Skip to content


K. Kumaraswami Kumandan and Bros. Vs. Premier Electric Co. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1693 of 1957
Judge
Reported inAIR1959AP3
ActsMadras Civil and Village Courts (Amendment) Act, 1951 - Sections 1; Madras Civil Courts Act, 1873 - Sections 28; Provincial Small Cause Courts Act, 1887 - Sections 5, 15, 32 and 33; Constitution of India - Article 254(2)
AppellantK. Kumaraswami Kumandan and Bros.
RespondentPremier Electric Co.
Appellant AdvocateS. Ramamurty, Adv.
Respondent AdvocateD.V. Sastri, Adv.
DispositionPetition dismissed
Excerpt:
.....- section 1 of madras civil and village courts (amendment) act, 1951, section 28 of madras civil courts act, 1873, sections 5, 15, 32 and 33 of provincial small cause courts act, 1887 and article 254 (2) and list 1 entry 95, list 2 entry 3 and list 3 entry 46 to schedule 7 of constitution of india - enlargement of jurisdiction of district judges by amendment in section 28 of civil courts act - whether state government can enhance small cause jurisdiction of subordinate judge's court from rs. 1000 to rs. 2000 - state legislature has legislative competence to amend madras civil court act - held, there was nothing unconstitutional in amending section 28 by amendment act. - - in order to appreciate the controversy raised in this petition, it is necessary to examine the terms of..........civil and village courts (amendment) act, 1951 (act xvi of j951) which amended section 28 of the civil courts act (act iii of 1873) substituting the words 'two thousand rupees' for 'rupees one thousand' is put in issue in the revision petition. its validity was questioned by way of defence in s. c. 192 of 1056 brought by the respondent in the court of the subordinate judge of visakhapatnarn. the petitioner filed a petition under section 151 of the code of civil procedure praying that the point whether the state government could enhance the small cause jurisdiction of a subordinate judge's court from rs. 1,000 to rs. 2,000 may be referred to the high court. the subordinate judge himself decided the point against the petitioner on a construction of the relevant provisions of law.2......
Judgment:

P. Chandra Reddy, C.J.

1. The constitutionality of the Madras Civil and Village Courts (Amendment) Act, 1951 (Act XVI of J951) which amended Section 28 of the Civil Courts Act (Act III of 1873) substituting the words 'two thousand rupees' for 'rupees one thousand' is put in issue in the revision petition. Its validity was questioned by way of defence in S. C. 192 of 1056 brought by the respondent in the Court of the Subordinate Judge of Visakhapatnarn. The petitioner filed a petition under Section 151 of the Code of Civil Procedure praying that the point whether the State Government could enhance the Small Cause jurisdiction of a Subordinate Judge's Court from Rs. 1,000 to Rs. 2,000 may be referred to the High Court. The Subordinate Judge himself decided the point against the petitioner on a construction of the relevant provisions of law.

2. Aggrieved by that order, the defendant preferred the present C. R. P. When it came up for hearing before Justice Ranganatham Chetty, he thought that having regard to the importance of the point involved therein, it should be decided by a Division Bench of this Court.

3. In support of this petition, it is urged by Sri Ramamurthy that as the amendment of Section 28 of the Civil Courts Act enlarging the Small Cause jurisdiction of the Subordinate Judge and District Judges is repugnant to Section 15 of the Provincial Small Cause Courts Act, the former would not prevail since it was not reserved for the consent of the President as required by Article 254 of the Constitution. In order to appreciate the controversy raised in this petition, it is necessary to examine the terms of the relevant sections of the Provincial Small Cause Courts Act as well as the Madras Civil Courts Act.

4. Section 5 of the Provincial Small Cause Courts Act has invested the Provincial Governments with power to establish a Court of small causes at any place within the territories under its administration beyond the local limits for the time being of the ordinary original civil jurisdiction of a High Court of Judicature established in a Presidency town. Under Sub-section (2),

'the local limits of the jurisdiction of the Court of Small Causes shall he such as the State Government may define, and the Court may be held at such place or places within those limits as the State Government may appoint.'

Section 15 of the Act runs thus :

'15. (a) A Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes.

(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees, shall be cognizable by a Court of Small Causes.

(3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order.'

We wilt notice the other sections of this enactment in the proper context.

5. We will now turn to the Madras Civil Courts Act. Section 28, as it stood prior to the impugned Amendment Act, runs thus:

'The High Court may, by notification in the official Gazette, invest within such local limits as it shall from time to time appoint any District or Subordinate Judge with the jurisdiction of a Judge of a Court of Small Causes for the trial of suits cognizable by such Courts upto the amount of two thousand rupees, and any District Munsif with the same jurisdiction up to the amount of five hundred rupees, and may, by like notification, -- whenever it thinks fit, withdraw such jurisdiction from the District or Subordinate Judge or Munsif so invested.'

6. Under Section 28, as it originally stood, it was the Provincial Government that had power to invest the Court concerned with jurisdiction of a Judge of Court of Small Causes for trial of suits cognizable by such Courts. By Act IV of 1914, this power was taken away from the Provincial Government and it was conferred on the High Courts. The same amendment extended the small cause jurisdiction of the District Munsif to Rs. 200, in that behalf. By another amendment Act XVIII of 1926, the small cause jurisdiction of Subordinate Judges and District Judges was enhanced to Rs. 1,000 and that of the District Munsifs to Rs. 300. The impugned Act came into force on 20-5-1954 of per the notification issued by the State Government in the Fort St. George Gazette in accordance with the provision of Section 1(2). Pursuant to the provisions of the notification, the High Court of Andhra Pradesh issued orders on 10-9-1954 enlarging the jurisdiction of the hierarchy of Courts in Section 28.

6a. It is convenient to extract at this stage the Articles of the Constitution bearing on this enquiry:

Article 246(1): 'Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule in this Constitution referred to as the 'Union List'.

(2) Notwithstanding anything in Clause (3), Parliament, and subject to Clause (1), the Legislature of any State specified in Part A or Part B of the First Schedule also have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the 'Concurrent List').

(3) Subject to Clauses (1) and (2), the Legislature of any State specified in Part A or Part B of the First Schedule has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List').

Section 254: (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State specified in Part A or Part B of the First Schedule with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State :

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.' The contention pressed upon us by the loomed counsel for the petitioner is that since Section 15(3) of the Provincial Small Cause Courts Act sets a limit on the pecuniary jurisdiction of the Small Cause Courts, it was not competent for the Provincial Legislature to raise the jurisdiction of the Small Cause Courts to Rs. 2,000/- without the amendment being reserved for the consideration of the President and his assent obtained as required by Article 254 of the Constitution. That being so, the amendment is void and Section 15(3) of the Provincial Small Cause Courts Act must be deemed to be in force. In such it situation, the Small Cause Court would have no jurisdiction to entertain a suit the value of which exceeds Rs. 1,000/-. We are not very much impressed with this submission.

7. It is plain from Section 5 of the Provincial Small Cause Courts Act that the Provincial Government were authorised to establish a Court of Small Causes which connotes a Court exclusively dealing with small cause suits, whereas the purpose of Section 28 of the Civil Courts Act is to invest ordinary Civil Courts with small cause jurisdiction. Thus, there are two different sets of Courts, the one having only small cause jurisdiction and the others empowered to entertain small cause suits by a notification issued by the concerned High Court. Therefore, Section 28 of the Civil Courts Act does not owe its origin to Section 5 of the Provincial Small Cause Courts Aft. The former section only envisages ordinary Civil Courts invested with small cause jurisdiction by virtue of the powers given by other enactments.

8. That the Courts established under Section 5 of the Provincial Small Cause Courts Act concern only small cause suits is made evident by Section 6 which recites :

'When a Court of Small Causes has been established there shall be appointed, by order in writing, a Judge of the Court.'

The intendment of the proviso to Section 6 is that in case there is not sufficient work for a Judge of the Small Cause Courts in one Court some more Courts may be added to his jurisdiction.

9. The distinction between the two sets of Courts become apparent when we scrutinise Sections 39 and 33 of the Provincial Small Cause Courts Act, Section 32 says :

'(1) So much of Chapters III and IV as relates to -

(a) the nature of the suits congnizable by Courts of Small Causes,

(b) the exclusion of the jurisdiction of other Courts in those suits;

(c) the practice and procedure of Courts of Small Causes;

(d) appeal from certain orders of those Courts and revision of cases decided by them, and

(e) the finality of their decrees and orders subject to such appeal and revision as are provided by this Act,

applies to Courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes so far as regards the exercise of that jurisdiction by those Courts.

(2) Nothing in Sub-section (1) with respect to Courts invested with the jurisdiction of a Court of Small Causes applies to suits instituted or proceedings commenced in those Courts before the date on which they were invested with that jurisdiction.' Section 33 enacts ; 'A Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that jurisdiction, and the same Court with respect to the exercise of its jurisdiction in suits of a Civil nature which are not cognizable by a Court of Small Causes, shall, for the purposes of this Act and the Code of Civil Procedure be deemed to be different Courts.'

It is manifest from Section 32 that Chapter III in which Section 15 occurs is applicable only in regard to the nature of suits cognizable by Court of Small Causes and has no reference to the value of the suits contemplated by Section 15. The value of the subject-matter of a suit cannot be equated to the nature of the suit. A reading of these two sections can leave no room for doubt that the Small Cause Courts contemplated by Section 5 are distinct and different from those envisaged in Section 28. Section 33 brings out this difference in clear and unambiguous terms.

10. That apart, the pecuniary jurisdiction prescribed in Section 15 is subject to the provisions of any enactment for the lime being in force. So, the operation of statutes in force at the time the Provincial Small Cause Courts Act was enacted is specifically saved. Consequently. Section 15 does not stand in the way of local or special enactments taking effect. Thus, Section 15 does not affect Section 28 of the Madras' Civil Courts Act of 1873 which provided for the issue of notifications investing the Courts specified therein with small cause jurisdiction. If that much is conceded, the right of the legislature concerned to amend it cannot be denied. It follows that it is within the legislative competence of the Provincial or State Legislatures to amend the Madras Civil Courts Act and in fact no attempt has been made to contest this position. All that is maintained is that if that section comes into conflict with Section 15 of the Provincial Small Cause Courts Act fixing the pecuniary jurisdiction of Small Cause Courts, the former should yield to the latter if the provisions of Article 254 of the Constitution are not resorted to. We have pointed out that there is no repugnancy between the material Sections of the Provincial Small Cause Courts Act and Section 28 of the Civil Courts Act. Consequently, there is nothing unconstitutional in that amendment.

11. This leads us to the question whether even if there is any such repugnancy, Article 254 of the Constitution stands in the way of its operation. It is argued by Sri Ramamurthy that the provision called in question falls directly under Article 254, clause 2 since it relates to one of the matters enumerated in the concurrent list. The contention of Sri Ramamurthy must be answered with reference to the distribution of legislative powers under the Constitution. List I is Union List. List II is State List, and the Concurrent List is List III. It is incontrovertible that if any subject falls within any of the items catalogued in List III, Article 254(2) comes into play. According to the counsel for the appellants the subject in question comes under Item 46 of List II which sets out the jurisdiction and powers of Courts except the Supreme Court.

12. Before we consider the import of this entry, we will examine the subjects allotted to the State Legislature under List II The material item is Item 3, namely,

'administration of justice, constitution and organisation 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.'

The question for consideration is whether the enlargement of the pecuniary jurisdiction of a Civil Court comes within the purview of the expression 'administration of justice, constitution and organisation of Courts.' We think these are expressions of wide connotation and comprehend within their compass the enhancement of the jurisdiction of Courts. These words have been used without any qualification or limitation and they imply the power and jurisdiction of Courts. Jurisdiction to entertain suits and to dispose of them is certainly a branch of the administration of justice. So, it must necessarily include the power to entertain suits or proceedings of civil or criminal nature irrespective of the value of the subject-matter. This power necessarily implies the authority to enhance, alter, amend or diminish the jurisdiction of Courts territorially and pecuniarily. If, on the other hand, they are so construed as not to include the power to enlarge, diminish, alter or add to the jurisdiction of Courts either territorially or pecuniarily, it would be depriving these expressions of their 'primary content'. It is thus seen that the authority to legislate in regard to administration of justice and constitution and regulation of Courts is vested in the State Legislature.

13. Item 46 of List III does not confer concurrent powers on the Union Parliament in regard to these topics. Entries similar to this item are contained in Lists I and II also. Item 95 of List I relates to

'jurisdiction and powers of Courts except the Supreme Court with respect to any of the matters in this list; admiralty jurisdiction.'

If Entry 46 of List III is to be interpreted as vesting concurrent authority in the State as well as the Union Legislatures, the same construction should be put on the other two items also referred to, because identical language is used in all the three entries. It is not contended that the Union and the State Legislatures derive legislative powers in regard to all subjects bearing on the jurisdiction and powers of all subordinate Courts in a State. A scrutiny of these various items would clearly show that the power to legislate conferred on the concerned legislatures is only in relation to the subjects which are assigned to the respective legislatures in those lists. In other words, the purpose of these entries is to enable the respective legislatures to enact laws to confer upon or take away jurisdiction from the ordinary civil Courts in regard to subjects mentioned in those lists. For instance, Section 67 of the Indian Income-tax Act which is purely a Central subject excludes the jurisdiction of civil Courts to entertain a suit to set aside or modify any assessment etc. Similarly, Section 78 of the Estates Duty Act takes away the jurisdiction of civil Courts in regard to matters mentioned therein. There are various other enactments furnishing examples of either excluding from or conferring jurisdiction specifically upon civil Courts in regard to matters set out therein. By virtue of these entries, it is competent for the two legislatures to make provision in the several Acts enacted by them bearing on the jurisdiction and powers of Courts in regard to the subject-matters of those Acts, as otherwise 'the legislation may not be quite complete or effective'. Thus, these entries do not in any way derogate from the general powers given to the Provincial Legislatures under Item 3 of List II.

14. That being the case, it is within the exclusive field of the State Legislatures to make laws is regard to this subject. So, in regard to matters included in the State List, even if there is any inconsistency between the Provincial and Central enactments, the former will supersede the latter. It is not every Central Act that prevails over the Provincial enactment. The conflict must exist with respect to an existing law within the concurrent list. If the topic is outside the purview of the subjects catalogued in List III, the Provincial Statute does not yield to the Central one; on the other hand, it takes effect in spite of the conflict between the two.

15. We are supported in this view of ours by the pronouncement of the Supreme Court in the State of Bombay v. Narottamdas, : [1951]2SCR51 (A). In that case, one of the questions debated was whether the Bombay City Civil Court Act which empowered the Provincial Government to invest the City Court by notification with jurisdiction of such value not exceeding Rs. 25,000 as may be specified in the notification was ultra vires the Provincial Legislature, being an encroachment by that Legislature upon the domain of legislation allotted to the Central under List I of Schedule 7 to the Government of India Aet, 1935. This was answered in the negative by the Supreme Court.

16. Dealing with the scope of Lists I and II of 7th Schedule to the Government of India Act which are analogous to the three items referred to above, this is what Justice Fazl Ali observed :

'The question then arises as to the exact meaning of Entry 2 of List II and Entry 53 of List I, which are said to militate against the above construction, These entries, in my opinion, confer special powers on Provincial and Central Legislature, as opposed to the general power conferred on the Provincial Legislature by Entry 1 of Last II, the special powers being the logical consequence or concomitant of the power of the two Legislatures to legislate with regard to the matters included in their respective Legislative Lists. The effect of these entries is that while legislating with regard to the matters in their respective Legislative Lists, the two Legislatures are competent also to make provisions in the several acts enacted by them, concerning the jurisdiction and powers of Courts in regard to the subject-matter of the Acts, because otherwise the legislation may not be quite complete or effective.

The words used in Entry 2 of List II and Entry 53 of List I are wide enough to empower the two Legislatures to legislate negatively as well as affirmatively, with regard to the jurisdiction of the Courts in respect of the matters within their respective legislative ambits. In other words, they can exclude or bar the jurisdiction of the Courts in regard to those matters and they can also confer special jurisdiction on certain Courts. They can also, apart from the general power which the Courts usually exercise, confer power on the Courts to pass certain special orders, instances of which I shall give later'.

Further down, the learned Judge says :

'But for an express provision like that made in the entries referred to above, the two Legislatures might not have been able to confer special jurisdiction on the Courts in regard to the matters set out in the Legislative Lists, nor could they have been able to bar the jurisdiction of the ordinary Courts in regard to them, however necessary or desirable such a course might have appeared to them.'

Mahajan, J. sums up the position in regard to the ambit of Item I of List II of the 7th Schedule to the Government of India Act, 1935 which is parallel to Item 2 of List II of the present Constitution, thus:

'It seems to me that the legislative power conferred on the Provincial Legislature by Item I of List II has been conferred by use of language which is of the widest amplitude (administration of justice and constitution and organization of all Courts). It was not denied that the phrase employed would include within its ambit legislative power in respect to jurisdiction and power of Courts established for the purpose of administration of justice. Moreover, the words appear to be sufficient to confer upon the Provincial Legislature the right to regulate and provide for the whole machinery connected with the administration of justice in the province. Legislation on the subject of administration of justice and constitution of Courts of justice would be ineffective and incomplete unless and until the Courts established under it were clothed with the jurisdiction and power to hear and decide cases.

It is difficult to visualise a statute dealing with administration of justice and subject of constitution and organisation of Courts without a definition of the jurisdiction and powers of those Courts as without such definition such a statute would be like a body without a soul. To enact it would be an idle formality. By its own force it would not have power to clothe a Court with any power or jurisdiction whatsoever. It would have to look to an outside authority and to another statute to become ineffective. Such an enactment is, so far as I know, unknown to legislative practice and history.'

17. Though in that case it was the language of Section 107 of the Government of India Act that fell to be considered the ratio decidendi would govern the instant case for the reason that the object of Article 254 is the same as Section 107 and the language employed is practically identical.

18. The scope and range of Article 254 fell to be determined by the Supreme Court in Zaverbhai v. State of Bombay, : [1955]1SCR799 (B). It was ruled by the Supreme Court that the applicability of Article 254(2) would be attracted only if the repugnancy is in regard to the same subject-matter and falling within the concurrent list. The rule stated in Shyamakant v. Rambhajan, AIR 1939 FC 74 (C), is to the same effect. That is also an authority for the proposition that every provincial law would not yield to the existing Indian law on the ground of repugnancy between the two. It will give way only to an existing law with respect to one of the matters enumerated in the concurrent legislative list, unless the assent of the Governor-General or His Majesty has been obtained (under the Government of India Act) or reserved for the assent of the President (under the Constitution). H.R. Patel v. Venkatalakshamma, (S) AIR 1955 Mys 65 (FB) (D), is in consonance with the view taken by us.

19. On this discussion, it follows that the impugned Act is intra vires the powers of the Provincial Legislature and a notification issued by the High Court in pursuance of the provisions of that Act has validly enlarged the jurisdiction of the civil Courts mentioned therein. Consequently, the defence that the lower Court has no pecuniary jurisdiction has to be negatived. The C. R. P. is therefore dismissed with costs which we fix at Rs. 50.

20. We are obliged to Sri D. Venkatappayya Sastry who rendered us valuable help as amicus curiae. The petitioner will pay the aforesaid sum of Rs. 50/- to the amicus curiae.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //