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Shivarudrappa Girimallappa Saboji and anr. Vs. Kapurchand Meghaji Marwadi and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberAppeal (B) No. 332 of 1956
Judge
Reported inAIR1965Kant76; AIR1965Mys76; (1965)1MysLJ158
ActsMysore Civil Courts Act, 1964 - Sections 1(3), 19 and 29(2); Bombay City Civil Courts Act, 1948 - Sections 26; States Reorganization Act - Sections 62(2); Government of India Act, 1935; High Courts Act; Charter Act, 1861; Constitution of India - Article 226; Code of Civil Procedure (CPC), 1908
AppellantShivarudrappa Girimallappa Saboji and anr.
RespondentKapurchand Meghaji Marwadi and ors.
Excerpt:
- karnataka land reforms act, 1961.[k.a. no. 10/1962]. section 48a: [h.v.g. ramesh, j] rejection of form no.7 vesting of land in the state under section 44 no notice to purchasers who had purchased the lands in the year 1967 and subsequently order of vesting of land passed by the land tribunal held, the purchasers who had purchased the land in the year 1967 and subsequent to that are entitled to be informed by the land tribunal about the order of rejection of form no. 7 and the order of vesting. hence, the matter requires reconsideration for want of due notice to the petitioners. -- karnataka land revenue act, 1964.[k.a. no. 12/1964]. sections 128 & 129: [h.v.g. ramesh, j] registering of mutations and register of disputed cases held, it is needles to say it is duty bound on the part.....somnath iyer, j.(1) in this appeal, we are asked to pronounce against the constitutionality of sections 19 and 29(2)(c) of the mysore civil courts act, 1964 (mysore act no. 21 of 1964).(2) the question arises in this way.on july 5, 1956, the civil judge, senior division bijapur made an order in certain execution proceedings refusing the adjournment prayed for by the two judgment-debtors who are the appellants before us and directing execution to proceed. the value of the subject matter of the suit which is source of this appeal was more than rs. 10,000/- but less than rs. 20,000/-. under section 26 of the bombay civil courts act, in all cases in which the subject matter of the suit exceeds rs. 10,000/- and appeal could be preferred to the high court. it was under the provisions of that.....
Judgment:

Somnath Iyer, J.

(1) In this appeal, we are asked to pronounce against the constitutionality of sections 19 and 29(2)(c) of the Mysore Civil Courts Act, 1964 (Mysore Act No. 21 of 1964).

(2) The question arises in this way.

On July 5, 1956, the Civil Judge, Senior Division Bijapur made an order in certain execution proceedings refusing the adjournment prayed for by the two judgment-debtors who are the appellants before us and directing execution to proceed. The value of the subject matter of the suit which is source of this appeal was more than Rs. 10,000/- but less than Rs. 20,000/-. Under Section 26 of the Bombay Civil Courts Act, in all cases in which the subject matter of the suit exceeds Rs. 10,000/- and appeal could be preferred to the High Court. It was under the provisions of that section that the judgment-debtors who felt aggrieved by the order of the Civil Judge preferred an appeal to the High Court of Bombay which, on a certificate issued by the Chief Justice of the High Court of Bombay under Section 62(2) of the States Reorganization Act, stood transferred to this Court.

(3) During the pendency of this appeal, the legislature of the new State of Mysore made a law intituled the Mysore Civil Courts Act, 1964. Under Section 1(3) of this Act, the State Government made a notification specifying July 1, 1964 as the date of the commencement of the operation of the Act. Since then the Act is in force.

(4) The purpose of the new legislation as stated in its preamble was the enactment of an uniform law relating to the constitution, powers and jurisdiction of the Civil Courts in the State of Mysore, subordinate to the High Court of Mysore. The Act creates three cadres of subordinate Judicial Officers in the State, and those judicial officers are the Munsiffs, the Civil Judges and the District Judges. It next provides for the establishment of the Courts to be presided over by those judicial officers and distributes the work to be disposed of by them. The jurisdiction of each of the courts over which these judicial officers preside also stands regulated. Section 19 which is the relevant section directs that appeals from decrees or orders of a civil nature shall in cases where the value of the subject matter of the suit or proceeding is less then Rs. 20,000/- lie to the District Judge.

(5) Section 29(2)(c) with which we are principally concerned in effect statutorily transfers the appeals and proceedings connected therewith which were pending before this Court when the Act came into force to the Court of the District Judge if those appeals or proceedings arose out of a suit or proceeding less than Rs. 20,000/- in value.

(6) Since the appeal before us arises from a suit the value of whose subject matter was less than Rs. 20,000/- if the provisions of Section 29(2)(c) are above the reproach of unconstitutionality, it has to be heard and decided by the District Judge of Bijapur and not by this Court.

(7) It is in this situation that Mr. Savanur who maintains that this Court does not stand divested of the jurisdiction to hear this appeal denounces the provisions of sections 29(2)(c) as unconstitutional provisions. His principal submission was that a legislation with respect to jurisdiction exercisable by this Court such as section 29(2)(c) of the impugned Act, is not within the competence of the State legislature, and, that Parliament has exclusive legislative power to legislate on that subject. His further submission was that since the appeal when it was preferred was preferred to the High Court of Bombay which clothed with appellate powers such as those specified in clause 16 of the Letters Patent for that High Court, and, that appellate jurisdiction now resides in this Court in respect of appeals arising from the area which was originally in the State of Bombay but has now been added to the new State of Mysore under the provisions of the States Reorganization Act, that jurisdiction remains unimpaired notwithstanding anything contained in Section 29(2)(c) of the impugned legislation. There were a few other submissions made by Mr. Savanur and by Messrs. Raikar, Albal and Ullal who were accorded permission to make their submissions as intervenes, to which I shall advert at the appropriate stage.

(8) I shall now proceed to discuss the challenge to legislative competence. The stress of the argument was that the 78th Entry of the Union List in schedule VII to the Constitution bestows the jurisdiction exercisable by the High Courts in the country and that the legislature of the States could make no legislation on that subject. Mr. Advocate General who appeared before us in response to the notice issued to him, has asserted, that the source of the power of the State Legislature to make the impugned legislation is the 3rd State list and not the 78th Entry of the Union list, and that the 65th Entry in the State list and the 13th and 46th Entries in the concurrent list also constituted the source of such legislative power, and that by reason of the President's assent which the impugned legislation received on March 28, 1964 the legislation was impervious to the criticism of legislative incompetence was his further submission.

(9) The 78th Entry in the Union List on which dependence was placed by Mr. Savanur reads :--

'78. Constitution and organization of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts.'

The 3rd and the 65th Entries in the State List read :

'3. Administration of justice; constitution and organization of all courts, except the Supreme Court and the High Court; officers and servants of the High Court, procedure in rent and revenue Courts; fees taken in all courts except the Supreme Court.'

65. Jurisdiction and powers of all Courts except the Supreme Court, with respect to any of the maters in this List'.

'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.'

(10) The view pressed on us by Mr. Advocate General whose duty it was to point out the source of the legislative power in the exercise of which the State Legislature made the impugned legislation was that the topic of the impugned legislation was 'administration of justice' which is one of the tops of the 3rd entry of the State List. The competing argument was that the topic of the legislation was what was part of the topic of the 78th entry of the Union List which authorises legislation among other matters on the 'Constitution and organization' including vacations of the High Courts and that any law with respect to its 'constitution and organization' and therefore a law within the field of the Union List.

(11) In support of the argument constructed on the 78th Entry of the Union List, the appeal made was to the pronouncement of the Supreme Court in State of Bombay v. Narothamdas Jethabhai : [1951]2SCR51 . It was maintained that that pronouncement makes it indisputable that the words 'constitution and organization' occurring in the 78th entry of the Union List are comprehensive enough to authorise legislation on the jurisdiction exercisable by the High Courts and that we are not free to take a view to the contrary, or to say that the impugned legislation was within the third entry of the State List.

(12) To understand this argument, it would be necessary to review briefly the history of the legislation on whose constitution the Supreme Court was invited to make its pronouncement in : [1951]2SCR51 . The constitutions validity of a law made by the Provincial Legislature of the then Province of Bombay, called the Bombay City Civil Court Act (Act XL of 1948) was the question before the Supreme Court. Under the provisions of that enactment a court for the Greater Bombay known as the Bombay City Civil Court was established. By Section 3 of that Act, the State Government was authorised by notification to provide that that new Court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding Rs. 10,000/- in value arising within Greater Bombay except certain kinds of suits which were specified in the section. Section 12 divested the High Court of its jurisdiction to try suits cognizable by the City Civil Courts newly established.

After the promulgation by the State Government of the notification authorised by section 3 of that Act, when a suit which was cognizable by the new Court was instituted in the High Court of Bombay, it was contended before the High Court that the Provincial Legislature of the Province of Bombay had no legislative competence to make a law divesting the High Court of its jurisdiction to try the suit, and that the suit was thus properly instituted in the High Court. The learned Sitting Judge in Chambers admitted the plaint upholding this challenge to legislative competence. The plaintiff took out summons for judgment against the defendant, and, on the application of the Advocate-General, the State of Bombay was impleaded as a supplemental defendant and the suit was transferred to a Division Bench which concurred in the view expressed by the Judge in Chambers, and, returned the cause to him for disposal on merits. The State of Bombay appealed to the Supreme Court from this order.

(13) This appeal succeeded before the High Court, all that five learned Judges who heard that appeal sharing the view that the Provincial Legislature of the Province of Bombay did have the competence to make the impugned legislation and that the notification issued by the Provincial Government was likewise above the reproach that there was excessive delegation to the Provincial Government.

(14) It was said that there are observations in the judgments of the Supreme Court supporting the view that the jurisdiction of the High Courts of the States was a subject for legislation by Parliament in the field of the 78th Entry of the Union List. Now, the Bombay City Civil Courts Act, 1948, was a legislation made before the commencement of the Constitution. The question therefore was whether the topic of that legislation was in the provincial legislative list or in the Federal Legislative List which were Lists I and II in the Seventh Schedule to the Government of India Act, 1935. While the assertion made by the State of Bombay was that the topic of the legislation was within the 1st entry of the Provincial Legislative list and therefore within the legislative field assigned to the Provincial Legislature, the argument advanced for the plaintiff was that the relevant entry and that the 53rd entry of the Federal Legislative List was the relevant entry and that the Federal Legislature alone had the competence to make the impugned legislation.

(15) The 53rd entry of the Federal Legislative List is:

'53. Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authorised by Part IX of this Act, the enlargement of the appellate jurisdiction of the Federal Court, and the conferring thereon of supplemental powers.'

The 1st entry of the Provincial Legislative List on which the State of Bombay depended is :

'1. Public order (but not including the use of His Majesty's naval, military or air forces in aid of the civil power); the administration of justice; construction and organization of all courts, except the Federal Court, and fees taken therein; preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention.'

(16) The 2nd entry of the Provincial Legislative List which was also the subject matter of discussion in the judgments of the Supreme Court reads;

'2. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts.'

(17) All the five learned judges who delivered separate judgments were unanimously of the view that the topic of the impugned legislation was in the provincial list and not in the Federal List. Although Fazl Ali, Mahajan and Mukherjea JJ. (as they then were) were inclined to the view that the 1st entry of the Provincial List was broad enough to clothe the Provincial Legislature with competence to make the impugned legislation without the assistance of anything contained in the 2nd entry of that list, Patanjali Sastri and Das JJ. (as they then were) favoured the view that the source of legislative power was that constituted by both the 1st and 2nd entries of the Provincial List.

(18) We are not, however, concerned with the divergence between these two views. But it was pressed on that the interpretation of the 1st entry of the Provincial List by every one of the five learned Judges sustains the contention that a law with respect to the jurisdiction of the High Courts is a law concerning the 'constitution and organization' of those Courts and therefore a law authorised by the 78th Entry of the Union List and not by the 3rd Entry of the State List.

(19) Before proceeding to consider this submission it would be necessary to discuss the meaning of the 3rd Entry in the State List of the Constitution. That entry reads:

'3. Administration of justice: constitution and organization of all courts, except the Supreme Court and the High Court, officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court.'

(20) Mr. Ullal suggested to us that we should ignore the semi-colon appearing after the words 'administration of justice' in this entry and read the first part of this entry as hereunder:-

'3. 'Administration of justice constitution and organization of all courts, except the Supreme Court and the High Court;.................'

the purpose of the argument was that we should say that the topic of this entry did not relate to administration of justice in the High Court and that in what excepted out of this entry was included in that topic concerning the administration of justice in the High Court. In other words, his submission was that the 3rd Entry does not authorise legislation on 'Administration of Justice' in the Supreme Court and the High Court and in the same way in which it prohibits legislation on the 'constitution and organization' of the Supreme Court and the High Court. It was said that it is a well-known canon of construction that all inappropriate punctuations should be discarded for the ascertainment of the true legislative intent and that a similar rule of construction should guide the ascertainment of the constitutional intent.

(21) Although there can be no dispute that that is a true rule of construction, the question is whether the semi-colon appearing after the words 'administration of justice' is an inappropriate punctuation. In my opinion, it is not. With the removal of that semi-colon, the language of the entry would be both faulty and ungrammatical. It has to be observed that after the words 'Constitution and organization' there is the preposition 'in' it is surely not possible to read the entry as we are asked to do. If the intention of the Constitution-makers was that 'administration of justice' in the High Court should also be excluded from the ambit of the entry, the non-employment of that preposition becomes inexplicable. For, without that preposition, the relevant part of the entry would read 'administration of justice constitution and organization of all courts, except the Supreme Court and the High Court' which makes absurd meaning.

(22) We must, therefore, in my opinion say that one of the topics of the 3rd entry of the State List is 'administration of justice' in all the Courts of the State including the High Court.

(23) That 'administration of justice' in the Supreme Court is however outside the 3rd entry of the State List is what is clearly demonstrated by the 77th entry of the Union List from which it is clear that 'administration of justice' in the Supreme Court is a topic entrusted to Parliament. That entry makes it clear that not only the constitution and organization of the Supreme Court but also its jurisdiction and powers are Union subjects. If jurisdiction and powers of the Supreme Court are Union Subjects, it should follow that administration of justice in the Supreme Court is a Union subject.

(24) Now, what is necessary is to proceed to understand the meaning of 'administration of justice' which is a state subject. It is obvious that 'administration of justice' in any court has for its aim, the maintenance of the supremacy of the law and its enforcement in all spheres of human activity, its quintessence being the exercise of judicial power with which administration of justice is inextricably intertwined. the content of that judicial power cannot be a constant factor and must obviously vary from court to court although the source of that power must necessary be found in a law whether it is a fundamental law like the Constitution or a law made under its authority. Judicial power exercisable by the High Court may either be power confided by the Constitution such as that created by Article 226 of the Constitution or may be power with which it is invested by a law authorised by the Constitution. Then again, power may consist of that special jurisdiction under special laws or general jurisdiction exercisable generally.

(25) However that may be, if the core of administration of justice is the exercise of Judicial powers which is also understood as the exercise of jurisdiction, any legislation on the exercise of such judicial power or jurisdiction is a legislation on 'administration of justice' and is therefore what is authorised by the 3rd entry of the State 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 power within the field of the 77th 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 the 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 that Article and also to the other provisions of the Constitution as stated in Article 245(1).

(26) If that be the correct view of the matter it is for the legislature of the State to define the frontiers of the power or jurisdiction exercisable by its High Court.

(27) Now, what sections 19 and 29(2)(c) of the impugned legislation do is to say that appeals arising out of suits whose subject matter is less than Rs. 20,000/- in value shall be preferred to the District Court and that if such appeals which would under the impugned law lie to the District Court have been preferred to this Court, under the provisions of any of the repealed enactments, those appeals pending before this Court, shall stand removed and be heard and decided by the concerned District Judge. These provisions, in my opinion, do no more than to define and delimit this Court's appellate civil jurisdiction in manner stated in the two sections to which I have referred and to make ancillary provisions for its exercise in pending matters. If this was all that could be said about this matter, those two sections of the impugned legislation clearly fall within the field of the 3rd entry of the State List, the power to enact which clearly resided in the State Legislature.

(28) But it was urged that it is possible to say from the 78th entry of the Union List that the power to define or delimit the jurisdiction and power of the High Court resided in Parliament and not in the State Legislatures. Since the power of the State Legislature to make a legislation is subject to the provisions of cls. (1) and (2) of Article 246 of the Constitution and further subject to the other provisions of the Constitution, if it could be said that the Union list bestows legislative power on Parliament to make a legislation on the jurisdiction and powers of the High Court, any power bestowed on the State Legislature by the 3rd entry of the State List should of course yield to that power confided to Parliament. The question therefore is whether there is anything in the 78th Entry of the Union List which can persuade the view that power to make a legislation on the jurisdiction and powers of the High Court are entrusted to Parliament. That 78th entry reads :

'78. Constitution and organization of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Courts.'

The postulate was that 'constitution and organization of the High Courts' on which Parliament could legislate, also includes the topic of jurisdiction and powers of the High Courts and whatever the 3rd entry of State List may say, the 78th entry of the Union List is really what creates legislative power on that subject and confides it to Parliament.

(29) The words 'constitution and organization' occurring in the 78th entry are the words on the interpretation of which much argument was expended in this context. It was said that if there was power in Parliament to make a law for the 'constitution and organization of the High Courts' it was meaningless to suggest that that power merely authorised legislation on the establishment or setting up of the High Courts or their organization but did not empower legislation on their jurisdiction and powers exercisable after their constitution and organization.

(30) Now, the relevant dictionary meaning of the word 'constitution' is establishment. Similarly, the meaning of the word 'organization' is composition or the requisite acts necessary for furnishing with organs with which functioning is possible. The word 'organization' extends to all acts necessary for giving orderly structure in order to evolve a working order. So, understood, the words 'constitution and organization' on which there was dependence would not assist the suggested construction on the 78th entry of the Union List.

(31) It was submitted that we should give to the words 'constitution and organization' in the 78th entry a meaning somewhat different from that available from the dictionary and sustenance for this argument was sought to be deduced from the pronouncement of the Supreme Court in : [1951]2SCR51 in which what was considered was the meaning of the 1st entry of the Provincial List in the Seventh Schedule to the Government of India Act, 1935. The context in which the interpretation of that entry arose for discussion has already been explained. The question was whether the Bombay City Civil Court Act, 1948, enacted by the Provincial Legislature of the then Province of Bombay was or was not within the legislative power of that legislature and whether the Federal Legislature alone had the competence to make it. The 1st entry of the Provincial List which in the opinion of the Supreme Court bestowed competence on the Provincial Legislature to make that legislation reads:

'1. Public order (but not including the use of His Majesty's naval, military or air forces in aid of the civil power); the administration of justice; constitution and organization of all courts, except the Federal Court, and fees taken therein; preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention.'

(32) One thing which is very clear from all the five judgments in that case is that the words 'administration of justice' with which the 1st entry in the Provincial List opens concerned itself with the administration of justice in the High Courts as well. The learned Judges were also of the view that the primary content of administration of justice was the exercise of jurisdiction and judicial power by the High Court. Fazl Ali J. in that context said this repelling an argument to the contrary :

'The interpretation which is sought to be put on the entries by the respondent is in my opinion open to the following objections :--

(1) It involves the curtailment of the meaning of the expression 'administration of justice' in such a way as to rob it of its primary content-the jurisdiction and powers of the Court, without which justice cannot be administered. (page 59).

..........................................'

There are similar observations in the other judgments. But our attention was asked to certain other passages in the judgments which elucidated that the power to make legislation on the 'constitution and organization of the High Courts' included power to legislate on their jurisdiction and powers.

(33) It is true that in more than one part of those judgments it was explained that the Provincial Legislature which was invested with power to legislate with reference to 'constitution and organization of the High Courts' acquired as part of that power the power to legislate on jurisdiction and powers of the High Court.

(34) It is on this exposition of the meaning of the words 'constitution and organization' that an argument was founded that the words 'constitution and organization' occurring in the 78th entry of the Union List constitute the source of Parliament's power to legislate on jurisdiction and powers of the High Courts.

(35) An investigation into the correctness of this proposition involves a comparison of the 1st entry of the Provincial List in the Government of India Act, 1935, with the 3rd entry of the State List of the Constitution. Such comparison reveals that what was the 1st entry of the Provincial List is now what corresponds only in part to the 3rd entry of the State List. It will also be seen that the composition and structure of the 3rd entry of the State List is not what was the composition and structure of the 1st entry of the Provincial List. The essential distinction between these two lists is that whereas the Provincial Legislature was invested by the 1st entry of the Provincial List with legislative competence to make legislation not only on 'administration of justice' but also with respect to the 'constitution and organization of the High Courts', that part of the legislative power which related to the constitution and organization of the High Courts is now a Union subject in the first part of the 78th entry of the Union List whereas 'administration of justice' which was a provincial subject continues to be a State subject.

If, therefore, a part of the topic of the first entry of the provincial list stands removed to the 78th entry of the Union List and the remaining part of it is to be found in the 3rd entry of the State List, the meaning given by the Supreme Court in : [1951]2SCR51 to the words 'constitution and organization of the High Courts' occurring in the 1st entry of the Provincial List cannot continue to be the meaning to be given to those words occurring in the 78th entry of the Union List. The reason why we should not accede to the argument that the words 'constitution and organization' in that entry bear the same meaning as that given to them by the Supreme Court is that 'administration of justice' with which that entry concerns itself includes administration of justice in the High Court, and, as pointed out by their Lordships of the Supreme Court the primary content of administration of justice is the exercise of jurisdiction and judicial power, it would not in my opinion, be permissible for us to ignore that meaning given by the Supreme Court to the expression 'administration of justice' and to found our interpretation of the 78th entry of the Union List on only those parts of the judgments of the Supreme Court which defined the legislative field with respect to the 'constitution and organization of the High Courts'.

(36) The 3rd entry of the State List which does not have the form and shape of the 1st entry of the Provincial List has to be interpreted on its own language in which it is now worded on its own language in which it is now worded in the same way in which we should understand the 78th entry of the Union List which takes into it that part of the 1st entry of the Provincial List which referred to the 'constitution and organization of the High Courts'. If the meaning given to the 1st entry of the Provincial List, when that entry incorporated in addition to the subject concerning the 'administration of justice' also the topics with respect to the 'constitution and organization of the High Courts', cannot be of assistance after the entry became divided into two portions, one part of it staying in the 3rd entry of the State List and other getting into 78th entry of the Union List, it should follow that the subject relating to 'constitution and organization of the High Courts' is not a subject relating to jurisdiction and powers of the High Courts but a subject which has reference only to the establishment of the constitution of the High Courts while the 3rd entry of the State List is what authorises legislation on such jurisdiction and powers.

(37) That that is the correct view to be taken is clear from a contrast between the 77th and 78th entries of the Union List. The 77th entry which corresponds although to a very small extent to the 53rd entry of the Federal List, authorises legislation on constitution and organization and jurisdiction and powers of the Supreme Courts among other matters, while, the 78th entry which concerns itself with legislation with respect to the High Courts authorises legislation only on their constitution and organization. Mr. Advocate-General is in my opinion right when he suggests that the omission of the words 'jurisdiction and powers' which are found in the 77th entry, from the 78th entry, is almost conclusive indicates that jurisdiction and powers of the High Courts are not within the 78th entry and are therefore not Union subjects. If it was the intention of the Constitution makers to invest Parliament with legislative power even with respect to jurisdiction and powers of the High Courts, the 78th entry would have been couched in the same words in which 77th entry is worded.

(38) That there is anything in the 95th entry of the Union List which can enable us to take the view that Parliament is the sole repository of the power to make legislation on the jurisdiction and powers of the High Court is also an argument which to my mind is unacceptable. The 95th entry reads:

'95. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List; admiralty jurisdiction.'

(39) A very forceful argument which was advanced before us by Mr. Savanur and the other learned counsel who appeared before us as interveners was that since the 78th entry authorises the High Courts and the 95th entry authorises legislation on jurisdiction and powers of all Courts with respect to any of the matters in the Union List, jurisdiction and powers of the High Courts were also matters with respect to which Parliament could legislate in the field of the 95th entry.

(40) It seems to me that we cannot read the 95th entry in that way. The decision of the Supreme Court in : [1951]2SCR51 makes it clear that the 95th entry of the Union List like the 65th entry of the State List and the 46th Entry of the Concurrent List, are provisions authorising legislation for the creation of special jurisdiction with respect to matters respectively enumerated in those lists. So understood the 95th entry does authorise legislation on jurisdiction and powers of Courts with respect to the constitution and organization including vacations of the High Courts. Whatever else may be a law which Parliament may make in respect to the matter under the 95th entry, it is clear that within the field of that entry, there can be no power in Parliament to make a legislation on the jurisdiction which a High Court may exercise after its constitution and organization for the administration of justice.

(41) At one stage I found great difficulty in understanding what legislation Parliament could make with respect to the constitution and organization of the High Courts. The 95th entry concerns itself only with the power of Parliament to make laws only with the power of Parliament to make laws only on the matters enumerated in the earlier part of the Union List. On some matters it may be possible for Parliament to make such legislation and on some other matters it may not be possible to do so. Whether it is possible for Parliament to make a legislation under the 95th entry on a matter within the 78th entry it is really not necessary for us to investigate, since, it is obvious that on the exercise of general jurisdiction of the High Court or on the exercise of its appellate jurisdiction, the 95th entry does not bestow legislative competence.

(42) We must, therefore, refuse to accept the contention that Parliament had exclusive legislative competence to enact sections 9 and 29(2)(c) of the impugned Act.

(43) My construction of the entries in the legislative lists which I have discussed was also the construction placed on them by the Madras, Calcutta and Kerala High Courts in Ahmed Moideen Khan v. Inspector of 'D' Division. : AIR1959Mad261 : Amarendra Nath Roy Chowdhury v. Bikash Chandra Ghose, (S) : AIR1957Cal534 ; and Kochupennu Kochikka v. Kochikka Kunjipennu, : AIR1961Ker226 (FB) and, with the conclusions reached in those decisions which raised problems similar to those before us, I respectfully agree.

(44) It is also possible to say from the 65th entry in the State List that the impugned provisions were within the legislative competence of the State Legislature. That entry reads:

'65. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List.'

If one of the matters in the 3rd entry of the State List is 'administration of justice' and if the 65th entry in that list empowers legislation on jurisdiction and powers of Courts with respect to 'administration of justice' which is one of the matters in the 3rd entry of the State List, it follows that jurisdiction and powers of the High Court with respect to administration of justice is also a State subject. The impugned sections constitute legislation only with respect to that matter.

(45) I should now proceed to discuss a view suggested by Mr. Advocate General which rested on the 13th and 46th entries of the Concurrent List, of the Constitution. Those entries read :

'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.'

It was suggested that what emerges from the 13th entry is that in respect of all matters included in the Code of Civil Procedure and generally in the matter of civil procedure, Parliament and the legislature of State as provided by Article 246(2) of the Constitution acquire concurrent legislative competence. It was said that since the source of a right to prefer an appeal to the High Court was the 96th section of the Code of Civil Procedure, the exercise of appellate jurisdiction in respect of such appeals was also a matter included in the Code of Civil Procedure within the meaning of the 13th entry of the Concurrent List. If in respect of that matter the State of Legislature has power to make legislation and if as explained in many of the enunciations made from time to time, no subject enumerated in a legislative list which is necessarily described in general terms is to be read in a narrow and restricted sense and each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it and the interpretation of an entry in a list should receive that construction most beneficial to its widest possible amplitude, it was urged that the delimitation of the area of the appellate jurisdiction of the High Court was a matter on which legislation could be made in the field of the 46th entry of that list.

(46) If this submission is sound--and on its validity, we should not, I think, say anything in this case--it is enough to say that if the source of the legislative power to enact the impugned provisions is in these two entries of the Concurrent List, the challenge to legislative competence should fail by reason of the assent of the President which the impugned Act received and which protects the impugned legislation under Article 254(2) of the Constitution even if its provisions are repugnant to an existing law or a law made by Parliament.

(47) In any view of the matter, I am disposed to take the view that the competence to enact the impugned provisions did reside in the State Legislature.

(48) It was next contended that even so there was something in clause 16 of the Letters Patent for the High Court of Bombay which made it impermissible for the State Legislature to enact the impugned sections. This argument, according to Mr. Savanur, has relevance since the district of Bijapur in one of whose Courts the suit out of which the appeal before us arises, was in the State of Bombay before its inclusion in the new State of Mysore under the States Reorganization Act Attention was asked to the provisions of the High Courts Act or the Charter Act of 1861 made by Parliament under which Her Majesty the Queen of England was authorised by Section I to erect and establish by Letters Patent a High Court of Judicature at Fort William in Bengal and for the Presidencies of Madras and Bombay. In the year 1865, the Queen of England made what may be called the Charter of Letters Patent for those three High Courts and, under clause 16 of the Letters Patent for the High Court of Bombay constituted that High Court as a Court of Appeal from the civil Courts of the Presidency of Bombay and from all Courts subject to its superintendence. That High Court was further authorised to exercise appellate jurisdiction in such cases as are subject to appeal to that High Court by virtue of any laws or regulation then in force.

(49) Mr. Savanur contended that the High Court of Bombay continued even after the commencement of the Constitution to be an appellate Court with the same appellate power and jurisdiction which were conferred on it at the time of its establishment under this clause and was the only Court to which an appeal could lie from all the civil Courts of what became the State of Bombay in respect of decisions which were appealable under any law or regulations which are in force. The argument developed was that since under Section 96 of the Code of Civil Procedure from every decree of every civil Court there shall be an appeal unless there is a provision to the contrary and there was no provision to the contrary in the case before us, the High Court of Bombay was the Court to which an appeal lay under clause 16 of the Letters Patent and that that jurisdiction of the High Court of Bombay could not be divested by a law made by the State Legislature.

The unimpaired continuance of that jurisdiction is according to the argument what authorises us to hear the appeal before us notwithstanding Section 29(2)(c) of the impugned legislation since the jurisdiction which now vests in us in respect of the four districts of the then State of Bombay which now stand included in the new State of Mysore, is what was exercisable by the High Court of Bombay before the reorganization of the States. Support for this argument was attempted to be derived from Section 52 of the States Reorganization Act. Article 372 of the Constitution was also pressed into service in support of the submission that clause 16 of the Letters Patent for the High Court of Bombay was an existing law as defined by Article 366(10) of the Constitution which, it was said, continued to be in force even after the commencement of the Constitution.

(50) There can be no doubt that since an existing law as defined by Article 336(10) of the Constitution means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of the Constitution by any Legislature, authority or person having power to make such law, Ordinance, order, bye-law, or regulation, the Letters Patent for the High Court of Bombay authorised by Section 1 of the High Courts Act, 1861, and by Section 9 of that Act, was an existing law when the Constitution came into being. So, an argument was maintained that clause 16 of the Letters Patent was preserved by Article 372 of the Constitution. That Section 52 of the States Reorganization Act supports the postulate that the appellate jurisdiction of the High Court of Bombay over the Bombay area which is now part of the new State of Mysore, was inherited by this Court, was the next submission.

(51) One other constitutional provision to which attention was asked in this context is Article 225 of the Constitution which continued the jurisdiction exercised by all the existing High Courts.

(52) That that is so is incontestable. But the question is whether there is anything either in Article 225 or Article 372 of the Constitution or in Section 52 of the States Reorganization Act, which can sustain the argument that the jurisdiction conferred by clause 16 of the Letters Patent for the High Court of Bombay was impervious to legislative interference by the legislature of the new State of Mysore.

(53) That the jurisdiction created by clause 16 of the Letters Patent for the High Court of Bombay was subject to its divestment by appropriate legislation is what is demonstrated by the very constitutional or statutory provisions on which Mr. Savanur depended. Such is also what is clear from Section 9 of the High Courts Act 1861.

(54) Section 9 of the High Courts Act of 1861 which regulated jurisdiction and powers of the High Courts established and created by that Act, in one part it stated that that jurisdiction shall stand regulated by the Letters Patent of Her Majesty the Queen of England and next declared that the jurisdiction so created shall be subject to the legislative powers of the Governor-General of India in Council.

(55) In National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd., : [1953]4SCR1028 , the Supreme Court explained that legislative competence to alter the jurisdiction created by the Letters Patent also resided in the Provincial Legislature. Likewise, the jurisdiction transmitted to this Court by Section 52 of the States Reorganization Act is again stated in Section 69 of that Act, subject to legislation which may be made by the appropriate legislature in the same way in which the continuance of the old jurisdiction ensured by Article 225 of the Constitution or the continuance in operation of an existing law under Article 372 is subject to similar legislation. Clause 44 of the Letters Patent for the High Court of Bombay emphasises the vulnerability of the jurisdiction created by clause 16 to appropriate legislation. So, in my opinion, Mr. Savanur cannot derive any substance for his argument from either Section 52 of the States Reorganization Act or Articles 225 and 372 of the Letters Patent created some kind of absolute jurisdiction.

(56) Mr. Savanur who was faced with the difficulty in the presentation of his argument that the jurisdiction created by clause 16 of the Letters Patent continued unimpaired and vested in the new State of Mysore, was constrained to advance an argument that although the deprivation of the jurisdiction was possible by a legislation made by the appropriate legislature, the legislature of the State of Mysore was not the legislature which could bring about such deprivation. But this argument by reason of the interpretation which we should place on the 3rd entry of the State List or on the suggested interpretation on the 13th and 46th entries of the Concurrent List of the Constitution cannot succeed and becomes unsustainable.

(57) The provisions of Clause 16 of the Letters Patent cannot therefore lend any assistance to the challenge to the constitutionality of Sections 19 and 29(2)(c) of the impugned Act.

(58) But Mr. Savanur, however, contended that clause 16 of the Letters Patent enjoyed the status of a law made by Parliament and that Sections 19 and 29(2)(c) of the impugned legislation were repugnant to its provisions and therefore void. Mr. Savanur was unable to explain the process by which it was possible to say that that clause enjoyed the status of a law made by Parliament or could be equip rated with any such law. He had to admit that the highest that could be said was that it was an existing law, and, so long as the discontinuance of an existing law as provided by Article 372 of the Constitution is what is accomplished by legislation made by a competent legislature as was done in the case before us, the argument must fail.

(59) It was not urged before us that the impugned Act is liable to be denounced as unconstitutional by reason of any repugnancy between its provisions and the provisions of the Bombay Civil Courts Act, 1869, or clause 16 of the Letters Patent, which are both existing laws for the obvious reason that the President's assent which the impugned Act received rendered the repugnancy, if any, inconsequential under the provisions of Article 254(2) of the Constitution.

(60) Mr. Raikar who was one of the interveners advanced some contentions which have the merit of novelty about them. His first submission was that High Court of Bombay created under the provisions of the High Courts, Act, 1861, enjoyed a special status and was some kind of special High Court in respect of whose jurisdiction the State Legislature was incompetent to legislate even if it had the competence under the 3rd entry of the State List to make a law on the jurisdiction of the other High Courts of the Country.

(61) I found great difficulty in understanding this argument. Whatever might have been the special position occupied by the High Court of Bombay before the commencement of the Constitution, it is clear from Article 214(2) of the Constitution as it stood before the seventh amendment to the Constitution, that that High Court became one of the High Courts under the Constitution. If it became one of the High Courts for one of the States comprised in the Union, it follows that legislative competence flowing the 3rd entry of the State List was as much available with respect to the jurisdiction of the High Court of Bombay as it was available in the case of any other High Court in the country.

(62) In that view of the matter and also for the reason that we are not concerned in this appeal with the jurisdiction of the High Court of Bombay as we are with the jurisdiction of this Court, the argument constructed by Mr. Raikan that there is any difference between the status of one High Court and the other for the purpose of the 3rd entry of the State List can hardly succeed. Likewise, the concomitant argument that the jurisdiction of a High Court like the High Court of Bombay can be regulated only by Parliament by a legislation made under the 97th entry of the Union List or Article 248 of the Constitution, which respectively bestow on Parliament residuary or special powers of legislation ceases to have relevance.

(63) The other submissions of Mr. Raikar do not touch the question of constitutionality but relate to matters of interpretation. I shall proceed to make a brief discussion of those contentions. It was first said that Section 29(2)(c) of the impugned legislation does not take within it appeals other than those preferred from an order made in a pending suit. That appeals from final decisions in suits which have been preferred to this Court are outside the purview of that clause and that they continue to remain here was what we were asked to say.

(64) Now, clauses (a) and (c) of Section 29(2) of the impugned Act which are the relevant statutory provisions to be perused in this context read:

'29. Notwithstanding anything in sub-section (1) or any other provision of this Act or in any enactment repealed by sub-section (1) or in any other law or provision having the force of law,--

(a) all suits and proceedings (other than appeals and proceedings connected therewith) pending before any Court which under this Act have to be instituted or commenced in another Court, shall, on the appointed day, stand transferred to such other Court and shall be continued and disposed of by such other Court in accordance with law as if such suits and proceedings had been instituted or commenced in such other Court;

* * * * * * (c) appeals and proceedings connected therewith, pending before the High Court which under this Act have to be preferred to a Court of Civil Judge or District Court, shall, save in the cases specified in clause (d), on the appointed day, stand transferred to the Court of the Civil Judge or the District Court as the case may be, and shall be disposed of by such other Court in accordance with law as if such appeals or proceedings had been preferred to such Court of the Civil Judge or the District Court; * * * * * *'

(65) The suggested construction was that the words 'connected therewith' occurring after the words 'appeals and proceedings' with which clause (c) of Section 29(2) opens, plainly indicates that clause(c) takes within it no other appeals than those connected with the pending suits and proceedings to which clause (a) refers. I do not find it possible to understand the expression 'connected therewith' in that way. It is plain that the matter which stand transferred to the District Court under Section 29(2)(c) are firstly, the pending appeals arising out of suits which are less than Rs. 20,000/- in value, and secondly, all proceedings connected with such appeals. The expression 'proceedings connected therewith' which fall within the second category are the proceedings connected with the appeals which stand removed to the Court of the District Judge. The words 'connected therewith' do not describe the appeals which stand transferred but the proceedings connected with the appeals which stand transferred under the provisions of that clause.

In other words, what clause(c) of Section 29(2) accomplishes first is to transfer all appeals which should have been preferred under Section 19 to make the District Judge. What it next does is to make a similar statutory transfer of all proceedings connected with such appeals such as an application for the appointment of a receiver or an application for an injunction or the like. The first category of proceedings which stand transferred are therefore the appeals referred to in that Clause and the second category are those consisting of proceedings connected with such appeals. It is clear that clause(c) was worded in that way so that while an appeal stands transferred, matters and proceedings ancillary to the transferred appeals do not remain in this Court.

(66) That we should take notice of the fact that the word 'all' with which clause (a) opens is not to be found in clause(c) and therefore, say that not all the proceedings connected with the appeals which ought to have been preferred to the Court, of the District Judge under S. 19 of the Civil Courts Act stand statutorily transferred and that those which so stand transferred are only appeals and proceedings connected with pending suits was the next argument maintained before us.

(67) I do not find it possible to accede to this contention. It is no doubt an awkward feature of clause(c) that while clause(a) contains the word 'all', clause (c) does not contain it, but, it is plain from the language of clause (c) that in the same way in which all the suits and proceedings referred to in clause (a) stand statutorily transferred to the Court referred to therein, all the appeals and proceedings referred to in clause (c) stand similarly transferred. The non-existence of the word 'all' in clause (c) which occurs in clause (a) to my mind does not make any difference.

(68) The further argument which was maintained before us was that rested on the provisions of sub-section (2) of Section 62 of the States Reorganization Act. That sub-section declares among other matters that such proceedings pending in the High Court of Bombay immediately before the reorganization of the States as are certified by the Chief Justice of that High Court to be proceedings which ought to be heard and decided by the High Court for the new State of Mysore shall be transferred to the High Court of Mysore. It is not disputed in this case that there was such a certificate by the Chief Justice of the High Court of Bombay which obviously was a certificate that this appeal is one which ought to be heard and decided in this Court. On the basis of this certificate which preceded the arrival of this appeal from the High Court of Bombay to this Court, Mr. Raikar presented the argument that there was some kind of an adjudication by the Chief Justice of the High Court of Bombay which he was authorised to make under Section 62(2) of the States Reorganization Act that this appeal should be heard by this Court and that that adjudication made under a law made by Parliament made it impermissible to the competence of the legislature of the new State of Mysore to defeat that certificate through a legislative provision that the District Judge of Bijapur should hear the appeal. But it is plain that the certificate of the Chief Justice of Bombay which has no other effect than the removal of the appeal to this Court cannot have the efficacy claimed for it.

(69) Mr. Raikar, however, appealed to sub-section (3) of Section 62 which provides for the continuance of certain proceedings before the High Court of Bombay and the provisions in sub-section (4) and (6) of that section which according to Mr. Raikar afford sustenance for the argument that the certificate made by the Chief Justice of Bombay has also the status of an order made by this Court that this appeal shall be heard by this Court.

(70) I do not find anything in either sub-sections (3), (4) or (6) which can support that argument.

(71) The clear answer to the argument resting upon the certificate of the High Court of Bombay is what is to be found in Section 69 of the States Reorganization Act which subjects a certificate issued by the Chief Justice of the High Court of Bombay to the provisions of a legislature made by the appropriate legislature after the appointed day.

(72) One more submission made before us was that Section 29(2)(c) has reference only to appeals preferred from the Court of the Civil Judge from decrees in suits whose subject-matter was less than Rs. 20,000/- in value after the enactment of the new legislation. It is enough to say that this argument does not fit into the plain language of Section 29(2)(c) which removes from this Court appeals pending when the new Act came into force. That clause was scarcely necessary of its purpose was to restrict its operations only to the appeals to be preferred thereafter for which no provision was really necessary.

(73) I should have noticed an argument advanced by Mr. Savanur at one stage that Section 29(2)(c) which affects a right of appeal to the Supreme Court available under Sections 100 and 110 of the Code of Civil Procedure created by law made by the Central Legislature, is open to the criticism of incompetence. It is enough to say that that right of appeal to which Mr. Savanur refers is in no manner affected by any of the provisions of the impugned Act since that right of appeal could even now be exercised at the appropriate stage.

(74) We were asked at one stage by Mr. Albal to pronounce Section 23 of the Act as invalid and that we should also say that Section 29 is incomplete inasmuch as it does not provide for the Court of Civil Judges, Senior Division in the Bombay area. We are not concerned in this appeal either with that lacuna in that Act if there is such lacuna or with the constitutionality of Section 23 of the Act. The only question with which we are concerned in this appeal is whether the appeal before us should remain in this Court and whether it should be heard and disposed of by us, and it is for that limited purpose that we can embark upon an investigation into the constitutionality or interpretation of Section 29(2)(c). We must, in my opinion, therefore, decline to say anything or any of those two matters on which Mr. Albal made his submissions.

(75) We should, in my opinion, therefore, say that Sections 19 and 29(2)(c) of the Mysore Civil Courts Act, 1964, are not susceptible to the denouncement that they were enacted without the requisite legislative competence. In my opinion they are perfectly valid provisions.

(76) The result, therefore, is that this appeal which stands removed to the Court of the District Judge, Bijapur, must be heard by him and not by us. Let the papers of this appeal be transmitted to him.

Chandrashekhar, J.

(77) I agree.

(78) Order accordingly.


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