dedol-hf/india-case-legal-rag huggingface dataset:
Dominion  Parliament  and   of  the  Provincial  Legislative
Assemblies  (1).  There  is indeed  no  such thing as  Entry
53 in List I of the Indian Act in the Canadian Constitution,
but there are judicial pronouncements to the effect that the
Dominion  Parliament can impose jurisdiction  on  provincial
courts  over  Dominion  subjects (2).  It may  be  that  the
British Parliament in framing the legislative topics in  the
Government of India Act of 1935 in regard to  administration
of  justice and jurisdiction of courts wanted to  adopt  the
Canadian  model with such modifications as  they  considered
necessary. It is, however, immaterial to speculate on  these
matters.  For the reasons given above, I am of  the  opinion
that the decision of the Bombay High  Court  in Mulchand  v.
Raman(3)  is  correct,  and the contention  of  Mr.  Seervai
should fail.
    In the result, the appeal is allowed and the judgment of
the High Court is set aside.
    DAS  J:--I agree that this appeal should be allowed.  In
view of the importance of the questions raised in
 (1) Vide Clement's Canadian Constitution p. 526.
 (2)  Vide Lefroy's Canada's Federal system p. 541,
 (3)  51 Bom. L.R. 86
107
this  appeal, I consider it right to state 'my  reasons  for
coming to that conclusion.
    The salient facts, as to which there is no dispute,  are
as  follows: On May 10, 1948, the Provincial Legislature  of
Bombay  passed  Act No. XL of 1948, called the  Bombay  City
Civil Court Act, 1948. It was passed with a view "to  estab-
lish  an  additional Civil Court for  Greater  Bombay."  The
provisions  of that Act which will be relevant for the  pur-
poses of the present appeal may now be set out:
    "1.  (2)  It shall come into force on such date  as  the
Provincial  Government may, by notification in the  Official
Gazette, appoint in this behalf.
    3. The Provincial Government may, by notification in the
Official  Gazette,   establish  for  the  Greater  Bombay  a
Court,  to be called the Bombay City Civil Court.   Notwith-
standing  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 suits or proceedings which are cognizable-
    (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 Provincial Government  may, from  time
to  time, after consultation with the High Court, by a  like
notification  extend the jurisdiction of the City  Court  to
any suits or proceedings of the nature specified in  Clauses
(a) and (b).
    4.   Subject to the exceptions specified in  section  3,
the Provincial Government may, by notification in the  Offi-
cial  Gazette,  invest the City Court with  jurisdiction  to
receive, try and dispose of all suits and
108
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 cognizable 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."
    The  Act  received the assent  of  the  Governor-General
about the same time.  It came into force on August 16, 1948,
by  a notification issued by the Provincial  Government  and
published  in the Official Gazette. Simultaneously with  the
passing of the above Act the Bombay Legislature also enacted
Act  (XLI  of  1948) called the Bombay  High  Court  Letters
Patent Amendment Act, 1948.  By section3 of that Act  Clause
12 of the Letters Patent was amended by adding the following
words:
    "Except  that  the said High Court shall not  have  such
Original jurisdiction in cases falling within the  jurisdic-
tion  of the Small Cause Court at Bombay or the Bombay  City
Civil Court."
    Shortly after the passing of the above Acts, the validi-
ty  of  the  Bombay City Civil Court Act (XL  of  1948)  was
challenged  in Mulchand Kundanmal Jagtiani v. Raman  Hiralal
Shah(1),  a suit on promissory notes filed in  the  Original
side of the High Court. A Division Bench of the Bombay  High
Court  (Chagla C.J. and Bhagwati J.), on September 2,  1948,
held that the Act was well within the legislative competence
of the Provincial Legislature and was not ultra vires. Leave
was given to the plaintiff in that suit under section 205 of
the Government of India Act, 1935, to appeal to the  Federal
Court but no such appeal appears to have been filed.
    On January 20, 1950, the Provincial Government of Bombay
issued the following notification No. 2346/5 in the Official
Gazette:
(1) A,I.R. 1949 Bom. 197; 51 Bom. L.R.86
109
    "In exercise of the powers conferred by section 4 of the
Bombay City Civil Court Act, 1948 (Bombay, Act XL of  1948),
the  Government of Bombay is pleased to invest, with  effect
from  and on the date of this notification, the  City  Court
with  jurisdiction to receive, try and dispose of all  suits
and other proceedings of a civil nature not exceeding  twen-
ty-five  thousand  rupees in value, and arising  within  the
Greater Bombay subject, however, to the exceptions specified
in section a of the said Act."
On  February 6, 1950, the first  respondent  Narothamdas
Jethabhai  presented a plaint  before  the  Prothonotary  of
the  Bombay High Court for recovery of Rs.  11,704-5-4  with
further  interest  due by the  second  respondent  Aloysious
Pinto  Phillips  upon  three several  promissory  notes.  In
paragraph 4 of this plaint it was expressly pleaded that the
High  Court had jurisdiction to receive, try and dispose  of
that suit because (1)the Bombay City Civil Court Act,  1048,
was  ultra vires and (2) at least section 4 of that Act  and
the notification issued thereunder were ultra vires.  Having
some doubts as to whether in view of the notification issued
1  by  the Provincial Government under section 4 of the  Act
the plaint could be admitted in the High Court, the Prothon-
otary placed the matter under the rules of the Court  before
Bhagwati  J.  who  was then the Judge in  Chambers.  By  his
judgment  delivered on February  23, 1950, Bhagwati J.  held
that section 4 of the Act and the notification issued there-
under  were  ultra vires and void and that the  High  Court,
therefore,  had  jurisdiction to entertain  the  suit.   The
plaint was accordingly received and admitted.
    The first respondent thereupon took out a summons  under
the  rules of the Court for leave to sign  judgment  against
the second respondent.  The State of Bombay was, on its  own
application,  added as a party to the suit.  The matter  was
put  up before a Division Bench (Chagla C.J.  and  Tendolkar
J.) for trial of the following issues:
110
    "(1) Whether Act XL of 1948 is ultra vires of the Legis-
lature of the State of Bombay.
    (2) Whether,Section 4 of Act XL of 1948 is in any  event
ultra rites of the Legislature of the State of Bombay.
    (3)  Whether the Government of Bombay Notification  'No.
2346/5  dated 20th January, i1950, is ultra vires, void  and
inoperative in law.
    (4) Whether this Court has jurisdiction to try the suit.
    The  larger  point involved in issue No. 1  having  been
concluded  by the earlier decision of the Division Bench  in
Mulchand  Kundanmal Jagtiani v. Raman Hiralal  Shah(1)  that
issue  was answered  in  the negative without  any  argument
but  leave was reserved to the first respondent  to  contest
the correctness of that earlier decision in this Court.  The
Division  Bench in agreement with Bhagwati J. held  that  by
section  4  of the Act the Provincial  Legislature  did  not
itself  legislate but delegated the power of legislation  to
the  Provincial Government which it had no power to do  and,
therefore,   section 4 and along with it  the   notification
No.  2346/5  issued thereunder were ultra  vires,  void  and
inoperative. Accordingly they answered issues Nos. (2),  (3)
and (4)in the affirmative and sent the summons for  judgment
back  to the learned Judge taking miscellaneous  matters  to
dispose  it of on merits.  The State of Bombay has now  come
up before us in appeal from this decision of the High Court.
    The Advocate-General of Madras has intervened in support
of  this  appeal  and for maintaining the  validity  of  the
Madras  City  Civil Court Act (VII of 1892)  section  3A  of
which  inserted in 1935 by way of amendment is in  identical
terms  with  section 4 of  the Bombay Act  except  that  the
amount of the value was fixed at Rs. 10,000 in section 3A of
the  Madras Act instead of Rs. 25,000 fixed in section 4  of
the Bombay Act.
    The  distinction  between  conditional  legislation  and
delegation of legislative power has been well-known
(1) 51 Bom L R.86
111
ever  since  the  decision  of the  Privy  Council  in  R.v.
Burah(1)  and  the other Privy Council cases cited  in   the
judgments of the High Court.  It is firmly established  that
conditional  legislation  is  not only  permissible  but  is
indeed in many cases convenient and necessary. The difficul-
ty  which confronts the Courts is in ascertaining whether  a
particular provision of a Statute constitutes a  conditional
legislation  as  explained  in the decisions  of  the  Privy
Council.  In the present case the High Court, on a construc-
tion  of section 4 of the Bombay City Civil Court Act,  came
to the conclusion that it was not an instance of conditional
legislation at all.  The use of the word "invest" in section
4  was considered by the High Court to be  very  significant
and  the  difference between the language in section  3  and
that  in  section 4 appeared to them to be very  marked  and
striking.   According to the High Court while by  section  a
the  Legislature  itself set up a Court  with  a  particular
pecuniary  jurisdiction,  under section  4  the  Legislature
itself did not invest the Court with any higher jurisdiction
but  left  it to the Provincial Government to  exercise  the
function which the Government of India Act laid down  should
be  exercised  by the Provincial Legislature.   The  learned
Chief Justice expressed the view 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, and that section 4 was not a  sec-
tion  which  merely directed the  Provincial  Government  to
carry out the policy laid down by the Legislature, but  that
it was a section which conferred upon the Provincial Govern-
ment the power to confer jurisdiction upon the Court.  Then,
after  referring            to R.V. Baruha(1)  and-  several
other  cases and purporting to apply the tests laid down  in
the decisions to the Act the learned Chief Justice concluded
that  the  Legislature in the exercise  of  its  legislative
power  had set up a Civil Court with a limited  jurisdiction
under  section a of the Act, that it had not set up a  Court
with a jurisdiction higher than ten thousand rupees and
(1) L.R 5 I. A.   178.
112
that, having set up a Court of, limited jurisdiction, it
had  given to the Provincial Government under section 4  the
power to confer upon that Court a higher jurisdiction up  to
twenty-five  thousand  rupees.  This power, which  was  con-
ferred  upon the Provincial Government was according to  the
Chief Justice, a power which could only have been  exercised
by  the  Legislature  itself.  I am  unable  to  accept  the
afore-mentioned construction of sections 3 and 4 of the Act.
As  I  have already said, the High Court  rounded  their
conclusions  principally on the observations of their  Lord-
ships  of  the Privy Council in R.v.  Burah(1)  and  certain
other Privy Council cases.  It will be useful, therefore, to
analyse the Privy Council decision in R.v. Burah(1). In 1869
the  Indian  Legislature passed an Act (No.  XXII  of  1869)
purporting,  first, to remove a district called  Garo  Hills
from  the jurisdiction of the Courts of civil  and  criminal
jurisdiction and from the law prescribed for such Courts  by
Regulations and Acts and, secondly, to vest the  administra-
tion of civil and criminal justice, within the same territo-
ry,  in such officers as the Lieutenant-Governor  of  Bengal
might, for the purpose of tribunals of first instance, or of
reference  and appeal, from time to time appoint.   The  Act
was  to come into operation on such day as  the  Lieutenant-
Governor  of Bengal should, by notification in the  Calcutta
Gazette,  direct.   The 8th section authorised the  Lieuten-
ant-Governor  of  Bengal  by notification  in  the  Calcutta
Gazette  to  extend to the said territory, any  law  or  any
portion  of any law then in force in other territories  sub-
ject to his government or which may thereafter be enacted by
the Council of the Governor-General or of himself.  The  9th
section of that Act provided:
    "The said Lieutenant-Governor may from time to time,  by
notification in the Calcutta Gazette, extend mutatis  mutan-
dis  all  or any of the provisions contained  in  the  other
sections  of this Act to the Jaintia Hills, the Naga  Hills,
and  to  such portion of the Khasi Hills, as  for  the  time
being forms part of British India,
(1) L.R. 5 I.A. 178.
113
     Every such notification shall specify the boundaries of
the territories to which it applies."
     On October 14, 1871, the Lieutenant-Governor of  Bengal
issued a notification in exercise of the powers conferred on
him by section 9 extending the provisions of that Act to the
territory known as the Khasi and Jaintia Hills and  excluded
therefrom the jurisdiction of the Courts of civil and crimi-
nal justice.  The respondent Burah and another person having
been  convicted by the Deputy Commissioner of the Khasi  and
Jaintia  Hills of murder and sentenced to death,  which  was
later on commuted to transportation for life, they from jail
sent  a  petition of appeal against their  conviction.   The
provisions  of  Act XXII of 1869 having  been  extended,  by
notification  under  section  9, to the  Khasi  and  Jaintia
Hills,  the High Court would have no jurisdiction to  enter-
tain the appeal, unless section 9 and the notification  were
ultra rites and void. The majority of the Judges of the Full
Bench constituted for considering the question took the view
that  section  9 was really not legislation but was  an  in-
stance  of  delegation of legislative power. The  Crown  ob-
tained  special  leave to appeal to the  Privy  Council.  In
summarising the effect of the provisions of sections 1 to  8
of  that Act on Garo Hills Lord Selborne who  delivered  the
judgment of the Privy Council observed at page 194 that  the
Governor-General  in council had determined, in the due  and
ordinary  course  of  legislation, to  remove  a  particular
district  from the jurisdiction of the ordinary  Courts  and
offices, and to place it under new Courts and offices, to be
appointed  by and responsible to the Lieutenant-Governor  of
Bengal  leaving  it to   the Lieutenant-Governor to  say  at
what  time that change should take place, that the  Legisla-
ture   had  determined  that,  so  far,  a  certain   change
should,take  place, but that it was expedient to  leave  the
time,  and  the manner, of carrying it into  effect  to  the
discretion  of the  Lieutenant-Governor and also,  that  the
laws  which were or might be in force in the other  territo-
ries subject to the same  Government  were such as it  might
be fit and proper to apply to this
15
114
district  also,  but that, as it was not  certain  that  all
those laws, and every part of them, could with equal conven-
ience  be so applied, it was expedient, on that point  also,
to  entrust  a discretion to  the  LieutenantGovernor.   His
Lordship then proceeded to state the true meaning and effect
of the provisions of section 9:
    "This  having been done as to the Garo Hills,  what  was
done  as  to the Khasi and Jaintia Hills?   The  Legislature
decided  that it was fit and proper that the adjoining  dis-
trict of the Khasi and Jaintia  Hills should also be removed
from  the jurisdiction of the existing Courts,  and  brought
under  the same provisions with the Garo Hills,  not  neces-
sarily and at all events, but if and when  the   Lieutenant-
Governor should think it desirable to do so; and that it was
also  possible that it might be expedient that not all,  but
some  only,  of those provisions should be applied  to  that
adjoining  district.   And accordingly the  Legislature  en-
trusted  for these purposes also, a discretionary  power  to
the Lieutenant-Governor."
Finally, his Lordship concluded at p. 195:
    "Their Lordships think that it is a fallacy to speak  of
the powers thus conferred upon the LieutenantGovernor (large
as  they undoubtedly are) as if, when they  were  exercised,
the efficacy of the acts done under them would be due to any
other  legislative  authority than- that  of  the  Governor-
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  legisla-
tion  is now absolute. Where plenary powers  of  legislation
exist  as to particular subjects, whether in an imperial  or
in a provinciall  Legislature, they may, in their Lordships'
judgment be well exercised, either absolutely or  condition-
ally.   Legislation,  conditional on the use  of  particular
powers, or on the exercise of a limited discretion, entrust-
ed  by  the Legislature to persons in whom it places  confi-
dence,
115
is no uncommon thing; and, in many circumstances, it may  be
highly convenient."
    If  the reasonings underlying the observations  of  the'
Bombay High Court were correct then on those very reasonings
it  could be held in Burah's case(1) that while in  enacting
sections  1  to 8 the Legislature had applied its  mind  and
laid  down its policy as to the exclusion of the Garo  Hills
from the jurisdiction of the Courts the Legislature did  not
apply  its  mind and did not lay down any policy as  to  the
exclusion  of the Khasi and Jaintia Hills rom the  jurisdic-
tion of the Courts but had left it to the  Lieutenant-Gover-
nor  to do what it alone could do.  This construction  quite
clearly  did  not find favour with the  Privy  Council.  The
Privy Council by construction spelt out of the very language
section  9 that the Legislature itself had decided  that  it
was  fit and proper that the Khasi and Jaintia Hills  should
also be removed from the jurisdiction of the existing Courts
and brought under the same provisions as applied to the Garo
Hills, not necessarily and at all events but if and when the
LieutenantGovernor  should think it desirable to do  so  and
accordingly   entrusted   a  discretionary   power  to   the
Lieutenant-Governor.  Adopting the same method of  construc-
tion and adopting the language of Lord Selborne it may  well
be  said that in enacting section 3 the  Legislature  itself
has determined, in  the due and ordinary course of  legisla-
tion, to establish an additional Court of civil jurisdiction
with  jurisdiction to entertain suits and other  proceedings
arising  within  the Greater Bombay of the value up  to  Rs.
10,000  leaving  it,  by section 1 (2),  to  the  Provincial
Government  to  say  at what time that  change  should  take
place.  Likewise, it may be said that in enacting section  4
the  Legislature  itself  has decided that it  is  fit,  and
proper  to  extend  the pecuniary jurisdiction  of  the  new
Court, not necessarily and at all events or all at once  but
if  and when the Provincial Government should think  it  de-
sirable  to do so and accordingly entrusted a  discretionary
power to the Provincial Government.  It is entirely wrong to
say that the
(1) L.R.  5 I.A. 178.
116
Legislature has not applied its mind or laid down any  poli-
cy.   Indeed, the very fact that the extension of  pecuniary
jurisdiction should not exceed twenty-five thousand  rupees,
that  the  extension  should be subject  to  the  exceptions
specified in section 3 clearly indicate that the Legislature
itself  has  decided that the extension  of   the  pecuniary
jurisdiction   of   the new  Court  should   be   made,  not
necessarily   or at all events or all at  any one  time  but
when the Provincial Government may consider. it desirable to
do  so and while entrusting a discretionary power  with  the
Provincial  Government to determine the time  for  investing
such extended jurisdiction on the new Court, the Legislature
itself has also prescribed the limits of such extension. The
efficacy of the Act of extension of jurisdiction is,  there-
fore,  not due to any other legislative authority than  that
of  the Legislature itself.  The expression  "invest"   does
not appear to me to have any special significance.  It  only
implies  or  indicates the result of the fulfilment  of  the
condition  which the Legislature itself laid down.   To  use
the language of Lord Selborne the extension of  jurisdiction
is directly and immediately under and by virtue of this very
Act itself.  Here there is no effacement of the Legislature,
no  abdication of the legislative power.  On  the  contrary,
the proper Legislature has exercised its judgment as to  the
possible necessity for the extension of the pecuniary juris-
diction of the new Court and the result of that judgment has
been  to  legislate conditionally as to such  extension  and
that the condition having been fulfilled by the issue of the
notification  by the Provincial Government  the  legislation
has  now become absolute.  In my judgment  the  construction
put  upon sections 3 and 4 by the High Court  was  erroneous
and cannot be supported either on principle or on authority.
When properly construed in the light of the observations and
decision   of  the  Privy CounCil in R.v. Burah(1) as  indi-
cated  above  section 4 does not amount to a  delegation  of
legislative  power at all but constitutes what is  known  as
conditional legislation.
(1) L.R. 5 I.A 178.
117
    Reliance was placed by the High Court on the decision of
the  Federal Court of India in Jatindra Nath Gupta v.  Prov-
ince of Bihar (1) in support of their conclusions. That case
was  concerned  with  the question of the  validity  of  the
proviso  to section 1 (3)of the Bihar Maintenance of  Public
Order  Act (V of 1947). Section 1 (a) provided that the  Act
should  remain  in force for a period of one year  from  the
date of its commencement.  The relevant part of the  proviso
was in the following terms:
    "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."
    Three  of the learned Judges held that the  proviso  and
the notification thereunder were ultra vires and void-  They
laid  particular emphasis on the power given to the  Provin-
cial  Government  to make any modification in the  Act  when
extending its life as indicating that it was a delegation of
legislative power. Another learned Judge did not decide this