TaxTMI 
TaxTMI 
1950 (12) TMI 33
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....tacked 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. 4. The Bombay City Civil Court Act purports to create an additional civil court for Greater Bombay having jurisdiction 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 matters which the Provincial Legislature is competent 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 instance, promissory notes, which is one of the subjects mentioned in entry 28 of List I). To understand this argument, it is necessary to refer to entry 53 of List I, entries 1 and 2 of List II and also entry 15 of List III. These entries run as follows....
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....nature, irrespective of who the parties to the suit or proceeding or what is 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 pecuniary 9. 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 special 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 legislation may not be quite complet....
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....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. 11. 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 article or substance, as the case may be, in respect of which the offence has been committed, shall be forfeited to His Majesty." 12. 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 punis....
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..... Similar instances may be multiplied from the Acts of the Central Legislature and other Provincial Legislatures, 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. 16. 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. (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 separately 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 i....
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.... 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 Legislature 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 ....
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....we might also refer to entry 4 of List III. His contention was that the impugned Act having had the assent of the Governor-General, it would be permissible to see what powers the Provincial Legislature could exercise under Lists II and III taken together. If the course which he suggests is adopted, then the subjects on which the Provincial Legislature can legislate would be : (1) administration of justice; (2) constitution and organization of courts; and (3) civil procedure, including all matters included in the Code of Civil Procedure at the date of the passing of the Government of India Act, 1935. One of the matters included in the Civil Procedure Code is the jurisdiction of courts. Section 9 of the Code provides, as I have already stated, 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. There are also provisions in the Code dealing with the territorial and pecuniary jurisdiction of the courts. The three entries will thus cover exactly the field which is covered by item 14 of Section 92 of the Canadian Constitution which comprises the following matters : "administration of....
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....d 33 of List I. Entry 28 relates to "cheques, bills of exchange, promissory notes and other like in instruments". Entry 53, as already stated, relates to "jurisdiction and powers of courts with respect to any of the matters in List I." It is contended on behalf of the respondent that the effect of these two entries, when they are read together, is that no court can try a suit relating to a promissory note, unless it is invested with the jurisdiction to try such a suit by the Central Legislature by virtue of the power given by entry 53 of List I. The question so raised is covered by the answer to the first question, and I shall only add that the answer already given to that question finds some support in the case of Prafulla Kumar Mukherjee and Other v. Bank of Commerce Limited, Khulna [1947] F.C.R. 28, in which the arguments of the respondents before the Privy Council proceeded on the same lines as the arguments of the respondents before us. The question raised in that case was as to the validity of the Bengal Money-lenders' Act, 1940, which limited the amount recoverable by a money-lender on his loans and interests on them, and prohibited the payments of sums larger than those....
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....ction would be due to no other authority than the Provincial Legislature itself and the court would exercise that jurisdiction by virtue of the Act itself. As several of my learned colleagues have pointed out, the case of Queen v. Burah 3 A.C. 889, the authority of which was not questioned before us, fully covers the contention raised, and the impugned provision is an instance of what the Privy Council has designated as conditional legislation, and does not really delegate any legislative power but merely prescribes as to how effect is to be given to what the Legislature has already decided. As the Privy Council has pointed out, legislation conditional on the use of particular powers or on the exercise of a limited discretion entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing, and in many instances it may be highly convenient and desirable. Examples of such legislation abound in England, America and other countries. As some of the American Judges have remarked, "there are many things upon which wise and useful legislation must depend which cannot be known to the law-making power and must therefore be the subject of enquiry and determination o....
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....eous, the first by the first respondent and the second by the appellant. 27. On the first point, learned counsel for the first respondent urged that Section 100 of the Government of India Act, 1935, read with entries 53 of List I, 2 of List II and 15 of List III, the relevant parts of which are in identical terms, namely, "jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this List", conferred power on Legislatures in British India to make laws with respect to jurisdiction of courts only in relation to matters falling within their respective legislative fields, and that, therefore, the expressions "administration of justice" and "constitution and organisation of courts" in entry 1 of List II, although they might be wide enough, if that entry stood alone, to include the topic of "jurisdiction and powers of courts", should not be construed in that comprehensive sense as such construction would give no effect to the limiting words in entry 2 which would then become meaningless. Indeed if those expressions in entry 1 included the power to legislate with respect to jurisdiction also, there would be no need for entry 2, while, on the ....
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....AIR1939Cal628 and led a Division Bench of the Calcutta High Court to construe the expression "civil procedure" occurring in the former entry in a "limited sense" as excluding jurisdiction and powers of courts. After referring to the decision of the Judicial Committee in In re Marriage Reference [1912] A.C. 880 where "marriage and divorce" in the Dominion List was construed as excluding matters relating to the "solemnisation of marriage in the province" because the latter topic was specifically included in the Provincial List, the learned Judges observed : "The position is similar here. 'Civil procedure' in the Concurrent Legislative List must be held to exclude matters relating to jurisdiction and powers of courts since special provision is made for those matters elsewhere in the lists." "To hold otherwise", they pointed out, "would be completely to wipe out the second entry in the Provincial Legislative List". Learned counsel for the first respondent strongly relied on that decision and suggested that, if it had been brought to the notice of the learned Judges in Mulchand v. Raman 51 B.L.R. 86, their decision might well have been the other way. 29. On the other hand, th....
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....diction on courts with respect to administration of justice, that is to say, general jurisdiction to administer justice by adjudicating on all matters brought before them, except, of course, matters excluded expressly or by implication either by an existing law continued in force or by a statute passed by the appropriate legislature under the entries in the three Lists relating to jurisdiction and powers of courts. In other words, though "administration of justice" in entry 1 does not authorise legislation with respect to jurisdiction and powers of courts, the legislative power under entry 2 in regard to the latter topic, which can be legitimately exercised "with respect to any of the matters in this List," can be exercised with respect to administration of justice, one of the matters comprised in that List, with the result that the subject of general jurisdiction is brought within the authorised area of provincial legislation. This view thus leaves a field in which entry 2 could apply. 31. When once the Provincial Legislature is found competent to make a law with respect to the general jurisdiction of courts, the apparent conflict with the Central Legislative power under entry ....
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.... the priority of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may incidentally affect any item in its list or in each case has one to consider what the substance of an Act is and whatever its ancillary effect, attribute it to the appropriate list according to its true character ? In their Lordships' opinion the latter is the true view." 32. The test for determining whether in pith and substance a particular enactment falls within one list or another is further elucidated in a passage quoted with approval from Lefroy's Treatise on Canadian Constitutional Law in the judgment of the Federal Court in the Bank of Commerce case [[1944] F.C.R. 126, 139.]. "It seems quite possible" says the learned writer, summarising the effect of the Privy Council decisions on the point "that a particular Act regarded from one aspect might be intra vires of a Provincial Legislature and yet regarded from another aspect might also be intra vires of the Dominion Parliament. In other words, what is properly to be called the subject-matter of an Act may depend upon what is the true aspect of the Act. The cases which illustrated this principle show, b....
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....pt those that are specifically excluded or brought within the cognizance of tribunals with special or limited jurisdiction extending only to those matters. The grading of the court too in their hierarchy has reference to the pecuniary and territorial limits rather than to the nature and kind of the subject-matter which they are empowered to deal with. It is reasonable to presume that this system of organisation of courts in British Indian was known to the framers of the Government of India Act, 1935, and it cannot be readily supposed that they wanted to introduce a radical change by which the power of constituting courts and providing for administration of justice is to be vested in the Provincial Legislatures, while jurisdiction has to be conferred by piecemeal legislation by the Federal and Provincial Legislatures with respect to specific matters falling within their respective legislative fields which are by no means capable of clear demarcation. The constitutional puzzles which such a system is likely to pose to the legislatures no less than to the courts and the litigant public in the country whenever a new court is constituted in finding out by searching through the legislati....
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.... by the City Civil Court, and not by the High Court. As the question of jurisdiction was of importance, the matter was referred to the sitting Judge in Chambers. On 23rd February, 1950, the learned Judge admitted the plaint holding that Section 4 of the Act was ultra vires the Provincial Legislature and the notification issued under it was consequently inoperative and that the High Court had jurisdiction to hear the suit. The first respondent thereupon took out summons for judgment against the second respondent. On the application of the Advocate-General, the State of Bombay was impleaded as defendant at this stage and the proceedings were transferred to a Division Bench of the High Court. The Division Bench upheld the view of the Judge in Chambers and returned the cause to him for disposal on the merits. The State of Bombay, dissatisfied with this decision, has preferred the present appeal. 38. Two questions have been canvassed in this appeal : (1) whether the City Civil Court Act is ultra vires the legislature of the Province of Bombay in so far as it deals with the jurisdiction and powers of the High Court and City Civil Court with respect to matters in List I of the Seventh ....
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....it or proceeding from the City Court." 40. On the second question the High Court held that Section 4 of the Act was inoperative as it purported to delegate the law-making powers of the legislature to an outside authority and hence the notification issued in pursuance of it had no effect whatsoever and did not take away the jurisdiction of the High Court to try the present suit. On the first question the High Court placed reliance on its own earlier decision in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah 51 Bom. L.B. 86, and held that the Act was intra vires the Bombay Legislature. The appellant assails the correctness of the decision of the High Court on the second point and supports the decision on the first point. The first respondent, on the other hand, while supporting the decision of the High Court on the second question, challenges its correctness in regard to the first question. The learned Attorney-General contends that the High Court placed an erroneous construction on Sections 3 and 4 of the Act; that reading the two sections together the effect is that the legislature has set up the City Civil Court with an initial jurisdiction of Rs. 10,000 and has placed an ou....
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....y jurisdiction will be limited to Rs. 10,000 and that in future if circumstances make it desirable - and this was left to the determination of the Provincial Government - it could be given jurisdiction to hear cases up to the value of Rs. 25,000. It was also determined that the extension of the pecuniary jurisdiction of the new court will be subject to the provisions contained in the exceptions to Section 3. I am therefore of the opinion that the learned Chief Justice was not right in saying that the legislative mind was never applied as to the conditions subject to which and as to the amount up to which the new court could have pecuniary jurisdiction. All that was left to the discretion of the Provincial Government was the determination of the circumstances under which the new court would be clothed with enhanced pecuniary jurisdiction. The vital matters of policy having been determined, the actual execution of that policy was left to the Provincial Government and to such conditional legislation no exception could be taken. The section does not empower the Provincial Government to enact a law as regards the pecuniary jurisdiction of the new court and it can in no sense be held to ....
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....conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances it may be highly convenient. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative power which it from time to time conferred. It certainly used no words to exclude it." 43. These observations appositely apply to the legislative provision contained in Section 4 of the impugned Act. The true distinction is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. Objection may be taken to the former but not to the latter. Reference in this connection may also be made to the decision of the Supreme Court of America in Field v. Clark 143 U.S. 649 wherein referring to Locke's case 72 Pa. 491 the ....
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....ere such a question is raised." The following observations made by me there pointedly bring out the distinction between the two cases :- "The proviso which has been assailed in this case, judged on the above test, comes within the ambit of delegated legislation, and is thus an improper piece of legislation and is void. To my mind, it not only amounts to abdication of legislative authority by the Provincial Legislature, it goes further and amounts to setting up a parallel Legislature for enacting a modified Bihar Maintenance of Public Order Act and for enacting a provision in it that that Act has to be enacted for a further period of one year. A careful analysis of the proviso bears out the above conclusion. It may be asked what does the proviso purport to do in terms and in substance ? The answer is that it empowers the Provincial Government to issue a notification saying that the Provincial Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification... Modification of statue amounts to re-enacting it partially. It involves the power to say that certain parts of it are no longer parts the statute and t....
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....r 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. 49. 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. 50. 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 Section 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 :- Section 100(1) Notwithstanding anything in the two next....
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....ng outside that Province. 15. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list. 53. Mr. Seervai contends that Section 3 of the impugned Act is void because it directly trenches on the exclusive legislative 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 similar entries in the three lists, namely, 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 Parliament 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 conferring jurisdiction on courts in respect to subjects covered by List I. In other words, the Federal Legislature a....
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.... 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 II 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 Shah 51 Bom. L.R. 86. 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 ordinary civil jurisdiction upon it, in my opinion, the legislation clearly falls within the legislative competence of the Provincial Legislature and is covered by item 1 of List II 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....
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.... purpose of administration of justice. Moreover, the words appear to be sufficient to confer upon the Provincial Legislature the right to regulate and provide for the whole machinery connected with the administration of justice in the Province. Legislation on the subject of administration 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 visualise 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 provincial subject could not be considered to hav....
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....tration of justice was made a provincial subject. It is significant that no other Legislature 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 function of administration of justice and the statute establishing 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 everything 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 II a Provincial Legislature can alter the constitution 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 II....
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....ce 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 jurisdictions acting under those powers in respect to their divided fields of legislation. Instances of conferment 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 jurisdiction, 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 List II and item 15 of List III to the different Legislatures when dealing with those subjects als....
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....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 jurisdiction and power that already exist in other courts. Moreover, the Bombay City Civil Court Act in Section 3 has excepted from the jurisdiction of the new court all cases which the High Court can hear under any special law. Special law has been defined as a law applicable to a particular 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. 60. The result, therefore, is that the Bombay City Civil Court Act is a statute which is wholly within the legislative 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 o....
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....fication, has not delegated its legislative authority to the Provincial Government. The provision relates only to the enforcement of the policy which the Legislature itself has laid down. The law was full and complete when in 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 extend to which, within the limits fixed by the Legislature, the jurisdiction of the court, should be extended. This is a species of conditional legislation which comes directly within the principle enunciated by the Judicial Committee in The Queen v. Burah 5 I.A. 178, 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. 65. 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 o....
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....rable 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. Obviously, 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 attracted, to the present case. 67. 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 Parliament in the Government of India Act, 1935, could delegate its legislative functions in any manner to an outside authority 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 expressing any opinion upon it. 68. The second point appears to be of some complexity and it was decided by th....
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....urts 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 "administration of justice and constitution of courts" as used in Item I of the said List referred to above. 70. It cannot be disputed that the words "administration of justice" occurring 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 Legislatures and clause (14) of the section speaks of "the administration 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 "constitution, maintenance and organization of courts" plainly include the power to define the jurisdiction of such courts t....
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....ight 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 center would be void and inoperative under Section 100 of the Constitution Act. This being the position, 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 7 A.C. 96 "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 interpret and where necessary modified by the other." 73. Mr. Seervai suggests that the proper way of reconciling this apparent conflict would be to read the words "administration 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 Legislature can only set up or constitute courts but their jurisdiction 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....
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....n 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, 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 contemplate 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 legisl....
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.... always be understood as being opposed to what is 'special' or exclusive. If the Central Legislature vests any particular jurisdiction 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 jurisdiction 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 encroachment 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 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....
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....e 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. Notwithstanding 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 debtors, 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 ....
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....otification, the City Court with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding twenty-five thousand rupees in value, and arising within the Greater Bombay subject, however, to the exceptions specified in Section 3 of the said Act." 83. 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, 1948, was ultra vires and (2) at least Section 4 of that Act and the notification issued there under were ultra vires. Having some doubts as to whether in view of the notification issued by the Provincial Government under Section 4 of the Act the plaint could be admitted in the High Court, the Prothonotary placed the matter under the rules of the Court before Bhagwati J. who was then the Judge in Chambers. By his judgment delivered on Februa....
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.... fixed in Section 4 of the Bombay Act. 87. The distinction between conditional legislation and delegation of legislative power has been well-known ever since the decision of the Privy Council in R. v. Burah L.R. 5 IndAp 178 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 difficulty 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 construction 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 3 the Legislature itself set up a Court with a particular pecuniary jurisdiction, under Section 4 the Legislature ....
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....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 Lieutenant-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 subject 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 mutandis 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. Every such notification shall specify the boundaries of the territories to which it applies." 89. 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 there fro....
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.... the existing Courts, and brought under the same provisions with the Garo Hills, not necessarily 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 entrusted for these purposes also, a discretionary power to the Lieutenant-Governor." 90. Finally, his Lordship concluded at p. 195 : "Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant-Governor (large as they undoubtedly are) as if, when they were 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 legislation is now absolute. Where plenary ....
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....sirable to do so and accordingly entrusted a discretionary power to the Provincial Government. It is entirely wrong to say that the Legislature has not applied its mind or laid down any policy. 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, therefore, 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 Legislat....
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....ferent view of the effect of the proviso and held that it was a conditional legislation within the meaning of the decision in R. v. Burah [L.R. 5 IndAp 178]. I do not find it necessary, for the purposes of the present appeal, to express any view as to the correctness of the decision of the Federal Court in that case. Assuming, but without deciding, that the entrustment with the Provincial Government of the power to extend the life of an Act with such modifications as the Provincial Government in its unfettered discretion thought fit to make was nothing but a delegation of legislative powers, there is no such power of modification given to the Provincial Government by Section 4 of the Bombay City Civil Court Act, 1948, and, therefore, that decision of the Federal Court can have no application to the case before us. 94. The learned Attorney-General wants to go further and contend that under the Government of India Act, 1935, it was permissible for the Legislatures, Central or Provincial, while acting within their respective legislative fields, to delegate their legislative powers. In the view I have expressed above, namely, that Section 4 of the Bombay City Civil Court Act, 1948, ....
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....n Rent and Revenue Courts. List III. PART 1. Entry 2 : Criminal Procedure, including all matters included in the Code of the Criminal Procedure at the date of the passing of this Act. Entry 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;........ Entry 15 : Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list. 96. Learned Attorney-General urges that entry 1 in List II clearly indicates that administration of justice had been expressly made a provincial subject and that it was only the Provincial Legislature which could make laws with respect to administration of justice. The next steps in the argument are that there could be no administration of justice unless Courts were constituted and organised, that the constitution and organisation of Courts would be meaningless enterprises for the Provincial Legislatures to indulge in, unless the Courts so constituted and organised were vitalised by being invested with jurisdiction and powers to receive, try and determine suits and other ....
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.... different Civil Courts Acts. Of these, one topic, namely, "constitution and organisation of Courts" had been expressly included in entry 1 of List II in addition to "administration of justice", a fact of some significance which must be noted although I do not say that the inclusion of the words "constitution and organisation of all Courts" in entry 1 of List II by itself and in the absence of anything else cut down the generality of the meaning of the expression "administration of Justice" which preceded those words, for such a construction may militate against the principle laid down by the Privy Council in Meghraj v. Allah Rakhia L.R. 74 IndAp 12. Further, entry 2 in List II would have been wholly unnecessary if the expression "administration of justice" in entry 1 in List II were to be given the wide meaning contended for by the learned Attorney-General, for if under entry 1 in the List II the Provincial Legislature had plenary powers to make laws conferring on, or taking away from, Courts, existing or newly constituted, jurisdiction and powers of the widest description, such power would also include the lesser power of conferring jurisdiction and powers with respect to any of ....
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.... III. Such a construction will be consonant with the principle of construction laid down by the Privy Council in the case of In re Marriage Legislation in Canada [1912] A.C. 880. 97. It is next said that entry 1 in List II gave general powers to the Provincial Legislature to make laws conferring general jurisdiction and powers on Courts constituted by it under that entry while entry 53 in List I, entry 2 in List II and entry 15 in List III conferred special powers on the Federal and Provincial Legislatures to make laws conferring special jurisdiction and powers with respect to matters specified in their respective Lists. As I have already pointed out, if entry 1 in List II conferred plenary powers on the Provincial Legislature to make laws with respect to jurisdiction and powers of Courts in widest terms, entry 2 in List II would be wholly redundant, for the wider power itself would include the lesser power. Further, the very concession that entry 53 in List 1, entry 2 in List II and entry 15 in List III gave special powers to the Legislature to confer special jurisdiction and powers necessarily amounts to an admission that the powers conferred on the Provincial Legislature by e....
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.... vested in the Court jurisdiction and powers with respect to any of the matters specified in List II and, subject to Section 107 of the Act, with respect to any of the matters enumerated in List III. It is wrong to assume that the Provincial Legislature could not make one law under both entry 1 and entry 2 in List II and entry 15 in List III at one and the same time. 99. A good deal of argument was advanced before us as to the applicability of the doctrine of pith and substance and, indeed, the decision of the Bombay High Court in Jagtiani's case was practically founded on that doctrine. Shortly put, the argument, as advanced, is that under entry 1 in List II the Provincial Legislature had power to make laws with respect to administration of justice; that, therefore, the Provincial Legislature had power, under entry 1 itself, to make laws conferring general jurisdiction and powers on Courts constituted and organised by it under that entry; that if in making such law the Provincial Legislature incidentally encroached upon the legislative field assigned to the Federal Legislature under entry 53 in List I with respect to the jurisdiction and powers of Court with respect to any ....