dedol-hf/india-case-legal-rag huggingface dataset:
Lefroy's  Treatise  on Canadian Constitutional  Law  in  the
judgment  of  the  Federal Court in  the  Bank  of  Commerce
case(1). "It seems quite possible" says the learned  writer,
summarising the effect of the Privy Council decisions on the
point "that a particular Act regarded from one aspect  might
be intra vires of a Provincial Legislature and yet  regarded
from another aspect might also be intra vires of the  Domin-
ion  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. The cases which illustrated 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  legisla-
tion.   The  word  is used subjectively  of  the  legislator
rather  than  objectively of the  matter  legislated  upon."
Applying  that test there can be little doubt that  the  im-
pugned Act must, in its pith and substance, be attributed to
List  II.  as the legislators of Bombay were  certainly  not
conferring  on the new court, which they  were  constituting
under  the  Act, jurisdiction with' respect to  any  of  the
matters  in List I.  They were, as section 3  clearly  indi-
cates constituting a new court, the Bombay City Civil Court,
and investing it with the
(1) [1944] F.C.R.126,139.
10
74
general  jurisdiction  to try all suits of  a  civil  nature
within  certain.  pecuniary and territorial limits,  and  if
they were acting, as I have endeavoured to show, within  the
scope of the legislative power conferred on them under entry
2 read with entry 1 of List II, it seems immaterial that the
enactment, so far as one aspect of jurisdiction, namely, its
conferment,   is  concerned, encroaches practically  on  the
whole of the federal field marked out by entry 53 of List I.
The encroachment, however, would still leave ample room  for
the  exercise by the Centre of its legislative  power  under
entry  53  in regard to other aspects  of  jurisdiction  and
powers of courts.
    This  view is strongly reinforced by a consideration  of
the legislative practice prevailing in this country prior to
the passing of the Government of India Act, 1935. That it is
legitimate to have regard to legislative practice in  deter-
mining  the scope of legislative powers has been  recognised
in decisions of high authority (e.g., Croft v. Dunphy)  (1),
It had long been the practice in this country to  constitute
and  organise  courts  with general  jurisdiction  over  all
persons  and matters  subject only to certain pecuniary  and
territorial limitations, and to confer special  jurisdiction
limited to certain specified 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  jurisdic-
tion, 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 cognisance of tribunals  with
special  or  limited jurisdiction extending  only  to  those
matters.   The grading of the courts too in their  heirarchy
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
  (1) [1933] A.C. 156,165
75
British India 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 legisla-
tion by the Federal and Provincial Legislatures with respect
to specific matters falling within their respective legisla-
tive fields which are by no means capable of c]ear  demarca-
tion.   The  constitutional puzzles which such a  system  is
likely  to  pose  to the legislatures no less  than  to  the
courts and the litigant public in the country whenever a new
court is constituted in finding out by searching through the
legislative  lists,  whether  jurisdiction to  deal  with  a
particular  matter  or power to make a particular  order  is
validly conferred by the appropriate legislature  must  make
one pause and examine the relevant provisions of the Govern-
ment  of  India Act to see if there is anything in  them  to
compel  the acceptance of so novel a system.   After  giving
the  matter  my careful consideration, I am  convinced  that
both  the  language  of the provisions  and  the  antecedent
legislative practice support the conclusion that the Provin-
cial Legislatures  which have the exclusive power of consti-
tuting and organising courts and of providing for the admin-
istration  of  justice in their respective  provinces,  have
also  the power of investing the courts with general  juris-
diction.
    On the question whether section 4 of the Act operates as
a delegation of legislative power, I entirely agree with the
reasoning  and conclusion of my learned brother Das who  has
said all I wish to say in his judgment which I have had  the
advantage  of reading, and, like him, I reserve  the  larger
question raised by the Attorney-General as to how far it  is
open  to  the  legislatures in this  country,  while  acting
within their authorised areas, to delegate their legislative
powers  to other agencies.  I find it no more  necessary  in
the present case to decide that point than in Jatindranath
76
Gupta's  case(I) where I preferred to rest my decision on  a
narrower ground.
    It  follows that the High Court has no  jurisdiction  :0
hear  and determine the first respondent's suit and I  agree
that the appeal should be allowed.
MAHAJAN J.--This is an appeal from the judgment of the  High
Court of Judicature at Bombay dated the 29th March, 1950, in
Suit  No. 240 of 1950, holding that section 4 of the  Bombay
City Civil Court Act (Bombay Act XL of 1948) is ultra  vires
the Provincial Legislature.
The facts are that on the 6th February, 1950, the  first
respondent presented a plaint to the Prothonotary and Senior
Master  of the High Court for filing a summary suit  against
the  second  respondent to recover a sum  of  Rs.  11,704-24
alleged  to  be due under promissory notes.  This  suit  was
instituted in the High Court, in contravention of  a notifi-
cation dated the 20th January, 1950, issued under section  4
of  the  City Civil Court Act, under which suits up  to  the
pecuniary  limit  of Rs. 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  inopera-
tive  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 AdvocateGeneral, the State  of Bombay  was  impleaded
as  defendant at this stage and the proceedings were  trans-
ferred  to a Division Bench of the High Court. The  Division
Bench upheld the view of the Judge in Chambers and  returned
the  cause to him for disposal on the merits.  The State  of
Bombay,  dissatisfied with this decision, has preferred  the
present appeal.
(1) [1949-50] F.C.R. 595.
77
    Two  questions have been canvassed in this  appeal:  (1)
whether the City Civil Court Act is ultra vires the legisla-
ture  of the Province of Bombay in so far as it  deals  with
the  jurisdiction  and powers of the High   Court  and  City
Civil Court with respect to matters in List I of the Seventh
Schedule  of  the  Government of India Act,  1935;  and  (2)
whether  section  4  of the Act is void as  it  purports  to
delegate to the Provincial Government legislative  authority
in   the matter of investing the City Civil Court  with  ex-
tended jurisdiction.
    Bombay  Act of 1948 came into force on 10th  May,  1948.
It was considered expedient to establish an additional civil
court  for  Greater  Bombay presumably with  the  object  of
relieving  congestion  of work on the original side  of  the
Bombay  High Court. Sections 3, 4 and 12 of the Act  are  in
these terms :--
    "3.   The State 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  juris-
diction  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 cognisable--
(a)  by the High Court as a Court of Admiralty or  Vice-
Admiralty or as a Colonial Court of Admiralty, or as a Court
having testamentary,  intestate or matrimonial jurisdiction,
or
    (b) by the High Court for the relief of insolvent  debt-
ors, or
    (c)  by the High Court under any special law other  than
the Letters Patent, or
(d) by the Small Cause Court:
 Provided that the State Government may, from time to  time,
after consultation with the High Court, by a like  notifica-
tion extend the jurisdiction of the City Court to any  suits
or  proceedings which are cognisable by the High Court as  a
court having testamentary or
78
ntestate  jurisdiction or for the relief of insolvent  debt-
ors.
  4.    Subject to the exceptions specified in section a the
State  Government  may by notification in the  Official  Ga-
zette,  invest the City 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 in the notification.
    12.  Notwithstanding anything contained in any law,  the
High  Court  shall not have jurisdiction to  try  suits  and
proceedings cognisable by the City Court:
    Provided  that the High Court may, for any special  rea-
son, and at any stage remove for trial by itself any suit or
proceeding from the City Court."
    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  ques-
tion  the  High  Court placed reliance on  its  own  earlier
decision  in  Mulchand Kundanmal Jagtiani v.  Raman  Hiralal
Shah(1),  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 question, challenges its correctness  in
regard to the first question.  The learned  Attorney-General
contends  that the High Court placed an erroneous  construc-
tion  on sections 3 and 4 of the Act; that reading  the  two
sections together the effect is that the legislature has set
up the City Civil Court  with  an initial  jurisdiction   of
Rs.  10,000 and has placed an  outside limit  of Rs.  25,000
on its pecuniary jurisdiction and that it
(1) 51 Bom. L.R, 86.
79
has left to the discretion of the Provincial Government  the
determination  of the circumstances under which this  exten-
sion of the pecuniary jurisdiction between Rs. 10,000 to Rs.
25,000  is to take place.  It was said that section 4 is  in
the nature of a conditional legislation and that under it no
legislative  function has been delegated to  the  Provincial
Government.   The learned Chief Justice in the  court  below
disposed of this contention with the following,observations:
    "I  am  also conscious of the fact that an Act  must  be
construed  in  a manner  which  would reconcile its  differ-
ent sections but  with the  best of intention in the world I
do  not  see how it is possible to read sections   3  and  4
together  so  as  to come to the conclusion  for  which  the
AdvocateGeneral contends.  To my mind it is patent that  the
Legislature  never  applied its mind to the question  as  to
whether the new court which it was setting up should have  a
jurisdiction higher than that of Rs. 10,000. It never passed
any  judgment  on  that question.  It never  laid  down  any
policy  with regard to that question and section 4 is not  a
section  which merely directs the Provincial  Government  to
carry  out the policy laid down by the  legislature   ......
but  it is a section which confers upon the Provincial  Gov-
ernment the power to confer jurisdiction upon the Court,  or
in  other words, it is a section which entitled the  Provin-
cial Government to lay down its policy as to whether the new
Court  should have the increased jurisdiction up to  twenty-
five thousand rupees."
    I find it difficult to accept this view.  Without apply-
ing  its  mind to the question as to whether the  new  Court
which  it was setting up should have a  jurisdiction  higher
than Rs. 10,000, how could the legislature possibly enact in
section  4 that the pecuniary jurisdiction of the new  court
would  not exceed Rs. 25,000.  The fixation of  the  maximum
limit of the court's pecuniary jurisdiction is the result of
exercise  of legislative will, as without arriving  at  this
judgment  it would not have been able to determine the  out-
side limit of the pecuniary jurisdiction of the new
80
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 Rs. 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 Rs. 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 clothed with enhanced pecuniary jurisdiction.
The  vital  matters of policy having  been  determined,  the
actual  execution of that policy was left to the  Provincial
Government and to such conditional legislation no  exception
could be taken.  The section does not empower the Provincial
Government to enact a law as regards the pecuniary jurisdic-
tion  of the new court and it can in no sense be held to  be
legislation  conferring legislative power on the  Provincial
Government.
    In  Queen  v. Burah(1), section 9 of Act XXII  of  1869,
which  was a piece of legislation analogous to section 4  of
the  City  Civil Court Act, was held intra  vires  by  their
Lordships  of the Privy Council.  By the 9th  section  power
was conferred on the Lieutenant Governor of Bengal to deter-
mine whether the Act or any part of it should be applied  to
certain districts.  In other words, authority to extend  the
territorial  limits  of  the operation of  the  statute  was
conferred on the Lieutenant Governor and such extension  had
the  result of depriving the High Court of its  jurisdiction
in those areas and of conferring jurisdiction in respect  to
them
(1) 5 I.A. 178.
81
on the commissioner.  Objection was taken as to the validity
of section 9 on the ground that it was legislation  delegat-
ing  legislative power and was therefore void,  Their  Lord-
ships negatived this contention and held that section 9  was
intra  vires the Governor General's power to make  laws  and
was a piece of conditional legislation.  That was a case  of
an  extension of territorial limits within which an  Act  of
the Legislature was to be in force, whereas the present is a
case of extension of pecuniary limits of a court's jurisdic-
tion.  In principle, there seems no difference  between  the
two cases and the present case is therefore within the  rule
of  the decision in Queen v. Burah(1).  Their  Lordships  in
holding section9 intra vires made the following observations
:-
    "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  exer-
cised, the efficacy of the acts done under them would be due
to  any other legislative authority than that of the  Gover-
nor, General in Council.  Their whole operation is, directly
and  immediately, under and by virtue of this Act  (XXII  of
1869)  itself.   The proper Legislature  has  exercised  its
judgment  as to place, 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 legis-
lation exist as to particular subjects, whether in an  Impe-
rial  or  in a Provincial Legislature, they  may  (in  their
Lordships' judgment) be well exercised, either absolutely or
conditionally.   Legislation,  conditional  on  the  use  of
particular  powers, or on the exercise of a limited  discre-
tion,  entrusted  by the Legislature to persons in  whom  it
places  confidence, is no uncommon thing; and, in many  cir-
cumstances. it may be highly convenient.  The British  Stat-
ute  Book  abounds  with examples of it; and  it  cannot  be
supposed that the Imperial Parliament did not, when  consti-
tuting the
(1) 5 I A. 178,
  11
82
Indian  Legislature,  contemplate this kind  of  conditional
legislation  as within the scrape of the legislative  powers
which  it  from time to time conferred.  certainly  used  no
words to exclude it."
    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 necessarily involves a discretion as to  what
it shall be and conferring authority or discretion as to its
execution,  to  be exercised under and in pursuance  of  the
law.   Objection may be taken to the former but not  to  the
latter.   Reference in this connection may also be  made  to
the  decision  of the Supreme Court of America in  Field  v.
Clark(1) wherein referring to Locke's case(2) the  following
observations were made :-
    "To assert that a law is less than a law, because it  is
made  to  depend  on a future event or act, is  to  rob  the
Legislature  of the power to act wisely for the public  wel-
fare whenever a law is passed relating to a state of affairs
not  yet  developed, or to things future and  impossible  to
fully  know."   The proper distinction the  court  said  was
this:  "The Legislature cannot delegate its power to make  a
law, but it can make a law to delegate a power to  determine
some  fact or state of things upon which the law  makes,  or
intends make, its own action depend.  To deny this would  be
to  stop  the wheels of government.  There are  many  things
upon  which  wise and useful legislation must  depend  which
cannot  be known to the law-making power, and,  must  there-
fore,  be a subject of inquiry and determination outside  of
the halls of legislation."
     The High Court in support of its view placed considera-
ble reliance on the decision of the Federal Court in  Jatin-
dra  Nath Gupta v. The Province of Bihar(3) and it was  con-
sidered that the present case fell1 within the ambit of  the
rule therein laid down. It seems to me that the decision  in
the Bihar case has no application to  the case in hand.  The
Federal Court there was
(1) 143 U.S.649.                  (3) [1949] F.C.R.595.
(2) 72 Pa.491.
83
dealing with an Act which contained the following provisions
in section 1, sub-section (3) :-
    "The Act shall remain in force for a period of one  year
from the date of its commencement:
    Provided that the Provincial Government may, by  notifi-
cation,  on  a resolution passed by the   Bihar  Legislative
Assembly  and  agreed to by the Bihar  Legislative  Council,
direct  that  this Act shall remain in force for  a  further
period  of one year with such modifications, if any, as  may
be  specified in the notification."
   In connection with this proviso I said in my judgment  in
that  case that the power conferred therein was much  larger
than  was conferred on the Lieutenant Governor in  Queen  v.
Burah(1) 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 delegat-
ed 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  Legisla-
ture  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  conclu-
sion. It may be asked what does the proviso purport to do in
terms and in substance ? The answer is that it empowers  the
Provincial Government to issue a notification saying
(1) 5 I.A. 178.
84
that the Provincial Act shall remain in force for a  further
period  of one year with such modifications, if any, as  may
be  specified in the notification  ......   Modification  of
statute amounts to re-enacting it partially. It involves the
power to say that certain parts of it are no longer parts of
the statute and that a statute with X sections is now enact-
ed with Y sections. In the act of modification is involved a
legislative power as a discretion has to be exercised wheth-
er certain parts of the statute are to remain law in  future
or  not or have to be deleted from it. The power  to  modify
may  even involve a power to repeal parts of it. A  modified
statute  is not the same original statute. It is a  new  Act
and logically speaking, it amounts to enacting a new law."
I  have not been able to follow how  these  observations
concerning  the  Bihar statute could be relied upon  by  the
High  Court  in support of its decision in  respect  10  the
invalidity of section 4 of the Bombay City Civil Court  Act.
The two provisions are not analogous in any manner whatsoev-
er  and  that  being so, no support can be  derived  by  the
respondent from this decision.
    In  the concluding portion of his judgment under  appeal
the learned Chief Justice observed as follows:-
"  Now applying once more these tests to the City  Civil
Court  Act, we find that the Legislature in the exercise  of
its legislative power has set up a Civil Court with a limit-