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CASE NO.:

Appeal (civil) 2452 of 1992

PETITIONER:

Jamshed N.Guzdar

RESPONDENT:

State of Maharashtra & Ors.

DATE OF JUDGMENT: 11/01/2005

BENCH:

R.C.LAHOTI CJI & S.V.PATIL & K.G.BALAKRISHNAN & B.N.SRIKRISHNA & G.P.MATHUR

JUDGMENT:

JUDGMENT

WITH

Civil Appeal No. 2529 of 1992

Civil Appeal No. 2530 of 1992

Transfer Case (Civil) Nos. 8-11 of 1989

Civil Appeal Nos. 1222-1224 of 1985

DELIVERED BY:

S.V.PATIL,J.

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 Patent appeals as

invalid are under challenge in these matters.

Civil Appeal No. 2452/1992

2. This appeal is directed against the order of the

Division Bench of the High Court of Maharashtra made in

Writ Petition No. 738 of 1992. The appellant herein filed

writ petition by way of public interest litigation questioning

the constitutional validity of the the 1987 Act. In addition

to challenging the constitutional validity of the

aforementioned Act, he also sought for declaration that the

Notification dated 20th August, 1991 issued by the State of

Maharashtra as illegal, arbitrary and violative of Articles 14

and 19(1)(g) of the Constitution of India. The High Court,

after dealing with the rival contentions, dismissed the writ

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petition by the impugned judgment upholding the validity of

the 1987 Act and deferring the implementation of the

Notification dated 20.8.1991 till 2.10.1992. After the

impugned judgment was delivered, the appellant orally

sought for leave to appeal to Supreme Court under Article

132(1) read with Article 134-A of the Constitution of India.

This appeal is by certificate granted by the High Court

under Article 132(1) read with Article 134 of the

Constitution of India.

3. Although the 1987 Act received the presidential assent

on 4.5.1987, it was not implemented for over four years

between 4.5.1987 to 20.8.1991 for want of infrastructure

and other requirements at the Bombay City Civil Court. The

High Court of Bombay had indicated to the Government

that before the said Act could be brought into force, the

City Civil Court should be adequately equipped to handle

the transfer of jurisdiction. The High Court in 1988 had

categorically stipulated that minimum 110 judges would be

necessary as a pre-condition for the transfer of jurisdiction

to the City Civil Court for the implementation of the said

Act. The High Court had indicated the requirements such

as requisite number of court halls, judges, chambers,

residences, books and staff etc. It appears there were

several representations both for and against the

implementation of the Act. On 20.8.1991, State of

Maharashtra issued the notification to bring the 1987 Act

into force with effect from 1.5.1992. Contending that

there was no necessary infrastructure and other

requirements were not satisfied to take care of the transfer

of jurisdiction to deal with the cases and that there was no

legislative competence for passing such Act by the

legislature of State of Maharashtra, Writ Petition No. 738 of

1992 was filed, as already indicated above, challenging the

constitutional validity of the 1987 Act as well as the afore-

mentioned notification of 20.8.1991 bringing the 1987 Act

into force with effect from 1.5.1992. On 15.4.1992, rule

was issued and permission was given for intervention

among others to the Bombay Bar Association, Bombay

Incorporated Law Society, the Indian Merchants' Chamber

and the Bombay City Civil and Sessions Court Bar

Association. After hearing the arguments at considerable

length and dealing with the rival contentions, the Division

Bench of the High Court passed the impugned judgment on

29.4.1992 in terms already mentioned in the beginning of

this judgment.

Civil Appeal Nos. 2592 of 1992 and 2530 of 1992

4. These two appeals are filed by Bombay City Civil and

Sessions Court Bar Association and State of Maharashtra

respectively aggrieved by the second part of the judgment

dated 29.4.1992 passed in Writ Petition No. 738 of 1992,

i.e., deferring the implementation of the Notification dated

20.8.1991.

T.C. Nos. 8-11/1989

5. A writ petition No. 1953 of 1987 was filed by one

Jaimini B. Chinai challenging the constitutional validity of

the 1986 Act. While issuing rule, the High Court stayed the

implementation of the said Act observing that certain

questions raised in the writ petition were of substantial

nature having far-reaching consequences and were of public

importance. State of Maharashtra filed a transfer petition

No. 685 of 1988 in this Court seeking transfer of the said

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writ petition No. 1953 of 1987 to this Court. This Court, by

order dated 24.3.1988, ordered for transferring the said

petition to be heard along with Civil Appeal Nos. 1222-24 of

1985 filed by State of Madhya Pradesh against Full Bench

judgment of the Madhya Pradesh High Court which held the

Adhiniyam to be unconstitutional as they involved identical

issues of legislative competence.

6. Some other writ petitions were filed in the High Court

seeking declaration that the 1986 Act, i.e., the Maharashtra

High Court (Hearing of Writ Petitions by Division Bench and

Abolition of Letters Patent Appeals] Act, 1986 (Act No. XVII

of 1986) is ultra vires the Constitution and null and void in

law. Transfer petition Nos. 685-88/89 were filed before this

Court seeking transfer of writ petitions to this Court. This

Court passed order withdrawing the writ petitions which

were pending in the High Court of Bombay for being heard

along with Civil Appeal Nos. 1222-24/85 filed by State of

Madhya Pradesh. These transfer petitions were numbered

as Transfer Case (C) Nos. 8-11/1989. The grounds raised in

the writ petitions to challenge the constitutional validity of

the 1986 Act are that the said Act is beyond the

competence of the State Legislature and is also violative of

Article 14 of the Constitution of India; in the Statement of

Objects and Reasons, it is stated that the 1986 Act is on the

lines of the Adhiniyam. The Adhiniyam had been declared

ultra vires and beyond the competence of the State

Legislature by a Full Bench of Madhya Pradesh High Court in

the case of Balkrishna Das & Ors. Vs. Perfect Pottery

Company Ltd. Jabalpur & Ors. ; the 1986 Act which

deals with the organization and general jurisdiction of High

Court is beyond the legislative competence of the State

Legislature having regard to Entries 77 and 78 of List I,

Entry 11-A of List III, Entry 95 of List I, Entry 65 of List III

and Entry 46 of List III and the 1986 Act is arbitrary,

unreasonable and violative of Article 14 of the Constitution

of India. Further that a right of appeal is a substantial right

and one appeal on facts and law is a necessary ingredient

of the system of justice. Moreover, abolition of Letters

Patent Appeals denies the litigants, on the original side of

the High Court, the benefit of appeals statutorily provided

for under various Central statues such as Contempt of

Courts Act, the Companies Act, the Arbitration Act, etc.

Civil Appeal Nos. 1222-24/85

7. These appeals are filed by the State of Madhya

Pradesh questioning the validity and correctness of the

impugned judgment dated 27.8.1984 passed by the Full

Bench of the Madhya Pradesh High Court.

8. A company petition No. 5/83 was filed by respondent

Nos. 4-17 under Sections 397-398 of the Companies Act,

1956. The Company Judge substantially dismissed the said

Company Petition. However, the learned Judge granted

relief under Section 398(1)(b) by directing proportionate

representation on the Board of Directors. Three Company

Appeal Nos. 4, 5 and 7 of 1983 were filed, aggrieved by the

order made in the company petition. In view of the

provisions of the Adhiniyam abolishing Letters Patent

Appeals in the High Court, respondent no. 2 filed S.L.P. (C)

No. 16066/83 against the aforementioned decision of the

Company Judge. Later, the said SLP was withdrawn. The

Division Bench of the High Court referred the question of

maintainability of appeals to Full Bench in view of the

provisions of Adhiyiyam abolishing Letters Patent Appeals.

Earlier, a Division Bench had upheld the validity of the

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Adhiniyam. The Full Bench of the High Court, by a majority

of 2:1 declared the Adhiniyam to be ultra vires the

Constitution by its judgment dated 27.8.1984. Hence, the

State of Madhya Pradesh is in appeal before this Court

challenging the validity and correctness of the impugned

judgment passed by the Full Bench of the High Court.

9. It may be stated here itself, in all these matters, the

principal question that arises for consideration relate to the

legislative competence of the State legislatures of

Maharashtra and Madhya Pradesh in passing the

enactments. Further, in Civil Appeal No. 2452 of 1992, in

addition to challenging the constitutional validity of the

1987 Act, it is contended that even if the validity of the Act

is upheld for want of infrastructure and necessary facilities,

it cannot be brought into force unless the State

Government satisfies that there are sufficient number of

court halls and other infrastructure mentioned including the

requisite number of judges available to discharge their

functions in the City Civil Court.

10. The contention of Mr. T.R. Andhyarujina, learned

Senior Counsel for the appellant in Civil Appeal No. 2452/92

and Transferred Case (C) Nos. 8-11/1989 was that the

1987 Act affected the "constitution and organisation of the

High Court" by abolishing original civil jurisdiction of the

High Court and as such it was beyond the legislative

competence of the State Legislature because such a

legislation is within the exclusive legislative competence of

Parliament under Entry 78 List I of Seventh Schedule of the

Constitution. In his submissions on this point, he traced

the history of working of High Court and City Civil Court and

Letters Patent jurisdiction of High Court. In support of his

submissions, he cited few decisions. Alternatively, he urged

that even if the 1987 Act was intra-vires having regard to

lack of infrastructure including requisite judges in City Civil

Court it was an arbitrary or unreasonable exercise of

statutory power vested in the Government to bring into

operation the 1987 Act and hence the Government

Notification dated 20.8.1991 bringing into operation the

1987 Act was illegal. He also added that the said

Notification was issued by the Government under pressure

for collateral and extraneous reasons only to appease a

section of agitating lawyers who went on hunger strike etc.

Elaborating his submission on point no. 1, he submitted

that it is only the Parliament which has the exclusive

legislative competence under Entry 78 of List I to make a

law relating to "the constitution and organization of the

High Courts". The State Legislature has, however, the

concurrent legislative powers to legislate in respect of the

constitution and organization of all courts excepting the

Supreme Court and the High Courts as per Entry 11-A of

List III; prior to 3.1.1977, the State had exclusive

legislative competence to constitute and organize courts

other than the Supreme Court and the High Courts under

Entry 3 of List II which was amended to transfer it to Entry

11-A in List III by the Constitution 42nd Amendment Act,

1976. According to the learned Senior Counsel, the general

jurisdiction of a civil court as opposed to its special

jurisdiction in respect of a particular subject matter relates

to the constitution of a court and flows from the very Act

constituting it. Thus, the general jurisdiction of the High

Court is the subject covered by Entry 78 of List I falling

within the exclusive legislative competence of Parliament.

On the other hand, the general jurisdiction of a court other

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than the Supreme Court and the High Court is a subject

that was under Entry 3 of List II prior to the Constitution

42nd Amendment Act, 1976. He also contended that the

State Legislature has also the legislative competence to

make laws conferring special jurisdiction on courts or taking

away such special jurisdiction from courts in respect of

subjects in the Lists II and III by virtue of Entry 65 or Entry

46 respectively; this, however, is not general jurisdiction of

a court arising from its constitution. He cited the decision

of State of Bombay vs. Narothamdas Jethabhai & Anr.

to show how the scheme relating to jurisdiction of court was

explained.

11. The learned Senior Counsel also urged that

"constitution" of a court of law necessarily includes its

general jurisdiction. No court can be constituted without

jurisdiction; jurisdiction and constitution of a court are

inseparable; otherwise it would be an ineffective institution

in name only; the ordinary dictionary meaning of the word

"constitution" of a court is sufficiently wide to include the

jurisdiction of a court. In common parlance also, if a court

is to be constituted, it must necessarily be constituted with

its heart and soul, namely, its jurisdiction. Consequently, a

law in its true content and purport relating to the

jurisdiction of the High Court can only be made by

Parliament. The 1987 Act abolishes the general civil

jurisdiction of the High Court affecting its constitution,

therefore, it was beyond the competence of the State

Legislature inasmuch as the constitution and organization of

the High Courts is vested in the Union Parliament. The

learned Senior Counsel drew our attention to the scheme of

the constitution of courts under Govt. of India Act, 1935

and submitted that the scheme under that Act relating to

the Constitution and organization of the High Courts was

different. The Provincial Legislature had the exclusive

legislative competence to make law relating to the

constitution and organization of all courts except the

Federal Court (under Entry 2 of List II of the Provincial

List). Consequently, the Provincial Legislature had the

legislative competence to constitute a court including a High

Court and to legislate in respect of its jurisdiction. This

being the position, this Court in Narothamdas Jethabhai

(supra) upheld the validity of the Act as validly made under

Entry 1 List II of the Govt. of India Act, 1935. He also drew

our attention to certain passages in the case of

Narothamdas Jethabhai relating to word "constitution" of

a court. He stated that the words "constitution of court" as

explained in Narothamdas Jethabhai was followed in a

subsequent judgment of this Court in Supreme Court

Legal Aid Committee representing undertrial

prisoners etc. vs. Union of India and others . Thus,

according to him, Parliament alone could make law

abolishing the general original civil jurisdiction of an

existing High Court as it directly and substantially related to

its constitution which is a subject falling in exclusive

jurisdiction of Parliament under Entry 78 of List I of the

Constitution. He took pains to explain as to the scope and

ambit of different Entries in three Lists touching the subject

in controversy and reason for the Constitution 42nd

Amendment Act of 1976 in relation to Entry No. 3 of List II

as amended and creating a new Entry 11-A in List III.

According to him the change was brought about deliberately

so that Parliament alone should be given the power under

the scheme of the Constitution to make legislation which

substantially affected the constitution and organization of

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the higher judiciary. According to him, several other

provisions of the Constitution also support this view. For

instance, Article 230 read with Entry 79 of List I gives

Parliament the exclusive competence to deal with

"extension of the jurisdiction of a High Court to and

exclusion of jurisdiction of a High Court from, in Union

Territory". He also referred to Articles 216, 217, 221, 222,

223 and 224 to show that the President of India and Govt.

of India alone have powers in respect of the matters stated

in those Articles to secure a unified higher judiciary in

matters provided in these Articles.

12. Although the 1987 Act on its face purports to state

that it is only enhancing the general jurisdiction of Bombay

City Civil Court, in effect it abolishes the ordinary original

civil jurisdiction of the High Court of Bombay in entirety.

The Govt. of India has taken the same stand as the

appellant. In Geetika Panwar vs. Government of NCT

of Delhi & Ors. , the Full Bench of Delhi High Court has

taken the view which supports the case of the appellant.

Subsequently, accepting the position, Parliament has made

a law in regard to High Court of Delhi. The learned Senior

Counsel also submitted that the 1987 Act cannot be held to

be constitutionally valid even on the principle of pith and

substance of the legislation.

13. On ground No. 2, the learned Senior Counsel

reiterated that for want of necessary infrastructure

including the requisite number of judges in the City Civil

Court, it was an arbitrary and unreasonable exercise of

statutory power vested in the Government to bring into

operation the 1987 Act by issuing the impugned Notification

dated 20.8.1991. Facts and figures are also given in this

regard relating to number of civil suits pending as on

31.12.2002 in the City Civil Court even at the existing limits

of pecuniary jurisdiction i.e. Rs. 50,000/-. According to him

the City Civil Court has been unable to cope with the load of

its existing criminal jurisdiction. The High Court also

specifically stated that 110 Judges were required for City

Civil Court in addition to necessary infrastructure if the Act

is to be brought into force. In the absence of infrastructure

and the required number of Judges, Civil Court can not cope

with the workload and it cannot be functional.

14. The learned Senior Counsel on ground No. 3

submitted that because of the agitation by a section of

lawyers, the Notification dated 20.8.1991 was issued out of

pressure and other considerations which according to him

cannot be sustained. If it is allowed to stand, it will lead to

difficulty and anomalous situation resulting in greater

hardship to the litigants and even administration of justice

will suffer. Instead of a speedy disposal, the cases may be

pending considerably for a long time in City Civil Court.

15. Mr. K.K. Singhvi, learned Senior Counsel appearing for

Bombay City Civil & Sessions Court Bar Association, made

submissions supporting the impugned judgment upholding

the constitutional validity of 1987 Act. According to him,

Entry 77 in List I deals with the constitution, organization,

jurisdiction and powers of the Supreme Court. Entry 78

deals with only constitution and organization of the High

Courts and not with jurisdiction and powers of the High

Courts. Jurisdiction and powers of the High Courts are

dealt with as a separate topic, namely, "administration of

justice" under Entry 11-A of the Concurrent List which was

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originally in Entry 3 of the State List. According to him, the

general jurisdiction of the High Courts thus falls under

"administration of justice" covered by Entry 11-A in the

Concurrent List. He further submitted that Entry 95 of the

Union List, Entry 65 of the State List and Entry 46 of the

Concurrent List refer to special jurisdiction of courts with

respect to the matters contained in the respective Lists.

Entry 95 of List I deals with the power of the Parliament to

confer jurisdiction and power of all the courts except the

Supreme Court with respect to any of the matters in List I.

Entry 65 of the List II deals with the power of State

Legislature to confer jurisdiction and powers of all the

courts excepting the Supreme Court with respect to the

matters contained in the State List. Similarly Entry 46 in

the Concurrent List deals with the power and jurisdiction of

all the courts excepting the Supreme Court with respect to

all the matters contained in the Concurrent List. One of the

items in the Concurrent List is Civil Procedure Code under

Entry 13.

16. According to him the State Legislature has the power

and legislative competence to confer general jurisdiction on

all the courts except the Supreme Court under Entry 11-A

in the Concurrent List under the caption "administration of

justice". Thus, passing of the 1987 Act was within the

competence of the State Legislature. The State Legislature

was the sole repository of power to confer jurisdiction on all

the courts excepting the Supreme Court under Entry 3 of

the State List prior to Forty-second Amendment Act, 1976

and thereafter both Parliament as well as the State

Legislature have power to confer general jurisdiction on all

the courts including the High Courts under Entry 11-A of

the Concurrent List. The learned Counsel submitted that

the subject relating to constitution and organization of High

Courts does not include jurisdiction and powers of the High

Court; it is only with reference to establishment or

constitution of the High Court having regard to Articles 2, 3

and 4 and other relevant Articles of the Constitution. He

added that the expression "administration of justice' has a

wide meaning and includes administration of civil as well as

criminal justice and is complete and self-contained Entry.

The words `administration of justice' are of widest

amplitude and are sufficient to confer upon the State

Legislature the right to regulate and provide for entire

machinery connected with the administration of justice in

the State. The State Legislature being an appropriate body

to legislate in respect of the administration of justice and to

invest all courts within the State including the High Court

with general jurisdiction and powers in all matters \026 civil

and criminal \026 it must follow that it can invest the High

Court with such general jurisdiction and powers including

territorial and pecuniary jurisdiction and also to take away

such jurisdiction and powers from the High Court.

Conferring unlimited jurisdiction on civil court or taking

away the same from the High Court does not amount to

dealing with the constitution and organization of the High

Court. Under Entry 11-A List III, State Legislature was

empowered to confer jurisdiction and powers upon all

courts within the State including the High Court.

17. Entry 46 of the Concurrent List deals with the special

jurisdiction in respect of the matters in List III. One of the

items in the said list at serial No. 13 is Civil Procedure Code

on the commencement of the Constitution. The 1987 Act

deals with the pecuniary jurisdiction of the courts as

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envisaged by Sections 6 and 9 of the Civil Procedure Code

and as such the State Legislature was competent to

legislate under Entry 13 of List III. In support of his

submission, the learned Counsel relied on a few decisions.

18. Mr. U.U. Lalit, learned senior counsel for the State of

Maharashtra, while supporting the impugned judgment

submitted that there is an anomaly created by, or

deficiency found in Section 3 of the 1986 Act inasmuch as

Section 3 of the said Act read with Section 9 of 1987 Act

fails to make any provision for appeal against a decree or

order passed after the commencement of the Act in any suit

or other proceedings pending in the High Court since before

the commencement of the Act. He sought ten days time to

have instructions from the State of Maharashtra in this

regard. Thereafter, on the basis of the letter No. 37-PF

2131097 dated 17th December, 2004 of Principal Secretary

and R.L.A., State of Maharashtra, I.A. No. 10 is filed seeking

permission to place on record the said letter indicating the

willingness of the State of Maharashtra to take necessary

steps to make legislative amendment to Section 3 of the

Maharashtra Act No. XVII of 1986, relevant portions of

which read:

"With reference to the above subject, I have to

state that you are hereby given instructions to

make a statement before the Hon'ble Supreme

Court that the State of Maharashtra will take

necessary steps to make legislative amendment

to Section 3.1 of the Maharashtra Act No. XVII of

1986 (The Maharashtra High Court (Hearing of

Writ Petitions by Division Bench and Abolition of

Letters Patent Appeal) Act, 1986) to make a

provision for appeal against the judgment, order

and decree passed on the appointed date by the

High Court and thereafter as may be indicated in

the judgment of the Supreme Court."

19. Mr. Mohan Parasaran, Additional Solicitor General,

urged that being conscious of importance of the institutions

of the Supreme Court and the High Courts the Constitution

did not confer any power on the State Legislature to

legislate or tinker with their jurisdiction; therefore, law

passed by the State Legislature concerning the jurisdiction

of the High Courts having wider ramifications affecting or

taking away other jurisdictions already vested in the High

Courts would be ultra vires of the State Legislature; the

powers in this regard lie only with the Parliament; the

expression 'administration of justice' has to be so construed

so as to exclude the jurisdiction of the Supreme Court and

the High Courts from its purview.

20. Dr. N.M. Ghatate, learned senior counsel for the State

of Madhya Pradesh [Appellant in C.A. No. 1222-1224/85]

made additional submissions supporting the constitutional

validity of the Adhiniyam. He contended that the view

taken by the Bombay High Court in upholding the

constitutional validity of the 1987 Act is correct. Provisions

of the 1986 Act being similar to the Adhiniyam,

constitutional validity of the Adhiniyam may be upheld and

the Full Bench judgment of the High Court may be

reversed.

21. We have carefully considered the rival contentions

advanced on behalf of the parties and Additional Solicitor

General.

22. The British Parliament passed the Indian High Courts

Act, 1861 empowering 'Her Majesty' to erect and establish

a High Court of Judicature at Bombay by way of Letters

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Patent (section 1). Section 9 of the Act provided that the

High Courts to be established under that Act shall have and

exercise inter alia, civil jurisdiction, original, appellate and

all such powers and authority for and in relation to the

Administration of Justice as Her Majesty may by such

Letters Patent grant and direct subject to some limitations.

23. By virtue of the above said Act, a Letters Patent was

issued on 26/06/1862 establishing the High Court in the

Presidency of Bombay. Clause 12 of the said Letters Patent

conferred ordinary original civil Jurisdiction on the High

Court. The Bombay High Court has been exercising original

jurisdiction within the limits of Greater Bombay.

24. It is necessary to give certain background facts

relating to the Bombay City Civil Court Act, 1948 (for short

`the 1948 Act'). 1948 Act was passed by the Provincial

Legislature of Bombay on 10th May, 1948 with a view to

"establishing an additional Civil Court for Greater Bombay".

The said Act came into force on 16th August, 1948. At

about same time the Bombay Legislature also passed the

Letters Patent (Amendment) Act, 1948 (Act No. 41 of 1948)

amending Clause 12 to exclude the original jurisdiction of

the High Court as regards cases which fall within the

jurisdiction of the small causes court and city civil courts.

The relevant provisions of the 1948 Act are set out below:-

"1. (1)...........................................

(2) It shall come into force on such date

as the State Government may, by

notification in the official Gazette,

appoint in this behalf.

2. .................................................

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 contained

in any law, such court shall have jurisdiction to

receive, try and dispose of all suits and other

proceedings of a civil nature not exceeding fifty

thousand rupees in value, and arising within the

Greater Bombay, except suits or proceedings

which are cognizable -

(a) by the High Court as a Court of

Admiralty or Vice-Admiralty or as a

Colonial Court of Admiralty, or as a

Court having testamentary, intestate

or matrimonial Jurisdiction, or

(b) by the High Court for the relief of

insolvent debtors, or

(c) by the High Court under any special

law other than the Letters Patent; or

(d) by the Small Cause Court;

Provided that the State Government may, from

time to time, after consultation with the High

Court, by a like notification extend the

jurisdiction of the City Court to any suits or

proceedings which are cognizable by the High

Court as a court having testamentary or

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intestate jurisdiction or for the relief of insolvent

debtors.

4. [Power of State Government to enhance

jurisdiction of city court] deleted by Mah. 46 of

1977, S.3]

xxx xxx xxx xxx

12. Notwithstanding anything contained in any

law, the High Court shall not have jurisdiction to

try suits and proceedings cognizable by the City

Court;

Provided that the High Court may, for any

special reason, and at any stage remove for trial

by itself any suit or proceeding from the City

Court."

25. By Section 3 of Letters Patent (Amendment) Act,

1948, clause 12 of the Letters Patent was amended. The

amended portion reads:-

".......the High Court shall not have such original

jurisdiction in cases falling within the jurisdiction

of the Small Causes Court at Bombay or the

Bombay City Civil Court."

26. Under Section 4 of the 1948 Act, power was conferred

on the Provincial Government to enhance pecuniary

jurisdiction not exceeding Rs. 25,000/- by issuing

notification in that behalf. The validity of the 1948 Act was

questioned before the Bombay High Court in the case of

Mulchand Kundanmal Jagtiani vs. Raman Hiralal

Shah . The Division Bench of the High Court upheld the

validity of the Act. Thereafter on 28.1.1950, the Provincial

Government issued a notification under Section 4 of the

1948 Act enhancing the pecuniary jurisdiction of the city

civil court not exceeding Rs.25,000/-.

27. Exercising power under Section 4 of 1948 Act,

Provincial Government of Bombay issued notification No.

2346/50 which reads:-

"In exercise of the powers conferred by

Section 4 of the Bombay City Civil Court

Act, 1948 (Act XL of 1948) the

Government of Bombay is pleased to invest

with effect from and on the date of this

notification, the City Civil Court with

jurisdiction to receive, try and dispose of

suits and other proceedings of a civil nature

not exceeding twenty-five thousand rupees

in the value and arising within the Greater

Bombay subject however to the exceptions

specified in Section 3 of the said Act."

28. The Division Bench of the Bombay High Court in

Narothamdas Jethabhai & Anr. vs. A.P. Phillips

declared the said aforesaid notification issued under Section

4 as ultra vires the Provincial Legislature. This Court in

appeal in State of Bombay vs. Narothamdas Jethabhai

and Anr2 upset the judgment of the Division Bench of the

Bombay High Court and upheld the validity of the

notification enhancing the jurisdiction to Rs. 25,000/-

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rejecting the contention that 1948 Act itself was ultra vires

the Provincial Legislature by reason of it being an

encroachment upon the field of legislation reserved for the

Centre under the Govt. of India Act, 1935. Maharashtra

Civil Court (Enhancement of Pecuniary Jurisdiction and

Amendment) Act, 1977 (Act No. XLIV of 1977) was passed

whereby the jurisdiction of the city civil court was enhanced

from Rs. 25,000/- to Rs. 50,000/-. The same was not

challenged. The 1987 Act was enacted whereby unlimited

pecuniary jurisdiction came to be conferred upon the city

civil court and the State Government was empowered to

issue a notification for implementation of the said Act. The

High Court of Bombay dismissed the writ petition No.

738/92 filed by the present appellant in C.A. No. 2452/92

having regard to various aspects and in particular relying on

the decision of this Court in Narothamdas (supra). It may

be noted that the validity of 1948 Act was upheld by the

Division Bench of the High Court of Bombay as early as in

1949. Notification issued enhancing the pecuniary

jurisdiction of the city civil court from Rs. 10,000/- 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 civil

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 judiciary 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 unlimited

jurisdiction on city civil court like its counterparts in other

cities and towns. Similarly, the jurisdiction of the Small

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Causes Court is enhanced from Rs. 10,000/- to Rs.

25,000/- like Civil Judge, Junior Divison 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

1st 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 of Objects 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, 1st 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

of writ 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. (1) 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 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 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 (1), all such

appeals pending before the High Court, on

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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 competence 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 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

a 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 enormous 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 it 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

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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 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,

201 and 207 which deal with the

constitution of the High Courts. Under

those articles, except for pecuniary

jurisdiction, the whole of the 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. In 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 \026 Union List

"77. Constitution, organization, jurisdiction

and powers of the Supreme Court

(including contempt of such Court), and the

fees taken therein; 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 \026 State List

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"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 III \026 (Concurrent List)

"11A. Administration of justice;

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 I deals 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 of Supreme Court in addition to constitution and

organization. Jurisdiction and powers of High Court are

dealt with as a separate topic under Entry 11A of List III,

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 11A 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 courts except the Supreme Court with respect to any of

the matters in List I. Similarly, Entry 65 of the List II 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.

38. In our view, the State Legislature has power to confer

general jurisdiction on all the courts except the Supreme

Court under Entry 11A in the Concurrent List falling within

the meaning of 'administration of justice'. 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

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High Courts under Entry 11A 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 11A, 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 11A 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' of the Supreme Court is

concerned. Conscious omissions of the words 'jurisdiction'

and 'powers' in Entry 78, looking to the said words included

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 of justice' under Entry 11A of the

Concurrent List. The exclusion of 'jurisdiction' and 'powers'

from Entry 78 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.

41. Entries 77 and 78 of the Union List deal with

'constituion' 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. Article 2 empowers

the Parliament 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 provides 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 11A 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. The semicolon (;) after the words

'administration of 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 11A 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

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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 from the High Court amounts to

dealing with 'constitution' and 'organisation' of the High

Court. Under Entry 11A 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 11A 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 III is '...Code of Civil Procedure

at the commencement of the Constitution...'. 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 III for

enacting 1987 Act.

43. This view gets support from the various decisions in

which entries in Lists I, II and III 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" of the 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 of the 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 II.

45. Strong reliance is placed on certain observations of

this Court in State of Bombay v. Narothamdas

Jethabhai & Anr. (supra), which dealt with the

interpretation of Entries 1 & 2 of List II (Provincial List) of

the Government of India Act, 1935. Entry 1 of List II read:

"\005.the administration of justice; constitution and

organization of all courts except the Federal Court\005.". 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\005.". The contention urged before this Court was

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that the words "administration of justice and constitution

and organization of courts" occurring in Entry 1 of the

Provincial 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 101 of the

North America Act, the Parliament of

Canada has a reserve 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 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 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 1 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\005\005.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 1 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

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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 of

administration 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 II."

47. The learned counsel for the appellant, however,

attempts to 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 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 1 of the Provincial

List). In view of this 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 1

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 Anr. , on which reliance

was placed before this Court, has put the matter in proper

perspective. This was also a case where the petitioner

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before the High Court of Calcutta challenged the validity of

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 constitution 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 of the 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:-

(1) 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 High Courts would be

meanineless.

(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' of the 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

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'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 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 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 a 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.

(10) 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

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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 the 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 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 of the 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 "\005. 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 of the amendment was to

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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 correctly

points out, Entry 3 (prior to 3.1.1977) (or Entry 11A 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 administration of justice, which must include

"general jurisdiction" is a 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 would have the jurisdiction to invest the High

Courts, set up by Parliament, with the necessary general

jurisdiction under Entry 3 (at the material time) 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. 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 subject "administration of

justice" 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 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 III.

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 III

invest the High Court with jurisdiction and powers

with respect to any of the matters enumerated in List

III.

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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".

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 India;

and also, whether an appeal would lie from an interlocutory

order made by a 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.

58. Reference was made to the judgment of the Full

Bench of the Delhi High Court in Geetika Panwar v.

Government of NCT of Delhi & Ors.4. 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 of contemporanea 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 reliance on contemporanea 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 of the Constitution. The

learned counsel urged that, as a result of judgment of the

full Bench of the Delhi High Court in Geetika Panwar case

(supra) and striking down of Delhi High Court Amendment

Act 2001 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

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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 a

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 O.N. Mohindroo v. The Bar Council of Delhi &

Ors. after analyzing Entries 77, 78, and 95 of List I, Entry

65 of List II and Entry 46 of List III, this Court observed:

"The scheme for conferring jurisdiction and

powers on courts is (a) 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 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

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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 III

otherwise provides. That these entries

contemplate such a scheme was brought

out in State of Bombay v. Narothamdas,

where it was contended that the 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 II 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 II and was not

ultra vires as the power of the Provincial

Legislature to make laws with respect to

"administration of justice" and "constitution

and organization of all courts" under item 1

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 1 of List II to make

laws with regard to jurisdiction of courts

and to confer jurisdiction on courts

established by it to try all causes of a civil

nature subject to the power of the Central

and Provincial 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 1

and 2 in List II and item 15 in List III in the

Seventh Schedule to the 1935 Act more or

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less correspond to entries 77, 78 and 95 in

List I, entries 3 and 65 in List II and entry

46 in List III of the Seventh Schedule to

the Constitution."

61. The constitutional validity of the City Civil Court Act of

Calcutta being West Bengal Act No. XXI of 1953 which had

received the assent of 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. XXI of 1953 was intra vires in Amarendra Nath

Roy Chowdhury vs. Bikash Chandra Ghosh & Anr.7.

The pecuniary jurisdiction was enhanced from Rs. 10,000/-

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 Rs. 1,00,000/- was again challenged before

the Calcutta High Court in Indu Bhushan De & Ors. Vs.

The State of West Bengal & 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 Indu Bhushan De and Ors. Vs. State of West

Bengal and others dealing with the aforementioned

contention, after setting out Entries 77, 78 and 95 in List I,

Entries 3 (new Entry No. 11-A in the Concurrent List) and

Entry 65 in List II and Entry 46 in List III, 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 jurisdiction 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 vs. 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 of the 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 Indu 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

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"administration of justice" and not part of `constitution' and

`organisation' of High Courts.

64. In first round in Mulchand Kundanmal Jagtiani vs.

Raman Hiralal Shah5 the Division Bench of the Bombay

High Court upheld the validity of the 1948 Act. Thereafter,

on 20.1.1950, the Provincial Government issued a

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 vs. A.P.

Phillips6, 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

judgment of the Bombay High Court in State of Bombay

vs. Narothamdas2 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 & Ors. vs. Inspector 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 II

(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 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 Indo-

Mercantile Bank Ltd v s. Commissioner, Quilon

Municipality , the Kerala High 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 Girimallappa Saboji & Anr. vs.

Kapurchand Meghaji Marwadi & 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 thus:-

"........If the core of Administration of

justice is the exercise of judicial power

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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 of the Constitution is subject

to clauses (1) and (2) of the said Article

and also two other provisions of the

Constitution as stated in Article 245(1). 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 Singh etc. vs. Kultar Singh & 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 I but

administration of justice as a distinct topic

finds place in Entry 3 of List II (Now Entry

11-A of the List III).

The expression `administration of

justice' occurring in Entry 3 of List II of the

VIIth Schedule has to be construed in its

widest sense so as to give power to the

State Legislature to legislate on all the

matters relating to `administration of

justice'.

After the words `administration of

justice' in Entry 3 there is a 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

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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 & Anr. vs. Arabinda Bose

and Anr. , Mukhkerjea J. in para 57 has observed that

".........Punctuation is after all a 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 `administration

of justice' in Rajinder Singh (supra). Semi colon after the

words `administration of justice' in Entry 11-A, in our view,

has significance in dealing with the topic whether

`administration of justice' includes conferring general

jurisdiction on High Court in addition to the subordinate

courts within the State.

71. A Division Bench of the High Court of Andhra Pradesh

in K.Kumarswamy Kumandan & Bros. vs. Premier

Electric Co. has proceeded on similar lines observing

thus:-

"The words `administration of justice',

`constitution' and `organization of courts'

have been used in Entry 3 of List II without

any qualification or limitation and they

imply the power and jurisdiction of Courts.

The jurisdiction to entertain suits and to

dispose of them is certainly the branch of

administration of justice. So it must

necessarily include the power to entertain

the suits or proceedings of a civil or

criminal nature irrespective of the value of

the subject matter. This power necessarily

implies the authority to enhance, alter,

amend or diminish the jurisdiction of courts

territorially and pecuniarily."

72. In the light of the various decisions referred to above,

the position is clear that the expression "Administration of

Justice" has wide amplitude covering conferment of general

jurisdiction on all courts including High Court except the

Supreme Court under Entry 11-A of List III. 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

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competence to pass 1987 Act and 1986 Act.

73. It may be added that the State Legislature was also

competent to enact the 1987 Act under Entry 13 read with

Entry 46 of List III. Entry 13 of List III relates to Civil

Procedure Code. 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. Entry 46 of List III relates to

jurisdiction and power of all courts except the Supreme

Court i.e. including the city civil court and High Court with

respect to any matter in List III including Civil Procedure

Code in Entry 13. The contention that merely constituting

and organizing High Courts without conferring jurisdiction

to deal with the matters on them does not serve any

purpose, cannot be accepted. The Constitution itself has

conferred jurisdiction on High Courts, for instance, under

Articles 226 and 227. This apart, under various enactments

both of Central and State, certain jurisdiction is conferred

on High Courts. 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 under 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 that the 1987 Act and 1986 Act

are beyond the competence of the State Legislature.

74. We are, therefore, of the view that there is no merit in

the contention that the State Legislature did not have

competence to enact the two legislations, the

constitutionality of which has been challenged before us.

75. Two other subsidiary contentions urged on behalf of

the appellant in Civil Appeal No. 2452/92 are required to be

examined - (i) 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 notification

dated 20.8.1991 was arbitrary and unreasonable and (ii)

the said notification was issued unfairly due to pressure on

account of agitation by a section of lawyers and for other

extraneous consideration.

76. Before the High Court, it was contended that the

impugned Act was brought into force by the notification

exercising statutory power unreasonably and arbitrarily in

violation of Articles 14 and 19(1)(g) of the Constitution;

there was no infrastructure in the city civil court to cope

with the additional burden of new civil suits and other

proceedings of civil nature which would be filed on or after

1.5.1992. In that regard, deficiencies were pointed out as

to the court rooms, required number of Judges and other

infrastructure by giving details.

77. In opposition, it was contended that in implementing

the Act, there were bound to be some inevitable problems

having regard to the magnitude of required infrastructure,

court rooms and required number of Judges etc.; such

problems were inevitable; they can be worked out in due

course of time; but, on that ground itself, the impugned

notification need not be struck down.

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78. The High Court, after consideration opined that the

State Government had taken somewhat hasty step without

application of mind to implement the impugned Act without

providing infrastructure and without meeting other

requirements in relation to appointment of judges as

recommended by the High Court. The High Court further

observed thus:-

"... The High Court exercises judicial and

administrative control over the subordinate

courts in the State of Maharashtra. It

would be a matter of concern for the High

Court to see that the litigants in Courts do

not suffer hardship due to want of

adequate infra-structure. Under the

constitutional scheme, the High Court has

to perform its vital role and duties in

respect of the administration of justice and,

therefore, if infrastructure is not provided

till this date, result would certainly be

violation of fundamental rights of the

litigants under Article 14 and Article

19(1)(g) of the Constitution of India. We

may usefully refer to the decision of the

Supreme Court in All India Judges

Association vs. Union of India in

which the Supreme Court has referred to

the duty of the State to provide

infrastructure which includes residential

accommodation to the judicial officers in

the subordinate judiciary. The said

judgment refers to this aspect as duty cast

upon the State Government to give suitable

residential accommodation to the Judges."

79. Dealing with the contention that a writ could not be

issued to the Government to bring or not to bring the law

into force, relying on the decision in A.K. Roy vs. Union of

India , the High Court noticed the facts in that case. That

was a case in which one of the questions considered with

regard to Central Government issuing a notification for

bringing the provisions of Section 3 of the Constitution (44th

Amendment) Act, 1978 into force. This Court on the facts

of that case observed, "The Parliament having left to the

unfettered judgment of the Central Government the

question as regards the time for bringing the provisions of

the 44th Amendment into force, it is not for the Court to

compel the Government to do that which according to the

mandate of the Parliament lies in its discretion to do when it

considers it opportune to do it". There, the writ of

mandamus was sought to the Central Government to issue

a notification to bring into force the provisions of Section 3

of the 44th Amendment Act. In the case on hand the

position is entirely different. Here is a case pursuant to

statutory provisions the State Government has acted and

issued the Notification dated 20th August, 1991 for

implementation of the provisions of the 1987 Act.

80. The decision in the case of R.K. Porwal vs. State of

Maharashtra was cited before the High Court in support

of the impugned notification to contend that it was not

permissible for the High Court under Article 226 of the

Constitution to decide as to whether sufficient and adequate

reasons existed for bringing the law into operation. That

was a case which related to shifting of market of

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agricultural produce from Greater Bombay to New Bombay.

It was in that context this Court observed that since

adequate facilities were provided at New Bombay, no

interference was called for. Para 15 of the said judgment

reads:-

15. It was also said that neither the

Gultakdi market not the Turbhe Market had

any convenience or facility or was ready for

use on the date on which it was notified as

the Principal Market for the concerned

market area. On the material placed

before us we are satisfied that all

reasonable conveniences and facilities are

now available in both the markets,

whatever might have been the situation on

the respective dates of notification. We

refrain from embarking into an enquiry as

to the situation obtaining on the dates of

notification. We do say that a place ought

not to be notified as a market unless it is

ready for use as a market with all

reasonable facilities and conveniences but

we do not conceive it to be our duty to

pursue the matter to the extreme limit of

quashing the notification when we find that

all reasonable facilities and conveniences

are now available. While a notification may

be quashed if nothing has been done

beyond publishing the notification, in cases

where some facilities and conveniences

have been provided but not some others

which are necessary, the Court may

instead of quashing the notification give

appropriate time-bound directions for

providing necessary facilities and

conveniences. On the facts of the present

case, we are satisfied that all reasonable

facilities and conveniences are now

provided. We are also satisfied that the

traders have been making one desperate

attempt after another to avoid moving into

the new markets and they have been

successful in stalling the notification from

becoming effective for quite a number of

years."

(Emphasis supplied)

81. It is clear from para 15 extracted above that if the

facilities were not to be provided at New Bombay then the

Court could have certainly interfered with and they would

have passed appropriate orders as demanded by the

situation. Further, in the same paragraph, it is clearly

stated that in cases where some facilities and conveniences

have been provided, but not some others, which are

necessary, the court may, instead of quashing the

notification, give appropriate time-bound directions for

providing necessary facilities and conveniences. The High

Court on facts in the present case found inadequacy in

infrastructure and shortcomings in meeting the requirement

as to court rooms and number of Judges to deal with the

transfer of jurisdiction to city civil court. In this regard, the

High Court in paras 44 and 45 has stated thus:-

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"44. Mr. Singhvi submitted that the

above observations clearly indicate that it

is not permissible for the High Court under

Article 226 of the Constitution to decide as

to whether sufficient and adequate reasons

existed for bringing the law into operation.

In that case, issue was with regard to

shifting of market of agricultural produce

from Greater Bombay to New Bombay. It

was in this context that the Supreme Court

observed that since adequate facilities were

provided at New Bombay, no interference

was called for. However, in para 15 of the

judgment, the Supreme Court has made it

clear that if the said facilities were not to

be provided at New Bombay, then the

Court could have certainly interfered with

and they would have passed appropriate

orders as demanded by the situation. This

passage has been relied upon heavily by

Mr. Andhyarujina to content that even in

matters of conditional legislation, this Court

can give appropriate directions if facts

before the Court clearly indicate that

adequate infrastructure has not been

provided.

45. In the present case, we are not

dealing with only case of traders but also

the State Government's decision to

implement the impugned Act by the

impugned notification in which the High

Court also has to play an important role.

As mentioned hereinabove, we are dealing

with the topic of administration of justice.

The High Court exercises judicial and

administrative control over subordinate

Courts in the State of Maharashtra and

having regard to the interest of the litigants

in the city of Bombay and having regard to

the fact that there is already an institution

which is working for the last 125 years, it

would not be appropriate to rush through

the implementation of the impugned Act

without providing adequate infrastructure.

It cannot be overlooked that from 1987 till

this day, the State Government has not

implemented the impugned Act and one of

the reasons for non-implementation

appears to us that the State Government

was unable to provide the infrastructure

including appointment of new Judges as

per the recommendation of the High Court.

Having regard to the peculiar

circumstances which are existing in

Bombay, in our opinion, it would not be in

the interest of administration of justice as

also in the interest of litigants or the

institution to rush through in such a haste

and implement the impugned Act by

impugned notification dated 20th August,

1991 from 1st May, 1992."

82. Looking to what is found by the High Court on facts in

relation to infrastructure, and keeping in view the position

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of law as stated in the judgments of this Court

aforementioned, we have no good reason to take a different

view. In other words, in this regard we concur with the

view expressed by the High Court in deferring the

implementation of the impugned Notification to a future

date and giving liberty to the State Government to apply.

The High Court deferred the implementation of the

impugned Notification till 2.10.1992.

83. This Court on 23.9.1992 passed the following order:-

"An affidavit has been filed on behalf of the

State Government to show the infra-

structural facilities for the new courts

intended to deal with fresh cases. In

certain essential aspects, facilities are in

the form of proposals for action. The

appointment of the requisite minimum

number of judicial officers is also said to be

under process. Admittedly, there are no

extant facilities for the functional operation

of even the sixteen new courts proposed by

the State Government. The question of

implementation of the amendments would

arise only after these infra-structural

facilities are completed. After bringing into

existence the requisite infra-structure, the

State Government is at liberty to file an

affidavit indicating that all the

requirements have been made available

and that at least sixteen courts have

become functional with the appointment

and posting of Presiding Officers,

arrangements of court halls; posting of the

court staff etc. The affidavit may be filed

within six weeks from today. Liberty to

mention.

2. The 2nd October, 1992 fixed by the High

Court for commencement of the operation

of the amended provisions is in the

circumstances extended till 30th November,

1992.

Printing of the records is dispensed with.

Additional documents, if any, may be filed

by both sides within four weeks from

today. Written submissions from both

sides to be filed before 30th November,

1992. Subject to appellants filing their

written submissions before 30th November

1992, the matter shall be listed for final

hearing on the 9th, 10th and 11th December,

1992 to be heard on day-to-day basis. It is

expected that the appellants would

complete the submissions on their side in

one and half days and the respondents in

one day and reply in the remaining half a

day. The schedule of hearing shall be

within this timeframe and the arguments to

be completed within three days so limited."

84. Again on 27.11.1992, this Court passed the order

which reads:-

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"From the report of the High Court and the

omission on the part of the State to place

on affidavit the requisite infrastructure to

be provided, we gather that things are not

very different from where we left matters

on the last occasion. The matters will now

be listed for final hearing on 27th, 28th and

29th January, 1993.

Stay to continue till further orders.

The State shall in the meanwhile

expedite arrangements for providing

requisite infrastructure and report to Court

on affidavit."

85. The said order is operating till now i.e. for more than

12 years. During this period, what steps have been taken

by the State Government, what is the existing situation,

and whether all the requirements are satisfied before liberty

can be given to the State Government to implement the

impugned notification, are the matters to be ascertained.

In this view, the implementation of the impugned

Notification is to be deferred. 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 of judges

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 said notification dated

20th August, 1991. As indicated in paragraph 18 of this

judgment, it is open to the State of Maharashtra to take

necessary steps to amend Section 3 of the 1986 Act for

providing an appeal.

86. Merely because an appeal is not provided in any

statute, that by itself does not render a statute

constitutionally invalid. It is well settled that the right of

appeal is to be provided by a statute. In other words, right

of appeal is statutory and not a constitutional right. This

apart, if a 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. Moreover the difficulty in

the case only relates to a class of cases as indicated in

paragraph 18 of this judgment to such decrees, which may

be passed after the commencement of the 1987 Act and

1986 Act in any suit or other proceedings pending in the

High Court since before the commencement of the said

Acts. This apart, as stated in paragraph 18, the State of

Maharashtra is willing to take steps to provide an appeal by

amending Section 3 of the 1986 Act.

87. As regards the other contention that the Notification

has been issued due to pressure brought about by a section

of lawyers and for extraneous considerations, it may be

stated that no particulars were given and no material was

placed on record before the High Court and even before us

except repeating this ground. We do not find any good

ground to accept this contention advanced on behalf of the

appellant. Hence, it is rejected.

88. The argument that the 1986 Act or Adhiniyam

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encroaches upon the legislative power of Parliament, cannot

be accepted, in the view we have taken that 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 Adhiniyam

touch upon the Letters Patent, the 1986 Act and Adhiniyam

cannot be declared either as unconstitutional or invalid

applying doctrine of pith and substance having due regard

to the discussion already made above while dealing with the

legislative competence of the State in passing the 1987 Act.

89. Para 35 in Prafulla Kumar Mukherjee & Ors. vs.

Bank of Commerce Ltd., Khulna reads thus:-

"Moreover, the British Parliament when

enacting the Indian Constitution Act had a

long experience of the working of the

British North America Act and the

Australian Commonwealth Act and must

have known that it is not in practice

possible to ensure that the powers

entrusted to the several legislatures will

never overlap. As Sir Maurice Gwyer C.J.

said in 1940 F.C. R.188 (supra) at. 201:

"It must inevitably happen from

time to time that legislation

though purporting to deal with a

subject in one list, touches also

upon a subject in another list,

and the different provisions of

the enactment may be so

closely interwined that blind

adherence to a strictly verbal

interpretation would result in a

large number of statutes being

declared invalid because the

Legislature enacting them may

appear to have legislated in a

fore-bidden sphere. Hence, the

rule which has been evolved by

the Judicial Committee, whereby

the impugned statute is

examined to ascertain its pith

and substance or its true nature

and character for the purpose of

determining whether it is

legislation with respect to

matters in this list or in that."

90. In para 37 of the same judgment, it is stated that

"Subjects must still overlap and where they do, the

question must be asked what in pith and substance is the

effect of the enactment of which complaint is made and in

what list is its true nature and character to be found. If

these questions could not be asked, much beneficent

legislation would be stifled at birth, and many of the

subjects entrusted to Provincial Legislation could never

effectively be dealt with"

91. This Court yet in another judgment in

Bharat Hydro Power Corpn. Ltd. & Ors. Vs. State of

Assam & Anr. , touching the same question, in para 18

has observed thus:-

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"18. It is likely to happen from time to

time that enactment though purporting to

deal with a subject in one list touches also

on a subject in another list and prima facie

looks as if one legislature is impinging on

the legislative field of another legislature.

This may result in a large number of

statutes being declared unconstitutional

because the legislature enacting law may

appear to have legislated in a field reserved

for the other legislature. To examine

whether a legislation has impinged on the

field of other legislatures, in fact or in

substance, or is incidental, keeping in view

the true nature of the enactment, the

courts have evolved the doctrine of "pith

and substance" for the purpose of

determining whether it is legislation with

respect to matters in one list or the other.

Where the question for determination is

whether a particular law relates to a

particular subject mentioned in one list or

the other, the courts look into the

substance of the enactment. Thus, if the

substance of the enactment falls within the

Union List then the incidental

encroachment by the enactment on the

State List would not make it invalid. This

principle came to be established by the

Privy Council when it determined appeals

from Canada or Australia involving the

question of legislative competence of the

federation or the States in those countries.

This doctrine came to be established in

India and derives its genesis from the

approach adopted by the courts including

the Privy Council in dealing with

controversies arising in other federations.

For applying the principle of "pith and

substance" regard is to be had (i) to the

enactment as a whole, (ii) to its main

objects, and (iii) to the scope and effect of

its provisions. For this see Southern

Pharmaceuticals & Chemicals vs. State of

Kerala , State of Rajasthan vs. G.

Chawla , Thakur Amar Singhji vs. State of

Rajasthan , Delhi Cloth and General Mills

Co. Ltd. Vs. Union of India and Vijay

Kumar Sharma vs. State of Karnataka .

In the last-mentioned case it was held:

(SCC p. 576, para 15)

"15. (3) Where a law passed

by the State Legislature while

being substantially within the

scope of the entries in the State

List entrenches upon any of the

entries in the Central List the

constitutionality of the law may

be upheld by invoking the

doctrine of pith and substance if

on an analysis of the provision

of the Act it appears that by and

large the law falls within the

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four corners of the State List

and entrenchment, if any, is

purely incidental or

inconsequential."

92. A Constitution Bench of this Court in Association of

Natural Gas & Ors. Vs. Union of India & Ors. has

observed that "Entries in the List are themselves not

powers of legislation, but fields of legislation. An Entry in

one List cannot be interpreted so as to annul or obliterate

another Entry or make another Entry meaningless and that

in case of apparent conflict or any Entry overlapping the

other, every attempt shall be made to harmonise the

same". Para 15 of the judgment reads:-

"15. Although Parliament cannot

legislate on any of the entries in the State

List, it may do so incidentally while

essentially dealing with the subject coming

within the purview of the entry in the Union

List. Conversely, the State Legislature also

while making legislation may incidentally

trench upon the subject covered in the

Union List. Such incidental encroachment

in either event need not make the

legislation ultra vires the Constitution. The

doctrine of pith and substance is

sometimes invoked to find out the nature

and content of the legislation. However,

when there is an irreconcilable conflict

between the two legislations, the Central

legislation shall prevail. However, every

attempt would be made to reconcile the

conflict."

93. In view of the discussion made and reasons recorded

above, we uphold the constitutional validity of 1987 Act,

1986 Act and the Adhiniyam. The Notification dated

20.8.1991 issued by the State of Mahrashtra shall not be

implemented without further orders from this Court in the

light of what is stated in para 85.

94. In the result, Civil Appeal No. 2452 of 1992 is

dismissed subject to above observations as to the

implementation of the impugned notification. Civil Appeal

Nos. 2529 of 1992 and 2530 of 1992 are dismissed in terms

of this judgment. Transfer Case (C) Nos. 8-11/89 (i.e. Writ

Petition Nos 1953/87 and 1960, 1974 & 2054/87) are

dismissed. Civil Appeal Nos. 1222-1224 of 1985 are

allowed, the impugned judgment of the Full Bench of the

High Court of Madhya Pradesh is set aside and the writ

petitions stand dismissed.

No costs.