be simpler to deal at this stage  with
the  third question, namely, whether the Bombay  City  Civil
Court  has jurisdiction 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 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  Legisla-
ture by virtue of the power given by entry 53 of List I. The
question  so  raised is covered by the answer to  the  first
question, and I shall only add that the answer already given
to that question finds some support in the case of  Prafulla
Kumar  Mukherjee  and  Others v. Bank  of  Commerce  Limited
Khulnal (1), in which the arguments of the
(1) [1947] F.C.R.28.
65
respondents  before the Privy Council proceeded on the  same
lines  as the arguments of the respondents before  us.   The
question  raised in that case was as to the validity of  the
Bengal  Money-lenders' Act, 1940, which limited  the  amount
recoverable by a money-lender on his loans and interests  on
them, and prohibited the payments of sums larger than  those
permitted by the Act. The validity of the Act was questioned
by  the respondent Bank in certain suits brought by them  to
recover  loans  and interests alleged to be due on promisso-
ry   notes  executed by the appellants-borrowers as well  as
in suits brought by the debtors claiming  relief  under  the
Act.   The  argument put  forward  on behalf of    the  Bank
was  that the  Bengal Legislature  by   the   impugned   Act
had attempted to legislate on  subjects expressly  forbidden
to it and expressly and exclusively reserved for the Federal
Legislature, that is to say, in relation to promissory notes
and banking, which are reserved for the Federal  Legislature
exclusively,   under entries 28 and 38 respectively of  List
I.   On the other hand, the arguments put forward on  behalf
of the appellants was that the impugned Act was in pith  and
substance legislation dealing with money-lending and that in
so far as it dealt with promissory notes or banking that was
only  incidental  or ancillary to the effective use  of  the
admitted legislative powers of the Provincial Legislature to
deal  with money-lending. 'This argument of  the  appellants
was substantially accepted by the Privy Council.
    The  second  point raised on behalf  of  the  respondent
relates to the validity of section 4 of the Act, which  runs
as follows :-
    "Subject  to the exceptions specified in section 3,  the
Provincial  Government, may by notification in the  Official
Gazette,  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 Rs. 25,000 as may be specified  in
the notification."
9
66
    It  is contended that this section is  invalid,  because
the Provincial Legislature has thereby delegated its  legis-
lative  powers to the Provincial Government which it  cannot
do.  This contention does not appear to me to be sound.  The
section itself shows that the provincial Legislature  having
exercised  its  judgment and determined that the  new  Court
should  be invested with jurisdiction to try suits and  pro-
ceedings  of  a civil nature of a value  not  exceeding  Rs.
25,000,  left it to the Provincial Government  to  determine
when the Court should be invested with this larger jurisdic-
tion, 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 (1), the authority of  which
was  not questioned before us, fully covers  the  contention
raised,  and the impugned provision is an instance  of  what
the Privy Council has designated as conditional legislation,
and  does  not  really delegate any  legislative  power  but
merely  prescribes as to how effect is to be given  to  what
the  Legislature has already decided. As the  Privy  Council
has  pointed  out,  legislation conditional on  the  use  of
particular powers or on the exercise of a limited discretion
entrusted  by the Legislature to persons in whom  it  places
confidence,  is no uncommon thing, and in many instances  it
may  be highly convenient  and desirable.  Examples of  such
legislation abound in England, America and other  countries.
As  some  of the American Judges have remarked,  "there  are
many  things  upon which wise and  useful  legislation  must
depend  which  cannot be known to the law-making  power  and
must  therefore be the subject of enquiry and  determination
outside  the halls of legislation (Field v. Clark (2).   Mr.
Setalvad,  the  learned  Attorney-General  who  appeared  on
behalf of the appellant, contended that in this country even
delegated legislation  is
(1) 3 A.C. 889.               (2) 143 U.S. 649,
67
permissible,  but I do not consider it necessary to go  into
that question, because the principle enunciated in Queen  v.
BUrah(1)  is sufficient to dispose of the contention  raised
here.   I  think that the present case stands  well  outside
what  was  laid down by the Federal  Court  in  Jitendranath
Gupta  v. The Province of Bihar,(2) as two of my  colleagues
who were parties to the majority decision in that case  have
pointed out.
In the result, this appeal is allowed.
PATANJALI SASTRI J.--This appeal raises the important  ques-
tion  of  the constitutional validity of   the  Bombay  City
Civil   Court   Act, 1948  (hereinafter referred to  as  the
Act)  and though I concur in the conclusion reached  by  the
majority  of my learned brothers I wish to  state  precisely
the reasons which lead me to that conclusion.
  The first respondent brought the suit in the High Court at
Bombay  on its orginal side for recovery of Rs. 11,704  from
the second respondent on promissory notes.   Notwithstanding
that  the jurisdiction of the High Court to try  suits  cog-
nisable by the City Civil Court was barred under section  12
of  the Act and the pecuniary limit of the  jurisdiction  of
the  latter court had been enhanced from Rs. 10,000  to  Rs.
25,000 by a notification issued by the Provincial Government
under section 4 of the Act, it was stated in the plaint that
the High Court had jurisdiction to try the suit because  the
Act  as  well as the said notification was ultra  vires  and
void.  In view of the constitutional issues thus raised, the
State of Bombay, the appellant herein was on its own motion,
made a party defendant.
   The  High Court (Chagla C.J. and Tendolkar J.)  held  (1)
the Act was intra vires, but (2) that section 4 which autho-
rised the Provincial Government to enhance the  jurisdiction
of the City Court up to the limit  of Rs. 25,000 amounted to
a  delegation of  legislative power, and as such,  was  void
and  inoperative, with the result that the suit,  which  ex-
ceeded Rs. 10,000 in
(1)5 I.A. 178.               (2) [1949-50] F.C.R. 595.
68
value  and was not cognisable by the City Court  apart  from
the  impeached  notification, was       held  to  have  been
property  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.
   On the first point, learned counsel for    the first  re-
spondent  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 respec-
tive  legislative fields, and that, therefore,  the  expres-
sions  "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  construc-
tion  would give no effect to the limiting words in entry  2
which would then become meaningless indeed  if those expres-
sions  in entry 1 included the power to legislate  with  re-
spect to jurisdiction also, there would be no need for entry
2,  while, on the other hand, without including such  power,
they  would still have ample content, as various other  mat-
ters relating     to administration of justice and constitu-
tion  of courts would have to be provided for,   The  scheme
disclosed  by the three separate entries in identical  terms
in  the  three lists was said to be this:   The,  Provincial
Legislatures  were to have the power of constituting  courts
and  providing for administration of justice, but the  power
to invest the courts with jurisdiction was to rest with  the
Federal  Legislature in respect of the matters mentioned  in
List I and with the Provincial Legislature in respect of the
matters mentioned in List Ii, while both the Federal and the
Provincial Legislatures were to have such power with respect
to
69
the matters mentioned in List III subject to the  provisions
of section 107.  It was, therefore, submitted that the  Act,
in  so far as it purported to provide by section 3 that  the
City  Civil Court established thereunder "shall have  juris-
diction  to receive, try and dispose of all suits and  other
proceedings  of a civil nature not exceeding Rs.  10,000  in
value  and  arising  within Greater  Bombay"  (with  certain
exceptions not material here) was ultra vires the Provincial
Legislature, constituting as it did a direct invasion of the
Federal field marked out by entry 53 of List I.   As all the
three entries dealt with the same topic of jurisdiction  and
powers  of courts, there was no room, it was said,  for  the
application of the doctrine of incidental enroachment.
    The  argument  is not without force.   The  Bombay  High
Court  in Mulchand v. Raman (1), which was followed  by  the
learned Judges in the present case, and the Attorney-General
who adopted the same line before us, invoked the doctrine of
pith  and substance in answer to the argument on  behalf  of
the respondent. But that doctrine, while it often  furnishes
the  key  to  the solution of problems arising  out  of  the
distribution of overlapping legislative powers in a  Federal
system, is not of much assistance in meeting the  difficulty
in  finding any usefulness in entry 2 if under entry  1  the
Provincial  Legislature were intended to have the  power  to
legislate  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 (2)
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(3)  where
"marriage  ,and divorce" in the Dominion List was  construed
as  excluding  matters  relating to  the  "solemnisation  of
marriage
 (1)  51 B.L.R. 86.                    (3) [1912] A.C.  880.
628
 (2) A.I.R. 1939 Cal. 628
70
in  the province" because the latter topic was  specifically
included  in  the Provincial List, the  learned  Judges  ob-
served:   "The position is similar here.  'Civil  procedure'
in  the Concurrent Legislative List must be held to  exclude
matters relating to jurisdiction and powers of courts  since
special provision is made for those matters elsewhere in the
lists."   "To hold otherwise", they pointed out,  "would  be
completely  to  wipe out the second entry in the  Provincial
Legislative List." Learned counsel for the first  respondent
strongly  relied on that decision and suggested that, if  it
had  been  brought to the notice of the  learned  Judges  in
Mulchand  v. Raman (1), their decision might well have  been
the other way.
    On  the other hand, the Attorney-General submitted  that
there  could be no question of conflict between two  entries
in the same list and that the natural meaning of one  should
not   be  restricted  simply because of the presence of  the
other.   He placed reliance on the following observations of
Gwyer  C.J. in Aliqa Begum's case (4)  "It would be  practi-
cally impossible  for  example  to  define  each item in the
Provincial  List  in such a way as to make it  exclusive  of
every  item in that list and Parliament seems to  have  been
content to take a number of comprehensive categories and  to
describe  each  of  them  by  words  of  broad  and  general
import...I  think,  however, that none of the items  in  the
lists is to be read in a narrow or restricted sense and that
each general word should be held to extend to all  ancillary
or  subsidiary  matters which can fairly and  reasonably  be
said  to  be comprehended in it." These  observations  were,
however,  made to support the conclusion that the  power  to
legislate with respect to" collection of rents" under  entry
21  of List II includes the power to legislate with  respect
to  any  limitation on the power of a  landlord  to  collect
rents,  that  is to say, with respect to  the  remission  of
rents  as  well, and that, therefore, the  United  Provinces
Regularisation  of  Remissions Act, 1933, was  intra  vires.
General observations made in such context
(4) [1940] F.C.R. 110,134
71
do  not answer the objection that the wider construction  of
entry 1 would deprive entry 2 of all its content and  reduce
it  to useless lumber.  I am therefore, of opinion that  the
words"'  administration  of justice" and  "constitution  and
organisation of courts" occurring in entry 1 must be  under-
stood  in  a  restricted sense excluding  from  their  scope
"jurisdiction and powers of courts" dealt with  specifically
in entry 2.
This does not, however, compel the conclusion that it is
beyond  the  competence  of the  Provincial  Legislature  to
confer  general  jurisdiction on courts constituted  by  it,
for, if entry 1 does not by itself enable the legislature to
do  so, entry 2 certainly does when 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  Provin-
cial  Legislature, therefore, is competent under entry 2  to
legislate  conferring jurisdiction on courts  with   respect
to administration of justice, that is to say, general juris-
diction 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  con-
tinued  in force or by a statute passed by  the  appropriate
legislature under the entries in the three Lists relating to
jurisdiction  and powers of courts. In other  words,  though
"administration  of justice" in entry 1 does  not  authorise
legislation  with  respect  to jurisdiction  and  powers  of
courts, the legislative power under entry 2 in regard to the
tatter  topic,  which can be  legitimately  exercised"  with
respect  to any of the matters in this List," can  be  exer-
cised with respect to administration of justice, one of  the
matters  comprised  in that List, with the result  that  the
subject of general jurisdiction is brought within the autho-
rised area of provincial legislation.  This view thus leaves
a field in which entry 2 could apply.
    When once the Provincial Legislature is found  competent
to  make a law with respect to the general  jurisdiction  of
courts,  the apparent conflict  with the
72
central  legislative power under entry 53 of List I  can  be
resolved  in a given case by invoking the doctrine  of  pith
and substance and incidental encroachment.  For, that  rule,
though not of much assistance in construing entries 1 and  2
which occur in the same List II, has its legitimate applica-
tion in ascertaining the true character of an enactment  and
attributing it to the appropriate list where the Federal and
the Provincial Lists happen to overlap. Accordingly, if  the
Legislature of Bombay was, in conferring jurisdiction on the
City Civil Court to hear and determine all suits of a  civil
nature, really legislating on a subject which was within the
ambit  of  its  legislative power, and if in  doing  so,  it
encroached on the forbidden field marked off by entry 53  of
List 1, the encroachment should be taken to be only inciden-
tal.  It may be that such encroachment extends to the  whole
of that field, but that is immaterial, as pointed out by the
Judicial  Committee in the Khulna Bank case(1).  One of  the
questions their Lordships put to themselves in that case was
"Once it is determined that the pith and substance is money-
lending, is the extent to which the federal field is invaded
a material matter?"  Answering the question in the  negative
their  Lordships  observed:  "No doubt it  is  an  important
matter, not, as their Lordships think, because the  validity
of  an Act can be determined by discriminating  between  de-
grees  of invasion, but for the purpose of determining  what
is  the pith and substance of the impugned Act.  Its  provi-
sions  may advance so far into the federal territory  as  to
show  that its true nature is not concerned with  provincial
matters,  but the question is not, has its trespassed,  more
or  less,  but is the trespass, whatever it be, such  as  to
show that the pith and substance of the impugned Act is  not
money  lending but promissory-notes or banking ?  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 accord-
ing  to its true content". In answering the  objection  that
that  view does not give sufficient effect to the  words  of
precedence used in section 100 of the Government of
(1) [1947] F.C.R.28.
73
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 Lists 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."
    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