dedol-hf/india-case-legal-rag huggingface dataset:
ed  jurisdiction under section 5 of the Act. It has not  set
up  a  court  with jurisdiction  higher  than  ten  thousand
rupees. Having set up a court of limited jurisdiction it has
given to the Provincial Government under section 4 the power
to center upon that court a higher jurisdiction up to  twen-
ty-five  thousand rupees. Now this power which is  conferred
upon  the Provincial Government is a power which could  only
have been exercised by the Legislature itself."
    It seems to me that the above observations are based  on
a  construction of sections 3 and 4 of the Act  which  these
sections cannot legitimately bear. As already observed.  the
Legislature set up a Civil Court for Greater
85
Bombay and decided that, to start with, it will have pecuni-
ary  jurisdiction up to  Rs. 10,000.  It also decided at the
same  time  that it would also have jurisdiction up  to  Rs.
25,000 as soon as circumstances, necessitate it the  Provin-
cial  Government was constituted the judge of those  circum-
stances. What the limit  of that jurisdiction was to be  was
in unmistakeable  terms enacted in section 4 of the Act.  It
was  not  left to the will of the Provincial  Government  to
confer  on  that court any pecuniary  jurisdiction  that  it
liked to  confer upon it. It would be by force of the legis-
lative power of section 4 that the City Civil Court will  be
vested  with enhanced jurisdiction but that  vesting  cannot
take  place till a notification is issued by the  Provincial
Government.  It is  conditional on that event only.
    For  the reasons given above, in my judgment, the   High
Court  was  in error in holding that section 4 of  the  City
Civil  Court  Act was void and ultra  vires  the  Provincial
legislature.   In  this view the notification  issued  under
section 4 must be held to be effective. That being so, it is
unnecessary  to go into the question raised by  the  learned
Attorney-General that assuming that section 4 of the Act was
delegation of legislative power, it was still valid.
    The next question to decide is whether the Act is  ultra
vires the Bombay  Legislature.  In order  to appreciate  Mr.
Seervai's  contention on this point it is necessary  to  set
out  some of the provisions of the Government of India  Act,
1935.  relevant to the enquiry. These are contained in  sec-
tion  100. and in the Seventh Schedule in entries 28 and  53
of List I, entries 1 and 2 of List II, and entries 4 and  15
of List III.  They are in these terms:--
    Sec.  109. (1) Notwithstanding anything in the two  next
succeeding sub sections, the Federal Legislature, has, and a
Provincial  Legislature  has  not power to  make  laws  with
respect  to any of the matters enumerated in List I  in  the
Seventh Schedule to this Act (hereinafter called the "Feder-
al Legislative List.")
86
(2) Notwithstanding anything in the next succeeding  sub
section,  the Federal Legislature, and, subject to the  pre-
ceding subsection, a Provincial Legislature also, have power
to make laws with respect to any of the  matters  enumerated
in   List III in  the said Schedule (hereinafter called  the
"Concurrent Legislative List.") -
  (3) Subject to the two preceding sub-sections, the Provin-
cial  Legislature has, and the Federal  Legislature      has
not,  power to make laws for a Province or any part  thereof
with respect 10 any of the  matters enumerated in List II in
the said Schedule (hereinafter called the" Provincial Legis-
lative List.")
    (4) The Federal Legislature has power to make laws  with
respect to matters enumerated in the Provincial  Legislative
List except for a Province or any part thereof.
List I. 23. Cheques, bills of exchange, promissory notes
and other like instruments.
 55.  Jurisdiction  and  powers of all  courts,  except  the
Federal  Court, with respect to any of the matters  in  this
list and, to such extent as is expressly authorized by  Part
IX  of this Act, the enlargement of the appellate  jurisdic-
tion  of  the Federal Court, and the conferring  thereon  of
supplemental powers.
List  II. 1. Public order (but not including the use  of
His  Majesty's naval, military or air forces in  aid      of
the  civil power); the administration of justice;  constitu-
tion  and  organization of all courts,  except  the  Federal
Court,  and  fees  taken therein; preventive  detention  for
reasons  connected  with the maintenance  of  public  order;
persons subject to such detention.
    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.4. Civil Procedure, including the Law of Limitation
and all matters included in the Code of  Civil Procedure  at
the  date  of  the passing of this Act; the  recovery  in  a
Governor's Province or a Chief
87
Commissioner's  Province of claims in respect of  taxes  and
other public demands, including arrears of land revenue  and
sums recoverable as such, arising outside that Province.
15.   Jurisdiction  and powers of all  courts  except  the
Federal  Court, with respect to any of the matters  in  this
list.
    Mr. Seervat contends that section 3 of the impugned  Act
is void because it directly trenches on the exclusive legis-
lative powers of the Centre conferred on it by List     I of
the Seventh Schedule inasmuch as 'it confers jurisdiction on
the  new  court in respect to all cases of a  civil  nature.
The  expression  "all cases of a  civil  nature"  presumably
brings  within  the  ambit of the Act suits  in  respect  to
subjects contained in List I. He urged that the three  simi-
lar  entries  in the three is, name]y, entry 53 in  List  I,
entry  2 in List II and entry 15 in List III indicated  that
in  respect to the subjects covered by the three  fields  of
legislation demarcated for the two Legislatures the  Parlia-
ment  empowered  each of them respectively to make  laws  in
respect to jurisdiction and power of courts and that in view
of the provisions of section 100 of the Constitution Act the
Provincial Legislature had no power to make any law  confer-
ring  jurisdiction on courts in respect to subjects  covered
by  List  I. In other words, the Federal  Legislature  alone
could legislate on the jurisdiction and powers of a court in
regard  to the subjects in List I. Similarly in  respect  of
subjects contained in the Provincial List, jurisdiction  and
power of courts could only be determined by a law enacted by
the  Provincial  Legislature and that in  respect  of  items
contained in List III, both Legislatures could make laws  on
the  subject  of jurisdiction and powers of courts.  It  was
said that the exceptions and the proviso to section 3 of the
City Civil Court Act in dear terms disclosed that  jurisdic-
tion  in  respect to the subjects on  which  the  Provincial
Legislature  had  no competence to legislate was  also  con-
ferred on the new court. Section'12 of the Act by which  the
High Court was deprived of all jurisdiction on matters  that
fell
88
within the jurisdiction of the City Civil Court was assailed
on  similar  grounds.  In regard to  the  legislative  power
conferred under entry I of List 11 on the Provincial  Legis-
lature  it was contended that this wide power stood  limited
by  the  three  entries above mentioned and  that  under  it
legislation could only be made to the extent of establishing
and  organizing courts but no legislation under it was  per-
missible in respect to the powers of those courts.
    The  learned Attorney-General, on the other  hand,  con-
tends  that  the Act is intra vires the  Bombay  Legislature
under entry 1 of List II and under entries 4' and 15 of List
III, it having received the assent of the  Governor-General.
It  was urged that the Provincial Legislature had  exclusive
legislative  power on the subject of administration of  jus-
tice  and  constitution and organization of all  courts  and
that this power necessarily included the power to make a law
in  respect  to the jurisdiction of courts  established  and
constituted by it and that the impugned legislation in  pith
and  substance  being on the subject  of  administration  of
justice,  it  could  not  be held ultra  vires  even  if  it
trenched on the field of legislation of the Federal Legisla-
ture.   In regard to entry 53 of List I, entry 2 of List  II
and  entry 15 of List II of the Schedule, it was  said  that
these conferred legislative power on the respective Legisla-
tures  to confer special jurisdiction on established  courts
in respect of particular subjects only if it was  considered
necessary  to do so.  In other words the argument  was  that
the  Provincial Government could create a court  of  general
jurisdiction  legislating under entry 1 of List II and  that
it  was  then open to both the Central  and  the  Provincial
Legislatures  to  confer special jurisdiction on  courts  in
respect  to  particular  matters that were  covered  by  the
respective  lists.   In my opinion, the  contention  of  the
learned  Attorney-General  that the Act is intra  vires  the
Bombay  Legislature under entry 1 of List If is sound and  I
am  in respectful agreement with the view expressed  by  the
Chief Justice of Bombay on this point in Mulchand  Kundanmal
Jagtiani v. Raman Hiralal
89
Shah (1).  The learned Chief Justice when  dealing with this
point said as follows:-
"If, therefore, the Act deals with administration of justice
and  constitutes a court for that purpose and confers  ordi-
nary civil jurisdiction upon it,  in  my opinion, the legis-
lation  clearly falls within the legislative  competence  of
the Provincial Legislature and is covered by item 1 of  List
11  of  Schedule 7.  That item expressly  confers  upon  the
Provincial Legislature the power to legislate with regard to
the  administration  of  justice and  the  constitution  and
organization of all courts except the Federal Court.  It  is
difficult to imagine how a court can be constituted  without
any  jurisdiction, and if Parliament has made  the  adminis-
tration of justice exclusively upon the Provincial  Legisla-
ture  the  power to constitute and organize all  courts,  it
must  follow,  that  the power is given  to  the  Provincial
Legislature  to confer the ordinary civil jurisdiction  upon
the  courts to carry on with their work.  Item 2 of List  II
deals  with jurisdiction and power of all courts except  the
Federal  Court  with respect to any of the matters  in  this
list,  and Mr. Mistree's argument is that item 1 is  limited
and  conditioned by item 2 and what he contends is that  the
only power that the Provincial Legislature has is undoubted-
ly  to  create  courts, but to confer upon  them  only  such
jurisdiction as relates to items comprised in List II. I  am
unable  to accept that contention or that interpretation  of
List 11 in Schedule 7. Each item in List 11 is an  independ-
ent  item, supplementary of each other, and not  limited  by
each  other  in any way.  Item 1 having  given  the  general
power  to  the  Provincial Legislature with  regard  to  all
matters  of  administration of justice and with  regard   to
the  constitution  and organization of all  courts,  further
gives the power to the Legislature to confer special  juris-
diction,  if  needs be, and special power, if needs  be,  to
these  courts with regard to any of the items  mentioned  in
List 11. It is impossible to read item 2 as curtailing
(1) 51 Bom. L.R. 86.
12
90
and restricting the very wide power with regard to  adminis-
tration  of justice given to  the   Provincial  "Legislature
under  item 1.  Similarly in List I the Federal  Legislature
has  been given the power under item 53 to confer  jurisdic-
tion and power upon any court with regard to matters falling
under  any  of the items in that list,  and,  therefore,  it
would be competent to the Federal Legislature to confer  any
special  jurisdiction or power which it thought proper  upon
any  court with regard to suits on promissory notes or  mat-
ters  arising under the Negotiable Instruments  Act...".  It
seems  to  me that the legislative power  conferred  on  the
Provincial  legislature by item 1 of List II has  been  con-
ferred  by use Of language which is of the widest  amplitude
(administration of justice and constitution and organization
of all courts).  It was not denied that the phrase  employed
would include within its ambit legislative power in  respect
to  jurisdiction  and power of courts  established  for  the
purpose  of administration of justice.  Moreover, the  words
appear to be sufficient to confer upon the Provincial Legis-
lature  the  right  to regulate and provide  for  the  whole
machinery  connected with the administration of  justice  in
the  PrOvince.  Legislation on the subject       administra-
tion of justice and constitution of courts of justice  would
be  ineffective and incomplete unless and until  the  courts
established under it were clothed with the jurisdiction  and
power  to hear and decide causes. It is difficult to  visua-
lise  a statute dealing with administration of  justice  and
the  subject  of  constitution and  organization  of  courts
without a definition of the jurisdiction and powers of those
courts,  as without such definition such a statute would  be
like  a  body without a soul. To enact it would be  an  idle
formality.  By  its  own force it would not  have  power  to
clothe  a court with any power or  jurisdiction  whatsoever.
It would have to look to an outside authority and to another
statute  to become effective.  Such an enactment is, so  far
as I know, unknown to legislative practice and history.  The
Parliament by making administration  of  justice  a  provin-
cial subject
91
could not be considered to have conferred power of  legisla-
tion  on the  Provincial  Legislature  of an ineffective and
useless nature.  Following the line of argument taken by Mr.
Mistree before the High Court of Bombay,  Mr. Seervai stren-
uously  contended that the only legislative power  conferred
on  the Provincial Legislature by entry 1 of List II was  in
respect to the establishment of a court and its constitution
and that no legislative power was given to it to make a  law
in  respect  to jurisdiction and power of the  court  estab-
lished by it.
     The  argument, logically analysed, comes to this:  that
a statute will contain the name of the court, the number  of
its judges, the method of their appointment, the salaries to
be  drawn by them and it will then stop short at that  stage
and  will not include any provision defining the  powers  of
the tribunal or its other jurisdiction and that the court so
constituted  could acquire jurisdiction only when a law  was
made relating to its jurisdiction and powers by the  Federal
Legislature  under  entry 53 of List I,  by  the  Provincial
Legislature under entry 2 of List II and by either  Legisla-
ture  under entry 15 of List III.  The learned counsel  con-
tended that this peculiar result was the natural consequence
of  a  federal constitution with divided  powers,  and  that
entries 53, 2 and 15 of the three respective lists limit and
curtail the wide power conferred on the Provincial  Legisla-
ture  by  item 1 of List II.  It is difficult to  accede  to
this  contention  because it would amount  to  holding  that
though  the Provincial Legislature under item 2 of  List  II
has been given the widest power of legislation in the matter
of administration of justice and constitution and  Organiza-
tion of courts and though that field has been demarcated for
it  as its exclusive field of legislation, yet all  that  it
can  do, acting within that field, is merely to establish  a
court  without  any competency to function and that  in  can
only  become an effective instrument for administering  jus-
tice  by  laws enacted elsewere or  under  powers  conferred
under  other  items of the different lists. I am  unable  to
read items 53, 2 and 15 of the three respective
92
lists  as  imposing limitations on legislative   power  con-
ferred  on the Province by item 1 of List II.  Such  a  con-
struction of the Act would not only do violence to the plain
language  of item 1 of List II but would be contrary to  its
scheme  under  which administration of justice  was  made  a
provincial subject.  It is significant that no other  Legis-
lature has been given the power to   bring into existence  a
court.   A court without powers   and jurisdiction would  be
an anomaly as it would not   be able to discharge the  func-
tion  of administration of   justice and the statute  estab-
lishing such a court could   not be said to be a law on  the
subject of administration    of justice. It is a fundamental
principle of the construction of a constitution that  every-
thing  necessary for the exercise of powers is  included  in
the  grant of power. Everything necessary for the  effective
execution of power of legislation must therefore be taken to
be conferred by the constitution with that power. It may  be
observed that in exercise of legislative power under item  1
of List 11 a provincial Legislature can alter the  constitu-
tion  of the existing courts, can abolish  them,  reorganize
them  and  can establish new courts.   If  the  construction
contended for by Mr. Seervai is accepted, then the  existing
courts  re-established  or re-organised  by  the  provincial
Legislature  would not be able to function till  legislation
under item 53 of List I, under item 2 of List II or item  15
of  List III also simultaneously was made.  I do  not  think
that such a result was in the contemplation of parliament.
     Mr. Seervai with some force argued that it full  effect
is given to the comprehensive phraseology employed in item 1
of List II, then it would result in making the provisions of
item 2 of List II, of item 53 of List I and item 15 of  List
III nugatory. in other words, if the provincial  Legislature
could  bring into existence a court of general  jurisdiction
which  could  hear all causes on subjects  concerning  which
legislative  power was divided in the three lists, then  the
conferment  of legislative power on the Federal  Legislature
under item 53 of List 1, on the provincial Legislature under
item 2 in List II and on both the Legislatures under
93
item  15 of List III was purposeless.  In my  opinion,  this
argument is not a valid one and the premises on which it  is
based are not sound.  The three lists of subjects  contained
in  Schedule  7 have not been drawn up with  any  scientific
precision and the various items in them overlap.  The  point
kept  in  view in drawing up the lists was to see  that  all
possible  power  of legislation was included  ,within  their
ambit.   By  making administration of justice  a  provincial
subject  and  by conferring on  the  Provincial  Legislature
power  to legislate on this subject and also on the  subject
of  constitution  and  organization  of  courts,  Parliament
conferred  on  that  Legislature an  effective  power  which
included  within its ambit the law-making power on the  sub-
ject of jurisdiction of courts.  The Provincial  Legislature
could  therefore bring into existence a court  with  general
jurisdiction  to  administer justice on all  matters  coming
before  it within certain territorial and pecuniary  limits,
subject of course to the condition that such general  juris-
diction  may  be expressly or impliedly taken  away  by  the
provisions of other laws. The Parliament having divided  the
field of legislation between the two Legislatures, naturally
thought  that as a corollary or a necessary  consequence  of
this  division  of  legislative power it  was  necessary  to
provide  by way of a complementary provision  a  legislative
power specifically on the two Legislatures in respect to the
jurisdiction  and  powers of courts on subjects  which  were
within their exclusive legislative field.  If a  Legislature
could  exclusively legislate in respect to  particular  sub-
jects,  as a necessary  consequence it should also have  the
power  to legislate in respect to jurisdiction and power  of
the court dealing with that subject.  It is this power  that
has  been conferred by entries 53, 2 and 15 above  mentioned
on  the  two Legislatures.  Entries 42  and 99  of  List  I,
entries  37 and 42 of List II and entries 25 and 36 of  List
III  are  of  a  similar   consequential   character.    The
respective Legislatures are  therefore competent  to  confer
special  powers on courts and can create  special  jurisdic-
tions acting under those powers in respect to
94
their  divided fields of legislation.  Instances of  confer-
ment  of powers and jurisdiction on courts to hear cases  on
particular  subjects  were well known to  Parliament.   Such
powers had been conferred on different courts in respect  of
testamentary and intestate jurisdiction, admiralty jurisdic-
tion,  under the Indian Companies Act, under the  Succession
Act,  Guardians  and Wards Act and under the  various.  Rent
Acts and Acts dealing with relief of indebtedness.  In  view
of the division of powers in respect to different  subjects,
power  was given under item 53 of List I, item 2 of last  II
and  item 15 of List III to the different Legislatures  when
dealing  with those subjects also to legislate on the  ques-
tion of jurisdiction and powers of the courts. This  confer-
ment of legislative power to create special jurisdiction  in
respect  to particular subjects does not in any way  curtail
the  legislative power conferred on the Provincial  Legisla-
ture  under item 1 of List II.  As soon as special  legisla-
tive power under item 53 of List I, under item 2 of List  II
and item 15 of List III is exercised, the causes that  arise
in  respect  to those subjects would then only be  heard  in
jurisdictions  created  by  those statutes and  not  in  the
courts  of  general jurisdiction entrusted with  the  normal
administration of justice.  In the language of section 9  of
the  Code  of Civil Procedure, jurisdiction of  the  general
courts will then become barred by those statutes.
    I am therefore of the opinion that under item 1 of  List
II  the Provincial Legislature has complete  competence  not
only  to establish courts for the administration of  justice
but  to confer on them jurisdiction to hear all causes of  a
civil nature, and that this power is not curtailed or limit-
ed by power of legislation conferred on the two Legislatures
under  items 53, 2 and 15 of the three lists.  On the  other
hand,  these three items confer on the  respective  Legisla-
tures  power to legislate when dealing with particular  sub-
jects within their exclusive legislative field to make  laws
in respect of jurisdiction and powers of courts that will be
competent  to  hear causes relating to  those  subjects;  in
other words, this is a  power of creating special
95
jurisdictions  only. This interpretation of the  entries  in
the  lists is not only in accordance with the scheme of  the
statute but it harmonizes the different entries in the lists
and  does  not make any of them nugatory and  in  effective.
The interpretation contended for by Mr. Seervai would reduce
the  power  of the Provincial Legislature under  item  1  to
almost nothingness.
The crux of the case is whether item 1 of List 11 should
be  given a limited construction which makes it nugatory  or
whether a limited construction is to be placed on items  53,
2 and 15 of the three lists. I have no hesitation in holding
that  both  in the light of principles  of  construction  of
statutes and principles of legislation, the course to  adopt
is the one that I have indicated above.
    Finally, it was contended that section 12 of the Act  in
any case was a void piece of legislation as it deprived  the
High  Court of its jurisdiction even in respect to  subjects
contained in List I of the Seventh Schedule.  In view of the
construction  that I have placed on item 1 of List  II  this
argument has no force. If the Legislature has power to bring
into existence a court and confer jurisdiction and power  on
it,  a fortiori     it has power to take away the  jurisdic-
tion  and power that already exist in other  courts.   More-