dedol-hf/india-case-legal-rag huggingface dataset:
over,  the  Bombay  City Civil Court Act in  section  a  has
excepted  from the jurisdiction of the new court  all  cases
which  the High Court can hear under any special  law.  Spe-
cial law has been defined as a law applicable to a  particu-
lar  subject.  If under List 1 of the Seventh  Schedule  the
Federal Legislature by any law determines that a case has to
be  heard by the High Court, section 5 will not  affect  the
jurisdiction of that court in any manner whatsoever.
The  result,  therefore, is that the Bombay  City  Civil
Court  Act is a statute which is wholly within the  legisla-
tive  field of the Province under item 1 of List II and  its
validity cannot be affected even if it incidentally trenches
on other fields of legislation.  It is not a statute dealing
with  any of the subjects mentioned in List I and  therefore
it cannot be said that the
96
Provincial  Legislature  has in any way  usurped  the  power
demarcated  for  the Centre.  In view of this  conclusion  I
think  it unnecessary to pronounce any opinion on the  other
points raised by the learned Attorney-General.
  For the reasons given above I allow the  appeal  preferred
by  the Government of Bombay and set aside the  decision  of
the  High  Court holding that section 4 of  the  City  Civil
Court Act (XL of 1948) is void.  In the circumstances of the
case  I  leave the parties t9 bear their own  costs  of  the
appeal.
MUKHERJEA  J.--In my opinion this appeal should  be  allowed
and I concur substantially in the line of reasoning  adopted
by  my  learned brother Mahajan J. in his  judgment.  Having
regard  to  the constitutional importance of  the  questions
raised in this case, I would desire to add some observations
of mine own.
There are really two questions which require  considera-
tion in this appeal.   The first is whether section 4 of the
Bombay  City Civil Court Act, 1948, is void and  inoperative
by  reason  of its amounting to a delegation  of  legisltive
powers  by   the Provincial Legislature  to  the  Provincial
Government  of  Bombay. The Bombay High Court  has  answered
this  question  in the affirmative and it is  entirely  upon
this  ground  that the judgment appealed against  is  based.
The  propriety of this decision has been challenged  by  the
learned  Attorney-General  who appeared on   behalf  of  the
State  of  Bombay in support of this appeal.  On  the  other
hand,  Mr. Seervai, appearing on behalf of the  respondents,
has   not  only  attempted  to repel  the   contention   ad-
vanced  by  the  learned Attorney-General, but has sought to
support the judgment appealed against on another and a  more
comprehensive  ground  which, if accepted,  would  make  the
entire Bombay City Civil Court Act a void piece of  legisla-
tion, as being an encroachment by the Provincial Legislature
upon the field of legislation reserved for the Centre  under
List I of Schedule 7 to the Government of India Act, 1935.
97
    As regards the first point, I agree that the  contention
of the appellant is sound and must prevail. I have no  hesi-
tation  in holding that the Legislature in  empowering   the
Provincial Government to invest the City Court, by notifica-
tion,  with  jurisdiction of such value  not  exceeding  Rs.
25,000  as  may be  specified in the Notification,  has  not
delegated  its legislative authority to the Provincial  Gov-
ernment.  The provision relates only to the  enforcement  of
the  policy which the Legislature itself has laid down.  The
law  was  full  and complete when it  left  the  legislative
chamber permitting the Provincial Government to increase the
pecuniary  jurisdiction  of the City Court up to  a  certain
amount  which was specified in the Statute itself. What  the
Provincial  Government is to do is not to make any  law;  it
has  to execute the will of the Legislature  by  determining
the time at which and the extent to which, within the limits
fixed  by  the Legislature, the jurisdiction  of  the  court
should be extended. This is a species of conditional  legis-
lation which comes directly within the principle  enunciated
by  the Judicial Committee in The Queen v.  Burah(1),  where
the  taking effect of a particular provision of law is  made
to depend upon determination of certain facts and conditions
by an outside authority.
    The learned Judges of the Bombay High Court in coming to
their decision on the point seem to have been influenced  to
some  extent  by the pronouncement of the Federal  Court  in
Jatindranath Gupta v. Province of Bihar(2), and the learned.
Counsel  for the respondents naturally placed reliance  upon
it.  I was myself a party to the majority decision  in  that
case and expressed my views in a separate judgment. I do not
think  that  there is anything in my  judgment  which  lends
support  to  the contention which the respondents  have  put
forward. I stated expressly in course of, my Judgment on the
authority  of  the well known American decision  in  Locke's
appeal(3) that a legislature may not
(1)  5 I.A. 178.                  (3)-13  American  Reports
716.
 [1949] F.C.R. 596.
13
98
delegate  its powers to make 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 to make its own  action
depend  "; and that the inhibition against  delegation  does
not  extend  to  legislation which is  complete  in  itself,
though  its operation is made to depend  upon  contingencies
the ascertainment of which is left to an external body.
    The subject-matter of dispute in the Bihar case was  the
validity  of a proviso engrafted upon section 1,  subsection
(3) of the Bihar Maintenance of Public Order Act.  The  sub-
section  laid down that the Act would remain in force for  a
period  of one year from the date of its  commencement.  The
proviso  then added "that the Provincial Government may,  by
notification 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." Mr. Seervai  would  have
been probably right in invoking the decision in that case as
an authority in his favour if the proviso  simply  empowered
the  Provincial Government, upon compliance with the  condi-
tions prescribed therein, to extend the duration of the  Act
for  a further period of one year, the maximum period  being
fixed by the Legislature itself.  The proviso, however, went
further  and authorised the Provincial Government to  decide
at the end of the year not merely  whether the Act should be
continued for another year but whether the Act itself was to
be  modified  in  any way or not. It  was  conceded  by  the
learned Counsel appearing for the Province of Bihar that  to
authorise  another body to modify a statute amounts  to  in-
vesting that body with legislative powers. What the  learned
Counsel  contended for, was that the power  of  modification
was  severable from the power of extending the  duration  of
the  statute and the invalidity of one part of  the  proviso
should  not  affect its other part.  To this  contention  my
answer  was  that the two provisions were  inter-related  in
such  a manner in the statute that one could not be  severed
from the other.
99
Obvious]y,  the facts of this case are quite different,  and
all  that  I  need say with regard to  my  pronouncement  in
Jatindranath  Gupta's case is that the principle upon  which
that  case was decided is not applicable and cannot  be  at-
tracted, to the present case.
    I may state here that a question in the broad form as to
whether a Provincial Legislature exercising its  legislative
powers within the limits prescribed by the Imperial  Parlia-
ment  in the Government of India Act, 1935,  could  delegate
its  legislative functions in any manner to an  outside  au-
thority as it thought proper, was neither raised nor decided
in Jatindranath Gupta's case.  The learned  Attorney-General
has  not  very properly invited any final decision  on  that
point in the present case and I would refrain from  express-
ing any opinion upon it. '
    The second point appears to be of some complexity and it
was  decided by the Bombay High Court adversely to  the  re-
spondents  on the basis of an earlier pronouncement  of  the
same  Court  in Mulchand v. Raman(1). The arguments  of  Mr.
Seervai are really directed at assailing the correctness  of
this  earlier decision which the learned Judges held  to  be
binding  on them in the present case. The contention of  Mr.
Seervai, in substance, is, that the Bombay City Civil  Court
Act,  which is a piece of provincial legislation,  is  ultra
vires the  legislature inasmuch as it purports to endow  the
City  Court, which it brings into existence, with  jurisdic-
tion  to  receive, try and dispose of "all suits  and  other
proceedings of a civil nature" with certain exceptions  that
are  specified in the different sub-sections of  section  8.
What  is said is that the expression "all suits of  a  civil
nature"  is wide enough to include suits in respect to  mat-
ters  specified  in List I of the Seventh  Schedule  of  the
Constitution  Act with regard to which the Central  Legisla-
ture  alone is competent to confer jurisdiction  on   courts
under entry 53 of the said List. It is argued that so far as
the Provincial Legislature is concerned, it may empower  all
courts  (except  the  Federal Court)  with  jurisdiction  in
respect to any of the matters in the Provincial List.
(1) 51 Bom. L.R. 86.
100
and  it  may also be capable of exercising  like  powers  in
regard  to  subjects enumerated in the  Concurrent  List  as
provided  for  in  article 15 of List III,  subject  to  the
conditions  laid down in section 107 of the Act. But as  the
scope of section 3 of the Bombay City Civil Court Act is not
limited to matters in Lists II and III only and its language
can  embrace subjects coming under List I as well, and  fur-
thermore  as the different subjects both within and  outside
the provincial and concurrent fields dealt with by section 3
are  inextricably, intertwined and not capable of  severance
or  demarcation,  the  whole Act must be held  to  be  ultra
vires.
    In  answer  to this, it has been urged  by  the  learned
Attorney-General that amongst the subjects included in  Item
1 of the Provincial List are "the administration of  justice
and  constitution and organization of all courts except  the
Federal  Court",  and these  expressions  obviously  include
within their ambit the conferring of general jurisdiction to
hear  and decide cases upon courts which are set up  by  the
Provincial Legislature, and without which they cannot  func-
tion  as  courts  at all.  'It is said that Item  2  of  the
Provincial  List which mentions "jurisdiction and powers  of
all  courts except the Federal Court with respect to any  of
the  matters  in  this List" does not in any  way  limit  or
curtail the ordinary connotation of the ,expressions "admin-
istration of justice and constitution of courts" as used  in
Item I of the said List referred to above.
    It cannot be disputed that the words "administration  of
justice"  occuring in Item 1 of the Provincial List,  unless
they are limited in any way, are of sufficient amplitude  to
confer upon the Provincial Legislature the right to regulate
and  provide  for  the whole machinery  connected  with  the
administration of justice. Section 92, of the North  America
Act deals with the exclusive powers of the Provincial Legis-
latures and clause (14) of the section speaks of "the admin-
istration  of  justice in the Provinces" as  including  "the
constitution,   maintenance  and organization of  Provincial
Courts." In interpreting this provision of the  constitution
it has been held in North America that the words
101
"constitution,  maintenance  and  organization  of   courts"
plainly include the power to define the jurisdiction of such
courts  territorially as well as in other  respects(2).  Mr.
Seervai argues that this might be the normal meaning of  the
words  if  they  stood alone. But if Items 1 and  2  of  the
Provincial List are read together, the conclusion cannot  be
avoided that the expressions "administration of justice  and
constitution  of  courts" do not include  "jurisdiction  and
powers of courts" which are separately dealt with under Item
2.   To  find out, therefore, the extent of  powers  of  the
Provincial  Legislature in respect     conferring  jurisdic-
tion  upon courts, the relevant item to be looked to is  not
Item 1 but Item 2 of the Provincial List.
    The  contention in this form seems to me to  be  plainly
unacceptable.  I agree with Mr. Setalvad that the  different
topics  in the same Legislative List should not be  read  as
exclusive  of one another.  As was observed by  Sir  Maurice
Gwyer  in The United Provinces v. Atiqa Begum(1), "the  sub-
jects  dealt  with in the three Legislative  Lists  are  not
always  set  out  with scientific definition.  It  would  be
practically  impossible for example to define each  item  in
the Provincial List in such a way as to make it exclusive of
every other 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 a word of broad and  general
import   ......  I think that none of the items in the  List
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."  As there can be no question  of
conflict  between  two items in the same List, there  is  no
warrant  for restricting the natural meaning of one for  the
simple  reason  that the same subject might in  some  aspect
come within the purview of the other.
    The difficulty,-however, arises when we come to entry 53
of List I. Under this entry, it is the Central
(1)  Re County Courts of British, Columbia--21 S.C.R. 446.
(2) [1940] F.C.R. 110 at p. 134.
102
Legislature that has been given the power of legislating  in
regard  to jurisdiction and powers of all courts except  the
Federal Court in respect to any of the matters in List L The
difficulty that one is confronted with, is that if Item 1 of
the  Provincial  List  is taken to  empower  the  Provincial
Legislature to invest a court with jurisdiction with respect
to all subjects no matter in whichever List it might  occur,
a  clear  conflict is bound to arise between Item 1  of  the
Provincial  List  and  Item 53 of the Central  List;  and  a
Provincial  legislation  trespassing   upon  the   exclusive
field  of  the Centre  would be void and  inoperative  under
section 100 of the  Constitution Act.  This being the  posi-
tion,  a  way  would have to  be found out  to   avoid   the
conflict.  As  the Privy Council observed in the case of the
Citizens Insurance Company of Canada v. Parsons(2) "it could
not have been the intention that a conflict should exist and
in  order to prevent such a result the two sections must  be
read  together and the language of the one interpreted   and
where  necessary  modified  by the other."
    Mr. Seervai suggests that the proper way of  reconciling
this apparent conflict would be to read the words  "adminis-
tration of justice and constitution of courts" occurring  in
entry  1 of the Provincial List as exclusive of  any  matter
relating to jurisdiction of courts.  The Provincial Legisla-
ture  can only set up or constitute courts but their  juris-
diction or power of deciding cases must be derived from  the
Central  or  the Provincial Legislature or, from  either  of
them  in accordance with  the subjects to which such  juris-
diction  relates.  The Provincial Legislature can endow  the
court with jurisdiction in respect to any matter in List  II
and  the Central Legislature can do the same with regard  to
subjects  specified  in List I.  So far as  matters  in  the
Concurrent  List are concerned, either of  the  Legislatures
can make provisions in respect of them subject to the condi-
tions laid down in section 107 the Constitution Act.
(2).A.C. ,96 at p. 109.
103
    This  argument, though apparently plausible, cannot,  in
my  opinion, be accepted as sound.  It is to be  noted  that
the  right  to set up courts and to provide  for  the  whole
machinery of administration of justice has been given exclu-
sively  to the Provincial Legislature. Under section 101  of
the  North America Act, the Parliament of Canada has  a  re-
serve of power to create additional courts for better admin-
istration of the laws of Canada but the Indian  Constitution
Act  of  1935 does not give any such power  to  the  Central
Legislature.  Courts are to be established by the Provincial
Legislature alone.  The word 'court' certainly means a place
where  justice is judicially administered,  The  appointment
of Judges and officers or the mere setting apart of  a place
where-the Judges are to meet, are not sufficient to  consti-
tute a  court.  A court cannot administer justice unless  it
is vested with jurisdiction to decide cases and "the consti-
tution    of   a   court    necessarily     includes     its
jurisdiction."(1)  If Mr. Seervai's contention is  accepted,
the result will be that when a Provincial Legislature estab-
lishes a civil court, it can only be invested with jurisdic-
tion to decide cases in respect to matters coming within the
Provincial  List.   Such court can have no power  to  decide
cases  relating to any matter which is enumerated in List  I
so long as the appropriate Legislature does not confer  upon
it  the  requisite authority.  Thus an  ordinary  Provincial
Court established to decide civil suits would be entitled to
entertain  all money claims but not a claim on a  promissory
note; nor could it entertain a suit for recovery of corpora-
tion tax, for Negotiable Instruments and corporation tax are
subjects  of the Central List.  This certainly was  not  the
scheme  of the Constitution Act.  In my opinion, the  proper
way  to  avoid a conflict would be to read entry  1  of  the
Provincial List, which contains the only provision  relating
to  constitution  of courts and administration  of  justice,
along  with  the group of three entries, viz., entry  53  of
List  I,  entry 2 of List II and entry 15 of List  III  with
which it is supposed to be in conflict,
(1)  Vide Clement's Canadian Consitution, 3rd Edn., p. 527,
104
and  to interpret the language of one by that of the  other.
Entry  1 of List II uses the expressions "administration  of
justice  and  constitution  of all courts"  in  a  perfectly
general manner.  No particular subject is specified to which
the  administration of justice might relate or for  which  a
court  might  be  constituted.  It   can,   therefore,    be
legitimately  interpreted to refer to a general jurisdiction
to decide cases not limited to any particular subject.   The
other  three items  on the other hand relate  to  particular
matters  appearing in the three Lists and what they  contem-
plate  is the vesting of jurisdiction in courts with  regard
to  such specific items only.  In one case the  jurisdiction
is 'general' as is implied in the expression "administration
of  justice", while in the other three the  jurisdiction  is
'particular'  as  limited to particular  matters  and  hence
exclusive.  I agree with my learned brother Patanjali Sastri
J.  that  one  approved way of determining the  scope  of  a
legislative  topic is to have regard to what has been  ordi-
narily treated as embraced within that topic in the legisla-
tive  practice  of the country(2); and if that test  is  ap-
plied, the interpretation suggested above would appear to be
perfectly  legitimate.  The distinction between general  and
particular  jurisdiction has always been recognised  in  the
legislative   practice of this country prior to the  passing
of  the  Constitution  Act of 1935 and   also  after   that.
There  have  been always in  this  country civil  courts  of
certain   classes and categories graded in a certain  manner
according to their pecuniary jurisdiction  and  empowered to
entertain  and  decide all suits of a  civil  nature  within
particular localities.  Particular  jurisdiction again  have
been  conferred on some one or the other of these courts  to
try cases relating to certain specified matters. Thus  there
have  been  special jurisdictions  created  for  insolvency,
probate  or guardianship proceedings, for deciding  disputes
relating  to compulsory acquisition of land and for  dealing
with  cases  arising under the Rent Acts  or  the  different
legislations passed in recent years
(2) vide Croft v. Dunphy. [1933] A.C. 156.
105
for  scaling  down exorbitant rates of  interest  or  giving
relief to rural debtors. Similar instances may be cited with
regard  to  conferring of special jurisdiction  in  criminal
cases.
    There will be no difficulty in interpreting in a  proper
manner  the different entries in the Legislative  Lists  re-
ferred  to  above if this distinction  between  general  and
special jurisdiction is kept in view.  The entire scheme  of
the Constitution Act of 1935 is to vest the power of  estab-
lishing courts upon the Provincial Legislature.  The Provin-
cial Legislature can endow the courts which it sets up  with
general jurisdiction to decide all cases which, according to
the law of the land, are triable in a court of law, and  all
these powers can be exercised under entry I of List II.   If
the  Central  Legislature  or  the  Provincial   Legislature
chooses to confer special jurisdiction on certain courts  in
respect to matters enumerated in their appropriate  legisla-
tive  lists, they can exercise such powers under  the  three
entries specified above. But the exercise of any such powers
by the Central Government would not m any way conflict  with
the  powers exercisable by the Provincial Legislature  under
entry 1 of List II. The expression 'general' must always  be
understood  as being opposed to what is 'special' or  exclu-
sive. If the Central Legislature vests any particular juris-
diction  upon a court in respect to a Central  matter,  that
matter  would cease to be a general matter and  consequently
the  court having general jurisdiction would no longer  deal
with that, but the general jurisdiction of such courts would
not be affected thereby.  The contents of general  jurisdic-
tion are always indeterminate and are not susceptible of any
specific enumeration.  In this view, I do not think that  it
would be at all necessary to invoke 'the pith and substance'
doctrine in avoiding the possibility of incidental encroach-
ment by the Provincial Legislature upon Central subjects  in
regard  to  conferring  jurisdiction upon  courts.   If  the
expression  'jurisdiction' in entry 53 of List I  means  and
refers  to special jurisdiction only, there cannot  be  even
an incidental encroachment upon such special jurisdiction
14
106
by  reason  of the conferring of general  jurisdiction  upon
courts by the Provincial  Legislature  under entry 1 of List
II.   As I have said already what is 'special' or  made  so,
will  automatically cease to be in the category of  what  is
'general' and no question of a conflict would at all arise.
    It  may  be pointed out in this connection that  in  the
Canadian  Constitution also, the general scheme is to  carry
on  administration of justice throughout Canada through  the
medium of provincial courts.  Subject to the residuary power
reserved to the Dominion Parliament under section 101 of the
North  America  Act, the Constitution has  assigned  to  the
provinces the exclusive power in relation to  administration
of  justice  including  the  maintenance,  constitution  and
organization   of  courts.  There is no limitation  in   any
provincial  court  along the line of  division  that  exists
between  matters within the legislative  competence of   the