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HIGH COURT OF CALCUTTA
A. K. MUKHERJI, SABYASACHI MUKHERJI
INDU BHUSAN DE - Appellant
Versus
STATE OF WEST BENGAL - Respondent
A. F. O. O. 125 Of 1970
Decided On : JULY 28, 1970
CITY CIVIL COURT ACT - CONSTITUTIONALITY - ESTABLISHMENT OF ADDITIONAL COURTS - POWER OF STATE LEGISLATURE - ARTICLE 247 OF THE CONSTITUTION - INTERPRETATION - JURISDICTION OF CITY CIVIL COURT - AMENDMENT OF 1969 - VALIDITY - PITH AND SUBSTANCE OF THE LEGISLATION - CIVIL PROCEDURE - ENTRY 13 OF LIST III OF THE SEVENTH SCHEDULE - APPLICABILITY.
Fact of the Case:
The petitioners, three practicing attorneys of the Calcutta High Court, challenged the establishment of the City Civil Court by the Calcutta City Civil Court Act, 1953, and the amendment of the said Act by the City Civil Court (Amendment) Act, 1969, as ultra vires the powers of the State Legislature. They contended that the Parliament alone has the power to establish additional courts under Article 247 of the Constitution and that the amendment of 1969 purported to legislate on matters enumerated in List I of the Seventh Schedule, which is beyond the powers of the State Legislature.
Finding of the Court:
The Court held that the establishment of the City Civil Court was within the competence of the State Legislature under Entry 3 of List II of the Seventh Schedule of the Constitution, which empowers the State Legislatures to legislate on the administration of justice and the constitution and organization of all courts, except the Supreme Court and the High Court. The Court interpreted Article 247 of the Constitution as giving the Parliament a limited power to establish additional courts for the better administration of laws made by Parliament or existing laws with respect to matters enumerated in the Union List, and that this power does not detract from the amplitude of Entry 3 of List II. The Court further held that the amendment of 1969, which conferred certain additional jurisdiction to the City Civil Court in respect of suits and proceedings arising out of items enumerated in List I, was also within the legislative competence of the State Legislature, as it was a law relating to administration of justice, constitution and organization of courts, and was not prohibited in view of the absence of the jurisdiction and powers of the High Court in Entry 78 of List I of the Seventh Schedule of the Constitution. The Court also held that the amendment could be upheld as a law relating to Civil Procedure, which is a valid piece of legislation under Entry 13 of List III of the Seventh Schedule.
Issues: 1. Whether the State Legislature has the power to establish additional courts under Article 247 of the Constitution? 2. Whether the amendment of 1969, which conferred certain additional jurisdiction to the City Civil Court in respect of suits and proceedings arising out of items enumerated in List I, was ultra vires the powers of the State Legislature?
Ratio Decidendi: 1. The power of the State Legislature to establish additional courts is derived from Entry 3 of List II of the Seventh Schedule of the Constitution, which empowers the State Legislatures to legislate on the administration of justice and the constitution and organization of all courts, except the Supreme Court and the High Court. 2. Article 247 of the Constitution gives the Parliament a limited power to establish additional courts for the better administration of laws made by Parliament or existing laws with respect to matters enumerated in the Union List, and this power does not detract from the amplitude of Entry 3 of List II. 3. The amendment of 1969, which conferred certain additional jurisdiction to the City Civil Court in respect of suits and proceedings arising out of items enumerated in List I, was within the legislative competence of the State Legislature, as it was a law relating to administration of justice, constitution and organization of courts, and was not prohibited in view of the absence of the jurisdiction and powers of the High Court in Entry 78 of List I of the Seventh Schedule of the Constitution. 4. The amendment could also be upheld as a law relating to Civil Procedure, which is a valid piece of legislation under Entry 13 of List III of the Seventh Schedule.
Final Decision: The Court dismissed the appeal and confirmed the order of the trial court dismissing the application under Article 226 of the Constitution. The Calcutta City Civil Court Act, 1953, and the City Civil Court (Amendment) Act, 1969, were held to be intra vires the powers of the State Legislature.
( 1 ) THIS is an appeal against the order and judgment of P. K. Banerji, J. dated 25th November. 1969 rejecting the petitioners' application under Article 226 of the Constitution without issuing a rule nisi. The petitioners are the three practising attorneys of this High Court, and in the petition there was a prayer for leave under Order 1. Rule 8 of the Code of Civil Procedure. During the hearing of this appeal, learned Advocate for the petitioners, abandoned the prayer for leave under Order 1, Rule 8 of the Code of Civil Procedure. The application has therefore been treated as an application by the three named petitioners in their individual capacity and not in their representative capacity. In the application the petitioners challenge the establishment of City Civil Court by the Calcutta City Civil Court Act, 1953 (West Bengal Act No. XXI of 1953) and the amendment of the said Act by the City Civil Court (Amendment) Act. 1969 being West Bengal Act XXXV of 1969 and notification made on the 4th November. 1969 relating thereto, as ultra vires the powers of the State Legislature. The application was moved before P. K. Banerji, J. , who as mentioned hereinbefore declined to issue a rule nisi. P. K. Banerji, J. , was of the opinion that the matter was covered by the decision of Sinha, J. (as his Lordship then was) in the case of Amrendra Nath Roy Chowdhury v. Bikash Chandra Ghose, The learned trial Judge was further of the opinion that the expression, 'constitution' in Item No. 3 of List II of Schedule VII of the Constitution of India was wide enough to empower the State Legislature to establish additional courts. The learned Judge further came to the conclusion that the petitioners being practising attorneys of this Court were guilty of delay in making this application. For these reasons, the learned Judge dismissed the application. Having heard the parties, we were clearly of the opinion, that the case made out in the petition is certainly an arguable prima facie case and petitioners were entitled to ask for the issuance of a rule nisi for the further consideration of the matter. But learned Advocates for both the petitioners and the respondents contended before us that we should not only consider whether there is an arguable prirna facie case entitling the petitioners to a rule nisi but further examine the rival contentions of the parties on the points raised and give our decision on the merits of the contentions raised on behalf of the petitioners. As in this case the questions involved are essentially questions of law and there is hardly any scope for any elucidation of facts by giving the respondents opportunity of filing any affidavit in opposition and further in as much as the respondents have been served with the notice of the appeal and have appeared and made submissions before us and also in view of the importance of the points involved in this application, we have decided to examine the contentions urged on merits on behalf of the petitioners.
( 2 ) LEARNED Advocate for the petitioners contended before us that the establishment of the City Civil Court was beyond the competence of the State Legislature. It has been urged that the Parliament alone has the power and the authority under the Constitution to establish additional courts. Reliance was placed on the relevant entries in the different lists of the Schedule VII of the Constitution. It was also contended that in any event by the amendment of 1969 the State Legislature has purported to legislate on matters enumerated in List I and the amendment is ultra vires the powers of the State Legislature. It was contended by learned Advocate for the petitioners, that the expression "establishment" Is different from the expression 'constitution'. Furthermore the difference, it was urged, would be apparent from the fact that our Constitution uses different expressions, "constitution" as well as "establishment" and they must be so construed as signify
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