dedol-hf/india-case-legal-rag huggingface dataset:
4 of the Act provided that subject to the exceptions  speci-
fied in 8. 3 the Provincial Government may, by  notification
in  the official Gazette, invest the City Civil  Court  with
jurisdiction to
52
receive, try and dispose of all suits and other  proceedings
of  civil  nature arising within the Greater Bombay  and  of
such  value not exceeding Rs. 25,000 as may be specified  in
the notification. Section 12 barred the jurisdiction of  the
Bombay High Court to try suits and proceedings cognizable by
the  City Civil Court.  In exercise of the powers  conferred
by  s. 4 the Provincial Government invested the  City  Civil
Court  with jurisdiction to receive, try and dispose of  all
suits  and proceedings of a civil nature not  exceeding  Rs.
25,000 in value.  The first respondent instituted a suit  in
the  High Court of Bombay for recovery of Rs. 11,704 on  the
basis  of a promissory note, contending that the  Provincial
Legislature had no power to make laws with respect to juris-
diction  of  courts in regard to suits on  promissory  notes
which  was  a matter covered by item 53 of List I,  and  the
Bombay  City  Civil Court Act of 1948  was  therefore  ultra
vires.   It was further contended on his behalf that in  any
event s. 4 of the Act was invalid   as it involved a delega-
tion of legislative powers to the Provincial Government  and
that the suit was therefore cognisable by the High Court.
Held by the Full Court.--(i) that the impugned Act was a
law  with respect to a matter enumerated in List II and  was
not ultra vires; (ii)that, as the legislature had  exercised
its judgment and determined that the City Civil Court should
be  invested with pecuniary jurisdiction up to  Rs.  9,5,000
and  all that was left to the discretion of  the  Provincial
Government  was  the determination of the  conditions  under
which the court should be invested with the enhanced  juris-
diction, s. 4 did not involve any delegation of  legislative
powers  but was only an instance of conditional  legislation
and  was  not ultra vires or invalid on this  ground;  (iii)
inasmuch as the impugned Act was in pith and substance a law
with  respect to a matter covered by List II, the fact  that
it incidentally affected suits relating to promissory  notes
(a  subject falling within items 28 and 53 of List I)  would
not  affect  its validity and the suit was  accordingly  not
cognisable by the High. Court.
    Per FAZL ALI, MEHR CHAND MAHAJAN and MUKHERJEA JJ. --The
power  of the Provincial Legislature to make laws  with  re-
spect  to "administration of justice" and "constitution  and
organisation of all courts" under item 1 of List II is  wide
enough to include the power to make laws with regard to  the
jurisdiction of courts established by the Provincial  Legis-
lature; the object of item 53 of List I, item 9, of List  II
and  item 15 of List III is to confer special powers on  the
Central and the Provincial Legislatures to make laws  relat-
ing to the jurisdiction of courts with respect the  particu-
lar  matters that are referred to in Lists I and II  respec-
tively and the Concurrent List, and these provisions do  not
in  any   way curtail the power of   Provincial  Legislature
under  Item I of List II to make laws with regard to  juris-
diction  of  courts  and to confer  jurisdiction  on  courts
established  by it to try all causes of a civil nature  sub-
ject to the power of the Central and
53
Provincial Legislatures to make special provisions  relating
to particular subjects referred to in the Lists.
   Per  PATANJALI  SASTRI and DAS JJ.--The  words"  adminis-
tration  of justice" and "constitution and  organisation  of
all  courts"  in item 1 of List II must be understood  in  a
restricted  sense excluding from their  scope  "jurisdiction
and powers of courts" as the latter subject is  specifically
dealt  with in item 2 List II.  Item 1 of List II  does  not
therefore  by itself authorise legislation with  respect  to
jurisdiction and powers of courts, and the legisltive  power
under  item  9. in regard to "jurisdiction  'and  powers  of
courts  ", which can legitimately be exercised with  respect
to  any  of the matters in List II, can  be  exercised  with
respect  to administration of justice as this is one of  the
matters  enumerated in that List, with the result  that  the
subject of general jurisdiction of courts is brought  within
the  authorised area of provincial legislation; and  as  the
Provincial  Legislature  is thus   competant to make  a  law
with  respect to the general jurisdiction of the court,  the
apparent  conflict with the central legislative power  under
item  53 of List I can be resolved by invoking the  doctrine
of pith and substance and incidental encroachment.
    [The  legislative  practice  which  prevailed  in  India
before  1935  was relied on in this case in support  of  the
view  that the Provincial Legislatures had power  under  the
constitution  of 1935 to invest courts constituted  by  them
with general pecuniary jurisdiction].
    Quaere:  Whether it was not open to the Legislatures  of
India under the Government of India Act of 1935 to  delegate
their legislative powers to other agencies.
    Queen v. Burah (59. A 178).applied.  Jatindra Nath Gupta
v.  Province  of  Bihar  (1949  F.C.R.  596)  distinguished.
Mulchand  Kundanmmal Jagtiani v. Raman (51 Born. L.R. 86  :,
United Provinces v. Atiqa Begum 1940 F.C.R. 110)and Prafulla
Kumar Mukherjea and Others v. Bank of Commerce, Khulna (1947
F.C.R. 28) referred
JUDGMENT:
APPELLATE JURISDICTION: Civil Appeal No. 10 of  1950.
Appeal from a Judgment of the High Court of  Judicature
at  Bombay (Chagla C.J. and Tendolkar J.) dated 29th  March,
1950, in Suit No. 24 of 1950.
    1950.  December  20.  The Court  delivered  Judgment  as
follows:
    FAZL  ALI  J.--I have read the judgment prepared  by  my
brother,  Mahajan J., and generally agree with  his  conclu-
sions and reasonings, but, having regard to
54
the  importance of the points raised, I wish to add a  short
judgment of my own.
There  are really three questions to be decided in  this
appeal, and they are as follows :--
    (1)  Whether the Bombay City Civil Court Act, 1948  (Act
XL of 1948), is ultra vires the Legislature of the State  of
Bombay;
    (2)  Whether in any event section 4 of the above Act  is
ultra vires the State Legislature; and
    (3) Whether the Bombay High Court has jurisdicion to try
the suit.
    The first and the third questions have been answered  by
the  High  Court in favour of the appellant and  the  second
question has been answered in favour of the respondents.  In
this Court, the appellant attacked the judgment of the  High
Court in so far as it concerns the second question,  whereas
the  first respondent attacked it in so far as  it  concerns
the first and the third questions.
    The  Bombay City Civil Court Act purports to  create  in
additional  civil court for Greater Bombay having  jurisdic-
tion  to  try, receive and dispose of all  suits  and  other
proceedings of a civil nature not exceeding a certain value,
subject to certain exceptions which need not be referred  to
here. It was contended on behalf of the respondents that the
Act  is ultra vires the Legislature of the State of  Bombay,
because it confers jurisdiction on the new court not only in
respect of maters which the Provincial Legislature is compe-
tent to legislate upon under List II of the 7th Schedule  to
the  Government  of India Act, 1935, but also in  regard  to
matters  in  respect of which only the  Central  or  Federal
Legislature  can  legislate under List I (such as,  for  in-
stance,  promissory  notes,  which is one  of  the  subjects
mentioned in entry 28 of List I).  To understand this  argu-
ment, it is necessary to refer to entry 53 of List , entries
1  and  2  of List II and also entry 15 of  List  II.  These
entries run as follows :--
Entry 53, List I :---
55
    "Jurisdiction and powers of all courts except the Feder-
al  Court,  with  respect  to any of  the  matters  in  this
List    ......."
Entries 1 and 2, List II :--
    "1   ......  the administration of  justice;constitution
and   organisation  of  all  courts   except   the   Federal
Court  ......  "
    "2.  Jurisdiction  and powers of all courts  except  the
Federal  Court, with respect to any of the matters  in  this
List  ......  "
Entry 15, List III :--
    "Jurisdiction and powers of all courts except the Feder-
al Court, with respect to any of the matters in this List."
    The  respondents'  contention may appear  at  the  first
sight  to be a plausible one, but, in my opinion, it is  not
well-founded  in law. For the purpose of correctly  deciding
the  question  raised, we must first try to  understand  the
meaning  of  the  following items in entry  1  of  List  II,
"administration of justice, constitution and organization of
all  courts except  the Federal Court." A reference  to  the
three  Legislative Lists shows that "administration of  jus-
tice"  is  entirely a provincial subject on which  only  the
Provincial  Legislature can legislate. The same  remark  ap-
plies to "constitution and organization of all courts except
the  Federal Court." The expression "administration of  jus-
tice"  has  a wide meaning, and includes  administration  of
civil as well as criminal justice, and in my opinion entry 1
in  List  II, which I have quoted, is a complete  and  self-
contained entry. In this entry, no reference is made to  the
jurisdiction  and powers of courts, because the  expressions
"administration  of justice"  and "constitution and  organi-
zation of courts", which have been used therein without  any
qualification or limitation, are wide enough to include  the
'power  and jurisdiction of courts, for how can  justice  be
administered  if  courts have no power and  jurisdiction  to
administer it, and how can courts function without any power
or jurisdiction. Once this fact is clearly
56
grasped,  it  follows that, by virtue of the words  used  in
entry  1 of List II, the Provincial Legislature  can  invest
the courts constituted by it with power and jurisdiction  to
try every cause or matter that can be dealt with by a  court
of  civil or criminal jurisdiction,and that  the  expression
"administration  of justice" must necessarily  include   the
power to try suits and proceedings of a civil    as well  as
criminal nature, irrespective of who the parties to the suit
or proceeding or what its subject-matter may be.  This power
must  necessarily include the power of defining,  enlarging,
altering,  amending and diminishing the jurisdiction of  the
courts  and  defining their jurisdiction  territorially  and
pecuniarily.
    The  question  then arises as to the  exact  meaning  of
entry 2 of List II and entry 53 of List I, which are said to
militate against the above construction.  These entries,  in
my opinion, confer special powers on Provincial and  Central
Legislatures,  as opposed to the general power conferred  on
the  Provincial Legislature by entry 1 of List II, the  spe-
cial powers being the logical consequence or concomitant  of
the  power of the two Legislatures to legislate with  regard
to  the  matters included in  their  respective  Legislative
Lists. The effect of these entries is that while legislating
with  regard to the matters in their respective  Legislative
Lists,  the  two  Legislatures are competent  also  to  make
provisions  in the several Acts enacted by them,  concerning
the  jurisdiction  and  powers of courts in  regard  to  the
subject-matter of the Acts,  because otherwise the  legisla-
tion may not be quite complete or effective. The words  used
in entry 2 of List II and entry 53 of List I are wide enough
to empower the two Legislatures to legislate  negatively  as
well as affirmatively with regard to the jurisdiction of the
courts  in  respect of the matters within  their  respective
legislative ambits. In other words, they can exclude or  bar
the  jurisdiction of the courts in regard to those  matters,
and  they can also confer special  jurisdiction  on  certain
courts.  They can also, apart from the general  power  which
the courts usually exercise, confer power on the courts to
57
pass certain special orders, instances of which I shall give
later. In this connection, reference may be made to  section
9 of the Code of Civil Procedure, which provides that---
"the Courts shall have jurisdiction to try all suits  of
a civil nature' excepting  suits of  which their  cognizance
is either expressly or impliedly barred."
    This  section obviously  postulates among  other  things
the  barring  of  the jurisdiction of the  civil  courts  by
Legislatures with respect to particular classes of suits  of
a civil nature, and the statute-book abounds in instances in
which  the jurisdiction of the civil courts is barred  under
Acts  passed  by the Central  and  Provincial  Legislatures.
There are also many Acts providing that any suit or proceed-
ing  concerning the subjects matters of those Acts shall  be
triable  by  the  court or courts  specified  therein.  Such
provisions are to be found in a number of Acts enacted  both
prior to and after the enactment of the Government of  India
Act,  1935, and there can be no doubt that the British  Par-
liament-while  enacting  that  Act was fully  aware  of  the
existing  legislative  practice obtaining in this country as
well  as  of the fact that the provisions in  question  were
sometimes  necessary and therefore it empowered the  Central
and  Provincial Legislatures to make them under entry 53  of
List  I  and entry 2 of List II, respectively. This,  in  my
opinion,  is the true meaning of these entries, and it  also
explains why a separate entry was necessary enabling the two
Legislatures  to  legislate  with regard to  the  power  and
jurisdiction of the courts in respect of the subject-matters
mentioned in the three Legislative Lists. But for an express
provision  like that made in the entries referred to  above,
the  two  Legislatures might not have been  able  to  confer
special jurisdiction on the courts in regard to the  matters
set  out in the Legislative Lists, nor could they have  been
able  to  bar  the jurisdiction of the  ordinary  courts  in
regard to them, however necessary or desirable such a course
might have appeared to them.
8
58
    It should be noted that the words used in these  entries
are:   "jurisdiction and power". "Power" is a  comprehensive
word,  which  includes all the  procedural  and  substantive
powers  which  may  be exercised by a court,  but  the  full
significance  of the use of the word in the context  can  be
grasped only by reading a large number of local and  special
Acts in which power has been given to Courts to pass certain
special and unusual orders.  For example, section 13 of  the
Indian Aircraft Act, 1934, provides that-
    " where any person is convicted of an offence punishable
under  any  rule made under clauses  ......   the  Court  by
which he is convicted may direct that the aircraft or  arti-
cle  or substance, as the case may be, in respect  of  which
the  offence has been committed, shall be forfeited  to  His
Majesty."
Reference  may also be made to section 24 of the  Indian
Arms Act, 1878, which provides that-
    "when  any person is convicted of an offence  punishable
under  this  Act, committed by him in respect of  any  arms,
ammunition or military stores, it shall be in the discretion
of the convicting Court or Magistrate further to direct that
the  whole or any portion of such arms, ammunition or  mili-
tary  stores,  and any vessel ..................   shall  be
confiscated."
(See  also  section 10 of the Central Excises  and  Salt
Act, 1944 [Act I of 1944], and section 13 of the Food  Adul-
teration  Act,  1919 [Bengal Act VI of 1919], which  are  in
similar terms, and the various Acts relating to  money-lend-
ers  and  money-lending which confer special  power  on  the
courts  of reopening several kinds of transactions  for  the
relief of debtors.)
    It  seems to me that the word "power" was added  to  the
word "jurisdiction", in entry 53 of List I, entry 2 of  List
II,  and  entry 15 of List III, in order to enable  the  two
Legislatures  to  grant  special powers like  those  I  have
mentioned to the courts which are to deal with the  subject-
matter of any special legislation.
    A  reference to the Acts passed after the  enactment  of
the Government of India Act, 1935, will show that
59
special provisions with regard to the jurisdiction of courts
have  been  made even after the passing of that  Act,  in  a
large number of Central and local Acts. Confining  ourselves
to  the Acts passed by the Bombay Legislature, since we  are
concerned  here with one of such Acts, we find that  in  The
Bombay Probation of Offenders Act, 1938 (Bombay Act No.  XIX
of 1938), section a empowers the following courts "to  exer-
cise powers under the Act,--(a) the High Court, (b) a  Court
of Session, (c) a District Magistrate, (d) a  Sub-Divisional
Magistrate,  (e) a salaried Magistrate  ......  " Similarly,
in  the Bombay Agricultural Produce Markets Act, 1939,  sec-
tion  23  provides that "no offence under this  Act   ......
shall  be tried by a Court other than that of  a  Presidency
Magistrate,  or a Magistrate of the First Class or a  Magis-
trate  of the Second Class specially empowered in  this  be-
half."  Section 11 of the Bombay Cotton Control  Act,  1942,
provides  that  "no  criminal court inferior to  that  of  a
Presidency  Magistrate or a Magistrate of the  Second  Class
shall  try any offence under this Act".  Section 19  of  the
Bombay Sales of Motor Spirit Taxation Act, 1946, and section
5  of the Bombay Harijan Temple Entry Act, 1947, are  provi-
sions which exclude the jurisdiction of courts under certain
circumstances.  Similar instances may be multiplied from the
Acts of the Central Legislature and other Provincial  Legis-
latures, but, in my opinion, the instances I have quoted are
sufficient  to  show (1) that the practice  which  prevailed
before the Government of India Act has continued even  after
its  enactment,  and (2) that the  words  "jurisdiction  and
powers" have been consistently construed to bear the meaning
which I have attributed to them.
    The  interpretation  which is sought to be  put  on  the
entries  by  the  respondent is in my opinion  open  to  the
following objections :-
    (1).It  involves the curtailment of the meaning  of  the
expression  "administration of justice" in such a way as  to
rob  it of its primary content--the jurisdiction and  powers
of the court, without which justice cannot be administered.
60
    (2) It makes it necessary to read entry 2 of List II  as
part  of entry 1 of the same List, though it has been  sepa-
rately numbered as an independent entry.  This is opposed to
the  scheme followed in the three Legislative  Lists,  which
seems  to be that each particular entry should relate  to  a
separate subject or group of cognate subjects, each  subject
or  group  of  subjects being  independent  of   the  others
(subject  only to incidental overlapping). The  construction
suggested  by the respondents makes it necessary  to  assume
that  though according to their line of reasoning the  words
"jurisdiction and powers of courts, etc." occurring in entry
2  of  List II should have been put in entry 1 of  the  same
List, being intimately connected with the subject of "admin-
istration  of justice and the constitution and  organization
of  courts",  it was without any  apparent  reason  numbered
separately and made an independent entry.
    (3) The suggested construction  would exclude from   the
jurisdiction  of  the  Provincial  Courts a large number  of
matters  which normally come before courts exercising  civil
or criminal jurisdiction and, if it is accepted, the  courts
will  not be able to function in  the fullest sense   unless
both  the Provincial and Central Legislatures have by piece-
meal  legislation  or  otherwise exhausted  their  power  of
legislating on all the subjects comprised in Lists II and  I
respectively.   Even after they have exhausted  such  power,
the courts will not be able to deal with important  matters,
such as contracts, transfer of property, arbitration,  wills
and  succession,  criminal  law, etc.,  which  are  subjects
mentioned in List III, until one of the two Legislatures has
legislated  in  regard to those subjects, which  raises  two
important  questions:-(1) Which of the two Legislatures  has
to do it first; and (2) How is the conflict to be avoided ?
    That  the construction put by the respondents will  lead
to  anomalous results which could not have been  within  the
contemplation  of the British Parliament while enacting  the
Government-of India Act, 1935, may be illustrated by one  or
two examples. Reference
61
might  here be made to entry 26 of List I, which deals  with
"carriage  of passengers and goods by sea or by b air."   It
should  be supposed that if any of the goods carried by  air
are  lost  and a suit is instituted in regard to  them,  the
suit  will be triable by the court having jurisdiction  over
the  matter under the Civil Procedure Code, subject  to  any
special  legislation on the subject by the Central  Legisla-
ture,  in spite of the fact that the carriage of  goods  and
passengers  by sea or by air is a subject mentioned in  List
I. But, on the view propounded before us by the  respondent,
the  Provincial  civil courts will not be competent  to  try
such  a  suit,  unless they are empowered to do  so  by  the
Central Legislature.  In order to show to what absurd result
this  doctrine  may  be pushed, and in order  to  avoid  the
criticism  of taking for granted what is in controversy,  we
may  take a very extreme example, because the  soundness  of
the respondents' contention can be tested only by trying  to
find  out what would happen if we were to stretch it to  the
utmost limit to which it can be stretched.  Entry 13 in List
I  is: "the Banaras Hindu University and the Aligarh  Muslim
University." Under entry 53 of List I, the Central  Legisla-
ture  has power to legislate in regard to  the  jurisdiction
and  powers  of courts in respect of the  subject-matter  of
entry 13. It may therefore be supposed, having regard to the
wide  language  used  in entry 13, that it is  open  to  the
Central  Legislature  to  enact that suits  in  which  these
Universities  are  concerned as plaintiff or  as  defendant,
will  be triable only by the particular court  mentioned  in
the  enactment concerned and that no other court shall  have
jurisdiction  in regard to such suits,  It is  difficult  to
think  that until such a legislation is made, a court  which
would otherwise be the proper court, has no jurisdiction  to
try any suit in which one of these Universities is a  party,
no matter what the subject-matter of the suit may be.  I  am
certain that the framers of the Government of India Act  did
not contemplate such a result.
    We  all  know that at the date when  the  Government  of
India Act, 1935, was passed, there were in existence
62
in  the different Provinces a large number of courts of  law
and  the administration of justice throughout the  Provinces
was  in  the  hands of these provincial  courts.  The  civil
courts in the Province used to try all suits and proceedings
of  a civil nature which are triable under section 9 of  the
Civil  Procedure Code, and the criminal courts used  to  try
all  criminal  cases  which are triable under  the  Code  of
Criminal  Procedure.   The  jurisdiction and  power  of  the
courts were not confined to cases in regard to the  subjects
stated in List II, nor were they debarred from dealing  with
cases  relating to matters which have been assigned to  List
I.   The jurisdiction of the courts depended in civil  cases
on a "cause of action" giving rise to a civil liability, and
in  criminal cases on the commission of an offence,  and  on
the provisions made in the two Codes of Procedure as to  the
venue of the trial and other relevant matters.  It seems  to
me  that the Government of India Act, 1935, did not  contem-
plate any drastic change in the existing system of  adminis-
tration of justice, but what it contemplated was  that  that
system  should  continue subject to  future  legislation  by