Orders passed by the Governor-General of India under v. Tiie ProviHce oj

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 Pro- vincial and Central Legislatures, as opposed 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 two Legislatures are competent also to make provisions in the several Acts enacted by them, concerning the jurisdiction and powers of courts. in subject-matter of legislation 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 affirmatively with legislate negatively regard to the jurisdiction of the courts in respect of legislative ambits. their respective the matters within In other words, they can exclude or bar the jurisdiction of the courts in regard to those matters, and they can also confer special courts.

They can also, apart from the general power which the <ourts usuallv exercise, confer power on the courts to because otherwise jurisdiction on the Acts, as well certain regard S.C.R. SUPREME COURT REPORTS 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 of a civil nature excepting suits of which cognizance is either expressly or impliedly barred. " 19SO State 9f Bombay V. NarothamdaJ J ethabai and Aaotller. Faz/ A.Ii J. This there can be no doubt section obviously postulates legislative practice obtaining therein. Such provisions are among other things the barring of the jurisdiction of the civil courts to particular classes of by Legislatures with respect 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 Pro vincial Legislatures.

There are also many Acts provid ing that any suit or proceeding concerning the subjects matters of those Acts shall be triable by the court or courts specified to be found in a number of Acts enacted both prior to and after the enactment of the Government of India Act, 1935, and the British· Parliament while e11acting that Act was fully aware of the existing country as well as . of the fact that the provisions in question were sometimes . necessary and therefore empowered the Central and Provincial Legislatures 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 Legis latures to legislate with regard to the power and respect of the subject-matters diction of the three Legislative Lists. But for an mentioned express provision like that made in the entries referred to above, regard to the matters set out in the Legislative Lists; nor could they have been able to bar the jurisdiction them, however necessary 1 or. tdesirable such a course might have ap peared to thcm. the courts in the ordinary courts to confer special jurisdiction on the two Legislatures might not have been · the courts in regard , I. I State of Bom~•Y 1950 •. Narothanult# Jethaboi and Another.

Faz/ Ali J. • 58 SUPREME COURT REPORTS [1951] It should be noted that the words used in 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 to pass certain special and un been given umal orders. For example, section 13 of the Indian Aircraft Act, 1934, provides that- to Courts .. • is convicted "where any person an offence punishable under any rule made under clauses ...... the Court by which he is convicted may direct that the aircraft or article or suq, stance, 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 Indian A;rms Act, 1878, which provides that- "when any person is convicted of an offence punish able 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 military 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 Adulteration Act, 1919 [Bengal Act VI of 1919], which are in similar terms, and the various Acts re lating to money-lenders and money-lending which con fer special power on the courts of reopening several kinds of the relief of debtors.) transactions for It seems to me that the word "power" was added to , the word "jurisdiction", in ent~y 53 of List I, entry 2 of List II, and entry 15 of List III, in order to enable the two Lagislatures to grant special powers 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 1950 State of Bombay v. Nurothamdas Jcthabai and Another. Faz/ A.Ii J. S.C.R. SUPREME COURT REPORTS 59 f) , e to the pa.~sed by .. ag1strate, jurisdict_ion l 'dM ' special provisions with regard courts have been made even after the passing of that Act, in a large number of Central and local Acts.

Con the Bombay fining ourselves to the Acts 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), the following courts "to exercise section 3 empowers powers under the Act,-(a) the High Court, (b) a Court of Session, (c) a District Magistrate, (d) a Sub-Divi- " . IM ' s10na . ag:strate ......... . a sa.ane Similarly, in The Bombay Agricultural Produce Mar ketii Act, 1939, section 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 Magistrate of the Second Class special- ly empowered in this behalf. " 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 Rombay Sales of Motor Spirit Taxation Act, 1946, and section 5 of the Bombay Harijan Temple Entry Act, 1947, are pro- Yision which exclude the jurisdiction of courts under certain circumstances. Similar instances may be mul tiplied from the Acts of the Central Legislature and other Provincial Legislatures, but, in my opinion, the instartc:es the practice which prevailed before the Government of In<lia 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. I have quoted are sufficient to show (1) The interpretation which is sought to be put on the entries by the respondent is in my opinion open to the following objections :- ( l) It involves the curtailment of the meaning of the expression "administration of in such a way as to rob it of its primary content-the jurisdic justice tion and powers of the court, without which cannot be administered. justice" .>- ,. 1950 Stat• of Bomboy v.

Naro'thamdtu lethobai and Anotner. Fatl Ali J. 60 SUPREME COURT REPORTS [1951] to be independent of (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 Legisla tive Lists, which seems that each particular entry should relate to a separate subj~ct or group of cognate subjects, each subject or group of subjects incidental overlapping). The construction suggested by the respondents makes it necessary to assume that though according tG their line of reasoning the word~ "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 subject of "administration of justice and the constitu tion and organization of courts", it was without any apparent reason numbered separately and made an independent entry.

(subject only the others ·• fullest function sense unless (3) The suggested jurisdiction of if it is accepted, construction would Provincial large number of matters which normally exclude Courts a criminal jurisdiction before courts exercising civil or and, the courts will not be able Provincial and Central Legislatures have by piecemeal legislation or otherwise exhausted their power of legis lating on all the subjects comprised in Lists II and I respectively. Even after power, the courts will not be able to deal with import transfer of property, ant matters, such as contracts, arbitration, wills and succession, criminal 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 :- they have exhausted law, (1) Which of the two Legislatures has to do it fim; 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 the Government of India Act, 1935, while enacting may be illustrated by one or two examples. Reference 1950 Stat' of Bombay v. Narothamdas Jethabai and Another. Fazl Ali J. S.C.R. SUPREME COURT REPORTS 61 to do so by In order to show they are empowered take a very extreme example, because in List I. But, on the respondent, might here be made to entry 26 of List I, which deals with "carriage of passengers and goods by sea or by 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 baving jurisdiction over the matter under the Civil Procedure Code, subject to any special legislation on the subject by the Central Legislature, in spite of the fact that the carriage of goods and passengers by sea or by air is a subject mentioned the view pro pounded before us by the Provincial civil courts will not be competent to try such a suit, the Central unless Legislature. 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 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.

Entrv 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 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 the Central Legislature to enact in which these Universities are concerned as plaintiff or as de fendant, will be triable only by the particular court mentioned that no other court shall have jurisdiction in regard to such It is difficult to think that until such a legisla suits. i1on is made, a court which would otherwise be proper court, has no jurisdiction to try any which one of these Universities is a party, no matter what the subject-matter of the suit may be. I am cer tain that the framers of the Government of India Act did not contemplate such a result. the enactment concerned and to the jurisdiction that suits ~ We all know that at the date when the Government of India Act, 1935, was passed, there were in existence 5-8 S. C. India/67 195'0 State Of Bombay v.

Narothamdas Jethabai and Another. Faz! Ali J. 62 SUPREME COURT REPORTS [1951 J in the different Provinces a large number of courts of law and the administration of justice throughout 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 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 the courts were not confined jurisdiction and power of 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. '.fhe juris disction of the courts depended in civil cases on a "cause of action" giving rise to a civil liability, and in crimi nal cases on the commission of an offence, and on the provisions made in the two Codes of Procedure as the venue of the trial and other relevant. matters.

It seems to me that the Government of India Act, 1935, did not contemplate any drastic change in the existing system of administration of justice, but what it "con templated was continue should system subject to future legislation by the proper Legislature. Central or Provincial, harrying courts or conferring jurisdiction or power on special courts with regard there be any appropriate Legislative Lists, should occasion Government of every Province became more or less an autonomous unit with a complete machinery for administering justice fullest extent. In my opinion, there is nothing in the Act of 1935 to show that there was any intention on the part of the machinery so drastically a·s to confine it to the administration of a mere partial or truncated kind of justice relating only to matters specified in List II. special India Act, legislation. Under the matters jurisdiction to affect included framers 1935, Mr.

Setalvad, learned Attorney-General, who appeared on behalf of the appellant, in supporting the impunged Act, argued before us that for the purpose of deciding this appeal, we might also refer to entry 4 impunged of List III. His contention was .. • •- 19,0 State of Bomb4r 'V· Narotham4u Jethabai ·Olld Anot/ter. Fazl Ali • ·,,. S.C.R. SUPREME COURT REPORTS 63 the courts. The three entries will Act having had the assent of the Governor-General, it would be permissible to see what powers the Provincial Legislature co1:1ld exercise under Lists II and III taken If the course which he suggests is adopted, together. 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 1935.

One of the India Act, matters included in the Civil Procedure Code jurisdiction of courts. Section 9 of the Code provides, that the courts shall havt'! :as I have already stated, 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 juris diction of cover exactly the field which is covered by item 14 of the Canadian Constitution which com. section 92 of prises justice in the Provinces, including constitution, main tenance and organization of provincial courts both of civil and criminal jurisdiction including procedure in civil matters in Canada that the words referred to above include the power and jurisdiction of courts, and, under that item, the Provincial Legislature can confer the · widest power the approach on the courts. suggested by the learned Attorney-General is useful for testing whether entry 2 of List II was intended to be treated as the sole and only basis of the power of the Provincial Legislature the provincial courts and whether it was really the intention of the British Parliament to empower the Provincial Legislature jurisdiction of . only to confer such a limited character as can be conferred on the pro vincial courts under entry 2 of List II, if that entry is In my opinion, the treated as a self-sufficient entry. correct view is to hold that it· is not necessary to call into aid either entry 4 of List III or any of the following matters : It has been held "administration those courts.

" jurisdiction It seems to me confer 1930 Stat< of Bombay y. Na1othamdas lel/JQbal and Another. Faz/ All I. 64 SUPREME COURT REPORTS [1951] the Canadian Constitution in this case, provisions of the words "administration of justice; consti and that themselves tution and organization of courts" are by sufficient to empower the Provincial Legislature to invest a new court with all the power which has been conferred upon it by the Impugned Act. It is of course open to the Central Legislature to bar the jurisdiction of the new court by a special enactment with regard long as such to any of the matters in List I, but so jurisdiction is not barred, the court will have jurisdic tion to try all suits and proceedings of a civil nature as enacted I think that if the Provincial Legislature had merely enhanced the pecu niary jurisdiction of any of the existing civil courts there could have been no objection to that course.

Why there be any objection when, instead of then should investing one of the existing courts with power to try suits and proceedings of a civil nature not exceeding a certain amount, the Legislature has created a new court and invested it with the same power, in the Act in question. relates to Perhaps, it will be simpler to deal at this stage with the third question, namely, whether the Bombay City jurisdiction to try a suit based on a Civil Court has promissory note. So far as is concerned, this point the respondent bases his contention on entries 28 and 33 of List I, Entry 28 relates to "cheques, bills of ex cha, nge, promissory notes and other like instruments". Entry 53, as already "jurisdiction stated, 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 arc read together, is that no court can try a suit relating to a promissory note, unless it is invested with the jurisdic tion to try such a suit by the Central Legislature by vir tue of the power given by entry 53 of List I. The ques tion so raised is covered by the answer to the first ques the answer already tion, and I shall only add that given to that question finds some support in the case of Prafulla Kumar Mukherjee and Others v.

Bank of the argu- Commerce Limited, Khulna('), in which ('l [1947]F.C.R.28. .. f •. State of Bombay 1950 .. Narothamda8 Jethabai and Another. Mahajan J. S.C.R. SUPREME COURT REPORTS 65 the same in suits brought by ments of the respondents before the Privy Council pro ceeded on lines as the arguments of the res pondents before us. The question raised in that case was as 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 per mitted by the Act. The validity of the Act was ques tioned by the respondent Bank in certain suits brought by them to recover loans and interests alleged to be due executed by the appellants-bor on promissory notes rowers as well as the debtors claiming relief under the Act. The argument put forward on behalf of the Bank was that the Bengal Legislature by attempted and expressly and exclusively reserved for the Federal Legislature, to promissory Federal Legislature 28 respectively of List I. On the other hand, and 38 the appel the arguments put forward on behalf of lants was impugned Act was in pith and substance legisla(10n dealing with money-lending and in so far as it dealt with promissory notes or incidental or ancillary to the banking that was only effective use of the admitted legislative powers of the Provincial Legislature to deal with money-lending.

This argument of the appellants was substantially accepted by the Privy Council. impugned Act had expressly that is to say, banking, which reserved · for entries in relation legislate on exclusively, forbidden subjects thf" · The second point raised on behalf of the respondent relates to the validity of section 4 of the Act, which runs as follows :- "Subject to the exceptions specified in section 3, the Provincial Government, may by notification Official Gazette, invest the City Civil Court with juris diction to receive, try and dispose of all · suits and other proceedings of a civil nature, arising within the Greater Bombay and of such value not exceeding Rs. 25,000 as may be specified in the notification. " State of Bombay 1950 •• Narothamdas .letAabai and Another. Mahajan J. 66 SUPREME COURT REPORTS (1951] thereby jurisdiction to try court would exercise that It is contended that this section is invalid, because the Provincial Legislature has delegated its legislative powers to the Provincial Government which it cannot do.

This contention does not appear to me to be sound. The section itself shows that the Pro vincial Legislature having exercised judgment and that the New Court should be invested determined suits and proceedings of a civil nature of a value not exceeding Rs. 25,000, left it to the Provincial Government to determine when the Court should be invested with this larger jurisdiction, It is clear that if for which the limit had been fixed. and when the New Court has to be invested with the larger jurisdiction, that jurisdiction would be due to no other authority than the Provincial Legislature itself jurisdiction by virtue of the Act itself. As several of mv learned colleagues have pointed out, case of ·Queen v. Bur ah (1), the authority of which was not questioned before us, fully covers the contention raised, and impugned provision is an instance of what the Privy Council has designated as conditional legislation, and does not really delegate any legislative power but mere ly 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 dis cretion entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing, and in desirable. Examples of such England, America and other countries. As some of the American Judges have "there are many things upon which wise legislation must depend which cannot be known to the law-making power and must therefore be the subject of enquiry and determination outside the halls of legislation (Field v. Clark) (2 learned Attorney-General who appeared on behalf of the appellant, contended instances it may be highly even delegated legislation ). Mr. Setalvad, the legislation abound and useful convenient remarked, country ( 1) 3 A.C. 889. (') 143 u. S.649. • • S.C.R. SUPREME COURT REPORTS 67 permissible, but I do not consider it necessary to ~o into that question, because the principle enunciated m Queen v.

Burah (1) is sufficient to dispose of the conten tion raised here. I think that the present case stands well outside what was laid down by the Federal Court in /itendranath Gupta v. The Province of Bihar(2), as two of my colleagues who were parties to the majority decision in that case have pointed out. In the result, this appeal is allowed . ... SAsTRI PATANJALI J.-This appeal raises the im the constitut10nal validity of the portant question of (hereinafter Bombay City Civil Court Act, 1948 referred to as the Act) and though I concur in the con clusion reached by the majority of my learned brothers I wish to state precisely the reasons which lead me to that conclusion. 1950 . State of Bomba)· v. Narothamdas Jetizabai and Anuthcr. Patanja/i Sa;tri I. that the jurisdiction of The first respondent brought the suit in the High Court at Bombay on its original side recovery of Rs. 11,704 from the second respondent on promissory notes.

Notwithstanding High Court to try suits cognisable by the City Civil Court was barred under section 12 of the Act and the jurisdiction of the latter court pecuniary limit of the to Rs. 25,000 by had been enhanced a notification the Provincial Government under section 4 of the Act, it was stated in the plaint that the High Court had jurisdiction to try the suit the said notification was because the Act as well as the constitutional vires and void. issues thus raised, the State of Bombay, the appellant herein was on its own motion, made a party defend ant. from Rs. 10,000 In view of issued by The High Court (Chagla C. J. and Tendolkar J.) that section 4 to en held (1) the Act was intra vires, but (2) which authorised the Provincial Government hance the jurisdiction of the City Court up to the limit of Rs. 25,000 amounted to a delegation of legislative power, and as such, was void and inoperative, with the result that the suit, which exceeded Rs.

10,000 m ( 1) SI. A. 178. (') [1949] F.C.R. 595. 68 SUPREME COURT REPORTS [1951] !9SO State of Bombay y. Narothamdas Jethabai and Anothtf. Patanfali Sastri J. value and w dS not cognisable by the City Court apart impeached notification, was held to have from the been properly laid in the High Court. Both these findings hav~ been challenged before us as erroneous, tbe first by the first respondent and the second by the appellant. terms, namely, identical "jurisdiction falling within that, On the first point, learned counsel for the first res pondent 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 powers of all courts except the Federal Court with res pect to any of the matters in this List", conferred power on Legislatures in British India to make laws jurisdiction of courts only in relation with respect to legislative their respective to matters therefore, the. expressions "adminis fields, and tration 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 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 jurisdiction also, respect to legislate with there would be no need for entry 2, while, on the other they would still hand, without have ample content, as various other matters relating to administration of justice and constitution of courts would have to be provided for. The scheme disclosed terms in the separate entries in identical by the three three list• was said to be this: The Provincial Legis latures were to have the power of constituting courts for administration of justice, but the and providing jurisdiction was to power to rest with respect of the I and with the Provincial matters mentioned in List Legislature in respect of the matters mentioned in List II, while both the Provincial Legislatures were to have such power with respect to invest the courts with the Federal Lej!islature in including such power, the Federal and ·- • •. S.C.R. SUPREME COURT REPORTS 69 It was, section 107. that the City Civil Court established there- · the matters mentioned in List III subject to the pro visions of therefore, submitted that the Act, in so far as it purported to provide by section 3 under "shall have jurisdiction to receive, try and dis pose of all suits and other proceedings of a civil nature not exceeding Rs.

10,000 in value and · arising within (with certain exceptions not mate Greater Bombay" rial here) was ultra vires the Provincial Legislature, constituting as it did a direct invasi@n of the Federal field marked out by entry 53 Qf List I. As all the three jurisdiction and entries dealt with the powers of courts, there was no room, it was said, for the application of the doctrine of incidental encroach ment. same topic of 1950 State of BombQJ' v. Narothamdas Jethabai and Another. Patanjall Sami J. > the same -The argument is ~ot without force. The Bombay High Court in Mulchand v. Raman(1}, which was fol lowed by the learned Judges in .the present case, and line be the Attorney-General who adopted fore us, invoked the doctrine of pith and substance in answer to the argument on behalf of. the respondent. But that doctrine, while it often furnishes the key to the solution of problems arising out of the distribution of overlapping legislative powers in a Federal system, is not of much assistance in meeting the difficulty in finding any usefulness in entry 2 if under entry 1 the Provincial Legislature were intended to have the power to legislate generally with the jurisdiction and powers of courts.

The greater power must include the less. A similar difficulty in construing entry 4 of List III and entry 2 of List II arose in Stewart v. Brojendra Ki'shore(2 } 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 Com mittee in In re Marriage Reference( 3 } where "marriage and divorce" in the Dominion List was construed as to the "solemnisation of excluding matters ( 1) Sl B.L.R. 86. (') A.l.R. l 939 Cal. 628. (') [1912] A.C. 880. respect to relating 1950 State of Bombay v. Narothamda5 Jethahai and Another. Patanjali SaJtri J. 70 SUPREME COURT REPORTS [1951] relating to jurisdiction 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 powers of courts since special provision is made for those matters elsewhere in the lists.

" "To hold other wise", they pointed out, "would be completely to wipe the Provincial Legislative out the List. " Learned counsel for the first respondent strong ly relied on that decision and suggested that, if it had learned Judges in the notice of the been brought to Mulchand v. Raman('), their decision might well have been the other way. entry in second the same following list and that On the other hand, the Attorney-General submitted that there · could be no question of conflict between the natural two entries restricted simply be meaning of one should not be cause of the presence of the other. He placed reliance observations of Gwyer C. J. in Atiqua Begum's case('). "It would be practically impossible for example tp define each item in the Pro vincial List in such a way as to make it exclusive of every item in that List and Parliament seems to have been content to take a number of comprehensive cate- gories and to describe each of them by words of broad and general import. . ............ : .... I think, however, that none of in a that each general word narrow or restricted sense and to all ancillary or subsidiary should be held matters which can to be comprehended in it.

" These observations were, how ever, made to support the conclusion that the power to legislate with respect to "collection of rents" under entry 21 of List II includes the power to legislate with respect to any limitation on the power of a landlord to collect rents, that is to say, with respect to the remis the United sion of rents· as well, and Provinces Regularisation of Remissions Act, 1938, was intra vires. General observations made in such the items in the Lists is to · be read fairly and reasonably be said that, therefore, to extend (') (1940] F.C.R. 110, 134. • S.C.R. SUPREME COURT REPORTS 71 context do not answer the objection that the wider con struction of entry 1 would deprive entry 2 of all its content and reduce it to useless lumber. I am therefore, "administration of justice'' of openion that the words and "constitution and organisation of courts" occur ring in entry 1 must be understood in a restricted sense excluding scope "jurisdiction and powers of courts" dealt with specifically in entry 2.

1950 State of BombaY v. Narothamdas Jethabai and Another. Patanja/i Sastri J. respect in regard courts with It should be jurisdiction on remembered-and justice" is one of This does not, however, compel the conclusion that it is beyond the competence of the Provincial Legisla jurisdiction on courts constitut ture to confer general ed by it, for, if entry 1 does not by itself enable the legislature to do so, entry 2 certainly does when read with entry 1. this is what the argument for restricting the legislative power jurisdiction overlooks-that of provinces "administration of the matters mentioned in List II itself. The Provincial Legisla ture, therefore, is competent under entry. 2 to legislate conferring administration of justice, that is to say, general juris diction to administer justice by adjudicating on all matters brought before them, except, of course, mat ters 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 jurisdiction and powers of courts.

"administration of justice" in entry 1 does not authorise legislation with the legis- respect to jurisdiction and powers of courts, lative power under entry 2 in regard to the latter topic, legitimately exercised "with respect to which can be 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 authoris ed area of provincial legislation. This view thus leaves a field in which entry 2 could apply. In other words, though relating When once the Provincial Legislature is found com law with respect to the general juris petent to make a diction of courts, the apparent conflict with the Cen- .~ 1950 State of Bomb"ay v. Norothamdas Jethahai and Another. Potanjali Sastri J. 72 SUPREME COURT REPORTS [1951] attributing enactment and in ascertaining the legitimate application legislative power, and if tral Legislative power under entry 53 of List I can be resolved in a given case by invoking the doctrine of incidental encroachment.

For, pith and substance and though not of much assistance in constru that rule, ing entries 1 and 2 which occur in the same List II, has its character of an it to the the Provincial appropriate list where the Federal and Lists happen to overlap. Accordingly, if the Legisla ture of Bombay was, in conferring jurisdiction on · the City Civil Court to hear and determine all suits qf a civil nature, really legislating on a subject which was within the ambit of its doing so, it encroached on the forbidden field marked off by entry 53 of List 1, the encroachment should be It may be that such en taken to be only incidental. croachment extends to the whole of that field, but that is immaterial, as pointed out by the Judicial Commit tee in the Khulna Bank case('). One of the qµestions themselves in that case was their Lordships put to "Once it is determined that the pith and substance is money-lending, is the extent to which the federal field is invaded a material matter?" Answering the question in the negative their Lordships observed: "No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by . discriminating between degrees of invasion, but for the purpose of determining what is the pith and substance lts provisions may advance so of the impugned Act. far into the federal territory as to show that its true is not concerned with provincial matters, but nature the ·question is not, has its trespassed, more or less, but is tl1e trespass, whatever it be, such as to show that the subsiance of the impugned Act is not money pith and lending but promissory-notes or banking?

Once that question is determined, the Act falls on one or the other side of the line and can be seen as valid ot invalid ac cording to its In answering the objec tion that that view does not give sufficient effect to the words of precedence used in section 100 of the Govern- true content". (I) [1947) F.C.R. 28. • " S.C.R. SUPREME COURT REPORTS 73 ment of India Act as between the three Lists, their Lordships went on to say "No doubt where they come in conflict List I has priority over Lists III and II, and List III has priority over List II; but the question still remains priority in what respect? Does the priority of the Federal Legislature prevent the Provincial Legis lature from dealing with any matter which may inci dentally affect any item in its in each case has one to consider what the substance of an Act is and whatever its ancillary effect, attribute it to the appro In their priate list according Lordships' opinion the latter is the true view.

" to its true character ? list or 1950 State of Bombay v. Narothamda! · Jethf'bai and. Another. Patanjali SastriJ .. In other words, what is properly The test for determining whether in pith and subs tance a particular enactment falls within one list or an other is further elucidated in a passage quoted with approval from Lefroy's Treatise on Canadian Constitu tional Law in the judgment of the Federal Court in the Bank of Commerce case(1). "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 rc:garded from another aspect might also be intra vires of the Dominion Parlia ment. 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, by 'aspect' here must be under stood the aspect or point of view of the legislator in legislating-the object, purpose and scope of the legis lation.

The word is used subjectively of the legislator rather than objectively of the matter legislated upon. " Applying that test there can be little doubt that the impugned Act must, in its pith and substance, be attri buted to List legislators of Bombay were certainly not conferring on the new court, which they were constituting under the Act, jurisdiction with re~ pect to any of the matters in List I. They were, as section 3 clearly indicates constituting a new court, the it with the Bombay City Civil Court, and investing II, as the (1) [1944] F.C.R. 126, 139. 1950 :State of Bombay v. Narothamdas Jethabai and Another. Patanjali Sastri J. 74 SUPREME COURT REPORTS [1951] jurisdiction territorial limits, and try all suits of a civil nature general within certain pecuniary and they were acting, as I have endeavoured to show, with in the scope of the legislative power conferred on them under entry 2 read with entry I of List II, it seems im material the enactment, so far as one aspect of concerned, jurisdiction, namely, encroaches practically on the whole of the federal field marked out by entry 53 of List I. The encroachment, however, would still leave ample room for the exercise by the Centre of its legislative power under entry 53 in regard to other aspects of jurisdiction and powers of courts. conferment, •, • constitute certain pecuniary in addition to their general legislative practice prevailing in This view is strongly reinforced by a consideration this country of the prior to the passing of the Government of India Act, 1935.

That it is legitimate to have regard to legislative practice in determining the scope of legislative powers has been recognised in decisions of high authority (e.g., Croft v. Dunphy)('). It had long been the practice in this country and organise courts with general jurisdiction over all persons and matters sub- territorial limita- ject only to tions, and to confer special jurisaiction limited to cer- tain specified cases or matters either on the ordinary courts jurisdiction or on tribunals set up to deal with such matters exclusively. The various Provincial Civil Court Acts as well as the provisions of the Civil and Criminal Procedure Codes invest the courts, both civil and criminal, with general jurisdiction, say, power to adjudicate in respect of all persons and all matters except those that are specifically excluded or brought within the cogni- sance of tribunals with limited jurisdiction extending only to those matters.

The grading of the to the court too in pecuniary and 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 their heirarchy has territorial limits reference special or that is rather (') [1933) A- C. 156, 165. 1950 State of Bombay v. Narothamdal Jethabai and Another. Patanjali Sastti J. S.C.R. SUPREME COURT REPORTS 75 legislation by their respective jurisdiction has framers of the Govern India was known it cannot be readily sup ment of India Act, 1935, and posed that they wanted to introduce a radical change by which the power of constituting courts and provid justice is to be vested in the ing for administration of Provincial Legislatures, while to be conferred by piecemeal the Federal and to specific matters Provincial Legislatures with respect falling within legislative fields which The .are by no means capable of clear demarcation. constitutional puzzles which such a system 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 legislative to deal with a particular matter or power to make a particular order is validly conferred by legislature, must make one pause and examine the relevant pro visions of the Government of India Act. to see if there to compel the acceptance of so is anything in them novel a system.

After giving the matter my careful consideration, I am convinced that both the language the antecedent legisfative prac -0f the provisions and that the Provincial Legis tice support the conclusion latures, which have the exclusive power of constituting and organising courts and of providing for the ad ministration of respective. provinces, have also the power of investing the courts with gene ral jurisdiction. the appropriate lists, whether jurisdiction justice legislative power, On the question whether section 4 of the Act ope- I entirely rates as a delegation of agree with the reasoning and conclusion of my learned brother Das, who has said all -1 wish to say in his judgment which I have had the advantage of reading, and, like him, I reserve the larger question raised by to how far it is open to the the Attorney-General as legislatures in authorised areas, their legislative powers I find it no more necessary in the to other agencies. present case to decide that point than in /atindranath this country, while acting within to delegate j • J · '• 76 SUPREME COURT REPORTS [1951] 1950 State of Bombay v.

Narothamdas Jethabal and Another. Mahajan J. Gupta's case(') where I preferred to rest my decision on a narrower ground. It follows that the High Court has no jurisdiction the first respondent's suit and to hear and determine I agree that the appeal should be aliowed. MAHAJAN J.-This is an appeal from the judgment of the High Court of Judicature at Bombay dated the 29th March, 1950, in Suit No. 240 of 1950, holding that section 4 of the Bombay City Civil Court Act (Bombay Act XL of 1948) is ultra vires the Provincial Legislature. The facts are that on the 6th February, 1950, the first respondent presented a plaint to the Prothonotary and Senior Master of the High Court for filing a sum mary suit against the second respondent to recover a sum of Rs. 11,704-2-4 alleged to be due under promis sory notes. This suit was instituted in the High Court the 20th in contravention of a notification dated January, 1950, issued under section 4 of the City Civil Court Act, under which suits up to the pecuniary limit of Rs.

25,000 could be heard only by the City Civil Court, and not by the High Court. As the question of jurisdiction was of importance, the matter was refer red to the sitting Judge in Chambers. On 23rd Febru ary, 1950, the learned Judge admitted the plaint hold ing that section 4 of the Act was ultra vires the Pro vincial 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 proceedings were defendant at the High · Court. transferred to a Division Bench of The Division Bench upheld the view of the Judge in returned the cause to him for disposal Chambers and on the merits. The State of Bombay, dissatisfied with this decision, has preferred the present appeal. the State of Bombay was stage and impleaded (') [1949·50] F.C.R. 59,, ... ' . ' 1950 State of Bombay v.

Narothantdas Jetlwbai and Another · Mahajan J. S.C.R. SUPREME COURT REPORTS 71 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 Schedule of the Government of India Act, 1935; and (2) whether section 4 of the Act it purports to delegate to the Provincial is void as tlie matter of legislative Government investing the City - Civil Court with extended juris tliction. authority It wa~ considered expedient Bombay Act of 1948 came into force on 10th Mayr to establish an 1948. additional civil court for Greater Bombay presumably with the object of relieving congestion of work on the original side of the Bombay High Court. Sections 3, 4 and 12 of the Act are in these terms :- for, "3.

The State Government may, by notification the Official Gazette, establish the Greater Bombay a court, to be called the Bombay City Civil :any Court. Notwithstanding anything containei:I 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 the Greater Bombay, except suits or arising within proceedings which are cognisable- -' , ( 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 matri- monial jurisdiction, or - (b) by the High Court for the relief of debtors, or insolvent ( c) by the High Court under any special law other than the Letters Patent, or ( d) by the Small Cause Court : Provided that the State Government may, from time to time, after consultation with the Higli Court, by a like notification extend the City Court to any suits or proceedings which are cognisable the High Court as a court having testamentary or jurisdiction of 6-8 S. C. India/67 .. ' .., 1950 State of Bombay v. Narothamda$ Jelhahai and Another Mahajan J. 78 SUPREME COURT REPORTS [1951] intestate debtors. jurisdiction or relief of insolvent

Subject to the exceptions specified in section 3 the State Government may by notification the City Court with jurisdic Official Gazette, invest tion to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Grea ter Bombay and of such value not exceeding twenty-five thousand rupees as may be specified in the notification.

Notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognisable by the City Court : Provided that the High Court may, for any special reason, and at any stage remove for trial by itself an suit or proceeding from the City Court. " jurisdiction of On the second question the High 0 .urr held that section 4 of the Act was inoperative as it purported to delegate the law-making powers of the legislature to ~n outside authority and lience the notification issued in pursuance of it had no effect whatsoever and did not take away the High Court to try the present suit. On the first question the High Court placed reliance on its own earlier decision in M ulchand Kundanmal Jagtiani v. Raman Hiralal Shah('), and held that the Act was intra vires the Bombay · Legis the correctness of the lature. The appellant assails decision of the High Court on the second point and supports the decision on the first point.

Cheques, bjlls of exchange, promissory notes and other like instru~nts.

Jurisdiction and powers of all courts, except the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authoriz the ~nl;i,rgement of the ed by Part IX of this Act, appelbte the Federal Court, and the conferring thereon of supplemental powers. jurisdiction of List II. 1. Public order . (but not including the use of His Majesty's naval, military or air forces in aid of the civil power) ; the administration of justice ; rnn.;titution and organization of all courts, except the Federal Court, and therein ; preventive dete'1tion for reasons connected with the maintenance of public order ; persons subject to such detention.

Jurisdiction and powers of all courts except the any of the matters in Federal Court, with respect to this list; procedure in Rent and Revenue Courts. List Ill. 4. Civil Procedure, including the Law of Limitation and all matters included in the Code of Civil Procedu~e at the date of the passing of this Act : the recovery in a Govern~'s Province or a Chief .. •. "' S.C.R. SUPREME COURT REPORTS 87 Commissioner's Province of claims in respect of taxes and other public demands, revenue and sums such, arising outside that Province. including arrears of recoverable as 15 .. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list. 1950 State of Bombay v. Narothamda5 lethabai and Another Mahajan J. } that in the three respect to in respect to subjects contained similar entries in the Mr. Seervai contends that section 3 of the impugn ed Act is void because it directly trenches on the exclu sive legislative powers of the Centre conferred on it by List I of the Seventh Schedule inasmuch as it confers respect to all cases of jur~sdiction on the new court in a civil nature.

19.50 State of Bombap V• Na1othamda1 Jt tltabai and Ano titer Mukherjea J. ~- ) • I S.C.R. SUPREME COURT REPORTS · 97 the enforcement - of 25,000 as may be specified laid down. The law was As regards the first point, I agree that the contention of the appellant is sound and must prevail. I have no hesitation in holding that the Legislature in empower ing the Provincial Government · to invest the City Court, jurisdiction of such value not by rwtification, with exceeding Rs. Notification, has not delegated its legislative authority to the Provincial Government. The provision relates policy which the only to Legislature itself has full and complete when it left the legislative chamber permitting the pecuniary the Provincial Government jurisdiction of the City Court up to a certain amount which was specified in the Statute ·itself. What the is to do is not to make any Provincial Government law; it has to execute the will of the Legislature by determining the time at which and the extent to which, within the the Legislature, the juris diction of the court, should be extended. · This is a species of conditional legislation which comes directly within the principle enunciated by the Judicial Com mittee in The Queen v.

Burah(1), where the taking effect of a particular provfr.ion of law is made to depend upon determination of certain facts and conditions by an outside authority. limits fixed by increase The learned Judges of the Bombay High Court in their decision on the point seem to have coming to been influenced to some extent by the pronouncement the Federal Court in /atindranath Gupta v. Pro t1ince of Bihar (2), and the learned Counsel respondents naturally placed I was reliance upon it. the majority decision in that case myself a party and expressed my views in a separate judgment. I do not think that there is anything in my judgment which lends support td 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) SI. A. 178. (2) [1949] F.C.R_ 596. (3) 13 American Reports, 716.

98 SUPREME COURT REPORTS [19511 1950 State of Bombay v. Narothamdas Jethabai and Another Mukherfea J. 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 that the Inhibition make its own action depend"; and 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. laid down that The subject matter of dispute in the Bihar case was the validity of a proviso engrafted upon section 1, sub section (3) of the Bihar Maintenance of Public Order Act. The sub-section 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 in his favour if the proviso simply as an authority empowered the Provincial Government, upon com to ex pliance with the conditions prescribed tend the duration of the Act for a further period of one year, the maximum period being fixed by the Legisla ture 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 the Province of learned Counsel appearing for by the to modify a sta Bihar that to authorise another body tute amounts to 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 Ol)e part of the proviso should not affect its other part.

To this contention my answer was that inter-related in such a manner the two provisions were in the statute that one could not be s~vered from the investing that body with therein, ' '· 1950 Stale of Bo '11b4f v. Nruotlrcmdiu Jell. Adi 111111( A•oll1er Mukhuit.o. J •. ',. S.C.R. SUPREME COURT REPORTS 99 other. Obviously, the facts of this case are quite diffe rent, and all that I need say with regard to my pro nouncement in /atindranath Gupta's case is that the principle upon which that case was decided . is not ap plicable ·and cannot be attracted, 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 India Imperial Parliament Act, 1935, could delegate its functions in thought eny manner to an outside authority 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 expres sing any opinion upon it. the Government of legislative The second point appears to be of some complexity and it was decided by the Bombay High Court adversely to the respondents on the basis of an earlier pronounce ment of the same Court in Mulchand v. Raman( 1 ). The arguments of Mr. Seervai are really directed as assail ing the correctness of this earlier decision which the learned Judges held to be binding on them in the pre sent 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 legisla ture inasmuch· as it purports to endow the City Court, which it brings into existence, with jurisdiction to re ceive, try and dispose of "all suits and other proceed ings of a civil nature" with certain exceptions that are specified in the different sub-sections of section 3.

What is that the expression "all suits of a civil na is said ture" is wide enough ·to include suits in respect to mat ters specified in List I of the Seventh Schedule t)f the Constitution Act with Cen~ral Legislature alone is competent to confer jurisdiction art 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 Pro- regard to which the (!)SI Bom. L.R. 86. ) t > 1950 State of Bon1hay v. NarOthamdas kthabai and Anoth~r. Mukherjea J. • 100 SUPREME COURT REPORTS [1951] vincial List. And it m:iy also be capable of exerc1smg in regard .'to subjects enumerated in the like powers 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 JiJierent subjects both within and outside the provin cial and concurrent fields dealt with by section 3 are m extricably intertwined and not capable of severance _or demarcation, the whole Act must be held to be ultra mres. furthermore as jurisdiction the subjects that amongst In answer to this, it has been urged by the learned Attorney-General included in Item 1 of the Provincial List are "the administra tion of justice and constitution and organization of all courts except the Federal Court", and these expressions obviously include within their ambit the conferring of cases upon general courts which are set up by the Provincial Legislature, and without which they cannot function as courts at all. that Item 2 of the Provincial List which mentions "jurisdiction and powers of all courts to any of the except the Federal Court with limit or matters in expressions curtail "administration of justice and constitution of courts" as used in Item I of the said List referred to above. this List" does not in any way the ordinary connotation of to hear and decide respect It is connected with the It cannot be disputed that the words "administra tion of justice" occurring in Item l of the Provincial List, unless they are limited in- any way, a!e of suffi cient amplitude to confer upon the Provincial Legisla ture the right to regulate and provide for the whole administration of jus machinery tice.

Section 92 of the North America Act deals with the exclusive powers of the Provincial Legislatures and dause (14) of the section speaks of "the administration of justice in the Provinces" as including "the consti tt!lion, maintenance and organization of Provincial Courts. " In interpreting this provision of the constitu tion it has been held in North America that the words 19SO State of Bombay v. Narothamda:t Jethabai and Another. Mukherjea J. S.C.R. SUPREME COURT REPORTS 101 maintenance organization "constitution, courts" plainly indude the power to define the juris diction of such courts territorially as well as in other respects(1 ). 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 to gether, the conclusion cannot be . avoided that the ex and constitution pressions "administration of of courts" do not include "jurisdiction and powers of court~" which are separately dealt with under Item 2.

To find out, therefore, the extent of powers of the Pro vincial Legislature in · respect o! conferring jurisdiction upon courts, the . relevant item • to be looked to is not Item I but Item 2 of the Provincial List. justice ) I read as in this form . Lists are not seems to me to be The contention I agree with Mr. Setalvad that plainly unacceptable. the different topics in the same Legislative List should another. As was exclusive of one not be observed by Sir Maurice Gwyer in The United Provin- ces v. Atiqua Begum( 2 ), "the subjects dealt with in the three Legislative always set out with It would be practically impossible scientific definition. for example to define each item in the Provincial List in such a way as to make it exclusive of every other itrm 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 some aspect come within the same subject might 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 \I) R, CountY Courts 'Of British Columbia-21 S.C.R. 446. (2) [I 940]F.C.R. 110 at p. l 34. 1950 State of Bombay v. Narolhamdas Jethabal and Another. Mukherjra J. • 102 SUPREME COURT REPORTS r 19511 a Provincial the Provincial Legislature to Legislature that has been given the· power of legisla ting 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 invest a court with jurisdiction with respect to all subjects no it might occur, a clear matter in whichever List conflict is hound. to anse between Item 1 of the Item 53 of the Central List; Provincial List and tresp;u;sing upon exclusive field of the Centre would be void inoperative under section the Constitution Act.

This being the position, a way would have to be the Citizens Privy Council observed lnst1rance Company of Canada v. Parsons(') "it could not ha\-e been the intention that a conflict should exi~t and in order to prevent such a result the two sections must be read together and the language of the one in terpreted other. " in the case of necessary modified conflict. As and where found out legislation to avoid 100 of to read justice and Mr. Seervai suggests that the proper way of recon ciling this apparent conflict would be constitution cf words "administration 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 accord ance with jurisdiction relates.

The Provincial Legislature can endow court with respect to any matter in List II and the Central Legislature can do the same with regard to s11bjects specified in , List I. So far as matters in the Concurrent List are concerned, either of the Legislatures can make prov1S1ons in respect of them subject to the conditions laid down in section 107 of the Constitution Act. (1) 7 A.C. 96 at p. 109. to which such jurisdiction in the subjects 1950 State of Bombay v. Narothamda~ Jethabai and Another. S.C.R. SUPREME COURT REPORTS 103 It is justice includes constitute as sound. necessarily 101 of the North America Act, This argument, though apparently plausible, cannot, in my opinion, be accepted to be noted that the right to set up courts and to provide for justice has the whole machinery of administration of to the Provincial Legislature. been given exclusively Under section Parliament of Canada has a reserve of power to create additidnal courts for better administration of the of Canada but the Indian Constitution Act of 1935 does not give any such power to the Central Legis ·Jature.

Courts are to be established by the Provincial Legislature alone. The word 'court' certainly means a place where judicially administered, The appointment of Judges and officers or the mere setting apart of a place ·where are to meet, Judges sufficient are not court. A court a administer justice unless it cannot 'vestt'd with jurisdiction to decide cases and "the constitution of a If Mr. Seervai's contention is accepted, the result will be that _when a Provincial Legislature establishes a civil court, it can only be 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 monev claims but - not a claim on a promissory note; nor ·could it recovery of corporation tax, for 'entertain a suit for Negotiable tax are sub jects of the Central List.

This certainly was not the scheme of the Constitution Act. In my opinion, the pro per way to avoid a conflict would be to read entry 1 of the Provincial List, which contains the only provi adminis sion relating to constitution of courts and tration 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, Instruments and corporation jurisdiction. " (1) invested with jurisdiction (I) Vide Clemen's Canadian Constitution, 3rd Edn., p. 527. 1950 State of Bombay v. Narothamdas Jethabai and Anolhet. Mukherjea J. 104 SUPREME COURT REPORTS [1951] relate justice", while the vesting of the other hand administration of "administration of subject. The other therefore, be legitimately interpret the · language of one by three Lists and what jurisdiction that of the and to other. Entry 1 of List II uses the expressions "ad. ministration of justice and constitution of all courts"' i.n a perfectly general manner.

No particular subject is specified to which the justice might relate or for which a court might be comtituted. It can, interpreted to refer jurisdiction to decide cases not limited to a general to any particular to particular matters appearing template courts In one case with regard to such specific items only. the jurisdiction is 'general' as is implied in the expres in the other three the jurisdiction is 'particular' as limited to parti I agree with my cular matters and hence exclusive. 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 ordinarily treated as the legislative practice embraced within that topic in of the country('); and if that test is applied, the inter pretation . appear to be per above would fectly legitimate.· The distinction between general and recognised particular in the this country prior to the passing of the Constitution Act of 1935 and in this classes and categories country civil courts of certain graded in a certain manner according jurisdiction pecuniary entertain and decide civil nature within localities. particular 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 jurisdiction has legislative practice of and empowered a after that. There have been always been jurisdiction Particular suggested suits of always (I) Vide c,oft v. Dunphy, [1933] A.C. 156. ' • 19SO State of Bombay v Narothamdas Jethabai and Another. Mukherjea J.. S.C.R. SUPREME COURT REPORTS 105 for scaling down exorbitant rates of interest or giving relief to rural debtors. Similar instances may be cited jurisdiction in criminal cases. regard to conferring of special lists, There will be no difficulty in interpreting in a proper the Legislative Lists manner the different entries in referred 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 power of the Provincial .establishing courts upon Legislature. The Provincial Legislature can 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 1 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 legislative they can exercise such powers under the three entries specified above. But the exercise of any such powers by the Central Government would not in any way conflict with the powers exercisable by the Provincial Legislature under entry 1 of List II. The ex pression 'general' must 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 Pro vincial 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 there cannot be even an jurisdiction only, special incidental encroachment upon such special jurisdiction I ~ .. t l 106 SUPREME COURT REPORTS [1951] 1950 State of Bombay v. Narothamdas Jethabai and Another Mukherjea J. conferring of general jurisdiction by reason of courts 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 Parlia ment under section 101 of the North America Act, the Constitution has assigned to the provinces the exclusive power in relation to administration of justice includ ing the maintenance, constitution and organization of limitation is no any provincial courts. There that exists between line of division court along the matters within competence legislative Dominion Parliament and of the Provincial Legis lative Assemblies('). There is <is in the entry 53 in List I of the Indian Act Canadian Constitution, but there judicial pro nouncements to the effect that the Dominion Parlia ment can impose jurisdiction on provincial courts over Dominion the British Parliament in Government of India Act of 1935 in regard to admin istration of justice and jurisdiction of courts wanted to adopt the Canadian model with such modifications JS they considered necessary. immaterial to speculate on these matters.

For the reasons given above, I am of the ppinion that the decision of the Bombay High Court in Mulchand v. Raman( 3 correct, and the contention of Mr. Seervai should fail. In the result, the appeal is allowed and the judg legislative topics in indeed no such It is, however, framing the subjects('). It may be ) ment of the High Court is set aside. DasJ. DAs J.-I agree that this appeal should be allowed. In view of the importance of the questions raised in (I) Vide Clements Canadian Constitution p. 526. \2) Vide Lefroy's Canada's Federal System p. 541. (3) SI Born. L.R. 86. • 19SO State of Bombay v. Narothamda! Jethabai and Another. Da& J, S.C.R. SUPREME COURT REPORTS 107 this appeal, I consider it right to state my reasons for coming to that conclusion. The salient facts, as to which there is no dispute, arc as follows: On May 10, 1948, the Provincial Legisla ture of Bombay passed Act No. XL of 1948, called the Bombay City Civil Court Act, 1948. · It was passed with a view "to establish an additional Civil Court for Greater Bombay. " The provisions of that Act which will be relevant for the purposes of the present appeal may now be set out : "l. (2) It shall come into force on such date as the in the Provincial Government may, by notification Official Gazette, appoint in this behalf.

The Provincial Government may, by notification the Greater in the Official Gazette, establish Bombay a Court, to be called the Bombay City Civil in any Court. Notwithstanding anything contained 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 Coun as a Coun of Admiralty or Vice-Admiralty or as a Colonial Coun of Admiralty, or as a Court having testamentary, intestate or matri monial jurisdiction, or (b) by debtors, or ( c) by the High Court for the relief of insolvent the High Court under any special" law other than the Letters Patent, or ( d) by the Small Cause Court : Provided the Provincial Government may, from time to time, after consultation with the High Court, by a like notification extend the jurisdiction of the City Court to any suits or proceedings of the nature specified in Clauses (a) and (b).

4. Subject to the exceptions sec- tion 3, the Provincial Government may, by notifica tion in the Official Gazette, invest the City Court with jurisdiction to receive, try and dispose of all suits and specified m " ' ;. • 1950 State of Bombay v. Narothatnda5 Jethabai and Another DasJ. 108 SUPREME COURT REPORTS [ 1951 l other proceedings of a civil nature arising within the Greater Bombay and of such value not exceeding twenty-five thousand· rupees as may be specified in the notification. ' anything contained

12. Notwithstnding in any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court : Provided that the High Court may, for any special trial by itself stage, remove for reason, and at any any suit or proceeding from the City Court. " The Act received the assent of the Governor-General It came into force on August about the same time. 16, 1948, by a notification issued by the Provincial Government and published in the Official Gazette. Simultaneously with the passing of the above Act the (XLI of 1948) Bombay Legislature also enacted Act called the Bombay High Court Letters Patent Amend ment Act, 1948. By section 3 of that Act Clause 12 of the Letters Patent was amended by adding the fol lowing words :- "Except that the said High Court shall not have such Original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay or the Bombay City Civil Court.

" Shor ti y after the passing of the above Acts, validity of the Bombay City Civil Court Act (XL of 1948) as challenged in Mtdchand Kundanmal fag· tiani v. Raman Hiralal Shah('), a suit on promissory note) filed in the Original side of the High Court. A Division Bench of the Bombay High Court (Chagla C. J. and Bhagwati J. ), on September 2, 1948, held that legislative competence of the Act was well within the the Provincial Legislature a.nd was not ultra vires. Leave was given to the plaintiff in that suit under sec tion 205 of the Government of India /\.ct, 1935, to ap peal to the FederaJ. Court but no such appeal appears to have been filed. On January 20, 1950, the Provincial Government of the following notification No. 2346/5 Bombay issued in the Official Gazette : • (I) A.l.R. 1949 Born. 197; SI Born. L.R .. 86. , S.C.R. SUPREME COURT REPORTS 109 the Government of Bombay invest, with effect ftqm and on "In exercise ot the powers conferred by section 4 of the Bombay City Civil Court Act, 1948 (Bombay Act LX of 1948), the date of pleased to the City Court with jurisdiction to this notification, receive, try and dispose of all suits and other pro ceedings of a civil nature not exceeding twenty-five thousand rupees Greater Bombay subject1 however, the exceptions specified in section 3 of the said Act.

" arising within in value, and 1950 State of Bombay v. Narothamdm Jethabai and Another Das J. further 11,704-5-4 with try and dispose of On February 6, 1950, the Jethabhai presented first respondent Naro thamdas a plaint before Prothonotary of the Bombay High Court for recovery of Rs. 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, that suit because (1) of the Bombay City Civil Court Act, 1948, f!ltra vires and (2) at least section 4 of that Act and the notification issued thereunder were ultra vires. Having some doubts as to whether in view of the the Provincial Government notification 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 Ghambers.

By his judgment J. held delivered on February 23, 1950. Bhagwati that section 4 of the Act and the notification issued thereunder were ultra vires and void and to entertain High Court, therefore, had admitted. suit. The plaint as accordingly issued · by jurisdiction received The first respondent thereupon took out a summons under the rules of the. Court for leave to sign judgment against the second respondent The State of Bombay was, on its own application, added as a party to the suit. The matter was put up before a Division Bench (Chagla Ct J. and Tendolkar J.) for trial of the follow ing issues : i 8-8 S. c. India/67 I I ..... , J.. 1950 State of Bombay v. Narothamdas Jethabal and .4nothe1 DaJ J. 110 SUPREME. COURT REPORTS [1951] " ( 1) Whether Act XL of 1948 is ultra vi res of the Legislature of the State of Bombay. • (2) Whether Section 4 of Act XL of 1948 is in any the State of the Legislature of event ultra vires of Bombay.

(3) Whether the Government of Bombay Notifica is ultra tion No. 2346/5 dated 20th January, 1950, vi res, void and inoperative in law. ( 4) Whether this Court has jurisdiction to try the suit. " issue was answered The larger point involved in issue No. 1 having been concluded by the earlier decision of the Division Bench /agtiani v. Raman Hiralal in Mulchand Kundanmal Shah(') the negative without any argument but leave was reserved to the first respondent to contest the correctness of that earlier decision in this Court. The Division Bench in agree ment with Bhagwati J. held that by section 4 of the Act the Provincial Legislature did not legislate but delegated the Provincial Government which it had no power to do and, there fore, section 4 and along with the notification No. 2346 /5 issued thereunder were ultra vi res, void and inoperative. Accordingly they answered issues Nos. (2). (3) and ( 4) in the affirmative and sent the summons for judgment back to the taking i;nisccl laneous matters to dispose it of on merits.

The State of Bombay has now come up before us in appeal from this decision of the. High Court. the power of legislation to learned Judge itself The Advocate-General of Madras has intervened in the validity support of this appeal and for maintaining (VII of 1892) of the Madras City Civil Court Act section 3A of which inserted in 1953 by way of amend Bombay Act except that the amount of the value was fixed at Rs. 10,000 in section 3A of the Madras Act instead of Rs. 25,000 fixed in section 4 of the Bombay Act. identical terms with section 4 of The distinction between conditional legislation and legislative power has been well-known delegation of (I) St Bom. L.R. 86. • 1950 State of Bombay Narot1t"anulas letllobal and Another DaJ I. s.t.R. SUPREME COURT REPORTS 111 In the Courts the language ever since the decision of the Privy Council in R. v. Burah(1) and the other Privy Council cases cited in the judgments of the High Court.

It is firmly establi shed that conditional legislation is not only permissible but is indeed in many cases convenient and necessary. The difficulty which confronts in as certaining whether a particular provision of a Statute in the constitutes a conditional legislation as explained decisions of the present case the Privy Council. the High Court, on a construction of section 4 of the the condusion Bombay City Civil ColJ!t Act, came to that it was nqt 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 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 s~ up a Court with a particular pecuniary jurisdiction, under sec tion 4 the Legislature itself did not invest the Court with any higher jurisdiction but left it to the Provincial Government to exercise the function which the Govern ment of India Act laid down should be exercised by the Provincial Legislature.

The learned Chief Justice expressed the view that the Legislature never applied its mind to the question as to whether the new Court which it was setting up should have a jurisdiction than that of Rs. 10,000, and that section 4 was higher ' not a section which merely directed. the Prov4tcial laid down hy the Government to carry out Legislature, but that it was a section which conferred upon the Provincial Government the power to confer referring jurisdiction upon 1 to R. v. Burah(1) and several other cases and purport ing to apply the tests laid down in the decisions to · the Act the learned Chief Justice concluded that the Legislature in the exercise of its legislative power had set up a Civil Court with a limited jurisdiction under ·. section 3. of the Act, that it had not set up a Court . with a jurisdiction higher than ten thousand rupees and the Court. Then, after the policy (1) L:R. SI.A. 178. .•

195.0 State of Bombay v. Narothamdas Jethabai and Another DasJ. 112 SUPREME COURT REPORTS [1951] that, having set up a Court of limited jurisdiction, it had given to the Provincial Government under section 4 the power to confer upon that Court a higher jurisdic tion up to twenty-five thousand rupees. This power, which was conferred upon the Provincial Government to the Chief Justice, a power which was according could only have been exercised by the Legislature I am unable to accept the afore-mentioned con itself. struction of sections 3 and 4 of the Act. first, justice, within the observations of As I have already said, the High Court founded their conclusions principally on Lordships of the Privy Council in R. v. Burah(') and certain other Privy Council cases. It will be useful, therefore, to analyse the Privy Council decision in R. v. Burah(' ). In 1869 the Indian Legislature passed an Act (No.

XXII of 1869) purporting, to remove a district called Garo Hills from the jurisdiction of the Courts of civil and criminal jurisdiction and from the law prescribed for such Courts by Regulations and Acts and, secondly, to. vest the administration of civil and criminal territory, in such officers as the Lieutenant-Governor of Bengal might, for the purpose of tribunals of first instance, or of reference and appeal, from time to time appoint. The Act was to come into operation on such day as the Lieutenant-Governor of Bengal should, by notification section authorised the Lieutenant-Governor of Bengal by noti fication 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 Calcutta Gazette, direct.

The 8th the same "The said Lieutenant-Governor may from time to the Calcutta Gazette, extend time, by notification in mutatis mutandis all or any of the provisions contain- ed in the other sections of this Act to the J aintia Hills, the Naga Hills, and to such portion of the Khasi Hills, as for the time being forms part of British India. {I) L.R. SI.A. I 78. • • .. 1950 State of Bombay v. Narothamdas Jethabai and Another Das/. S.C.R. SUPREME COURT REPORTS 113 Every such notification shall specify the bound aries of the territories to which it applies. " jurisdiction and criminal to transportation excluded therefrom the 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 jurisdiction of the Courts of civil justice. The respondent Burah and another person having been convicted by the Deputy Commissioner of the Khasi to death, and Jaintia Hills of murder and sentenced which was later on commuted life, they from jail sent a petition of appeal against their conviction.

The provisions of Act XXII of 1869 having been extended, by notification under section 9, to the Khasi and Jaintia Hills, the High Court would have no to entertain the appeal, unless section 9 and the notification were ultra vires and void. The majority of the Judges of the Full Bench con stituted the view for considering the question took that section 9 was really not legislation but was an instance of delegation of legislative power. The Crown obtained special leave to appeal to the Privy Council. In summarising the effect of the provisions of sections 1 to 8 of that Act on Garo Hills Lord Selborne who deli vered the judgment of the Privy Council observed at page 194 that the Governor-General in Council had de termined, in the due and ordinary course of legislation, to remove a particular district from jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices, to be appointed by and responsi leaving it to ble to the Lieutenant-Governor of Bengal at what time that the Lieutenant-Governor change should the Legislature had determined that, so far, a certain change should take place, but that to leave the time, and the manner, of carrying it into effect to the dis cretion of the Lieutenant-Governor and the laws which were or might be in force in the other territories same Government were to apply to this such as it might be fit and proper 9-8 S. c.

India/67 it was expedient to say take place, subject also, -• - 114 SUPREME COURT REPORTS [1951] 19SO State of Bombay v. Narothamdm Jethabai and Another Dal J. district also, but that, >(IS it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant Governor. His Lordship then proceeded to state the true meaning and effect of the provisions ·Of section 9: the ' Khasi and "This having been done as to the Garo Hills, what was done as to the Khasi and Jaintia Hills ? The Legislature decided that it, was fit and proper that the adjoining district of Jaintia Hills jurisdiction of the should also be removed from the existing Courts, and brought under the same pro visions with the Garo Hills, not necessarily and at all if and when the Lieutenant-Governor events, but it desirable to do so; and that it was should think also possible that not all that it might be expedient but some only, of those provisions should be applied that adjoining district.

And accordingly the Legis lature entrusted for these purposes also, a discretionary power to the Lieutenant-Governor. " ' • thus conferred Finally, his Lordship concluded at p. 195 : "Their Lordships think that it is a fallacy to speak upon the Lieutenant of the powers Governor (large as they undoubted! y 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 Thcir whole operation is, directly and immediately, under and by virtue of this Act XXII of 1869 itself. The judgment as to proper Legislature has place, person, judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in any judgment, be well exercised, may, in their LordsMps' either absolutely or conditionally.

Legislation, con ditional on the use of particular powers, or on the exercise of a entrusted by the to persons In whom it places confidence, Legislature imperial or in a Provincial Legislature limited discretion, the result of laws, powers; exercised its 1950 State of Bombay v, Narothamdas Jethabai and Another Das J. S.C.R. SUPREME COURT REPORTS 115 is no uncommon it may be highly convenient. " thing ; and in many circumstances, If the reasonings underlying the observations of the Bombay High Court were correct then on those very reasonings it could be held in Burah's case(1) that while in enacting sections 1 to 8 the Legislature had applied its mind and laid down its policy as to the exclusion the Garo Hills from the jurisdiction of the Courts the Legislature did not apply its. mind and .. did not lay down any policy as to the exclusion of the Khasi jurisdiction of the Courts and Jaintia Hills from the hue had left it to the Lieutenant-Governor to do what it alone could do.

This construction quite clearly did not find favour with the Privy Council. The Privy Council by construction spelt out of . the very language of section 9 that the Legislature itself had decided that it was fit and proper that the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts and brought under the same pro the Garo Hills, not necessarily visions as applied to and at. all events but if and when the Lieutenant Governor should think it desirable to do so and ac cordingly entrusted Lieutenant-Governor. Adopting same method of construction and adopting the language of Lord Sel borne it may well be said that in enacting section 3 the Legislature the due and ordinary course of to establish an addi jurisdiction to tional Court of civil jurisdiction with entertain suits and other proceedings arising within the Greater Bombay of the value up to Rs. 10,000 leav ing it, by section 1 (2), to the Provincial Government .change should take place. to say at what time Likewise, it may be said that in enacting section 4 the Legislature itself has decided that it is fit and jurisdiction of the pecuniary proper new Court, not necessarily and at all events or all at if and when the Provincial Government once but, to do so and accordingly should think it desirable the Provincial entrusted a discretionary power that the Government. a discretionary power is entirely wrong to say itself has determined, to extend legislation, It (1) LR.SI.A. 178.

1950 State of Bombay v. Narothamdos Jethahai and Another Das J. ' ' • 116 SUPREME COURT REPORTS [1951] that of indicates extended to determine the pecuniary jurisdiction of time but when itself has decided should not exceed jurisdiction on Indeed, the very jurisdiction therefore, not due is, jurisdiction legislative authority Legislature has not applied its mind or laid down any that the extension of policy. pecuniary twenty-five thousand rupees, that the extension should be ·subject to the exceptions specified in section 3 clearly indicate that the Legislature the ex the new tension of Court should be made, not necessarily or at all events or all at any one the Pro vincial Government may consider it desirable to do so and while entrusting a discretionary power with the Provincial Government investing such the new Court, the Legislature itself has also prescribed the limits of such extension.

The efficacy of the Act of ex to any tension of the Legis lature itself. The expression "invest" does not appear It only implies to me to have any special significance. result of condition which the Legislature itself laid down. To the extension of jurisdiction is directly and tMre is no by virtue of this very Act effacement of the Legislature, no abdication of legislative power. On the contrary, the proper Legis lature has exercised the possible the extension of the pecuniary jurisdic necessity for tion of the new Court and the result of that judgment has been to legislate conditionally as to such extension and that the condition having been fulfilled by the the notification by the Provincial Government issue of the legislation has now become absolute. In my judg ment the construction put upon sections 3 and 4 by the High Court was erroneous and cannot be support ed either on principle or on authority.

When pro light of the observation and perly construed in R. v. Burah(') as decision of indicated above section 4 does not amount to a delega tion of legislative power at all but constitutes what is known as conditional legislation. immediately under itself. Here language of Lord Selborne the Privy Coundl fulfilment of judgment as in the (l) L.R. SI.A. 178. S.C.R. SUPREME COURT REPORTS 117 the High Court on Reliance was placed by decision of the Federal Court of India in fatindra Nath Gupta v. Province of Bihar(1) in support of their con clusions. That case was concerned with the questio1i of the validity of the proviso to section 1 (3) of the Bihar Maintenance of Public Order Act (V of 1947). Section 1 remain in force for a period of one year from the date of its commencement. The relevant part of the proviso was in the following terms : the Act should (3) provided 1950 State of Bombay v. Narothamdas Ji thabai and Another DasJ. the Provincial Government may, "Provided that resolution passed by the Bihar by notification, on a the Bihar to by Legislative Assembly Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications notification.

" as may be specified if any, agreed the Provincial Government the Act when extending its Three of the learned Judges held that the proviso and the notification thereunder were ultra vires and They laid particular emphasis on the power void. to make any modification life as indicating that it was a delegation of legislative power. Another learned Judge did not decide this point -but agreed to set aside the order of detention on another ground not material for our present purpose and th<! remaining learned Judge took a different view of the effect of the proviso and held that it was a conditional the meaning of legislation within 'R. v. Burah(2). I do not find it necessary, for the purposes of. the present appeal, to express any view the decision of the Federal as to Court in that case. Assuming, but without deciding, the eutrustment with the Provincial Government of the power to extend the life of an Act with such modifications as unfettered discretion thought fit to make was nothing but a delegation of legislative power.s, there is no such power of modification given to the Provincial Govern ment by section 4 of the Bombay City Civil Court the Provincial Government the correctness of the decision \1) A.I.R.1949 F.C. 115 (2) LR.SI.A. 178. -.4 1950 State of Bombay v.

Narotharndeu Jethabai and Another · DaJ J. 118 SUPREME COURT REPORTS [1951] to delegate acting within it was permissible for Act, 1948, and, therefore, that decision of the Federal Court can have no application to the case before us. The learned Attorney-General wants to _go further and contend that under the Government of India Acr, the Legislatures, Central 1935, or Provincial, while their respective legislative fields, legislative powers. In the view section 4 of the Bombay City Civil Court Act, 1948, does not involve any delegation of legislative power, I do not consider it necessary, on this occasion, to go into that question and I reserve my right to consider and decide that question including the question of the correctness of Jatindra Nath Gupta's case(') on that point as and when occasion may arise in future. I have expressed above, namely, the Federal Court the decision of legislative competence of the Federal and that section Learned Counsel for the first respondent then raises before us the larger question as to whether the Bombay City Civil Court Act, 1948, as a whole was or was not the Provincial within Legislature of Bombay.

Legislative powers were by the Government of India Act, 1935, section 100 of distributed amongst the Provincial the Federal Legis Legislatures. Under lature had, and the Provincial Legislature had not, power to make laws with respect to any of the matters enumerated in List 1 in the Seventh Schedule to thar Act. Likewise, the Provincial Legislature had, and the Federal Legislature had not, power to make laws for the Province with respect to any of the marrer.s enumer It will be noticed ated in List II in that Schedule. legislative power with respect to certain matters to one Legis lature, expressly excluded the legislative power of the other Legislature with respect to those matters. Lastly, section 100 gave concurrent power of legislation to the Federal as well as the Provincial Legislature with respect Schedule. Section 107 of that Act made provision for if any, between a Pro resolving the vincial law and a Federal law or the existing Indian to matters enumerated the section, while af!irmative giving in List Ill in inconsistency, (1) AIR 1949 FC 175 ' - S.C.R. SUPREME COURT REPORTS 119 respect to any of law with Concurrent List (i.e., List three lists we the relevant portions of which are as follows :- III).

Turning now to the several entries relating to Courts, the matters List I. 1950 State of Bombay '· NarothamdaJ Jethabai and Another Entry 53 : Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list ....... . Dal J. List·Il. Entry 1 : justice, constitution and organisation of all Courts, except the Federal Court, and fees .......... the administration of taken therein ; ......... . Entry· 2 : Jurisdiction and powers of all Courts, except respect to any of the matters in this list ; procedure in Rent and Revenue Courts. the Federal Court. with + List III. PART 1. Entry 2 : Criminal Procedure, the Code of included in the date of the passing of this Act. Entry 4 : Civil Procedure, Limitation and all matters included Civil Procedure at Act; ............. . the date of including all matters the Criminal Procedure at including law of in the Code of the passing of ' Entry 15 : Jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this list. laws with it was only Learned Attorney-General urges indicates that entry 1 in that administration of . justice List II clearly had been expressly made a provincial subject and the Provincial Legislature which to administration of could make justice.

The next steps in the argument are that there justice unless Courts could be no administration of were constituted and organised~ that the constitution and organisation of Courts would be meaningless to indulge enterprises for in, unless the Courts so constituted and organised were the Provincial Legislatures respect 1950 State of Bombay v. Narothamdas lethabal a11d Ano th.er Das/. ' ' 120 SUPREME COURT REPORTS [1951} by being invested with administration of justice, so try and determine all vitalised jurisdiction and powers to receive, try and determine suits and other proceedings. The argument, therefore, is that entry 1 in List II by itself gave power to the Provincial Legis lature not only to constitute and organise Courts but al so to confer jurisdiction and powers on them. The learn ed Attorney-General fagtianls case(') and relies on points out that under entry 1 administration of justice responsibility and the Pro was entirely a provincial to make laws with vincial Legislature was authorised justice.

Administration respect inseparable the argument proceeds, from Courts and Courts without jurisdiction is an in comprehensible notion. The conclusion sought to be es tablished, therefore, is that under entry 1 alone of List II the Provincial Legislature had power to make a law, not merely constituting a new Court but, investing such new Court with general jurisdiction and powers to receive, suits and other If entry 1 in List II stood alone and proceedings. entry 53 in List I, entry 2 in List II and entry 15 in List III were not In the Seventh Schedule, the argu ment would have been unanswerable. In Section 92 of the British North America Act, 1867, there was no se parate provision authorising the making of laws with · respect to jurisdiction and powers of Courts and, there fore, the authority to make laws with respect to the jurisdiction and powers of Courts had of necessity to be found in and spelt out of the words "administration of justice" occurring in section 92 (14) of that Act. is, however, no such pressing or compelling There for giving such wide and all embracing necessity to the words "administration of justice" meaning entry 1 of List II. The expression "administration of justice" may be an expression of wide import and may ordinarily, and in the absence of anything indicating any contrary include within its ambit several things as component parts of it, namely, the constitution and ·organisation of Courts, jurisdic tion and powers of the Courts and the laws to be legislative administered by (I) SI Bom.

LR 86. intention, cover and the Courts. But ' 1950 State of Bombay v. Narothamdas Jethabai and Another Da3J. > S.C.R. SUPREME COURT REPORTS 121 these, one inclusion of practice in England as well as in India has been to deal with topics separately in legislative enact ments : sec for example Indian High Courts Act 1861 (24 and 25 Vic., c. 104) sections 2 and 19 ; Government of India Act, 1935, sections 220 and 223, the Letters Patent of the Bombay High Court, 1865, and also the different Civil Courts Acts. Of 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 the words "constitution and that the 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 "admini stration of justice" which preceded those words, for such a construction may militate against the principle laid down by the Privy Council in Mcghraj v.

Allah Rakhia(1). Further, entry 2 in List II would have been if the expression "administration wholly' unnecessary 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 List II the Provincial Legislature had plenary powers to make laws confer ring on, or taking away-from, Courts, existing or new ly constituted, jurisdiction and powers of the widest description, such power would also include the lesser power of conferring jurisdiction and powers with res pect to any of the . matters enumerated in List II, such is contemplated by entry 2 in List II. The greater power would certainly have included the lesser. I do not say that the presence of entry 2 in List II by itself cut down the ambit of the expression "administration of justice" in entry 1, for if there were only entries 1 and 2 in List II and there were no entries like entry 53 in Li~ I and entry 15 in Lisf Ill, it might have been argued with some plausibility that in framing the two entries in the same list not much care was bestowed the draftsman to prevent overlapping and that as (l) LR 74 IA 12, at p.

20. 19SO .State of Bombay •• Narotlwmdtu Jethabal and Another DaJ J. 122 SUPREME COURT REPORTS [1951] III. The both the entries in one and the same list gave legis lative power to the same Legislature the overlapping caused no confusion or inconvenience and that it was not necessary, therefore, to construe entry 1 of List II as cut . down by entry 2 in the same List. The import ant thing to notice topic of "jurisdiction is that the and powers of Courts" had not been included in entry 1 in List II along witb the topic of "constitution and organization of Courts'', but legislative powers with respect to the topic of "jurisdiction and powers of the Courts" had been distributed between the Federal and the Provincial Legislatures in the manner set forth in entry 53 in List I, entry 2 in List II and entry 15 in List "constitution and inclusion of organisation of Courts" as a separate item in entry 1 in List II, the omission of the topic of "jurisdiction and powers of Courts" from entry 1 and the deliberate distribution of powers to make laws with respect to jurisdiction and powers of Courts with the several matters specified in the three lists clearly indicate to my mind that the intention of Parliament was not, by entry 1 in List II by itself, to authorise ihe Provincial Legislature law with to make any jurisdiction and powers of Coum. respect to In my judgment, entry l in List II cannot be read as at all giving any power to the Provincial Legisla ture to confer any jurisdiction or power on any Court it might constitute or organise under that entry justice" and that and "constitution and organisation of Courts" occur ring in entry 1 in List II should be read as exclusive of "the jurisdiction and powers of Courts" the powers respect to which were distributed of legislation with under entry 53 in List I, entry 2 in List II and entry 15 in List III. Such a construction will be consonant laid down by the with the principle of ·construction in the case of In re Marriage Legisla Privy Council tion in Canada('). the expressions "administration of respect ' It is next said that entry 1 in List II gave general the Provincial Legislature to make laws powers (I} (1912] AC 880.

1950 State of Bombay v. Narothamda3 Jethabai and Another DaJ J. . > S.C.R. SUPREME COURT REPORTS 123 include to make in widest itself would laws conferring special to make laws with respect 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 jurisdic Legislatures tion 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 jurisdiction and powers of Courts terms, entry 2 in List II would be wholly redundant, for the wider power 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 entry 1 in List II were exclusive of the powers con ferred under entry 53 in List I, entry 2 in List II and entry 15 in List Ill, for if entry 1 in List II gave power to make laws conferring to the Provincial Legislature general jurisdiction of the widest kind which included jurisdiction and powers with respect to all matters spe cified in all the Lists, then the utility of entry 53 in List I, entry 2 in List II and entry 15 in List III as giving special powers to make laws conferring special jurisdic tion would vanish altogether.

Special power to confer special jurisdiction would be meaningless it were included in the general power also. This circumstance by itself should be sufficient to induce the Court to Qssign a limited scope and ambit to the power con ferred on the Provincial Legislature under entry 1 in List II. We, therefore, come back to the same conclu that entrv 1 in List II should be construed and read as confeiring on the Provincial Legislature all justice and powers with respect constitution and organisation of Courts minus to the jurisdiction power to make and powers of Courts. to administration of laws with respect It is pointed out that under entry 1 in List II it the Provincial Legislature which alone could was only 1950 State of Bombay v. Narothamdas Jethabai and Another Dos J. 124 SUPREME COURT REPORTS [1951] It that entry, constitute and organise a new Court and if that entry did not empower the Provincial Legislature to vest in such new Court the general juriscliction and power to receive, try and dispose of all kinds of suits and other proceedings, then no new Court of general jurisdiction could be established at all.

As will be seen hereafter, the Provincial Legislature has, under entry 2 in List II, power to make laws conferring wide general jurisdiction and powers on a newly constituted Court and consequently a forced construction need not be is said that if the placed on entry 1 in List II. Provincial Legislature could not, under entry 1 in List II, confer jurisdiction on a new Court set up by it under the result would have been that the Provincial Legislature would have had to set up a new Court by one law made under entry 1 of List II without conferring on it any jurisdiction whatever and would have had to make another law with respect to the jurisdiction and powers of such Court. I see no the Provincial Legislature could by force in this, for one and the law have set up a Court under entry 1 in List II and 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 arid entry 2 in List II and entry 15 in List III at one and the same time. ' • A good deal of argument was advanced before us to the applicability of the doctrine of pith and sub stance and, indeed, the decision of the Bombay High Court in /agtiani's case was practically founded on that doctrine.

Shortly put, the argument, as advanced, is that under entry 1 in List II the Provincial Legis lature had power respect administration of the Pro vincial Legislature had power, under entry 1 itself, jurisdiction and to make powers on Courts constituted and organised by laws conferring general laws with therefore, in making such that entry ; to make justice ; that, 1950 State of Bombay v. Narothamda3 Jethabai and Another Da5 J. S.C.R. SUPREME COURT REPORTS 125 In my in List that the in List specified legislative the matters The doctrine field assigned its application, incidentally I with encroached the Provincial Legislature the Federal Legislature under entry 53 respect to the jurisdiction and powers of Court with respect I, such to any of incidental encroachment did not invalidate the law, as in pith and substance it was a law within the legisla judgment, this argument really tive powers. begs the question.

The doctrine of pith and substance postulates, for impugned law is substantially within legislative competence of that made it, but only inci the particular Lc;:gislature dentally encroached upon the legislative field of another Legislature. incidental encroachment if only the law is in pith and substance within the legislative field of the particular Legislature which made it. Therefore, if the Provincial Legislature under entry 1 had power to vest general jurisdiction on a newly constituted Court, then if the law made by the Court with jurisdiction respect to matters specified in List I the question of the applicability of the doctrine of pith and substance pointed out that I have already might have arisen. on a proper construction, entry 1 of List II did not empower to confer any jurisdiction or power on the Court and the expression "administration of justice" had to be read as covering matters relating to administration of justice other than jurisdiction and powers of Court and, if that were so, the discussion of the doctrine of pith and substance I find it difficult to support the does not arise at all. reasonings adopted by the Bombay High Court in /agtiani' s case. the Provincial Legislature incidentally gave ' The argument as to the applicability of the doctrine of pith and substance to the impugned Act can, how the following modified ever, be well main~ained in form.

Under entry 2 in List TI the Provincial Legisla ture had power jurisdiction and powers of Courts with respect to any II; that "administ of the matters enumerated in List ration of justice" in entry 1 is one of the matters in laws with respect to make 1950 State of Bombay v. Narothamdas Jethabal and Another Da1J. 126 SUPREME COURT REPORTS [1951] respect administration of the entire there being List II ; that, therefore, the Provincial Legislature had power to confer the widest general jurisdiction on any jurisdiction from new Court or take away this power, the any existing Court and doctrine of pith and substance applies. It is suggested that this argument cannot be formulated in view of the language used in entry 2 in List II. It is pointed out that entry 2 treats "any of the matters in this L:ist" as to" which, i.e., "over" subject-matter "with which the Court may be authorised to exercise jurisdic tion and power.

This construction of entry 2 is obvious jurisdiction and powers of the ly fallacious, because Court "over" justice as a subject matter is meaningless and entry 2 can never be read with entry l. This circumstance alone shows that the words "with respect to" occurring in entry 2 in List II when applied to entry 1 did not mean "over" but really meant "relating to" or "touching" or "concern ing" or "for" administration of justice, and so read and understood, entry 2, read with entry l in List II, clearly authorised the Provincial Legislature to make law conferring on or taking away from a Court general jurisdiction and powers touching or concerning or for administration of justice. This line of reasoning has been so very fully and lucidly dealt with by my brother Sastri J. that I have nothing to respectfully adopt his reasonings and conclusion on the point. This argument, in my resolves all difficulties by vesting power in opinion, the Provincial Legislature jurisdic tfon on Courts constituted and organised by it for effective administration of justice which was made its special responsibility.

Any argument as to deliberate encroachment tnat might have been founded on the Proviso to section 3 of the Act which enabled the Pro to the City Coun even vincial Government to give Admiralty jurisdiction which was a matter in List I has been set at rest by the amendment of the Proviso by Bombay Act XXVI of 1950. The impugned Bombay Act may, in my judgment, be well supported law made by the Provincial Legislature under as a to confer general thereto and I rclatir.g to or ' S.C.R. SUPREME COURT REPORTS 127 entry 2 read with entry 1 in List II and I hold therefore, concur in the order that this accordingly. appeal be. allowed. I, the contention of In the view I have taken, it is not necessary to dis learned Attorney-General that .the Bombay City Civil Court Act may be sup the Pro ported as a piece of vincial Legislature of Bombay under entry 4 read with entry 15 in Part I of List III and I express no opinion on that point. legislation made by 1950 State of Bombay . v. Narothallldru lethabai tl1ld Another Dasi. ' '· Agent for the appellant : P. A. Mehta. Agent for the respondents: Ra;inder Nar:zin. Appeal allowed.