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SUPREME COURT OF INDIA
20th December 1950
FAZL ALI, PATANJALI SASTRI, MAHAJAN, B.K. MUKHERJEA AND S.R. DAS JJ.
The State of Bombay - Appellant
Versus
Narottamdas Jethabhai and another - Respondents.
Case No. 10 of 1950.
Advocates appeared
Shri M.C. Setalvad, Attorney-General for India (Shri G.N. Joshi, Advocate, with him), instructed by Shri P.A. Mehta, Agent-for Appellant; Shri H.M. Seervai and Shri R.J. Joshi, Advocates, instructed by Shri Rajinder Narain, Agent-for Respondents.
The Provincial Legislature of Bombay passed the Bombay City Civil Court Act of 1948, which came into force on 10th May, 1948. Sections 3, 4 and 12 of the Act, provide-
"3. The State Government may, by notification in the Official Gazetette, establish for the Greater Bombay a Court, to be called the Bombay City Civil Court. Notwithstanding anything contained in any law, such Court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding ten thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are cognizable-
(a) by the High Court as a Court of Admiralty or Vice-Admiralty
or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial jurisdiction, or
(b) By the High COUft 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 cognisable by the High Court as a Court having testamentary or intestate jurisdiction or for the relief of insolvent debtors.
4. Subject to the exceptions specified in section 3, the State Government may by notification in the Official Gazette, invest the City Court with jurisdiction to receive, try and dispose of all suits and other proce~dings of a civil nature arising within the Greater Bombay and of such value not exceeding twenty-five thousand rupees as may be specified in the notification.
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 sui t or proceeding from the City Court. "
In exercise of the powers conferred by S. 4 the Provincial Government invested the City Civil Court with jurisdiction to receive, try and dispose of all suits and proceedings of a civil nature not exceeding Rs. 25,0001- in value. The first respondent instituted a suit in the High Court of Bombay for recovery of Rs. 11,704 on the basis of a promissory note, contending that the Povincial Legislature had no power to make laws with respect to jurisdiction of Courts in regard to suits on promissory notes which was a matter covered by item 53 of List I, and the Bombay City Civil Court Act of 1948 was therefore ultra vires. It was further contended on his behalf that in any event S. 4 of the Act was invalid as it involved a dele- gation of legislative powers to the Provincial Governm::nt and that the suit was therefore cognizable by the High Court.
The Bombay High Court had held [A./.R (38) 1.951 Born. 180] that section 4 of the Act was inoperative as it purported to delegate the lawmaking powers of the legislature to an outside authority and hence the notification issued in pursuance of it had no effect whatsoever and did not take away the jurisdiction of the High Court to try the present suit. On the other question the High Court had held that the Act was intra vires the Bombay Legislature.
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The State of Bombay dissatisfied with this decision, preferred an appeal to the Supreme Court.
Held: As the legislature had exercised its judgment and determined that the City Civil Court should be invested with pecuniary jurisdiction up to Rs. 25,000 and all that was left to the discretion of the Provincial Government was the determination of the conditions under which the Court could be invested with the enhanced jurisdiction, S. 4 did not involve any delegation of legislative powers but was only an instance of conditional legislation and was not ultra vires or invalid on this ground.
"In enacting section 4 the legislature itself has decided that it is fit and proper to extend the pecuniary jurisdiction of the new Court, not necessarily and at all events or all at once but if and when the Provincial Government should think it desirable to do so and accordingly entrusted a discretionary power to the Provincial Government. It is entirely wrong to say that the legislature has not applied its mind or laid down any policy. Indeed, the very fact that the extension of pecuniary jurisdiction should not exceed twenty-five thousand rupees, that the extension should be subject to the exceptions specified in section 3, clearly indicate that the legislature itself has decided that the extension of the pecuniary jurisdiction of the new Court should be made, not necessarily or at all events or all at anyone time but when the Provincial Government may consider it desirable to do so and while entrusting discretionary power with the Provincial Government to determine the time for investing such extended jurisdiction on the new Court, the Legislature itself has also prescribed the limits of such extension. The efficacy of the Act of extension of jurisdiction is, therefore, not due to any other legislative authority than that of the legislature itself." (Per Das J.)
Judgment
Fazl Ali, J. :- I have read the judgment prepared by my brother, Mahajan J. and 70 generally agree with his conclusions and reasonings, but having regard to the importance of the points raised, I wish to add a short judgment of my own.
2. There are really three questions to be decided in this appeal, and they are as follows: (i) Whether the Bombay City Civil Court Act, 1948 (XL [40] of 1948) is ultra vires the Legislature of the State of Bombay ; (2) Whether in any event S. 4 of the above Act is ultra vires the Stale Legislature; and (3) Whether the Bombay High Court has jurisdiction to try the suit.
3. The first and the third questions have been answered by the High Court in favour of the appellant, and the second question has been answered in favour of the respondents. In this Court, the appellant attacked the judgment of the High Court in so far as it concerns the second question, whereas the first respondent attacked it in so far as it concerns the first and the third questions.
4. The Bombay City Civil Court Act purports to create an additional Civil Court for Greater Bombay having jurisdiction to try, receive and dispose of all suits and other proceedings of a civil nature not exceeding a certain value, subject to certain exceptions which need not be referred to here. It was contended on behalf of the respondents that the Act is ultra vires the Legislature of the State of Bombay, because it confers jurisdiction on the new Court not only in respect of matters which the Provincial Legislature is competent to legislate upon under List II, Sch. I to the Government of India Act, 1935, but also in regard to matters in respect of which only the Central or Federal Legislature can legislate under List I (such as, for instance, promissory notes, which is one of the subjects mentioned in Entry 28 of List I). To understand this argument, it is necessary to refer to Entry 53 of List I entries 1 and 2 of List II and also Entry 15 of List III. These entries ran as follows : Entry 53, List II Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this List . ." Entries 1 and 2, List II : "1 . . . the administration of justice, constitution and organisation of all Courts except the Federal Court. . . ." "2. Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this Act. . " Entry 15, List III ; Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this List."
5. The respondents contention may appear at the first sight to be a plausible one, but, in my opinion, it is not well-founded in law. For the purpose of correctly deciding the question raised, we must first try to understand the meaning of the following items in Entry I of List II, "administration of justice, constitution and organisation of all Courts except the Federal Court. A reference to the three Legislative Lists shows that "administration of justice" is entirely a provincial subject on which only the Provincial Legislature can legislate. The same remark applies to "constitution and organization of all Courts except the Federal Court. The expression "administration of justice" has a wide meaning and includes administration of civil as well as criminal justice, and in my opinion Entry 1 in List II, which I have quoted, is a complete and self-contained entry. In this entry no reference is made to the jurisdiction and powers of Courts, because the expressions "administration of justice and "constitution and organization of Courts, " which have been used therein without any qualification or limitation, are wide enough to include the power and jurisdiction of Courts, for how can justice be administered if Courts have no power and jurisdiction to administer it, and how can Courts function without any power or jurisdiction. Once this fact is clearly grasped, it followed that, by virtue of the words used in Entry 1 of List I
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