2005 Supreme(SC) 64

2005(1) Supreme 329
Supreme Court of India
(From Bombay High Court)
R.C. Lahoti, CJI, Shivaraj V. Patil, K.G. Balakrishnan, B.N. Srikrishna and G.P. Mathur, JJ.
Jamshed N. Guzdar —Appellant
versus
State of Maharashtra & Ors. —Respondents
Civil Appeal No. 2452 of 1992
With
Civil Appeal No. 2529, 2530/92, 1222- 1224/85, T.C. (C) Nos. 8-11 of 1989)
Decided on 11-1-2005
Counsel for the Parties :
For the Appearing Parties : Mohan Parasaran, Additional Solicitor General, T.R. Andhuarujina, K.K. Singhvi, U.U. Lalit, Dr. N.M. Ghatate, Sr. Advocates, Navin Prakash, Gaurav Aggrawal, P. Parmes­waran, Advocate for Attorney General for Inida U.A. Rana, Shyam Divan, Sadeep Kharel, Devesh Kumar, Arvind Kumar, Madhup Singhal, Ashish, Brij Bhushan, S.D. Mogre, P.S. Gidwani, Surya Kant, S.S. Shinde, Mukesh K. Giri, V.N. Raghupathy, Advocate (N.P.), Sakesh Kumar, Satish K. Agnihotri, Shyam Dewan, Mrs. Rakhi Ray, Ms. Bina Gupta, M.N. Shroff, V.B. Joshi, Gopal Balwant Sathe, Advocate (NP), D.M. Nargolkar, H.K. Puri, Ujjwal Banerjee, S.K. Puri, Shiv Gupta, Pramod Swarup Advocate (NP), S.N. Bhat, Advocates.

Important pointTopic ‘Administration of Justice’ can now be legislated both by the Union as well as the State Legislatures and as long as there is no Union Legislation touching the same topic, and there is no inconsistency between the Central legislation and State legislation on this topic, it cannot be said that State Legislature had no competence to pass Maharashtra 1987 Act and 1986 Act.

Headnote:Constitution of India—Entries 77, 78, 79, 95 List I; Entries 3, 65, List II and Entries 11A, 13, 46 List III—Bombay City Civil Court and Bombay Court of Small Causes (Enhancement of ­Pecuniary Jurisdiction and Amendment) Act, 1986 (Maharashtra Act No. XV of 1987)—Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 (Maharashtra Act XVII of 1986)—Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981—Consti­tutional validity—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—Appellant filed public interest litigation—High Court dismissed the writ petition upholding the validity of the 1987 Act and deferring the implementation of the Notification dated 20-8-1991 till 2-10-1992—Appeal against—High Court had categorically stated that minimum 110 Judges would be necessary as a pre-condition for the transfer of jurisdiction to the City Civil Court for implementation of the Act—Writ petitions filed challenging the constitutional validity of the 1986 Act as well as the Adhiniyam abolishing Letters Patent Appeals—In all these matters, the principal question related to the legislative competence of State Legislatures of Maharashtra and Madhya Pradesh in passing the enactments—State Legislature was competent to legislate under Entry 13 of List III for enacting 1987 Act—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, it cannot be said that State Legislature had no competence to pass 1987 Act and 1986 Act.

       Held : 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. The State Legislature was the sole repository of power to confer jurisdiction on all the courts except the Supreme Court and High Court under Entry 3 of the State List prior to Forty-second Amendment) of 1976 and thereafter the Parliament as well as the State Legislatures have power to confer general jurisdiction on all the courts including the High Courts under 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. 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. Entries 77 and 78 of the Union List deal with ‘constitution’ and ‘organisation’ of the Supreme Court and the High Courts because after coming into force of the Constitution, the Supreme Court was required to be set up and so also the High Courts were required to be established and/or reconstituted. The expressions ‘constitution’ and ‘organisation’ of the High Courts in Entry 78 are referable to Articles 2, 3 and 4 of the Constitution. 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. 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 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. (Paras 38 to 42)

       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. 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.

       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”. (Paras 52 to 54)

       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 competence to pass 1987 Act and 1986 Act. (Para 72)

       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. 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. (Paras 73 and 74)

       Looking to what is found by the High Court on facts in relation to infrastructure, and keeping in view the position 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. (Para 82)

       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 Maharashtra shall not be implemented without further orders from this Court. (Para 93)