JAMSHED N. GUZDAR v. STATE OF MAHARASHTRA AND ORS

Citation: [2005] 1 S.C.R. 223

Court: Supreme Court of India

Bench: R.C. LAHOTI, SHIVARAJ V. PATIL, K.G. BALAKRISHNAN, B.N. SRIKRISHNA, G.P. MATHUR

Case summary

JAMSHED N. GUZDAR v. STATE OF MAHARASHTRA AND ORS.pdf

Judgment text

JAMSHED N. GUZDAR v. STATE OF MAHARASHTRA AND ORS. JANUARY 11, 2005 [R. C. LAHOTI, CJ. , SHIVARAJ V. PATIL, K. G. BALAKRISHNAN, B. N. SRIKRISHNA AND G. P. MATHUR, JJ. ] Constitution ofIndia, 1950; Articles 2, 3, 4, 14, 19, 132, 134, 136, 216, 217, 221, 222, 223, 224, 226, 227, 230 and 246(2); Entries 77, 78, 79 and 95 ofList I, Entry 3 ofList II, Entries II-A, 13, 46 and 65 oflist-Ill/Bombay City Civil Court Act, 1948/lelters Patent (Amendment) Act, 1948/Maharashtra Civil Court (Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1977/Bombay City Civil Court and Bombay Court of Small Causes (Enhancement ofPecuniary Jurisdiction & Amendment) Act, 1986/Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of letters Patent Appeals) Act, 1986/Madhya Pradesh Uchha Nyayalaya (letters Patent Appeal Samapti) Adhiniyam, 1981: f ' ,.

Bombay City Civil Court and Bombay Court of Small Causes (Enhancement of Pecuinary Jurisdiction & Amendment) Act, 1987- Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of letters Patent Appeals) Act, 1986 -Constitutionality of-Held: By way ofamendment in the Acts, disparity in pecuniary jurisdiction removed by conferring unlimited pecuniary jurisdiction on the City Civil Court at par with other Civil Courts in other parts ofthe State ofMaharashtra-Po, ;er of legislature to confer or take away general jurisdiction of the Courts, other than Supreme Court, forms part ofthe administration ofjustice and not forming ">· part ofthe Constitution and organizations ofHigh Courts-State legislature could confer general jurisdiction on all Courts in terms ofEntries 3, 11-A and 46 of the Concurrent List-Jurisdiction and powers of High Court dealt separately under Entry I1-A purportedly for bifurcation oflegislative powers possessed by the Centre and the State legislature-But the subject Constitution and Organization ofSupreme Court and High Courts rests with the Union in the Scheme of the Constitution-It cannot be said that Parliament alone has ,"'t the exclusive competence to invest the High Courts with General Jurisdiction referable to Constitution and Organizations of High Courts-Investing the City Civil Courts with unlimitedjurisdiction in terms ofamending Acts by the State does not amount to dealing with the subject Constitution and Organization ofthe High Courts-Hence constitutional validity of hath the Acts, 1986 and 1987 Act, upheld.

Madlry11 Pr11desll (Ucllclr11 Ny11y11ly11 Letters P11te11t Appe11ls S11mapti) Adlri11iy11m, 1981-Constitutionality of-Held: Since State Legislature competent to pass law relating to general jurisdiction ofHigh Courts dealing with administration ofjustice, Adhiniyam cannot be declared unconstitutional/ invalid-Hence, constitutional validity ofthe Adhiniyam upheld-Interpretation ofStatutes. E11try 13 ofList-I/I-Scope of-Held: In the mailer ofCivil Procedure the Parliament and the State legislature acquire the concurrent Legislative competence. E11try 3 ofList-II/ before amendmen vis-a-·vis Entry 11 oflist-III after amendment rlw Enlly 65 oflist-II-Implication of-Held: Administration of justice is a State subject-General Jurisdiction includesjurisdiction and powers ofall Courts including High Courts for administration ofjustice, such power rests with the Stale. Emry I I-A, List-Ill-Use ofSemicolon after 'administration ofjustice'- Signification of-Discussed.

'Admi11istr11tio11 of Justice' vis-a-vis 'General Jurisdiction '-Relation between-Discussed. Absence of provision for right lo appeal in a Statute-Effect of- Discussed. Words 1111d Pl1r11ses: 'Constitution', 'organization' and 'administration ofjustice '-Meaning of Doctrines: Doctrine of 'pith and substance '-Applicability of The questions which arose for determin:iltion in these appeals were as to whether the Bombay City Civil Court and Bombay Court of Small . l. N. GUZDAR v.

STATE 225 Causes (Enhancement of Pecuniary Jurisdiction & Amendment) Act, 1986 (1987 Act), which already received assent of the President, Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 (1986 Act), which also received the assent of the President were constitutionally valid, and as to whether the Full Bench of the High Court of Madhya Pradesh was right in striking down the provisions of Letters Patent Appeals by bringing the Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981. The principal question that arose for consideration relates to the legislative competence of the State legislature in passing these enactments. Further, with regard to the 1987 Act, it was contended that in the absence of infrastructure and necessary facilities, it cannot be brought into force unle~s .

he State Government satisfies that there are sufficient number of court halls and other infrastructure including the requisite number of judges available to discharge their functions in the City Civil Court. Two other contentions required to be considered are - (i) whether in the absence of necessary infrastructure and the requisite number of judges in the city civil court, the action of the State Government in issuing the notification , was arbitrary and unreasonable and (ii) also whether the notification was 1 issued unfairly due to extraneous consideration. Dismissing the appeals, the Court HELD: I. I. Only the city civil court which has been established for Greater Bombay was having limited jurisdiction upto Rs.

50,000 and under the 1987 Act, the disparity in the pecuniary jurisdiction has been removed by conferring unlimited jurisdiction on the city civil court like its counterparts in other cities and towns in the State of Maharashtra and also the jurisdiction of the Small Causes Court is enhanced from Rs. 10,000 to Rs. 25,000 like Civil Judge, Junior Division in other cities. 1987 Act is prospective in effect. 1245-G, H; 246-Al 1. 2. The State Legislature has power to confer general jurisdiction on all the courts except the Supreme Court under Entry 11A of the Concurrent List falling within the meaning of 'administration of justice'. Hence, the 1987 Act is within the competence of the State Legislature. 1250-CI 1. 3.

The State Legislature is the sole repository of power to confer ' i jurisdiction on all the courts except the Supreme Court and High Court ,, under Entry 3 of the State List prior to Forty··second Amendment in the Constitution and thereafter the Parliament as well as the State Legislatures have power to confer" general jurisdiction on all the courts . including the High Courts under Entry I IA of the Concurrent List. Entry 46 of the Concurrent List deals with the special jurisdiction in respect of the matters in the Concurrent List. One of the matters in the Concurrent List is the Civil Procedure Code. The combined reading of Entry llA, Entry 13 and Entry 46 of the Concurrent List makes the position clear that the 1987 Act is not beyond the legislative competence of the State Legislature when it deals with pecuniary jurisdiction of civil courts. (250-D-E-F) 1. 4.

Entries 77 and 78 of the Union List deal with 'constitution' and 'organisation' of the Supreme Court and the High Courts because after coming into force of the Constitution, the Supreme Court was required to be set up and so also the High Courts were required to be established and/or reconstituted. The expressions 'constitution' and 'organisation' of the High Courts in Entry 78 are referable to Articles 2, 3 and 4 of the Constitution. The investment of power in the cases, where a High Court is set up in a reorganized State, is referable to Article 4 of the Constitution, which is an independent power not referable to Entry 78 of List I. (251-B-C; 261-F) " State ofBombay v. Narothamdas Jethabhai and Anr. , (1951) SCR 51, followed. lndu Bhushan De and Ors. v. The State of West Bengal and Ors. , AIR (1972) Calcutta 160, relied on. Amarendra Nath Roy Chowdhury v. Bikash Chandra Ghosh and Anr. , AIR (1957) Calcutta 534, approved. :.. ( 1. 5.

The words 'constitution' and 'organisation' have their own meaning as against expressions 'jurisdiction>' and 'powers', but in the scheme of the Constitution the subject 'constitution' and 'organisation' of Supreme Court and High Courts rests with the Union. ! 251-DI 1. 6. It is clear that the Parliament is the sole repository of powers . r. as far as the 'constitution', 'organisation', 'jurisdiction' and 'powers' of the Supreme Court is concerned. Conscious omissions of the words 'jurisdiction' and 'powers' in Entry 78, looking to the said words included J. N. GUZDAR v. STATE 227 in Entry 77 of the Union List, it is clear that the 'jurisdiction' and 'power' of the High Courts are dealt with as a separate topic under the caption 'administration of justice' under Entry I IA of the Concurrent List.

The exclusion of 'jurisdiction' and 'powers' from Entry 78 of the Union List appears to be meaningful and intended to serve a definite purpose in relation to bifurcation or division of legislative powers relating to conferment of general jurisdiction of High Courts. 1250-G-H; 251-AI 2. 1. The general jurisdiction of the High Couns is :lealt with in Entry I IA of the Concurrent List under caption 'administration of justice', which has a wide meaning and includes administration of civil as well as criminal justice. The expression 'administration of justice' has been used without any qualification or limitation wide enough to include the 'powers' and 'jurisdiction' of all the courts except the Supreme Court. 1251-EI 2. 2. The semicolon (;)after the words 'administration of justice' in Entry I IA has significance and meaning.

The other words in the same Entry after 'administration of justice' only speak in relation to 'constitution' and 'organisation' of all the courts except the Supreme Court and High Courts. Ii follows that under Entry I IA State Legislature has no power to constitute and organize Supreme Court and High Courts. ' . It is an accepted principle of construction of a constitution that everything "' necessary for the exercise of powers is included in the grant of power.

The State Legislature being an appropriate body to legislate in respect of 'administration ofjustice' and to invest all courts within the State including the High Court with general jurisdiction and powers in all matters, civil and criminal, it must follow that it can invest the High Court with such general jurisdiction and powers including the territorial and pecuniary jurisdiction and also to take away such jurisdiction and powers from the High Court except those, which are specifically conferred under the Constitution on the High Courts. [251-F-G-H; 252-AI 3. 1. It is not possible to say that investing the city civil court with unlimited jurisdiction/taking away the same from the High Court amounts to dealing with 'constitution' and 'organisation' of the High Court.

Under Entry I IA of List III the State Legislature is empowered to constitute and organize city civil court and while constituting such court the State Legislature is also empowered to confer jurisdiction and powers upon such courts inasmuch as 'administration of justice' of all the courts including the High Court is covered by Entry t IA of List III, so long as Parliament does not enact law in that regard under Entry 11-A. 1252-BI ; 3. 2. From Entry 13 it follows that in respect of the matters included in the Code of Civil Procedure and generally in the matter of civil procedure the Parliament or the State Legislature, as provided by Article 246(2) of the Constitution, acquire the concurrent legislative competence. The 1987 Act deals with pecuniary jurisdiction of the courts as envisaged in the Code of Civil Procedure and as such the State Legislature was competent to legislate under Entry 13 of List Ill for enacting 1987 Act. 1252-C-DI State ofBombay v.

Narothamdas Jethabhai and Anr. , 119511 SCR 51, followed. Amarendra Nath Roy Chowdhury v. Bikash Chandra Chose and Anr. , AIR 44 (1957) Calcutta 534, approved. 3. 3. The only purpose of the amendment was to bring uniformity as far as the 'constitution and organization of the High Courts' in the different States were concerned. Particularly taking notice of the fact that the High Courts in different Provinces had been functioning for several . . years and there was no consistency in their established practices, it was proposed to bring all the High Courts in the States under the jurisdiction of Parliament so that there was some uniformity in the organization of the different High Courts in India. As the judgment of the Calcutta High Court in the case of Amarendra Nath Choudhary correctly points out, Entry 3 (prior to its amendment on 3. 1.

1977) (or Entry llA after amendment) read with Entry 65 of List II ("administration ofjustice") is a State subject and the jurisdiction and powers of all courts in the State, including the High Courts, in respect of administration of justice, which must include "general jurisdiction" is a State subject. 1258-F-G-H; 259-BI Amarendra Nath Roy Chowdhury v. Bikash Chandra Chose and Anr. , AIR 44 (1957) Calcutta 534, approved. 3. 4. It is true that the Calcutta High Court in the case of Amarendra Nath Choudhary noticed that under Entry 78 of List I, Parliament was given power to set up the High Courts, but did not have power to invest them with general jurisdiction, but had power to invest them with special jurisdiction under Entry 95 of List I. The State Legislature would have the jurisdiction to invest the High Courts, set up by Parliament, with the . l. N.

GUZDAR "·STATE 229 necessary general jurisdiction under Entry 3 of List II ("Administration of Justice"); both Parliament and the State legislature also had the competence to make laws to invest the High Courts with special jurisdiction under Entry 65 of List III. 1259-B-CI 3. 5. The words "administration of justice; constitution and organization of all courts except the Supreme Court and the High Courts" were removed from Entry 3 and inserted as Entry 11 A in the Concurrent List. Consequently, on and after 3. 1. 1977 boih Farliament and State Legislature are competent to legislate with respect to the subject "administration of justice" which would be wide enough to invest the High Court "constituted and re-organised" by Parliament with the general jurisdiction.

Thus, after 42nd amendment of the Constitution, the situation emerges as under:- (a) Parliament alone has the competence to legislate with respect to Entry 78 of List I to 'constitute and organize' the High Court; (b) Both Parliament and State Legislature can invest such a High Court with general jurisdiction by enacting an appropriate legislation referable to 'administration of justice' under Entry . :, 11A of List Ill. (c) Parliament may under Entry 95 of List I invest the High Court with jurisdiction and powers with respect to any of the matters enumerated in List I. (d) State Legislature may invest the High Court with the jurisdiction and powers with respect to any of the matters enumerated in List II (e) Both Parliament and State Legislature may by appropriate legislation referable to Entry 46 of List Ill invest the High Court with jurisdiction and powers with respect to any of the matters enumerated in List III.

Hence, it cannot be said that Parliament alone has the exclusive competence to invest the High Court with the "general jurisdiction" referable to "constitution and organization of the High Court". 1259-D-E-F-G-H; 260-A-BI State ofMaharashtra v. Kusum Charudutt Bharma Upadhye, 83 Bombay LR 75, held inapplicable. Geetika Panwar v. Government of NCT of Delhi and Ors. , 99 (2002) . I" DLT 840, distinguished. I 4. 1. The expression "Administration of Justic:e" has wide amplitude covering conferment of general jurisdiction on all courts including High Court except the Supreme Court under Entry 11-A of List Ill. It may be also noticed that some of the decisions rendered dealing with Entry 3 of List II prior to 3. 1. 1977 touching"Administration of Justice" support the view that conferment of general jurisdiction is covered under the topic "Administration of Justice". After 3. 1. 1977 a part of Entry 3 namely "Administration of Justice" is shifted to List III under Entry 11-A.

This only shows that topic "Administration of Justice" can now be legislated both by the Union as well as the State Legislatures. As long as there is no Union Legislation touching the same topic, and there is no inconsistency between the Central legislation and State legislation on this topic, it cannot be said that State Legislature had no competence to pass the 1986 Act and the 1987 Act. (260-D-E-FJ K. Kumarswamy Kumandan and Bros. v. Premier Electric Co. , AIR (1959) AP 3; Shivarudrappa Girimallappa Saboji and Anr. v. Kapurchand Meghaji Marwadi and Ors. , AIR (1965) Mysore 76; Indo-Mercantile Bank Lt. v. Commissioner, Qui/on Municipality, AIR (1961) Kerala 96 and Ahmed }- Moideen Khan and Ors. v. Inspector of 'D' Division, AIR (1959) Madras 261, approved. 4. 2. The State Legislature was also competent to enact the 1987 Act under Entry 13 read with Entry 46 of List III.

The jurisdiction of civil court, particularly pecuniary jurisdiction of civil courts, was specially covered by the Civil Procedure Code on the date of commencement of the Constitution. [268-Fl 5. The High Courts have power and jurisdiction to deal with such matters as are conferred by the Constitution and other statutes. This power of"Administration of Justice" has been included in the Concurrent List after 3. 1. 1977 possibly to enable both Centre as well as States to confer jurisdiction on High Courts und~r various enactments passed by the Centre or the State to meet the needs of the respective States in relation to specific subjects. Thus, viewed from any angle, it is not possible to agree -1'' that the 1986 Act and 1987 Act are beyond the competence of the State Legislature. [269-B-CI J. N. GUZDAR v. STATE 231 ""- 6. 1.

Looking to what is found by the High Court on facts in relation 1 to infrastructure, and keeping in view the settled position of law there exists no good reason to take a different view. Hence, the view expressed by the High Court in deferring the implementation of the impugned Notification to a future date is concurred with. 1273-CI All India Judges Association v. Union of India, AIR (1992) SC 165, A. K. Roy v. Union ofIndia, AIR (1982) SC 710 and R. K. Porwal v. State of Maharashtra, AIR (1981) SC 1127, referred to. 6. 2. It is open to the State Government to apply to this Court seeking permission for implementation of the said Notification placing on record necessary material to show that there is adequacy of infrastructure and the requirements as to number ofjudges and court rooms etc. are satisfied.

In this regard a report from the High Court is also required to be called as and when the State Government applies to this Court seeking permission for implementation of the notification. 1274-F-G] 6. 3. It is also open to the State of Maharashtra to take necessary steps to amend Section 3 of the 1986 Act providing for provision of an appeal. Right of appeal is statutory and not a constitutional right. This apart, if a I " statute does not provide an appeal in respect of certain matter, the party still will have remedy in approaching the High Court or this Court, as the case may be, in exercise of power of judicial review including under Article 136 of the Constitution. 1274-G; 275-A] 6. 4. It was competent for the State Legislatures to pass law relating to general jurisdiction of the High Courts dealing with the topic 'administration of justice' under Entry 11-A of List III.

Assuming that incidentally 1986 Act and the Madhya Pradesh Uchcha Nyayalya (Letters Patent Appeals Samapti) Adhiniyam, 1981 touch upon the Letters Patent, the 1986 Act and the Adhiniyam cannot be declared either as unconstitutional or invalid by applying doctrine of pith and substance. The constitutional validity of 1987 Act, 1986 Act and the Adhiniyam is upheld. (275-E-FI Association ofNatural Gas and Ors. v. Union ofIndia and Ors. , [20041 4 sec 489, followed. Prafulla Kumar Mukherjee and Ors. v. Bank ofCommerce Ltd. , Khulna, AIR 34 (1947) PC 60 and Bharat Hydro Power Corpn. Ltd. and Ors. v. State ofAssam and Anr. , 12004] 2 SCC 553, referred to. 7. The contention that the Notification has been issued due to pressure brought about by a section of lawyers and for extraneous considerations is rejected, since no particulars were 1~iven and no material was placed on record before the High Court and even before this Court except repeating this ground.

(275-D( CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2452 of 1992. From the Judgment and Order dated 29. 4. I992 of the Bombay High Court in W. P. No. 738 of 1992. WITH C. A. Nos. 2529, 2530/92, 1222-24/85, T. C. (C) Nos. 8-11 of 1989. Mohan Parasaran, Additional Solicitor General, T. R. Andhuarujina, K. K. Singhvi, U. U. Lalit, Dr. N. M. Ghatate, Navin Prakash, Gaurav Aggrawal, P. Parrneswaran, Adv. for Attorney General for India, U. A. Rana, Shyam Divan, Sadeep Kharel, Devesh Kumar, Arvind Kumar, Madhup Singhal, Ashish, Brij Bhushan, S. D. Mogre, P. S. Gidwani, Surya Kant, S. S. Shinde, Mukesh K. Giri, V. N. Raghupathy (N. P. ), Sakesh Kumar, Satish K. Agnihotri, Shyam Dewan, Mrs. Rakhi Ray, Ms. Bina Gupta, M. N. Shroff, V. B. Joshi, Gopal Balwant Sathe (NP), D. M. Noargokar, H. K. Puri, Ujjwal Banerjee, S. K. Puri, Shiv Gupta, Pramod Swarup, (NP), S. N. Bhat for the appearing parties. The Judgment of the Court was delivered by SHIVARAJ V. PATIL J.

The Constitutional validity of the Bombay City Civil Court and Bombay Court of Small Causes (Enhancement of Pecuniary Jurisdiction & Amendment) Act, 1986 (Maharashtra Act No. XV of 1987) (for short 'the 1987 Act), which received assent of the President on 4. 5. 1987, Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 (Maharashtra Act XVII of 1986) (for short 'the 1986 Act'), which received the assent of the President on 28. 2. 1986, and the correctness of the Full Bench decision of the High Court of Madhya Pradesh striking down the provisions of the Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 (for short 'the Adhiniyam) abolishing Letters Pat ~ niay be noted that the validity of 1948 Act was upheld by the Division Bench ofthe High Court of Bombay as early as in 1949. Notification issued enhancing the pecuniary jurisdiction of the city civil court from Rs. I0,000 to Rs.

25,000 was upheld by this Court reversing the judgment of Bombay High Court in Narothamhas. Further, by Act No. XLIV of 1977, the pecuniary jurisdiction of the city civi I court was enhanced from Rs. 25,000 to Rs. 50,000, the validity of which was not challenged. Thus, from time to time, the pecuniary jurisdiction of city civil court was enhanced. Such enhancement of jurisdiction was either challenged unsuccessfully or not challenged. In particular, it may be kept in mind that the very contention which is sought to be advanced now had been advanced before this Court in Narothamdas which was rejected. On earlier occasions enhancement of pecuniary jurisdiction of city civil court was upheld. By the 1987 Act the pecuniary jurisdiction of city civil court was further enhanced from Rs. 50,000 to unlimited value. The High Court of Bombay was established in 1862 in the Presidency Town of Bombay having civil as well as criminal jurisdiction under the Letters Patent. ,..

In 1948, the criminal jurisdiction of the High Court was taken away and vested in the Sessions Court. The Bombay High Court was having original pecuniary jurisdiction above Rs. 50,000 till 1987 Act came into force. The ) High Court will continue to have even after implementation of 1987 Act the -"\ ~ original jurisdiction in Admiralty, Testamentary, Insolvency and Company jurisdiction apart from its writ jurisdiction under Article 226 and 227 of the Constitution. 29. In the State of Maharashtra as far as lower .! 'Jdiciary is concerned, the original civil jurisdiction is vested in (a) Civil Judge, Junior Division and (b) Civil Judge, Senior Division. Civil Judges, Senior Division, are appointed for almost all the towns and the cities in Maharashtra State excluding Greater Bombay. They have unlimited jurisdiction. The Civil Judges, Junior Division, ~ have got pecuniary jurisdiction upto Rs. 25,000. The District Courts are having appellate jurisdiction upto Rs. 50,000 and beyond Rs.

50,000, an appeal is provided to the High Court. Civil Judges, Senior Division, in cities like Thane, Pune, Nagpur, Nasik, Aurangabad etc. are having unlimited pecuniary jurisdiction. Only the city civil court which has been established for Greater Bombay was having limited jurisdiction upto Rs. 50,000 and under the 1987 Act, the disparity has been removed by conferring unlim'ited ~~ jurisdiction on city civil court like its counterparts in other cities and towns. Similarly, the jurisdiction of the Small Causes Court is enhanced from Rs. I0,000 to Rs. 25,000 like Civil Judge, Junior Division in other cities. 1987 Act is prospective. Therefore. all the suits filed prior to the implementation of it shall continue to remain with High Court. "" 30. By the Maharashtra Act 46 of 1977, the jurisdiction of the City Civil Court was raised to Rs. 50,000 in value arising within Greater Bombay.

By 1987 Act, Section 3 of the Bombay City Civil Court Act, 1948 was amended deleting the words "not exceeding Rs. 50,000 in value. " As a result of the same, the City Civil Court could exercise unlimited pecuniary jurisdiction. Although 1987 Act was passed in 1987, the State Government did not issue notification to enforce it till August 20, 1991 appointing the Ist May, 1992 to be the date on which the provisions of the 1987 Act shall come into force. By virtue of the said notification, all suits and other proceedings of civil nature arising within the Greater Bombay subject to exceptions contained in Section 3 were required to be filed in the City Civil Court at Bombay. This resulted in the position that suits and other civil proceedings of civil nature filed in the High Court under Clause 12 of the Letters Patent would not be received and tried on the ordinary original civil jurisdiction of the High Court. In the Transferred Cases (C) 8-11/89, constitutional validity of 1986 Act i.

e. "Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 was challenged as being beyond the competence of the State Legislature and also violative of Article 19 of the Constitution of India. In the Statement ofObjects /"' ' and Reasons to this Act, it is clearly stated that the Act is "on the lines of Madhya Pradesh Uchaha Nayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981". Under clause 15, except in certain cases specified in the said clause, appeals lie from judgment of a Single Judge to a Division Bench of the High Court. By the Notification dated 27th May, 1987, ! st July, 1987 was notified as appointed day from which the 1986 Act would come into force. 1986 Act was enacted considering it expedient to provide for hearing ofwrit petitions by Division Bench and for abolition of Letters Patent Appeals '>: in the High Court of Judicature at Bombay. Section 3 of the 1986 Act reads:- "3.

(I) Notwithstanding anything contained in the Letters Patent for the High Court of Judicature at Bombay, dated the 28th December, 1865 and in any other instrument having the force of law or in any other law for the time being in force, no appeal, arising from a suit or other proceeding (including the applications referred to in Section 2) instituted or commenced, whether before or after the commencement -11 of this Act, shall lie to the High Court from a judgment, decree or order of a single Judge of the High Court made on or after the r . l. N. GUZDAR v. STATE fPATIL. J. ) 247 >. commencement of this Act, whether in the exercise of the original or ) appellate jurisdiction of the High Court. (2) Notwithstanding anything contained in sub-section (I), all such appeals pending before the High Court, on the date immediately preceding the date of commencement of this Act, shall be continued and disposed of by that Court, as if this Act had not been passed. " 31.

By virtue of Section 3, appeals from orders of Single Judge to Division Bench from original or appellate jurisdiction were abolished. In this regard, the contentions advanced on behalf of the petitioners were that the provisions of the Act are arbitrary and violative of Article 14 of the Constitution; provisions contained in 1986 Act are beyond the legislative competenc~ of the State Legislature; that a right of appeal is a substantive right and one appeal on facts of law is a necessary ingredient of a system of justice; one appeal is provided in various State or Central enactments; in case even one appeal is not provided, it would result in serious consequences leading to unreasonable denial of justice. 32. Per contra, the learned counsel for the respondents urged that right of appeal is not a substantive right; merely because appeal is not provided, } an enactment otherwise having legislative competence cannot be rendered -.

l invalid; right of appeal is a statutory right which may or may not be provided by a statute. In other words, it is not a constitutional right. 33. Para 4 of the Statement of Objects and Reasons of 1987 Act reads:- "4. After having sufficient experience of the working of the various Courts in the State and having regard to the increase in the value of property, and in the trading and commercial activities, in all urban areas, Government considers that the administration of justice in ',.. Greater Bombay as well as in the mofussil should now follow uniform pattern. There appears no reason why every litigant in Greater Bombay, whose suit or other proceeding is above a certain pecuniary limit, should be made to go to the High Court in the first instance.

The High Court, as in most other States in India, should ordinarily be a Court of Appeal, and the time of its highly paid and specialized Judges should not be consumed in hearing original cases, some of which may be of a small value compared with the enonnous increase in the value of property or may be of an unimportant nature. " 34. In the Statement of Objects and Reasons of 1986 Act, inter alia :t . A I is stated thus:- ' "2........ The second part is really in the nature of an exception to the first, inasmuch as it provides, by way of relaxation, appeals under the above clause even in cases of Second Appeals, provided the Judge concerned declares or certifies that the case is fit one for appeal.

The appeal provided by way of exception in the second part of the clause has now been barred by section 100-A inserted in the Code of Civil Procedure, 1908, by Central Act 104 of 1976 and there is as such no further right of appeal against the decision of a single Judge in Second Appeal with certificate of fitness. But in view of mounting arrears in the High Court, to discourage further litigation in the same Court and to give finality to the decision of the High Court, even though given by a single Judge, it is necessary to abolish appeals in the same Court from judgments or orders of a single Judge, whether exercising original or appellate jurisdiction, on the lines of the Madhya Pradesh Uchcha Nyayalaya (Letters. -Patent Appeals Samapti) Adhiniyam, 1981 (M. P. XXIX of 1981) enacted in Madhya Pradesh". 35. In relation to Entry in List I relating to constitution and organization of Supreme Court and High Courts, Dr. B. R.

Ambedkar in the Constitutional lo- Debate stated thus:- "I do not wish to interrupt the debate, but I would like to point out that we have already passed Articles 295A, 193, 197, 20 I and 207 which deal with the constitution of the High Courts. Under those articles, exceptfor pecuniaryjurisdiction, the whole ofthe High Courts are placed, so far as their constitution, organization and territorial jurisdiction are concerned, in the Centre. It seems to me, therefore, that this amendment is out of order. " (emphasis supplied) 36. Jn considering the legislative competence of Maharashtra State in enacting the 1987 Act and 1986 Act primarily we have to look to the relevant entries in the Seventh Schedule of the Constitution of India. List I - Union List -{~ "77. Constitution, organization, jurisdiction and powers ofthe Supreme Court (including contempt of such Court), and the fees taken therein; . l. N. GUZDAR ~· STATE [PATIL, . I. ] 249 persons entitled to practice before the Supreme Court.

78. Constitution and Organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts. 79. Extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any union territory. " "95. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; admiralty jurisdiction. " List II - State List "3. Administration of justice, Constitution and organization of all courts, except the Supreme Court and High Courts" (prior to 3. 1. 1977. ) "65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list. " List Ill - (Concurrent List) "I IA. Administration ofJustice; constitution and organization of all courts, except the Supreme Court and the High Courts. " .. "13.

Civil Procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration. " "46. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List. " 37. As is clear from the Entries extracted above, Entry 77 in List 1deals with the constitution, organization, jurisdiction and powers of the Supreme Court. Entry 78 relates to only constitution and organization of the High Courts and not with the jurisdiction and powers of the High Courts unlike in Entry 77 dealing with the jurisdiction and powers ofSupreme Court in addition to constitution and organization. Jurisdiction and powers of High Court are dealt with as a separate topic under Entry I IA of List 111, which was in Entry 3 of List II prior to 42nd Constitution Amendment Act. The general jurisdiction ~ "- of the High Courts falls in 'administration of justice', i. e. , under Entry I IA in the Concurrent List.

Entry 95 of the Union List, Entry 65 of the State List and Entry 46 of the Concurrent List refer to special jurisdictions of the courts relating to the matters contained in the respective lists. Entry 95 deals with the power of Parliament to confer jurisdiction and powers of all the coutts except the Supreme Court with respect to any ofthe matters in List I. Similarly, Entry 65 of the List Il deals with the power of State Legislature to confer jurisdiction and powers on all the courts except the Supreme Court with respect to the matters contained in the said list. Entry 46 in the Concurrent List refers to the power and jurisdiction of all the courts except the Supreme Court with respect to all the matters contained in the Concurrent List. It may be noted here that one of the items in the Concurrent List is Civil Procedure Code under Entry 13. i I 38.

In our view, the State Legislature has power to confer general jurisdiction on all the courts except the Supreme Court unde~ Entry 11A in the Concurrent List falling within the meaning of 'administration ofjustice'. Hence, the 1987 Act is within the competence of the State Legislature in the light of the discussion and reasons to follow. 39. The State Legislature was the sole repository of power to confer jurisdiction on all the courts except the Supreme Court and High Court under Entry 3 of the State List prior to Forty-second Amendment) of 1976 and thereafter the Parliament as well as the State Legislatures have power to confer general jurisdiction on all the courts including the High Courts under .. I Entry I IA of the Concurrent List. Entry 46 of the Concurrent List deals with the special jurisdiction in respect of the matters in the Concurrent List. One of the matters in the Concurrent List is the Civil Procedure Code.

The combined reading of Entry 11 A, Entry 13 and Entry 46 of the Concurrent List makes the position clear that the 1987 Act is not beyond the legislative competence of the State Legislature when it deals with pecuniary jurisdiction of civil courts. ,. , 40. From careful reading of Entries 77 and 78 of the Union _List it is clear that Entry 77 not only deals with the 'constitution' and 'organisation' but also with 'jurisdiction' and powers' in respect of Supreme Court falling within the exclusive domain of the Parliament. Entry 11 A in the Concurrent List deals with the 'administration of justice' in all the courts and the 'constitution and organization' of all courts, except the Supreme Court and the High Courts. Thus, it is clear that the Parliament is the sole repository of powers as far as the 'constitution', 'organisation', 'jurisdiction' and 'powers' -;I-~ of the Supreme Court is concerned.

Conscious omissions of the words 'jurisdiction' and 'powers' in Entry 78, looking to the said words included J. N. GUZDAR v. STATE [PATIL, J. ] 251 in Entry 77, it is clear that the 'jurisdiction' and 'power' of the High Courts are dealt with as a separate topic under the caption 'administration ofjustice' u,nder Entry IIA of the Concurrent List. The exclusion of 'jurisdiction' and 'powers' from Entry 78 appears to be meaningful and intended to serve definite purpose in relation to bifurcation or division of legislative powers relating to conferment of general jurisdiction of High Courts. 41. Entries 77 and 78 of the Union List deal with 'constitution' and 'organisation' ofthe Supreme Court and the High Courts because after coming I ·;-; into force of the Constitution, th~ Supreme Court was required to be set up and so also the High Courts were required to be established and/or reconstituted.

The expressions 'constitution' and 'organisation' of the High Courts in Entry 78 are referable to Articles 2, 3 and 4 of the Constitution. Article 2 empowers the Parlia_ment to admit into the Union or establish new States, Article 3 deals with the formation of new States and alterations of areas, boundaries or names of the existing States and Article 4 l)rovides that laws made under Articles 2 and 3 may provide for amendment of the First and Fourth Schedules and supplemental, incidental and consequential matters. The words 'constitution' and 'organisation' have their own meaning as against expressions 'jurisdiction' and 'powers', but in the scheme of the Constitution the subject 'constitution' and 'organisation' of Supreme Court and High Courts rests with the Union. 42. The general jurisdiction of the High Courts is dealt with in Entry IIA under caption 'administration ofjustice', which has a wide meaning and includes administration of civil as well as criminal justice.

The expression 'administration ofjustice' has been used without any qualification or limitation wide enough to include the 'powers' and 'jurisdiction' of all the courts except the Supreme Court. The semicolon (;) after the words 'administration of p justice' in Entry 11A has significance and meaning. The other words in the same Entry after 'administration of justice' only speak in relation to 'constitution' and 'organisation' of all the courts except the Supreme Court and High Courts. It follows that under Entry 11 A State Legislature has no power to constitute and organize Supreme Court and High Courts. It is an accepted principle of construction of a constitution that everything necessary for the exercise of powers is included in the grant of power.

The State Legislature being an appropriate body to legislate in respect of 'administration of justice' and to invest all courts within the State including the High Court with general jurisdiction and powers in all matters, civil and criminal, it must follow that it can invest the High Court with such general jurisdiction and powers including the territorial and pecuniary jurisdiction and also to take away such jurisdiction and powers from the High Court except those, which are specifically conferred under the Constitution on the High Courts. It is not possible to say that investing the city civil court with unlimited jurisdiction taking away the same froll} the High Court amounts to dealing with 'constitution' and 'organisation' of the High Court.

Under Entry I IA of List 111 the State Legislature is empowered to constitute and organize city civil court and while constituting such court the State Legislature is also empowered to confer jurisdiction and powers upon such courts inasmuch as 'administration ofjustice' of all the courts including the High Court is covered by Entry IIA / I of List III, so long as Parliament does not enact law in that regard under Entry 11-A. Entry 46 of the Concurrent List speaks of the special jurisdiction in respect of the matters in List III. Entry 13 in List Ill is '... Code of Civil Procedure at the commencement of the Constitution... '. From Entry 13 it fol:ows that in respect of the matters included in the Code of Civil Procedure and generally in the matter of civil procedure the Parliament or the State Legislature, as provided by Article 246(2) of the Constitution, acquire the concurrent legislative competence.

The 1987 Act deals with pecuniary jurisdiction of the courts as envisaged in the Code of Civil Procedure and as such the State Legislature was competent to legislate under Entry 13 of List Ill for enacting 1987 Act. 43. This view gets support from the various decisions in which entries in Lists I, II and Ill are interpreted touching the question as to the legislative competence of a State. 44. The contention of the learned counsel for the appellant is that the words "constitution and organisation of the High Courts" used in Entry 78 of List I are wide enough to take within its ambit, not only the constitution and organization, but, also the "general jurisdiction" ofthe High Courts. In contrast, it is contended that Entry 95 in List I pertains to the legislative power of Parliament to invest special jurisdiction in all courts, except the Supreme Court, with respect to any ofthe matters enumerated in List I.

Correspondingly, Entry 46 of the Concurrent List vests power in Parliament as well as the State legislature to confer special jurisdiction and powers on all courts, except the Supreme Court, with respect to any of the matters in List III. Similarly, Entry 65 of List II enables the State legislature to confer jurisdiction and powers on all courts, except the Supreme Court, with respect to any of the matters in List 11. . l. N. GUZDAR v. STATE [PATIL. J. ] 253 45. Strong reliance is placed on certain observations of this Court in State of Bombay v. Narothamdas Jethabhai and Anr. , (supra), which dealt with the interpretation of Entries I & 2 of List II (Provincial List) of the Government of India Act, 1935. Entry I of List II read: "the administration ofjustice; constitution and organization of all courts except the Federal Court. ". Entry 2 of List II read: "Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this List. ".

The contention urged before this Court was that the words "administration of justice and constitution and organization of courts" occurring in Entry I ofthe Provincial i " List should be read as exclusive of any matter relating to jurisdiction of courts. Rejecting the arguments, the Court observed: - "It is to be noted that the right to set up courts and to provide for the whole machinery of administration of justice has been given exclusively to the Provincial Legislature. Under Section I0I of the North America Act, the Parliament of Canada has a reserveo of power to create additional courts for better administration of the laws of Canada but the Indian Constitution Act of 1935 does not give any such power to the Central Legislature. Courts are to be established by the Provincial Legislature alone. The word 'court' certainly means place where justice is judicially administered.

The appointment of Judges and officers or the mere setting apart of a place where the Judges are to meet, are not sufficient to constitute a court. A court cannot administer justice unless it is vested with jurisdiction to decide cases and "the constitution of a court necessarily includes its jurisdiction. " (vide Clement's Canadian Constitution, 3rd Edn. , p. 527). " (Per Mukherjea,J. ) It was also observed: - "Entry I of List II of the Government of India Act, 1935 uses the expressions "administration of justice and constitution of all courts" in a perfectly general manner. No particular subject is specified to which the administration of justice might relate or for which a court might be constituted. It can, therefore, be legitimately interpreted to refer to a general jurisdiction to decide cases not limited to any particular subject....

The distinction between general and particular jurisdiction has always been recognized in the legislative practice of this country prior to the passing of the Constitution Act of 1935 and also after that. " (Per Mukherjea, J. ) 46. It was also observed that "the contents of general jurisdiction are always indeterminate and are not susceptible of any specific enumeration. " The words "administration of justice" and "constitution and organization of courts" occurring in entry I of the Provincial List were construed in a restricted sense so as to exclude the scope of "jurisdiction and powers of courts" dealt with specifically in entry 2. (Per Patanjali Sastri, J. ).

Taking notice of the fact that on the date when the Government of India Act, 1935 was passed, there were in existence in the different Provinces a large number of courts of law and the administration of justice throughout the Provinces was in the hands of these provincial courts, that the civil courts in the Province used to try all suits and proceedings of a civil nature which were triable under the Civil Procedure Code, and the criminal courts used to try all criminal cases triable under the Code of Criminal Procedure, it was pointed out that the jurisdiction and power of the courts were not confined to cases in regard to the subjects stated in List II, nor were they debarred from dealing with cases relating to matters which had been assigned to List I.

The jurisdiction of the courts depended in civil cases on a "cause of action" giving rise to a civil liability, and in criminal cases on the provisions made in the Code of Criminal Procedure as to the venue of the trial and other relevant matters. Fazal Ali, J. observed:- "It seems to me that the Government of India Act, 1935, did not contemplate any drastic change in the existing system ofadministration of justice, but what it contemplated was that that system should continue subject to future legislation by the proper Legislature, Central or Provincial, barring the jurisdiction of courts or conferring jurisdiction or power on special courts with regard to the matters included in the appropriate Legislative Lists, should there be any occasion for such special legislation.

" He further observed: "in my opinion, there is nothing in the Act of 1935 to show that there was any intention on the part of its framers to affect the machinery so drastically as to confine it to the administration of a mere partial or truncated kind of justice relating only to matters specified in List 11. " • 47. The learned counsel for the appellant, however, attempts to f _. distinguish this judgment by pointing out that when the Government of India Act, 1935 was passed, the scheme of distribution of legislative powers relating to the constitution and organization of the High Courts was exclusively left J. N. GUZDAR v. STATE [PATIL, J. ) 255 .. _ with the Provincial Legislature. The Provincial Legislature was fully empowered to make laws relating to the "constitution and organization of all courts except the Federal Court" (vide Entry I of the Provtncial List).

In view ofthis position, the Bombay Provincial Legislature was held to have legislative competence to enact the Bombay City Civil Court Act of 1948 which incidentally trenched upon the jurisdiction of the High Court, and it was essentially an exercise of power within the competence of the Provincial Legislature relatable to Entry I of List II of the Government of India Act, 1935. 48. It is not possible to accept that Narothamdas Jethabai (supra) lays down that the words "constitution and organization of courts" necessarily mean, throughout the Constitution, a situation where the appropriate legislature which is empowered to constitute and organize a court is necessarily invested with "general jurisdiction", as contended. 49. The judgment of the learned Single Judge of the Calcutta High Court in Amarendra Nath Roy Chowdhury v. Bikash Chandra Ghose and 7 Anr. , on which reliance was placed before this Court, has put the matter in proper perspective.

This was also a case where the petitioner before the High Court of Calcutta challenged the validity ot,,the City Civil Court Act, being ~ West Bengal Act XXI of 1953, on the ground of legislative competence. It was urged before the court that, while under the Government of India Act, 1935, the constitution and organization of a High Court as also its powers were Provincial subjects, under the Constitution these subjects were expressly taken away from the legislative competence of the State Legislature and were made Union subjects. Thus, it was contended that the State Legislature had no competence to make any law touching upon the constit:Jtion and organization of the high court, which necessarily included the "general jurisdiction" of the high court. The judgment of this Court in Narothamdas Jethabai (supra) was also cited by the petitioner.

After carefully considering the observations of all the learned Judges who comprised the Bench in Narothamdas Jethabai, and after considering the speech made by Dr. B. R. Ambedkar on the floor ofthe Constituent Assembly, the learned Single Judge summarized the resultant legal position thus, in our opinion correctly, in Paragraph 24: "24. In my opinion the present position may be summarized as follows:- 7. AIR 44 (1957) Calcutta 534. (I) The 'constitution and organization, jurisdiction and powers' of the Supreme Court, are Union subjects, (2) While 'jurisdiction and powers' of the Supreme Court have been expressly included in Entry 77 of List I, these words have been deliberately left out in Entry 78 of the same List, in respect of the High Courts. This omission is not supplied by Entry 95 because that Entry only enables jurisdiction and powers to be given in respect of the matters enumerated in List I.

To speak of 'jurisdiction and powers' of the High Courts in respect of 'constitution and organization' of the 1 i High Courts would be meaningless. (3) If nothing else was to be found relating to the subject, in any other part of the Constitution, then it might have been necessary to imply that it was the intention of the framers of the Constitution to include the concept of 'jurisdiction and powers' within the phrase 'constitution and organisation' ofthe High Courts in Entry 78. In that event, the result would be that if a High Court was constituted or organized by a Parliamentary Statute, it would automatically be vested with general jurisdiction to administer justice. (4) This construction, however, is not permissible because it is in conflict with Entry 3 in List II or Entry 3 read with Entry 65. It is only the State Legislature that can vest a High Court with general jurisdiction to administer justice.

(5) While it is controversial as to whether Entry 78 in List I includes 'jurisdiction and powers' of the High Court, it is clear that under Entry 3 of List II or Entry 3 read with Entry 65, 'administration of p justice' is a State subject and the 'jurisdiction and powers' of all Courts in the State including the High Court in respect of administration of justice, which must include general jurisdiction, is a State subject. (6) This construction does give rise to a curious result, namely, that Parliament is given under Entry 78 a power to set up a High Court but not to vest it with jurisdiction excepting in a limited way under Entry 95. Ordinarily, and in so far as legislative practice is concerned, this state of things should not happen, but it has in fact happened ~ , under our Constitution. (7) But the evil effects inherent in such an unusual provision in the . l. N. GUZDAR v. STATE [PATIL.

J] 257 Constitution is mitigated by the fact that: (a) for the most part, the 'constitution and organisation' of the High Courts have already been provided for in the body of the Constitution, and (b) in the case of the formation of new States or reorganization of existing States, there is ample power under Art. 4 of the Constitution to clothe Parliament with the power to invest High Courts with the necessary 'jurisdiction and powers' of every description. (8) The State Legislature being the appropriate body to legislate in respect of 'administration of justice', and to invest all Courts within the State including the High Court, with general jurisdiction and powers in all matters civil and criminal, it must follow that it can invest High Court with general jurisdiction and powers (including territorial and pecuniary jurisdiction), and also take away such jurisdiction and powers from the High Court.

(9) So far as the Calcutta City Civil Court is concerned, there can be no question that the State Legislature is competent to constitute such a Court and vest it with general jurisdiction, since that comes specifically and plainly within the scope of Entry No. 3 or Entry No. 3 read with Entry 65 in List II. The question is as to whether it can at the same time take away any part of the jurisdiction and powers of the High Court. (I 0) It has been argued that the setting up of the City Civil Court, with a specified jurisdiction, and the taking away of the same jurisdiction from the High Court, was nothing more or less than doing something which affected the 'constitution and organisation' of the High Court. This again depends on the answer to the question as to whether the words 'constitution and organization' necessarily include the concept of 'jurisdiction and powers' meaning thereby, general jurisdiction and powers relating to th~ administration of justice.

So far as these words are used in Entry 78 of List I, the answer must clearly be in the negative. The constitution and organization of High Courts has been made a Central subject in this limited sense because: (a) It was necessary to have uniformity in the organization of all High Courts and this could only be effected by Parliament. (b) The Constitution provides for extension of the jurisdiction of a High Court beyond the State where it has its principal seat and also for a common High Court in two States or two States and a Union territory. This can only be effected by Parliament. But beyond this, no necessity was felt of granting to Parliament the power to invest High Courts with general jurisdiction for the administration of justice, which was a provincial subject before and continues to be a State subject.

(11) It follows that the taking away of some of the general jurisdiction and powers of the High Court and vesting the same in the City Civil Court would not necessarily mean that the State Legislature was doing anything which could be said to be an infringement of Entry 78 in A ' List I. It was doing what it had power to do under Entry 3, or under Entry 3 read with Entry 65, of List. II. " 50'. Our attention was drawn by the learned counsel for the appellant to Page 774 of the Constituent Assembly Debates and also to some other parts ofthe speech made by Dr. B. R. Ambedkar and Shri Alladi Krishnaswami Ayyar during the debates in the Constituent Assembly, when Entry 52 of the Draft Constitution was being debated upon. He drew our attention to the passage ". the only matter that is left to the Provincial Legislatures is to fix jurisdiction of the High Courts in a pecuniary way or with regard to the subject matter.

The rest of the High Court is placed, within the jurisdiction of the Centre. Obviously when considering entries in the Union List which }are meant to give complete power to the Centre, we were bound to make good this lacuna and to bring in the High Courts which, as I said, by virtue of these articles excepting for two cases have been completely placed within the purview of the Parliament. " 51. In our view, the portion of the speech of Dr. B. R. Ambedkar on the floor of the Constituent Assembly referred to on Page 543 of the Calcutta High Court's judgment is more appropriate one which, in effect, throws light on the issue. Thus, the only purpose ofthe amendment was to bring uniformity as far as the 'constitution and organization ofthe High Courts' in the different States were concerned.

Particularly taking notice of the fact that the High Courts in different Provinces had been functioning for several years and there was no consistency in their established practices, it was proposed to bring all the High Courts in the States under the jurisdiction of Parliament so that there was some uniformity in the organization of the different High Courts in India. As the judgment of the Calcutta High Court correctly points out, Entry /• 3 (prior to 3. 1. 1977) (or Entry 11 A after 3. 1. 1977) read with Entry 65 of List II ("administration of justice") is a State subject and the jurisdiction and powers of all courts in the State, including the High Courts, in respect of J. N. GUZDAR v. STATE [PATIL, J. ] 259 administration of justice, which must include "general jurisdiction" is State ... , subject. 52. It is true that the Calcutta High Court noticed the curious result that followed from the Constitutional entries as were available at the material time.

It noticed that while under Entry 78 of List I, Parliament was given power to set up the High Courts, but did not have power to invest them with general jurisdiction, but had power to invest them with special jurisdiction under Entry 95 of List I. The State Legislature . vould have the jurisdiction to invest the High Courts, set up by Parliament, with the necessary general ! Y\ jurisdiction under Entry 3 (at the material time) of List II ("Administration ofJustice"); both Parliament and the State legislature also had the competence to make laws to invest the High Courts with special jurisdiction under Entry 65 of List Ill. Perhaps, the situation then was somewhat anomalous and led to the curious result noticed by the High Court of Calcutta at the material time. However, Entry 3 of List II was amended by the Constitution (42nd Amendment Act of 1976) with effect from 3. 1. 1977.

The words "administration of justice; constitution and organization of all courts except the Supreme Court and the High Courts" were removed from Entry 3 and inserted as Entry 11 A in the Concurrent List. Consequently, on and after 3. 1. 1977 both Parliament and State Legislature are competent to legislate with respect to the -I subject "administration ofjustice" which would be wide enough to invest the High Court "constituted and re-organised" by Parliament with the general jurisdiction. We have already noticed the power of both the Parliament and State Legislature to legislate within their respective spheres so as to invest the High Court with special jurisdiction. 53. Thus, on and after 3. 1.

1977 the situation appears to be as under: (a) Parliament alone has the competence to legislate with respect to Entry 78 of List 1 to 'constitute and organize' the High Court; (b) Both Parliament and State Legislature can invest s:ich a High Court with general jurisdiction by enacting an appropriate legislation referable to 'administration of justice' under Entry 11 A of List Ill. (c) Parliament may under Entry 95 of List I invest the High Court with jurisdiction and powers with respect to any of the matters . -.... enumerated in List I. (d) State Legislature may invest the High Court with the jurisdiction and powers with respect to any of the matters enumerated in List 11. (e) Both Parliament and State Legislature may by appropriate legislation referable to Entry 46 of List III invest the High Court with jurisdiction and powers with respect to any of the matters enumerated in List III. 54.

In this view of the matter, we are unable to accept the contention that Parliament alone has the exclusive competence to invest the High Court with the "general jurisdiction" referable to "constitution and organization of the High Court". A ' 55. It is true that there are several provisions in Articles 216, 217, 221, 222, 223 and 224 wherein the President of India and the Government of India alone have been given powers, in the matters stated therein. This by itself does not militate against the view that we are inclined to take. 56. The observations in State of Maharashtra v. Kusum Charudutt Bharma Upadhye', (Para 7) were pressed in service in support. All that the Bombay High Court said is: "...... under the Constitution, Parliament has by ordinary law the power to constitute and organize, that is, to create, new High Courts as also to enlarge or abridge the jurisdiction of all High Courts, including the High Courts which were in existence at the commencement of the Constitution".

57. These observations were made in connection with the questions before the Special Bench of the Bombay High Court, whether an appeal would lie under Clause 15 of the Letters Patent from the judgment of a single Judge of the High Court under Article 226 of the Constitution in a petition filed on the Original Side or the Appellate Side of the High Court; and, whether such'an appeal would lie from the judgment of a Single Judge of the High Court in a petition filed under Article 227 of the Constitution of Ir. dia; and also, whether an appeal would lie from an interlocutory order made by single Judge of the High Court appointing a receiver in a writ petition under Article 226 of the Constitution of India. The Bombay High Court did not express its view that Parliament alone had such powers, nor about the meaning to be given to the expression "administration of justice", which is now placed in the Concurrent List on and after 3. 1. 1977. The contention, therefore, cannot be accepted. 8.

83 Bombay LR 75. . l. N. GUZDAR v. STATE [PATIL, J. ] 261 58. Reference was made to the judgment of the Full Bench of the Delhi High Court in Geerika Panwar v. Government of NCT of Delhi and Ors. '. The learned counsel contended that the submissions of the learned Attorney General made before the Delhi High Court, as noticed in this judgment, were indicative of the stand of the Government of India in the matter. Placing reliance on the doctrine ofcontemporanea expositio the learned counsel urged that the constitutional interpretation as understood by the executive should be accepted by us. We are afraid, when it comes. to interpretation of the Constitution, it is not permissible to place rdiar. ce on contemporanea 1X exposition to the extent urged. Interpretation of the Constitution is the sole prerogative of the Constitutional Courts and the stand taken by the executive in a particular case cannot determine the true interpretation ofthe Constitution.

The learned counsel urged that, as a result ofjudgment of the full Bench of the Delhi High Court in Geetika Panwar case (supra) and striking down of Delhi High Court Amendment Act 200 I as ultra vires the Legislative Assembly of NCT of Delhi, Parliament stepped in by enacting Delhi High Court (Amendment) Act, 2003. According to the learned counsel this was also indicative of the fact that the Parliament had recognized and accepted the construction put on the constitutional provisions in Geetika Panwar as correct and responded by a curative legislation. The fact the Parliament responded to the situation by enacting Delhi High Court Amendment Act, 2003 also cannot by itself show that the view taken by the High Court of Delhi in Geetika Panwar was correct. It is possible that the executive might have taken the shorter course of amending the legislation instead of challenging the view taken by the Delhi High Court before this Court. 59.

The reference to Section 30 of the Andhra Act, 1953 or to the provisions of Section 49 of the State Reorganisation Act, 1956 is of no avail. The investment of power in such cases, where a High Court is set up in reorganized State, is referable to Article 4 of the Constitution, which is an independent power not referable to Entry 78 of List I. 60. In 0. N. Mohindroo v. The Bar Council of Delhi and Ors. 9 after analyzing Entries 77, 78, and 95 of List I, Entry 65 of List II and Entry 46 of List lll, this Court observed: "The scheme for conferring jurisdiction and powers on courts is (a)· 4. 99 (2000) DLT 840. 9. [1968] 2 SCR 709. to avoid duplication of Courts.

Federal and State Courts as in the Constitution of the United States, (b) to enable Parliament and the State Legislatures to confer jurisdiction on courts in respect of matters in their respective lists except in the case of the Supreme Court where the legislative authority to confer jurisdiction and powers is exclusively vested in Parliament. In the case of the Concurrent List both the legislatures can confer jurisdiction and powers on courts except of course the Supreme Court depending upon whether the Act is enacted by one or the other. Entry 3 in List II confers legislative powers on the States in the matter of "Administration of Justice; constitution and organization of all courts, except the Supreme Court and the High Courts: officers and servants of the High Courts: procedure in rent and revenue courts; fees taken in all courts except the Supreme Court.

" It is clear that except for the constitution and the organization of the Supreme Court and the High Courts the legislative power in the matter of administration of justice has been vested in the State Legislatures. The State Legislatures can, therefore enact laws, providing for the constitution and organization of courts except the Supreme Court and the High Courts, and confer jurisdiction and powers on them in all matters, civil and criminal, except the admiralty jurisdiction. It would, of course, be open to Parliament to bar the jurisdiction of r any such court by special enactment in matters provided in Lists I and III where it has made a law but so long as that is not done the courts established by the State Legislatures would have jurisdiction to try all suits and proceedings relating even to matters in Lists I and III. Thus, so far as the constitution and organization of the Supreme Court and the High Courts are concerned, the power is with Parliament.

As regards the other courts, Entry 3 of List II confers such a power on the State Legislatures. As regards jurisdiction and powers, it is Parliament which can deal with the jurisdiction and powers of the ... Supreme Court and the admiralty jurisdiction. Parliament can confer jurisdiction and powers on all courts in matters set out in List I and List III where it has passed any laws. But under the power given to it under entry 3 in List II, a State Legislature can confer jurisdiction and powers on any of the courts except the Supreme Court in respect of any statute whether enacted by it or by Parliament except where a Central Act dealing with matters in Lists I and Ill otherwise provides. .. / ~ That these entries contemplate such a scheme was brought out in State of Bombay v. Narothamdas, where it was contended that the J. N. GUZDAR v. STATE [PATIL. . I. ] 263 ~ Bombay City Civil Court Act, 40 of 1948.

constituting the said Civil ; Court as an additional court was ultra vires the Provincial Legislature as it conferred jurisdiction on the new court not only in respect of matters in List JI of the Seventh Schedule of the Government of India Act, 1935 but also in regard to matters in List I such as promissory notes in item 8 of List I. Rejecting the contention it was held that the impugned Act was a law with respect to a matter enumerated in List JI and was not ultra vires as the power of the Provincial Legislature to make laws with respect to "administration of justice" and :..

_ I "constitution and organization of all courts" under item I of List II was wide enough to include the power to make laws with regard to the jurisdiction of courts established by the Provincial Legislature; that the object of item 53 of List I, item 2 of List II and item 15 of List III was to confer such powers on the Central and the Provincial Legislatures to make laws relating to the jurisdiction of courts with respect to the particular matters that are referred to in List I and II respectively and the Concurrent List, and that these provisions did not in any way curtail the power of the Provincial Legislature under item I of List JI to make laws with regard to jurisdiction of courts and to confer jurisdiction on courts established by it to try all causes I of a civil nature subject to the power of the Central and Provincial -i Legislatures to make special provisions relating to particular subjects referred to in the Lists.

It may be mentioned that item 53 in List I, items I and 2 in List JI and item 15 in List Ill in the Seventh Schedule to the 1935 Act more or less correspond to entries 77, 78 and 95 in List I, entries 3 and 65 in List II and entry 46 in List Ill of the Seventh Schedule to the Constitution. " 61. The constitutional validity of the City Civil Court Act of Calcutta being West Bengal Act No. XX! of 1953 which had received the assent of . :Y. • the President under which the pecuniary jurisdiction was conferred on the city civil court above Rs. 5,000 but not exceeding Rs. 10,000 was challenged on various grounds similar to the grounds raised challenging the validity of the 1987 Act. Sinha J. learned Judge of the Calcutta High Court held that the West Bengal Act No. XX! of 1953 was intra vires in Amarendra Nath Roy 1 Chowdhury v. Bikash Chandra Ghosh and Anr. The pecuniary jurisdiction was enhanced from Rs. I0,000 to Rs. 50,000 and again to Rs. 1,00,000.

The validity of the Act as well as the amendment of increasing the jurisdiction to 7. AIR (1957) Calcutta 534. Rs. 1,00,000 was again challenged before the Calcutta High Court in ! ndu 0 Bhushan De and Ors. v. The State of West Bengal and Ors. ' The Division Bench upheld the validity of the Act including the amendments. The matter reached this Court with a contention that the Parliament alone had legislative competence to make the law affecting the original side jurisdiction of the High Court and, therefore, the State Legislature had no power to pass any law dealing with the jurisdiction of the High Court. This Court in ! ndu 11 Bhushan De and Ors. v. State of West Bengal and Ors. , dealing with the aforementioned contention, after setting out Entries 77, 78 and 95 in List I, A , Entries 3 (new Entry No.

11-A in the Concurrent List) and Entry 65 in List II and Entry 46 in List 111, and reiterating the law laid down by the Constitution Bench of this Court in Narothamdas (supra), observed that "this decision (Narothamdas) of the Constitution Bench clearly negatives the claim of the appellant that the impugned Act was ultra vires the jurisdict;on of the West Bengal Legislature. Admittedly, the Act received Presidential assent and was, therefore, competent to bring about a change in the prevailing position obtaining under the Letters Patent of the Calcutta High Court. " In the same judgment, this Court further observed thus: "A similar challenge as in the present dispute had also been raised before the Calcutta High Court in the case of Amarendra Nath Roy Chowdhary v. Bikash Chandra Ghosh, AIR (1957) Cal. 535 and a learned Single Judge relying on the decision of Constitution Bench referred to above had held that the Act was intra vires the State Legislature.

We are of the view that the decision ofthe Constitution Bench is a clear and binding precedent against the appellant's stand " (emphasis supplied) 62. Having observed thus, this Court approved the aforementioned judgment in Amarendra Nath Roy Chowdhary (supra). \ 63. This Court in Narothamdas and lndu Bhushan De (supra) clearly laid down that power of legislature to confer or take away general jurisdiction of all courts excepting the Supreme Court is a separate topic and forms part of the "administration of justice" and not part of 'constitution' and 'organisation' of High Courts. I0. AIR (1957) Calcutta 160. 11. [1986] 3 sec 682 . l. N. GUZDAR v. STATE [PATIL. J. ) 265 ...... 64. In first round in Mulchand Kundanmal . Jagtiani v. Raman Hirata/ Shah' the Division Bench of the Bombay High Court upheld the validity of the 1948 Act. Thereafter, on 20. 1.

1950, the Provincial Government issued notification conferring on the city civil court jurisdiction to receive, try and dispose of all suits and other proceedings of civil nature not exceeding Rs. 25,000 in value arising within Greater Bombay. In Narothamdas v. A. P. 6 Phillips , the Division Bench of the Bombay High Court declared the said notification as invalid on the ground that notification amounted to delegation of legislative function. In the appeal filed by the State, this Court reversed the 1. :x 1 judgment of the Bombay High Court in State of Bombay v. Narothamdas holding that Section 4 of 1948 Act did not amount to delegation of legislative power and that the notification dated 20. 1. 1951 was intra vires. The respondents had challenged the validity of the 1948 Act before this Court on the ground that the Act was ultra vires the Provincial Legislature by reason of encroachment upon the field of legislation reserved for Centre under List I of Seventh Schedule of the Govt.

of India Act, 1935 which was negatived as already stated above. Madras High Court in Ahmed Moideen Khan and Ors. v. lnspector of 'D' Division" dealt with challenge to the Act No. XXXIV of 1955 under which the State Legislature divested criminal jurisdiction of } Madras High Court and vested it in the sessions court. There also challenge .... was on the ground that the Act was not within the competence of State Legislature inasmuch as it amounted to re-constitution or re-organisation of the High Court within the meaning of Entry 78 of List I. The Division Bench, overruling all the contentions, held that the State Legislature was competent to enact the Act No. XXXIV of 1955 under Entry 3 of List JI (administration of justice). The Division Bench also stated that the State Legislature has power to pass legislation under Entries 1, 2 and 46 of List III i. e. (i) criminal law including matters included in Indian Penal Code; (ii) Criminal Procedure Code .....

and Entry 46 of List III which confers power on the State to fr. legislate in respect of the subjects contained in the Concurrent List. 65. When the State Legislature of Kerala enacted law conferring power on the Division Bench of the High Court to hear appeals against the orders of Single Judge passed under Article 226, it was challenged on the ground that the subject was covered by Entry 78 of List I. In lndo-Mercantile Bank t -... 5. AIR 36 (1949)Bombay 197. 6. AIR (1951)Bomb. 180. 2. [1951] SCR 51. Ltd. v. Commissioner, Qui/on Municipality", the Kerala Hi"gh Court held that the State Legislature was fully competent to pass the Act by virtue of its powers under Articles 225, 246(3) read with Seventh Schedule List II Entry 3 of the Constitution. 66. A Division Bench of the Mysore High Court in Shivarudrappa 1 Girimallappa Saboji and Anr. v. Kapurchand Meghaji Marwadi and Ors.

' held that Sections 19 and 29(2)(c) of the Mysore Civil Court Act, 1964 were constitutionally valid as the same were within the competence of the State Legislature under Entry 3 of List II i. e. "Administration of Justice" observing ' 1 thus:- "........ Ifthe core of Administration ofjustice is the exercise ofjudicial power which is also understood as the exercise of jurisdiction, any legislation on the exercise of such judicial power or jurisdiction is legislation on "administration of justice" and is therefore, what is authorized by the 3rd Entry of the said List. If Legislation on "administration of justice" in the High Court is as already explained also within the field of that Entry then Article 246(3) of the Constitution empowers the State Legislature to make Legislation on that subject, just as Parliament has powers within the field of the 77 Entry of the Union list to make legislation among other matters on the jurisdiction and power of the Supreme Court.

It is of course plain that that legislative power which the State Legislature may exercise under clause (3) of Article 246 ofthe Constitution is subject to clauses (I) and (2) of the said Article and also two other provisions of the Constitution as stated in Article 245( l). It is for the Legislature of the State to define the frontier of the powers or jurisdiction exercisable by its High Court. " 67. In the same judgment, the High Court in regard to Entry 78 of List I, went on to say that ".... the subject relating to "constitution and organization of High Courts' is not a subject relating to jurisdiction and powers of the High Court but subject which has reference only to the establishment or the constitution of the High Court while the third Entry of the State List is what authorizes legislation on such jurisdiction and powers". 68. A Full Bench of the Punjab & Haryana High Court in Rajinder 13. AIR (1961) Kerala 96. 14. AIR (1965) Mysore 76. J. N. GUZDAR v. STATE [PATIL. . I.

] 267 Singh etc. v. Ku/tar Singh and Ors. ". touching the same topic stated thus:- "So far as the High Courts are concerned, the topics of jurisdiction and powers in general is not separately mentioned in any of the Entries of the List l but administration of justice as a distinct topic finds place in Entry 3 of List II (Now Entry 11-A of the List Ill). The expression 'administration ofjustice' occurring in Entry 3 of List II of the Vllth Schedule has to be construed in its widest sense so as to give power to the State Legislature to legislate on all the I ). matters relating to 'administration of justice'. After the words 'administration of justice' in Entry 3 there is semi colon and this punctuation cannot be discarded as being inappropriate. The punctuation has been put with a definite object of making this topic as distinct and not having relation only to the topic that follows thereafter.

Under Entry 78 of List I, the topic of 'jurisdiction and powers of the High Courts', is not deal with. Under Entry 3 of List II the State Legislature can confer jurisdiction and power or restrict or withdraw jurisdiction and powers already conferred on any courts except the Supreme Court in respect of any statute. Therefore, the State legislature has the power to make law with respect to jurisdiction and powers of the High Court. " 69. In Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr. '6, Mukhkerjea J. in para 57 has observed that "......... Punctuation is after all minor element in the construction of a statute and very little attention is paid to it by English Courts....... When a statute is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given to the punctuation. " 70. In our view Full Bench of Punjab & Haryana High Court was right in giving emphasis and meaning to semi colon in Entry 3 of the List after the words 'admin