STATE OF BOMBAY v. NAROTHAMDAS JETHABAI AND ANOTHER

Citation: [1951] 1 S.C.R. 51; 1950 INSC 38

Court: Supreme Court of India

Bench: M. PATANJALI SASTRI , MEHR CHAND MAHAJAN, SUDHI RANJAN DAS, SIR SYED FAZL ALI

Judgment date: 1950-12-20

Case summary

1950 INSC 38. Supreme Court of India judgment dated 1950-12-20. STATE OF BOMBAY v. NAROTHAMDAS JETHABAI AND ANOTHER. Read the judgment and case details on...

Judgment text

' S. C. R. SUPREME COURT REPORTS 51 Orders passed by the Governor-General of India under the Indian Independence Act has still to be decided, I refrain from expressing any opinion on this point. In the result, the appeal, in my opinion, should be allowed and I concur in the order which has been made by my learned brother Patanjali Sastri, J. Appeal allowed . . Agent for the Appellant : R. R. Biswas. Agent for the Respondent : P. K. Bose. Agent for the Intervener: P. A. Mehta. STATE OF BOMBAY "· NAROTHAMDASJETIIABAIAND - ANOTIIER (SAIYID FAZL Au, PATANJALI SAsTRI, MEHR CHAND MAHAJAN, MuKHERJEA and DAs JJ. J Bombay City Civil Court Act (XL of 1948)-Provi11cial Act constituting City Civil Court to try suits of civil nature of value up to Rs, 10,000-Provision empowering Provincial GQl/ernmmt to invest court with jurisdiction up to Rs.

25,000-Validity of Act- Power of Provincial Legislature to make laws relating to ju•isdic· tion of courts-Delegation of legislative powers-Condition11l lr:gis· lation-Governmetit of India Act, 1935, Seventh Schedule, List I, items 28 & 53; List II, items 1 & 2; List Ill, items 15-Powei· to make laws as to 'Administration of /ustice" and "Constitution and organisation of courts", whether includes power to define "/urisdiction and powers" of courts-Interpretatio11 of Lists-Re- ference to legislative practice-Doctrine of pith and substance. The Bombay City Civil Court Act of 1948, an Act passed by the Provincial Legislature of Bombay, provided by s.

3 that the Provincial Government may, by notification in the official Gazette, establish for the Greater Bombay a court to be called the , Bombay City Ci,·il Court, and that this court shall, notwith- standing anything contained in any law, have jurisdiction to re- ceive, try and dispose of all suits and other proceedings of a civil nature not exceeding Rs. 10,000 in value arising within Greater Bombay except certain kinds of suits which were specified in the tection. Section 4 of the Act provided that subject to the excep-: tions :specified in s. 3 the Provincial Government may, by notifica-, 1950 Th• State of Trip11ra v. Tiie ProviHce oj Eayt Bengal 1950 Dec. 20 1950 State of Bombay •• Narothamda. r Jethabai and Anot~r. 52 SUPREME COURT REPORTS [1951] tion in the official Gazette, invest the City Civil Court with juris- diction to receive, try and dispose of all suits and other proceeJ- ings 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. Section 12 barred the jurisdiction of the Bombay High Court to try suits and proceedings cognizable by the City Civil Court. In exercise of the powers conferred by s. 4 the Pro- vincial Government invested the City Civil Court with jurisdiction to rcccivCt try and dispose of all suits and proceedings of a ch il nature not exceeding Rs. 25,000 in value. The first respondent instituted a suit in the High Court of Bombay for recovery of Rs. 11,704 on the basis of a promissory note, contending that the PrOYincial Legislature had no power to make laws with respect to jurisdiction of courts in regard to suits on promissory notes which was, a matter covered by item 53 of List I, and the Bombay City Civil Court Act of 1948 was therefore ult1·a vires. It was further contended on his behalf that in any event s.

4 of the Act was in- valid as it involved a delegation of legislative powers to the Pro- vincial Government and that the suit was therefore cognisahle by the High Court. Held by tne Full Court. -(i) that the impunged Act was a law with respect to a matter enumerated in List II and was not ultra vires; (ii) that as the legislature had exercised its judgn1cnt and determined that the Citv Civil Courts should be invested with pecuniary jurisdiction up to ·Rs. 25,000 and all that was left to the discretion of the Provincial Government \Vas the determination of the conditions under which the court should be invested with the enhanced jurisdiction, s.

4 did not involve any delegation of legislative -powers but was only an instance of conditional legis- lation and was not ultra vi1·es or invalid on this ground; (iii) inas- much as the impunged Act was in pith and substance a law with respect to a matter covered by List II, the fact that it incidental- ly affected suits relating to promissory notes (a subject falling within items 28 and 53 of List I) would not affect its validity an - 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 I have quoted are sufficient to show (1) that the practice which prevailed before the Government of In S. C. R. SUPREME COURT REPORTS 69 the matters mentioned in List III subject to the pro- visions of section 107. It was, therefore, submitted that the Act, in so far as it purported to provide by section 3 that the City Civil Court established there- · 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 Greater Bombay" (with certain exceptions not mate- 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 entries dealt with the same topic of jurisdiction and powers of courts, there was no room, it was said, for the application of the doctrine of incidental encroach- ment. -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 the Attorney-General who adopted the same line be- 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 respect to 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 excluding matters relating to the "solemnisation of ( 1 ) Sl B. L. R. 86. (') [1912] A. C. 880. (') A. l. R. l 939 Cal. 628. 1950 State of BombQJ' v. Narothamdas Jethabai and Another. Patanjall Sami J. 1950 State of Bombay v. Narothamda5 Jethahai and Another. Patanjali SaJtri J. 70 SUPREME COURT REPORTS [1951] marriage in the province" because the latter topic was specifically included in the Provincial List, the learned Judges observed : "The position is similar here.

'Civil procedure' in the Concurrent Legislative List must be held to exclude matters relating to jurisdiction and powers of courts since special provision is made for those matters elsewhere in the lists. " "To hold other- wise", they pointed out, "would be completely to wipe out the second entry in the Provincial Legislative List. " Learned counsel for the first respondent strong- ly relied on that decision and suggested that, if it had been brought to the notice of the learned Judges in Mulchand v. Raman('), their decision might well have been the other way. On the other hand, the Attorney-General submitted that there · could be no question of conflict between two entries in the same list and that the natural meaning of one should not be restricted simply be- cause of the presence of the other. He placed reliance on the following 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 the items in the Lists 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.

" 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- sion of rents· as well, and that, therefore, the United Provinces Regularisation of Remissions Act, 1938, was intra vires. General observations made in such (') (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, of openion that the words "administration of justice'' and "constitution and organisation of courts" occur- ring in entry 1 must be understood in a restricted sense excluding from their scope "jurisdiction and powers of courts" dealt with specifically in entry 2.

This does not, however, compel the conclusion that it is beyond the competence of the Provincial Legisla- ture to confer general jurisdiction on courts constitut- 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. It should be remembered-and this is what the argument for restricting the legislative power of provinces in regard to jurisdiction overlooks-that "administration of justice" is one of the matters mentioned in List II itself. The Provincial Legisla- ture, therefore, is competent under entry.

2 to legislate conferring jurisdiction on courts with respect to 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 relating to jurisdiction and powers of courts. In other words, though "administration of justice" in entry 1 does not authorise legislation with respect to jurisdiction and powers of courts, the legis- . ~ lative power under entry 2 in regard to the latter topic, which can be legitimately exercised "with respect to any of the matters in this List," can be exercised with respect to administration of justice, one of the matters comprised in that List, with the result that the subject of general jurisdiction is brought within the authoris- ed area of provincial legislation.

This view thus leaves a field in which entry 2 could apply. When once the Provincial Legislature is found com- petent to make a law with respect to the general juris- diction of courts, the apparent conflict with the Cen- 1950 State of BombaY v. Narothamdas Jethabai and Another. Patanja/i Sastri J. 1950 State of Bomb"ay v. Norothamdas Jethahai and Another. Potanjali Sastri J. 72 SUPREME COURT REPORTS [1951] tral Legislative power under entry 53 of List I can be resolved in a given case by invoking the doctrine of pith and substance and incidental encroachment. For, that rule, though not of much assistance in constru- ing entries 1 and 2 which occur in the same List II, has its legitimate application in ascertaining the true character of an enactment and attributing it to the appropriate list where the Federal and the Provincial 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 legislative power, and if in doing so, it encroached on the forbidden field marked off by entry 53 of List 1, the encroachment should be taken to be only incidental. It may be that such en- 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 their Lordships put to themselves in that case was "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 of the impugned Act. lts provisions may advance so far into the federal territory as to show that its true nature is not concerned with provincial matters, but the ·question is not, has its trespassed, more or less, but is tl1e trespass, whatever it be, such as to show that the pith and subsiance of the impugned Act is not money- 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 true content". 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- (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 list or in each case has one to consider what the substance of an Act is and whatever its ancillary effect, attribute it to the appro- priate list according to its true character ? In their Lordships' opinion the latter is the true view. " 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. In other words, what is properly to be called the subject-matter of an Act may depend upon what is the true aspect of the Act. The cases which illustrated this principle show, 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 II, as the 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 Bombay City Civil Court, and investing it with the (1) [1944] F. C. R. 126, 139. 1950 State of Bombay v. Narothamda! · Jethf'bai and. Another. Patanjali SastriJ .. 1950 :State of Bombay v. Narothamdas Jethabai and Another. Patanjali Sastri J.

74 SUPREME COURT REPORTS [1951] general jurisdiction to try all suits of a civil nature within certain pecuniary and territorial limits, and if 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 that the enactment, so far as one aspect of jurisdiction, namely, its conferment, is concerned, 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. This view is strongly reinforced by a consideration of the legislative practice prevailing in this country 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 to constitute and organise courts with general jurisdiction over all persons and matters sub- ject only to certain pecuniary and territorial limita- tions, and to confer special jurisaiction limited to cer- • tain specified cases or matters either on the ordinary courts in addition to their general 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, that is to 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 special or limited jurisdiction extending only to those matters. The grading of the court too in their heirarchy has reference to the pecuniary and territorial limits rather than to the nature and kind of the subject-matter which they are empowered to deal with. It is reasonable to presume that this system of organisation of courts in British (') [1933) A- C. 156, 165. S. C. R.

SUPREME COURT REPORTS 75 j • India was known to the framers of the Govern- ment of India Act, 1935, and it cannot be readily sup- posed that they wanted to introduce a radical change by which the power of constituting courts and provid- ing for administration of justice is to be vested in the Provincial Legislatures, while jurisdiction has to be conferred by piecemeal legislation by the Federal and Provincial Legislatures with respect to specific matters falling within their respective legislative fields which . are by no means capable of clear demarcation.

The constitutional puzzles which such a system is likely to pose to the legislatures no less than to the courts and the litigant public in the country whenever a new court is constituted in finding out by searching through the legislative lists, whether jurisdiction to deal with a particular matter or power to make a particular order is validly conferred by the appropriate legislature, must make one pause and examine the relevant pro- visions of the Government of India Act. to see if there is anything in them to compel the acceptance of so novel a system. After giving the matter my careful consideration, I am convinced that both the language -0f the provisions and the antecedent legisfative prac- tice support the conclusion that the Provincial Legis- latures, which have the exclusive power of constituting and organising courts and of providing for the ad- ministration of justice in their respective. provinces, have also the power of investing the courts with gene- ral jurisdiction.

J · On the question whether section 4 of the Act ope- rates as a delegation of legislative power, I entirely 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 the Attorney-General as to how far it is open to the '• legislatures in this country, while acting within their authorised areas, to delegate their legislative powers to other agencies. I find it no more necessary in the present case to decide that point than in /atindranath 1950 State of Bombay v. Narothamdal Jethabai and Another. Patanjali Sastti J. 1950 State of Bombay v. Narothamdas Jethabal and Another. Mahajan J. 76 SUPREME COURT REPORTS [1951] Gupta's case(') where I preferred to rest my decision on a narrower ground.

It follows that the High Court has no jurisdiction to hear and determine the first respondent's suit and 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 in contravention of a notification dated the 20th 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 State of Bombay was impleaded as defendant at this stage and the proceedings were transferred to a Division Bench of the High · Court. The Division Bench upheld the view of the Judge in Chambers and returned the cause to him for disposal on the merits. The State of Bombay, dissatisfied with this decision, has preferred the present appeal. (') [1949·50] F. C. R. 59,, ... ' . ' -' , 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 is void as it purports to delegate to the Provincial Government legislative authority in tlie matter of investing the City - Civil Court with extended juris- tliction. Bombay Act of 1948 came into force on 10th Mayr 1948. It wa~ considered expedient to establish an 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 :- "3. The State Government may, by notification in the Official Gazette, establish for, the Greater Bombay a court, to be called the Bombay City Civil Court.

Notwithstanding anything containei:I in :any law, such court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding ten thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are 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 insolvent debtors, or ( c) by the High Court under any special law other than the Letters Patent, or ( d) by the Small Cause Court : Provided that the State Government may, from time to time, after consultation with the Higli Court, by a like notification extend the jurisdiction of the City Court to any suits or proceedings which are cognisable by the High Court as a court having testamentary or 6-8 S. C. India/67 1950 State of Bombay v.

Narothantdas Jetlwbai and Another · Mahajan J. 1950 State of Bombay v. Narothamda$ Jelhahai and Another Mahajan J. 78 SUPREME COURT REPORTS [1951] intestate jurisdiction or for the relief of insolvent debtors. 4. Subject to the exceptions specified in section 3 the State Government may by notification in the Official Gazette, invest the City Court with jurisdic- 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. 12. 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. " 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 jurisdiction of the High Court to try the present suit. On the first question the High Court placed reliance on its own earlier decision in M ulchand Kundanmal Jagtiani v. Raman Hiralal Shah('), and held that the Act was intra vires the Bombay · Legis- lature. The appellant assails the correctness of the decision of the High Court on the second point and supports the decision on the first point. The first re een delegated to the Provincial Government. The learned Chief Justice in the court below disposed of this contention with the following observations :- "I am also conscious of the fact that an Act must be construed in a manner which would reconcile its different sections but with the best of intention in the world I S. C. R.

SUPREME COURT REPORTS 83 dealing with an Act which contained the following provisions in section I, sub-~ection (3) :- "The Act shall remain in force for a period of 0ne year from the date of its commencement : Provided that the Provincial Government may,i 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· nuy be specified in the notification. " ln connection with this proviso I said in my judg- ment in that case that the power conferred therein was much larger than ' was conferred on the Lieutenant- Governor in Queen v: Burah(1) inasmuch as it author- ised the Provincial Governrnent to modify the Act and also to recenact it.

It was pointed out that "distinction between delegation of power to make the law which necessarily involves a discretion as to what it shall be, and conferring discretion or authority as to its execu- tion to be exercised un~tr. and in pursuance of the law is a true one and has to be made in all cases where such a question is raised. " The follow:ng observations made by me there pointedly bring out the distinction between the two cases ;...... ,. • "The proviso which has been assailed in this case, judged on the . above test, comes within the ambit of delegated legislation, and is thus an . improper piece of legislation and is void. . To my mind, it not only amounts to abdicati0n· of legislative authority by the Provincial Legislature, it goes further and amounts to setting up a . parallel Legislature for enacting a modi- fied Bihar Maintenance of Public Order Act and for enacting a prov151on in it that that Act has to be enacted for a further period of one year.

A careful ana- lysis of the proviso bears out the above conclusion. It may be asked what does the proviso purport to do in terms and in substance? The answer is that it empowers the Provincial Goyernment to issue a notification say- ll) S I. A. 178. 1950 State of Bombay v. Narothamdas Jethabai and Another \fahajan J. 1950 State of Bombay v. Narotha171tlM Jethabai and Another Mahajan J. 84 SUPREME COURT REPORTS [1951] ing that the Provincial Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification ........ Modi- fication of statute amounts to re-enacting it partially. It involves the power to say that certain parts of it are· no longer parts of the statute and that a statute with X sections is now enacted with Y sections. In the act of modification is involved a legislative power as a discretion has to be exercised whether certain parts of the statute are to remain law in future or not or have to be deleted .

from it. The power to modify may even involve a power to repeal parts of it. A modified statute is not the same original statute. It is a new Act and logically speaking, it amounts to enacting a new law. " , I have not been able to follow how these observations concerning the Bihar statute could be relied upon by the High Court in support of its decision in respect to the invalidity of section 4 of the Bombay City Civil Court Act. The two provisions are not anaiogous jn any mai:rner whatsoever and that being so, no support can be derived by the respondent from this decision. In the concluding portion of his judgment under appeal the learned Chief Justice observed as follows :- "Now applying once more these tests to the City Civil Court Act, we find that the Legislature in the exercise of its legislative power has set up a Civil Court with a limited jurisdiction under section 5 of the Act. It has not set up a court with jurisdiction higher than ten thousand rupees.

Having set up a court of limited jurisdiction it has given to the Provincial Government under section 4 the power to confer upon that court a higher jurisdiction up to twenty-five thousand rupees. Now this power which is conferred upon the Provin- cial Government is a power which could only have i>een -exercised by the Legislature itself. " It seems to me that the above observations are based on a construction of sections 3 and 4 of the Act which these sections cannot legitimately bear. As already -~b served, the Legislature set up a Civil Court for Greater . _ ) S. C. R. SUPREME COURT REPORTS 85 Bombay and decided that to start with, it will have pecuniary jurisdiction up to Rs. 10,000. It also decided at the same time that it would also have jurisdiction up to Rs. 25,000 as soon as circumstances necessitate it. The Provincial Government was consti- tuted the judge of those circumstances. What thr. limit .

of that jurisdiction was to be was in unmistakeable terms enacted in section 4 of the Act. It was not left to the will of the Provincial Government to confer on that court any pecuniary jurisdiction that it liked to confer upon it. It would be by force of the legislative power of section 4 that the City Civil Court will be vested with enhanced jurisdiction but that vesting cannot take place till a notification is issued by the Provincial Government. It is conditional on that event only. For the reasons given above, in my judgment, the High Court was in error in holding that section 4 of the City Civil Court Act was void and ul'tra vires the Provincial Legislature. In this view the notification issued under section 4 must be held to be effective. That being so, it is unnecessary to go into the qu_estion raised by the learned Attorney-General that assuming that section 4 of the Act was delegation of legislative power, it was still valid.

The next question to decide is whether the Act is ultra vires the Bombay Legislature. In order to appreciate Mr. Seervai's contention on this point it is necessary to set out some cf the provisions of the Government ()f India Act, 1935, relev:ui. t to the enqujry. These are contained in section 100, and in the Seventh Schedule in entries 28 and 53 of List I, entries 1 and 2 of List II, and entries 4 and 15 of List III. They are in these terms :- Sec. 100 (1) Notwithstanding anything in the two next succeeding sub-sections, the Federal Legislature, has, and a Provincial Legislature has not, power to make laws with respect to anv of the matters enume- rated in List I in the Seventh Schedule to this Act (hereinafter called the "Federal Legislative List"). 1950 State of Bombay v. Narothamda$ Jethabai and Another Mahajan J . 1950 State of Bombay v. Narothamdas Jethabai and Another Mahajan J.

86 SUPREME COURT REPORTS [ 1951] (2) Notwithstanding anything in the next succeed- ing sub-section, the Federal Legislature, and, subject to the preceding sub-section, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereinafter called the "Concurrent Legisla- tive List"). (3) Subject to the two preceding sub-sections, the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II in the said Schedule (herein- after called the 'Provincial Legislative List"). ( 4) The Federal Legislature has power to make laws with respect to matters enumerated in the Provin- cial Legislative List except for a Province or any part thereof. List I. 23. Cheques, bjlls of exchange, promissory notes and other like instru~nts. 55.

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- ed by Part IX of this Act, the ~nl;i,rgement of the appelbte jurisdiction of the Federal Court, and the conferring thereon of supplemental powers. 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 fees taken therein ; preventive •. dete'1tion for reasons connected with the maintenance of public order ; persons subject to such detention. 2. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in 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, including arrears of land revenue and sums recoverable as such, arising outside that Province. 15 .. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list. 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 jur~sdiction on the new court in respect to all cases of a civil nature. The expression "all cases of · a civil nature" presumably brings within the ambit of the Act suits in respect to subjects contained in List I.

He urged that the three similar entries in the three lists. namely, entry 53 in List I, entry 2 in List II and entry 15 in List III indicated that in respect to the subjects covered by the three fields of legislation demarcated for the two Legislatures the · Parliament empowered each of them respectively to make laws in respect to jurisdiction and power of courts and that in view of the provisions of section 100 of the Consti- tution Act the Provincial Legislature had no power to make any law conferring jurisdiction on courts in respect to subjects covere I S. C. R. SUPREME COURT REPORTS 91 not be considered to have conferred power of legis- lation on the Provincial Legislature of an inef! cc- tive and useless nature. Following the line of argument taken by Mr. Mistree before the High Court . of Bombay, Mr.

Seervai strenuously contended that the only legislative power conf~rred on the Provincial Legislature by entry I of List II was in respect to the establishment of a court and its constitution and that no legislative power was given to it to make a law in respect to jurisdiction and power of the court esta- blished by it. The argument, logically analysed, comes to this : that such a statute will contain the name of the court, the number of its. judges, the method of their appoint- ment, the salaries to be drawn by them and it will then stop short at that stage and will not include any provision defining the powers of the tribunal or its other jurisdiction and that the court so constituted could acquire jurisdiction only when a law was made relating to its jurisdiction and powers by the Federal Legislature under entry 53 of List T, by the Prc'. 'incial Legislature under entry 2 of List 11 and by either Le- gislature under entry 15 of List III.

The learned counsel contended that this peculiar result was the na- tural consequence of a federal constitution with divid- ed powers, and that entries 53. 2 and 15 of. the three respective· lists limit and curtail the wide power con- ferred on tile Provincial Legislature by item 1 of List II. It is difficult to accede to this contention because it wou'd amount to holding that though the Provincial Legislature under item 2 of List II has been given the widest power of legislation in the matter of adminis- tration of justice and constitution and organization of courts and though that field has been demarcated for it as its exclusive field of legislation, yet all that it can do, acting within that field, is merely to establish a court without any competency to function and that it can only become an effective instrument for adminis- tering justice by laws enacted elsewhere or under powers conferred under other items . of the different lists.

I am unable to read items 53, 2 and 15 of the three 1950 State of Bombay y. Narothamdas Jethabai and Ariother Mahajan J. 1950 State of Bombay v. Narothamda1 Jethabai and A. nother Mahajan J. 92 SUPREME COURT REPORTS [1951] respective lists as imposing limitations on legislative power conferred on the Province by item 1 of List II. Such a construction of the Act would not only do vio- lence to the plain language of item 1 of List II but would. be contray to its scheme under which adminis- tration of justice was tp. ade a provincial subject. It is significant that no other Legislaure has been given the power to bring into existence a court. A court without powers and jurisdiction would be an anomaly as it would not be able to discharge the function of admin- istration of justice and the statute establishing such a court could not be said t:o be a law on the subject of ad- ministration of justice.

It is a fundamental principle of the construction of a constitution that everything necessary for the exercise of powers is included in the grant of power. Everything necessary for the effective execution of power of legislation must therefore be taken to be conferred by the constitution with that power. It may be observed that in exercise of legislative power under item 1 of List II a Provincial Legislature can alter the constitution of the existing courts, can abolish them, reorganize them and can establish new courts. If the construction contended for bv Mr. Seervai is accepted, then the existing courts re:established or re-organised by the Provincial Legislature would not be able to function till legislation under item 53 of List I, under item 2 of List II or item 15 of List III also simultaneously was made. I do not think that such a result was in the contemplation of Parliament. Mr.

Seervai with some force argued that if full effect is given to the comprehensive phraseology employed in item 1 of List II. then it would result in making the provisions of item 2 of List II, of item 53 of List I and item 15 of List III nugatory, in other words, if the Provincial Legislature could bring into existence a court of gc:neral jurisdiction which could hear all causes on subjects concerning which legislative power was divided in the three lists, then the conferment of legislative power on the Federal Legislature under item 53 of List I, on the Provincial Legislature under item 2 of List II and on both the Legislatures under • S. C. R. SUPREME COURT REPORTS 93 item 15 of List III was purposeless. In my opinion, this argument is not a valid one and the premises on which it is based are not sound. The three lists of subjects contained in Schedule 7 have not been drawn up with any scientific precision and the various items in them overlap.

The point kept in view in drawing up the lists was to see that all possible power of legis- lation was included within their ambit. By making administration of justice a provincial subject and by coriferring on the · Provincial Legislature power to legislate on this subject and also on the subject of con- stitution and organization of courts, Parliament con- ferred on that Legislature an effective power which included within its ambit the law-making power on the subject of jurisdiction of courts. The Provincial Legislature could therefore bring into existence a court with general jurisdiction to administer justice on all matters coming before it within certain territorial and pecuniary limits, subject of course to the condition that such general jurisdiction may be expressly or impliedly taken away by the provisions of other laws.

The Parliament having divided the field of legislation between the two Legislatures, naturally thought that as a corollary or a necessary consequence of this divi- sion of legislative power it was necessary to provide by way of a complementary provision a legislative power specifically on the two Legislatures in respect to the jurisdiction and powers of courts on subjects which were within their exclusive legislative field. If a Legislature could exclusively legislate in respect to particular subjects, as a necessary consequence it should also have the power to legislate in · respect to jurisdiction and power of the court dealing with that subject. It is this power that has been conferred by entries 53, 2 and 15 above mentioned on the two Legis- latures.

Entries 42 and 99 of List I, entries 37 and 42 of List II and entries 25 and 36 of List III are of a similar consequential character· The res- pective Legislatures are therefore competent to confer special powers on courts and can create special jurisdictions acting under those powers in respect to 7 -8 S C. Tndia/67 1950 State of Bombay v. Narothamdas Jethabai and Anothet -, - Mahajan J. 1950 State of Bombay v. Narothamd! ls Jethohai and Another Mahajan J. 94 SUPREME COURT REPORTS [1951] their divided fields of legislation. Instances of con- ferment of powers and jurisdiction on courts to hear cases on particular subjects were well known to Parlia- ment. Such powers had been conferred on different courts in respect of testamentary and intestate juris- diction, admiralty jurisdiction, under the Indian Com- panies Act, under the Succession Act, Guardians and Wards Act and under the various Rent Acts and Acts dealing with relief of indebtedness.

In view of the division of powers in respect to different subjects, power was given under item 53 of List I, item 2 of List II and item 15 of List III to the different Legislatures when dealing with those subjects also to legislate on the question of jurisdiction and powers of tl•e courts. This conferment of legislative power to create special jurisdiction in respect to particular subjects does not in any way curtail the legislative power conferred on the Provincial Legislature under item 1 of List II. As soon as special legislative power under item 53 of List I, under item 2 of List II and item 15 of· List III is exercised, the causes that arise in respect· to those subjects would then only be heard in jurisdictions created by those statutes and not in the courts of . gene- ral jurisdiction entrusted with the normal administra- tion of justice. In the language of section 9 of the Code of Civil Procedure, jurisdietion of the general courts will then become barred by those statutes.

· I am therefore of the opinion that under item l of List II the Provincial Legislature has complete com- petence not only to establish courts for the adminis- tration of justice but to confer on them jurisdiction to hear all causes of a civil nature, and that this power is not curtailed or limited by power of legislation . con- ferred on the two Legislatures under items 53, 2 and , IS of the three lists. On the other hand, these three items confer on the respective Legislatures power to legislate when dealing with particular su\ljects within their exclusive legislative field to make laws in res- pect of jurisdiction and powers of courts that will be competent to hear causes relating to those subjects; in other words, this is a power of creating special i I ) } S. C. R. SUPREME COURT REPORTS 95 jurisdictions only.

This interpretation of the entries in tbe lists is not only in accordance with the scheme of the statute but it harmonizes the different entries in the lists and does not make any of them nugatory and ineffective. The interpretation contended for by Mr. Seervai would reduce the power of the Provincial Legislature under item 1 to almost nothingness. The crux of the case is whether item 1 of List II should be given a limited construction which makes it nugatory or whether a limited construction is to be placed on items 53, 2 and 15 of the three lists. I have no hesitation in holding that both in the light of principles of construction of statutes and principles of legislation, the course to adopt is the one that I have indicated above. Finally, it was contended that section 12 of the Act in any case was a void piece of legislation as it de- prived the High Court of its jurisdiction even in res- pect to subjects contained in List I of the Seventh Schedule.

In view of the construction that I have placed on item 1 of List II this argument has no force. If the Legislature has power to bring into existence a court and confer jurisdiction and power on it, a fortiori it has power to take away the jurisdiction and power that already exist in other courts. Moreover, the Bombay City Civil Court Act in section 3 has excepted from the jurisdiction of the new court all cases which the High Court can hear under any special law. Special law has been defined as a law applicable to a particular subject. If under List 1 of the Seventh Schedule the Federal Legislature by any law deter- mines that a case has to be heard by the High Court, section 5 will not affect the jurisdiction of that court in any manner whatsoever.

The result, therefore, is that the Bombay City Civil Court Act is a statute which is wholly within the legislative field of the Province under item 1 of List II and its validity cannot be affected even if it inci- dentally trenches on other fields of legislation. It is not a statute dealing with any of the subjects mention- ed in List I and therefore it cannot be said that the 1950 State of Bomba)' v. Narothamdaa . Te thabai Ofld Another. Mahajan J. 1950 State of Bombay v. Narothamda5 htlrabai and Another MMk/iet'jea I. 96 SUPREME COURT REPORTS (1951] Provincial Legislature has in any way usurped the power demarcated for the Centre. In view of this conclusion I think it unnecessary to pronounce any opinion on the other points raised by the learned Attorney-General. For the reasons given above I allow the appeal preferred by the Government of Bombay and set aside the decision of the High Court holding that section 4 of the City Civil Court Act (XL of 1948) is void.

In the circumstances of the case I leave the parties to bear their own costs of the appeal. MuK. HERJEA J. -In my opinion this appeal. should be allowed and I concur substantially in the line of reasoning adopted by my learned brother Mahajan J. in his judgment. Having regard to the constitutional importance of the questions raised in this case, I would desire to add some observations of mine own. There are really two questions which require con- sideration in this appeal. The first is whether sec- tion 4 of the Bombay City Civil Court Act, 1948, is void and inoperative by reason of its amounting to a delegation of legislative powers by the Provincial Legislature to the Provincial Government of Bombay. The Bombay High Court has answered this question in the affirmative and it is entirely upon this ground that the judgment appealed against is based.

The propriety of this decision has been challenged by the learned Attorney-General who appeared on behalf of the State of Bombay in support of this appeal. On the other hand, Mr. Seervai, appearing on behalf of the respondents, has not only attempted to repel the contention advanced by the learned Attorney- General, but has sought to support the judgment appealed against on another and a more compre- hensive ground which, if accepted, would make the entire Bombay City Civil Court Act a void piece of legislation, as being an encroachment by the Pro- ' vincial Legislature upon the field of legislation reserved • for the Centre under List I of Schedule 7 to the Government of India Act, 1935. ~- ) S. C. R. SUPREME COURT REPORTS · 97 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, by rwtification, with jurisdiction of such value not exceeding Rs. 25,000 as may be specified in the Notification, has not delegated its legislative authority to the Provincial Government. The provision relates only to the enforcement - of the policy which the Legislature itself has laid down. The law was full and complete when it left the legislative chamber permitting the Provincial Government to increase the pecuniary jurisdiction of the City Court up to a certain amount which was specified in the Statute ·itself. What the Provincial Government is to do is not to make any law; it has to execute the will of the Legislature by determining the time at which and the extent to which, within the limits fixed by the Legislature, the 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. The learned Judges of the Bombay High Court in coming to their decision on the point seem to have been influenced to some extent by the pronouncement of the Federal Court in /atindranath Gupta v. Pro- t1ince of Bihar (2), and the learned Counsel for the respondents naturally placed reliance upon it. I was myself a party to the majority decision in that case and expressed my views in a separate judgment. I do not think that there is anything in my judgment which lends support 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 • I decision in Locke's appeal(3) that a legislature may not (1) SI. A. 178. (3) 13 American Reports, 716. (2) [1949] F. C. R_ 596. 19. 50 State of Bombap V• Na1othamda1 Jt tltabai and Ano titer Mukherjea J. 1950 State of Bombay v. Narothamdas Jethabai and Another Mukherfea J. 98 SUPREME COURT REPORTS [19511 delegate its powers to make law but "it can make a law to delegate a power to determine some fact or state of things upon_ which the law makes or intends to make its own action depend"; and that the Inhibition against delegation does not extend to legislation which is complete in itself, though its operation is made to depend upon contingencies the ascertainment of which is left to an external body. The subject matter of dispute in the Bihar case was the validity of a proviso engrafted upon section 1, sub- section (3) of the Bihar Maintenance of Public Order Act.

The sub-section laid down that the Act would remain in force for a period of one year from the date of its commencement. The proviso then added "that the Provincial Government may, by notification on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification. " Mr. Seervai would have been probably right in invoking the decision in that case as an authority in his favour if the proviso simply empowered the Provincial Government, upon com- pliance with the conditions prescribed therein, to ex- 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 by the learned Counsel appearing for the Province of Bihar that to authorise another body to modify a sta- tute amounts to investing that body with legislative powers. What the learned Counsel contended for, was that the power of modification was severable from the power of extending the duration of the statute and the invalidity of Ol)e part of the proviso should not affect its other part. To this contention my answer was that the two provisions were inter-related in such a manner in the statute that one could not be s~vered from the ' '· ',. ) t > 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 Imperial Parliament in the Government of India Act, 1935, could delegate its legislative functions in eny manner to an outside authority as it thought proper, was neither raised nor decided in Jatindranath Gupta's case. The learned Attorney-General has not very properly invited any final decision on that point in the present case and I would refrain from expres- sing any opinion upon it.

The second point appears to be of some complexity and it was decided by the Bombay High Court adversely to the 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 said is that the expression "all suits of a civil na- 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 regard to which the 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- (! )SI Bom. L. R. 86. 1950 Stale of Bo '11b4f v. Nruotlrcmdiu Jell. Adi 111111( A•oll1er Mukhuit. o. J •. 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 like powers in regard . 'to subjects enumerated in the Concurrent List as provided for in article 15 of List III, subject to the conditions laid down in section 107 of the Act.

But as the scope of section 3 of the Bombay City Civil Court Act is not - limited to matters in Lists II and III only and its language can embrace subjects coming under List I as well, and furthermore as the 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. In answer to this, it has been urged by the learned Attorney-General that amongst the subjects included in Item 1 of the Provincial List are "the 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 general jurisdiction to hear and decide cases upon courts which are set up by the Provincial Legislature, and without which they cannot function as courts at all.

It is said that Item 2 of the Provincial List which mentions "jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this List" does not in any way limit or curtail the ordinary connotation of the expressions "administration of justice and constitution of courts" as used in Item I of the said List referred to above. It cannot be disputed that the words "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 machinery connected with the administration of jus- 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 • ) I S. C. R. SUPREME COURT REPORTS 101 "constitution, maintenance and organization of 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- pressions "administration of justice and constitution 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. The contention in this form seems to me to be plainly unacceptable. I agree with Mr.

Setalvad that the different topics in the same Legislative List should not be read as exclusive of one another. As was observed by Sir Maurice Gwyer in The United Provin- ces v. Atiqua Begum( 2 ), "the subjects dealt with in the three Legislative . Lists are not always set out with scientific definition. It would be practically impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every other 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 the same subject might in some aspect come within the purview of the other. The difficulty, however, arises when we come to } entry 53 of List I. Under this entry, it is the Central \I) R, CountY Courts 'Of British Columbia-21 S. C. R. 446. (2) [I 940]F. C. R. 110 at p. l 34. 19SO State of Bombay v. Narothamda:t Jethabai and Another. Mukherjea J. 1950 State of Bombay v. Narolhamdas Jethabal and Another. Mukherjra J. 102 SUPREME COURT REPORTS r 19511 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 the Provincial Legislature to invest a court with jurisdiction with respect to all subjects no matter in whichever List it might occur, a clear conflict is hound. to anse between Item 1 of the Provincial List and Item 53 of the Central List; and a Provincial legislation tresp;u;sing upon the exclusive field of the Centre would be void and inoperative under section 100 of the Constitution Act. This being the position, a way would have to be found out to avoid the conflict. As the Privy Council observed in the case of the Citizens 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 and where necessary modified by the other. " Mr.

Seervai suggests that the proper way of recon- ciling this apparent conflict would be to read the words "administration of justice and constitution cf 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 the subjects to which such jurisdiction relates. The Provincial Legislature can endow the court with jurisdiction in respect to any matter in List II and the Central Legislature can do the same with regard to 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. • S. C. R.

SUPREME COURT REPORTS 103 This argument, though apparently plausible, cannot, in my opinion, be accepted as sound. It is to be noted that the right to set up courts and to provide for the whole machinery of administration of justice has been given exclusively to the Provincial Legislature. Under section 101 of the North America Act, the Parliament of Canada has a reserve of power to create additidnal 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 Legis- ·Jature. Courts are to be established by the Provincial Legislature alone. The word 'court' certainly means a place where justice is judicially administered, The appointment of Judges and officers or the mere setting apart of a place ·where the Judges are to meet, are not sufficient to constitute a court.

A court cannot administer justice unless it is 'vestt'd with jurisdiction to decide cases and "the constitution of a court necessarily includes its jurisdiction. " (1) If Mr. Seervai's contention is accepted, the result will be that _when a Provincial Legislature establishes a civil court, it can only be invested with jurisdiction to decide cases in respect to matters coming within the Provincial List. Such court can have no power to decide cases relating to any matter which is enumerated· in List I so long as the appropriate Legislature does not confer upon it the requisite authority. Thus an ordinary Provincial Court established to decide civil suits would be entitled to entertain all monev claims but - not a claim on a promissory note; nor ·could it 'entertain a suit for recovery of corporation tax, for Negotiable Instruments and corporation 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- sion relating to constitution of courts and adminis- 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, (I) Vide Clemen's Canadian Constitution, 3rd Edn. , p. 527. 1950 State of Bombay v. Narothamda~ Jethabai and Another. 1950 State of Bombay v. Narothamdas Jethabai and Anolhet. Mukherjea J. 104 SUPREME COURT REPORTS [1951] and to interpret the · language of one by that of the 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 administration of justice might relate or for which a court might be comtituted.

It can, therefore, be legitimately interpreted to refer to a general jurisdiction to decide cases not limited to any particular subject. The other three items on the other hand relate to particular matters appearing in the three Lists and what they con- template is the vesting of jurisdiction in courts with regard to such specific items only. In one case the jurisdiction is 'general' as is implied in the expres- sion "administration of justice", while in the other three the jurisdiction is 'particular' as limited to parti- cular matters and hence exclusive. I agree with my learned brother Patanjali Sastri J. that one approved way of determining the scope of a legislative topic is to have regard to what has been ordinarily treated as embraced within that topic in the legislative practice of the country('); and if that test is applied, the inter- pretation suggested above would . appear to be per- fectly legitimate.

· The distinction between general and particular jurisdiction has always been recognised in the legislative practice of this country prior to the passing of the Constitution Act of 1935 and also after that. There have been always in this country civil courts of certain classes and categories graded in a certain manner according to their pecuniary jurisdiction and empowered to entertain and decide all suits of a civil nature within particular localities. Particular jurisdiction again have been conferred on some one or the other of these . courts to try cases relating to certain specified matters. Thus there have been special jurisdictions created for insolvency, probate or guardianship proceedings, for deciding disputes relating to compulsory acquisition of land and for dealing with cases arising under the Rent Acts or the different legislations passed in recent years (I) Vide c,oft v. Dunphy, [1933] A. C. 156. ' • . I ~ t l 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 with regard to conferring of special jurisdiction in criminal cases. There will be no difficulty in interpreting in a proper manner the different entries in the Legislative Lists 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 the power of . establishing courts upon the Provincial Legislature. The Provincial Legislature can endow the courts which it sets up with general jurisdiction to decide all cases which, according to the law of the land, are triable in . a court of law, and all these powers can be exercised under entry 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 lists, they can exercise such powers under the three entries specified above. But the exercise of any such powers by the Central Government would not 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 special jurisdiction only, there cannot be even an incidental encroachment upon such special jurisdiction 19SO State of Bombay v Narothamdas Jethabai and Another. Mukherjea J.. 1950 State of Bombay v. Narothamdas Jethabai and Another Mukherjea J. DasJ. 106 SUPREME COURT REPORTS [1951] by reason of the conferring of general jurisdiction upon courts by the Provincial Legislature under entry 1 of List II. As I have said already what is 'special' or made so, will automatically cease to be in the category of what is 'general' and no question of a conflict would at all arise.

It may be pointed out in this connection that in the Canadian Constitution also, the general scheme is to carry on administration of justice throughout Canada through the medium of provincial courts. Subject to the residuary power reserved to the Dominion 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 courts. There is no limitation in any provincial court along the line of division that exists between matters within the legislative competence of the Dominion Parliament and of the Provincial Legis- lative Assemblies('). There is indeed no such thing (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: "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 the ' Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing Courts, and brought under the same pro- visions with the Garo Hills, not necessarily and at all events, but if and when the Lieutenant-Governor should think it desirable to do so; and that it was also possible that it might be expedient that not all but some only, of those provisions should be applied to that adjoining district. And accordingly the Legis- lature entrusted for these purposes also, a discretionary power to the Lieutenant-Governor. " Finally, his Lordship concluded at p.

195 : "Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant- Governor (large as they 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 proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in any imperial or in a Provincial Legislature they may, in their LordsMps' judgment, be well exercised, either absolutely or conditionally.

Legislation, con- ditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons In whom it places confidence, ' • S. C. R. SUPREME COURT REPORTS 115 is no uncommon thing ; and in many circumstances, it may be highly convenient. " 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 of 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 and Jaintia Hills from the jurisdiction of the Courts 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- visions as applied to the Garo Hills, not necessarily and at. all events but if and when the Lieutenant- Governor should think it desirable to do so and ac- cordingly entrusted a discretionary power to the Lieutenant-Governor. Adopting the same method of construction and adopting the language of Lord Sel- borne it may well be said that in enacting section 3 the Legislature itself has determined, in the due and ordinary course of legislation, to establish an addi- tional Court of civil jurisdiction with jurisdiction to 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 to say at what time that . change should take place.

Likewise, it may be said that in enacting section 4 the Legislature itself has decided that it is fit and proper to extend the pecuniary jurisdiction of the new Court, not necessarily and at all events or all at once but, if and when the Provincial Government should think it desirable to do so and accordingly entrusted a discretionary power to the Provincial Government. It is entirely wrong to say that the (1) LR. SI. A. 178. 1950 State of Bombay v, Narothamdas Jethabai and Another Das J. 1950 State of Bombay v. Narothamdos Jethahai and Another Das J. 116 SUPREME COURT REPORTS [1951] Legislature has not applied its mind or laid down any policy.

Indeed, the very fact that the extension of pecuniary jurisdiction should not exceed twenty-five thousand rupees, that the extension should be ·subject to the exceptions specified in section 3 clearly indicate that the Legislature itself has decided that the ex- tension of the pecuniary jurisdiction of the new Court should be made, not necessarily or at all events or all at any one time but when the Pro- vincial Government may consider it desirable to do so and while entrusting a discretionary power with the Provincial Government to determine the time for investing such extended jurisdiction on the new Court, the Legislature itself has also prescribed the limits of such extension. The efficacy of the Act of ex- tension of jurisdiction is, therefore, not due to any other legislative authority than that of the Legis- lature itself. The expression "invest" does not appear to me to have any special significance.

It only implies or indicates the result of the fulfilment of the condition which the Legislature itself laid down. To use the language of Lord Selborne the extension of jurisdiction is directly and immediately under and by virtue of this very Act itself. Here tMre is no effacement of the Legislature, no abdication of the legislative power. On the contrary, the proper Legis- lature has exercised its judgment as to the possible necessity for the extension of the pecuniary jurisdic- 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 issue of the notification by the Provincial Government 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- perly construed in the light of the observation and decision of the Privy Coundl in R. v.

Burah(') as indicated above section 4 does not amount to a delega- tion of legislative power at all but constitutes what is known as conditional legislation. (l) L. R. SI. A. 178. ' ' • S. C. R. SUPREME COURT REPORTS 117 Reliance was placed by the High Court on the 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 (3) provided the Act should 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 : "Provided 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. " Three of the learned Judges held that the proviso and the notification thereunder were ultra vires and void. They laid particular emphasis on the power given to the Provincial Government to make any modification in the Act when extending its 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 S. C. R. SUPREME COURT REPORTS 121 pra

Source: Supreme Court eSCR. Dataset: Dattam Labs, CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.