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Balkrishna Das and ors. Vs. Perfect Pottery Co. Ltd., Jabalpur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCom. Appeal No. 5 of 1983
Judge
Reported inAIR1985MP42; 1985MPLJ32
ActsConstitution of India; Constitution of India (42nd Amendment), 1976; Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 - Sections 2
AppellantBalkrishna Das and ors.
RespondentPerfect Pottery Co. Ltd., Jabalpur and ors.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateM.M. Sapre and ;R.P. Verma, Advs.;A.M. Mathur, Adv. General
Cases ReferredAbdul Taiyab v. Union of India
Excerpt:
- - 5 of 1983. 2. in all these three appeals the question of maintainability of the appeals arises in view of the abolition of letters patent appeals in clause 10 by the madhya pradesh uchcha nyayalaya (letters patent appeals samapti) adhiniyam, 1981, passed by the state legislature and which received the assent of the president on 21st june 1981. at the time of hearing on the question of maintainability of the appeals, a question was raised that the letters patent appeals which were provided in clause 10 of the letters patent of the nagpur high court have been abolished by the act mentioned above and this act was passed by the state legislature and the state legislature is not competent to pass this act as it is not within the scope of entry 11a in the concurrent list but it clearly.....oza, ag. c.j.1. the three appeals nos. 4, 5 and 7, all of 1983, arise out of a composite order passed by company judge hon'ble shri justice j.s. verma, by his order dated 3rd oct. 1983 in company petition no. 5 of 1981. this order disposes of a prayer under section 397 of the companies act and sections 398 and 155 of the companies act. the prayer under section 397 was rejected and against this the present appeal is no. 4 of 1983. prayer under section 398 has been partly allowed and, therefore, appeal no. 7 of 1983 is preferred against that part of the order and as the prayer under section 155 was rejected, an appeal is preferred which is appeal no. 5 of 1983.2. in all these three appeals the question of maintainability of the appeals arises in view of the abolition of letters patent.....
Judgment:

Oza, Ag. C.J.

1. The three appeals Nos. 4, 5 and 7, all of 1983, arise out of a composite order passed by Company Judge Hon'ble Shri Justice J.S. Verma, by his order dated 3rd Oct. 1983 in Company Petition No. 5 of 1981. This order disposes of a prayer under Section 397 of the Companies Act and Sections 398 and 155 of the Companies Act. The prayer under Section 397 was rejected and against this the present appeal is No. 4 of 1983. Prayer under Section 398 has been partly allowed and, therefore, appeal No. 7 of 1983 is preferred against that part of the order and as the prayer under Section 155 was rejected, an appeal is preferred which is appeal No. 5 of 1983.

2. In all these three appeals the question of maintainability of the appeals arises in view of the abolition of Letters Patent Appeals in Clause 10 by the Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981, passed by the State Legislature and which received the assent of the President on 21st June 1981. At the time of hearing on the question of maintainability of the appeals, a question was raised that the Letters Patent Appeals which were provided in Clause 10 of the Letters Patent of the Nagpur High Court have been abolished by the Act mentioned above and this Act was passed by the State Legislature and the State Legislature is not competent to pass this Act as it is not within the scope of Entry 11A in the Concurrent List but it clearly falls within the ambit of Entry 78 of List I and, therefore by this Act the State Legislature was not competent to abolish the Letters Patent Appeals which lay to the Division Bench against the judgment of learned single Judge in Clause 10 of the Letters Patent As this question pertained to the legislative competence of the State Legislature. Notice was given to the learned Advocate General who happened to be present at the time of hearing. It was also brought to our notice that in fact it may need reconsideration of the judgment delivered by the Division Bench consisting of Hon'ble Shri Justice J.S. Verma and Hon'ble Shri Justice M.L. Malik, although in motion hearing, in Letters Patent Appeal No. 1 of 1982, by their order dated 30th Sept. 1982 and, therefore, this matter has been placed before the Full Bench.

3. The question that is before us is as to whether a right of appeal conferred under Clause 10 of the Letters Patent of the Nagpur High Court could be taken away by the Act referred to above.

4. Learned counsel for the petitioner contended that Entry 78 in List I conferred jurisdiction on the Parliament to constitute and organise the High Courts whereas Entry 95 empowered the Parliament to pass laws in respect of jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List. It was further contended that in List II, Entry'3 conferred jurisdiction on the State Legislature to provide for officers and servants of the High Court and procedure in rentand revenue courts. By Entry 65 in List II the State Legislature is empowered to legislate in respect of jurisdiction and powers of all courts except the Supreme Court in relation to the matters enumerated in this List. In List III, i.e. the Concurrent List, Entry 11A provides for administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Courts, whereas Entry 46 provides for jurisdiction and powers of all courts, except the Supreme Court, in respect of matters enumerated in this List. It was, therefore, contended that the general jurisdiction of the High Court would only be within the ambit of Entry 78 of List I and not within Entry 11A of List III. According to the learned counsel, Entry 11A earlier was a part of Entry 3 of List II but was lifted from List II and introduced as Entry 11A in List HI by the Forty-second Amendment in 1976. It is contended by learned counsel that Entry 11A talks of administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Court, and it is contended that this will only empower either of the two Legislatures to enact about the powers, jurisdiction, organisation 'and constitution of all courts except the Supreme Court and the High Courts. It was contended that in fact the only entry in respect of all courts other than the High Courts and the Supreme Court is Entry 11A in List HI. It is contended by learned counsel that in fact in Abdul Taiyab v. Union of India AIR 1977 Idadh Pra 116 this question was raised as at that time this entry was in List II, a part of Entry 3, and a specific argument was raised that the Parliament had no power to enact provisions about the sittings of the High Courts and their Benches in the States Reorganisation Act and it is contended that in the decision of five judges of this Court in Abdul Taiyab's case (supra) this contention was repelled. This entry which stood as a part of Entry 3 in List II now has been enacted as Entry 11A in List III.

5. It was contended by learned counsel that these terms 'constitution', 'organisation' and 'administration of justice' are wide terms and they include every thing in respect of a court, its constitution, organisation, conferral of jurisdiction, sittings and other things. It is contended that the term 'administration of justice' has been incorporated in this Entry 11A to make the set up of courts complete and it is with that purpose that Entry 11A has been introduced in the Concurrent List in respect of courts other than the High Courts and the Supreme Court. It was contended that the Division Bench in its judgment in motion hearing although does not specifically refer to the Allahabad or the Punjab decisions, but it appears that the two decisions support the view taken by the Division Bench in Letters Patent Appeal No. 1 of 1982. It was contended that in fact the U. P. Enactment to which reference is made by the Division Bench was considered in Hakim Singh v. Shiv Sagar AIR 1973 All 596 (FB). It was contended by learned counsel that in the Allahabad decision an attempt was made to split up the words in Entry 11A 'administration of justice' and 'constitution and organisation of all courts' but ultimately the Allahabad decision turned on the question that it pertained to land legislation which was a state subject and, therefore, the jurisdiction and powers of all courts could be controlled by a law made by the State Legislature in Entry 65. It was, therefore, contended that this decision is of no help. As regards the Punjab decision, it was contended that the basis of the reasoning is the split of words in Entry 11A on the basis of semi-colon and the meaning of semi-colon, but it was contended that it does not appear to be the correct interpretation of Entry 11A.

6. The learned Advocate General on the other hand, contended that these entries and the scheme of the three Lists have been borrowed from the Government of India Act, 1935. It was contended that Clause 38 of the Letters Patent itself provided that appropriate Legislature could amend the provisions contained in Letters Patent and therefore it could not be contended that the Letters Patent which is the law enacted by the Supreme Legislature, i.e. King-Emperor, as he then was, could not be curtailed. It was also contended that although the jurisdiction and powers of the High Court as they stood before the Constitution have been saved by Article 225 of the Constitution but Article 225 itself makes it subject to the laws made by appropriate Legislature by virtue of powers conferred on the Legislature by this Constitution. He, therefore, contended that if Entry 11A in List III conferred jurisdiction on the State Legislature to provide for the jurisdiction of the High Court, the law enacted by the State Legislature with the assent of the President, i.e. abolition of Letters Patent Appeals, (by) the Act referred to above could be passed to take away appellate jurisdiction conferred under Clause 10 of the Letters Patent. The learned counsel also referred to the decision of the Supreme Court in State of Bombay v. Narottamdas AIR 1951 SC 69, Pramatha Nath Mitter v. Chief Justice, High Court, Calcutta AIR 1961 Cal 545, Kochikka v. Kunjipennu AIR 1961 Ker 226 (FB), Abdul Taiyab v. Union of India AIR 1977 Madh Pra 116 (FB) and Rajinder Singh v. Kultar Singh AIR 1980 Punj & Har 1 (FB).

7. In State of Bombay v. Narottamdas (AIR 1951 SC 69) their Lordships were examining the Seventh Schedule of the Government of India Act and in that context examined the entries in the three Lists. Their Lordships examined Entries 1 & 2 in List II of the Seventh Schedule of the Government of India Act wherein phraseology more or less similar to phraseology of Entry 11A was used. Entry 1 in List II under the Government of India Act reads :

'l.....the administration of justice, constitution and organisation of all Courts except the Federal Court.'

In this context considering the terms mentioned in this List, their Lordships observed in paragraph 64 :

'It cannot be disputed that the words 'administration of justice' occurring in Item I of the Provincial List, unless they are limited in any way, are of sufficient amplitude to confer upon the Provincial Legislature the right to regulate and provide for the whole machinery connected with the administration of justice. Section 92, North America Act, deals with the exclusive powers of the Provincial Legislatures and Clause (14) of the section speaks of 'the administration of justice in the Provinces' as including 'the constitution, maintenance and organization of Provincial Courts'. In interpreting this provision of the constitution it has been held in North America that the words 'constitution, maintenance and organization of Courts' plainly include the power to define the jurisdiction of such Courts territorially as well as in other respects Re-County Courts of British Columbia (1892) 21 SCR 446, Mr. Seervai argues that this might be the normal meaning of the words if they stood alone. But if Items 1 and 2 of the Provincial List are read together, the conclusion cannot be avoided that the expressions 'administration of justice and constitution of Courts' do not include 'jurisdiction' of powers of Courts which are separately dealt with under Entry 2. To find out, therefore, the extent of powers of the Provincial Legislature in respect of conferring jurisdiction upon Courts, the relevant item to be looked to is not Item 1 but Item 2 of the Provincial List.'

Their Lordships also examined the meaning of the term 'administration of justice' and came to the conclusion that while interpreting this term the wider meaning will have to be considered. Their Lordships observed :

'The expression 'administration of justice' may be an expression of wide import and may ordinarily, and in the absence of anything indicating any contrary intention, cover and include within its ambit several things as component parts of it, namely, the constitution and organisation of Courts, jurisdiction and powers of the Courts and the laws to be administered by the Courts.'

8-9. It could not be disputed that the main question which deserves consideration is as to whether the State Legislature was competent to enact the Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981, Clause 38 of the Letters Patent reads:

'38. Powers of Indian Legislatures preserved : -- And we do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the local legislature and of the Indian Legislature, and also of the Governor General in Council under section seventy-one of the* Government of India Act; and also of the Governor General under section seventy-two of that Act; and may be in all respects amended and altered thereby.'

It is clear that, this clause confers powers on the appropriate Legislature to amend as these provisions of Letters Patent, according to this clause; are subject to the legislative powers of the local legislature and the Indian Legislature. Similarly, in Article 225 of the Constitution it has' been provided :

'225. Jurisdiction of existing High Courts.--Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution : Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.'

This clearly enacts that the powers and jurisdiction of the High Courts as they existed on coming into force of this Constitution are protected subject to the provisions of the Constitution and provisions of any law enacted by the appropriate Legislature. It, therefore, clearly emerges that the power and jurisdiction which this Court entertained under Clause 10 of the Letters Patent could only be modified or taken away by a law enacted by appropriate Legislature. Before we deal with the subject on the basis of Entry 11A in List III of the Seventh Schedule of the Constitution, it is better to dispose of the contention which was advanced not seriously in respect of Entry 13 in List III. Entry 13 in List HI reads :

'13. Civil Procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration.'

It talks of civil procedure including all matters included in the Civil P.C. at the commencement of the Constitution. It is apparent that at the commencement of the Constitution, Letters Patent Appeal as contemplated in Clause 10 was not part of civil procedure nor it could be said to be included in matters in the civil procedure and, therefore, Entry 13 could not be of any assistance. Entry 46 of List III provides :

'46. Jurisdiction and powers of all courts, expect the Supreme Court, with respect to any of the matters in this List.'

Under this Entry either of the two Legislatures Central or State, could legislate about jurisdiction and powers of all courts, except the Supreme Court, but the limitation is that it could only legislate in respect of any of the matters in this List There is no other entry in this List which could be said to be a matter pertaining to the jurisdiction of the High Court in respect of Letters Patent Appeals and, therefore, even this entry could not be of any assistance in order to infer that the State Legislature when it enacted the Act referred to above was exercising powers under Entry 46. The only entry which could be referred to is Entry 11A and the learned Advocate General rightly contended that if Entry 11A could be interpreted to mean that it empowers the State Legislature to legislate about the jurisdiction of the High Court, then this Act is within the competence of the State Legislature and for this purpose the learned Advocate General rightly referred to the phrase 'administration of justice' as there could be no other entry which could empower the State Legislature to enact such a law.

9. Entry 11A of List III reads: '11A. Administration of Justice: constitution and organisation of all courts, except the Supreme Court and the High Courts.'

Learned counsel for the appellant read the entry to mean that the phrase 'except the Supreme Court and the High Courts' will control all the three things mentioned in the earlier part of the entry, i.e., administration of justice, constitution and organisation, whereas the learned Advocate General attempted to contend that this entry has to be read as 'administration of justice' independently and 'constitution and organisation of all courts except the Supreme Court and the High Courts' separately. If administration of justice, constitution and organisation all the three things are controlled by the last phrase 'except the Supreme Court and the High Courts'. Admittedly, the State Legislature will not be competent under this entry to legislate about the jurisdiction of the High Court as in that event this entry will only mean that it confers jurisdiction on the Central as well as the State Legislature to enact about constitution, organisation and jurisdiction (as it is included in administration of justice) in respect of all courts other than the Supreme Court and the High Courts. It appears that the Constitution makers have used these terms 'constitution', organisation' and jurisdiction' in different entries in the three Lists, but have significantly used the term 'administration of justice' along with constitution and organisation in Entry 11A, as it appears that in Entry 78 of List I it has been enacted -

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

Entry 95 of Last I talks of jurisdiction and powers of all Courts, except the Supreme Court, in respect of matters enumerated in this List.

Entry 95 reads

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

As regards Supreme Court, in Entry 77 of List I the phraseology used is as follows :

'77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Courts), and the fees taken therein; persons entitled to practise before the Supreme Court.'

In List II, Entry 65 has been provided which reads:

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

It talks of jurisdiction and powers of all Courts, except the Supreme Court, in respect of matters in this List. Again, in Entry 46 of List III it has been provided :

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

It is, therefore, clear that so far as the Supreme Court is concerned, Entry 77 in the Union List provides for constitution, organisation and jurisdiction, whereas as regards High Court, Entry 78 provides for constitution and organisation. Entry 95 talks of jurisdiction and powers in respect of matters in List I. Entry 65 in List II talks of jurisdiction and powers in respect of List II and Entry 46 in List III talks of jurisdiction and powers in respect of matters in List III. It is, therefore, clear that so far as the High Courts are concerned, the relevant entry is 78 of List I which empowers the Central Legislature to constitute and organise the High Courts. Entry 95 confers powers on the Central Parliament to confer jurisdiction and powers in respect of matters covered in List I. Entry 65 in List II confers authority on the State Legislature to enact to confer jurisdiction and powers in respect of matters falling within List II and Entry 46 of List III empowers the State and the Central Legislature to confer jurisdiction and powers on the High Court in respect of matters enumerated in this List. It is, therefore, clear from consideration of all these entries that so far as the High Court is concerned, Entries 78 and 95 in List I, Entry 65 in List II and Entry 46 in List HI provide completely for organisation, constitution and conferral of jurisdiction and powers on the High Court in respect of matters connected with Lists I, II and III. It could not be disputed that there could be no matters which are not enumerated in any one of these Lists and it is also not doubted that under our Constitution if there is any matter which is not covered specifically by any one of these three Lists, the residuary powers will be with the Parliament. Looking to this scheme about the constitution, organisation and conferral of jurisdiction and powers of the High Court in terms of these Entries in the three Lists enumerated above, there appears, to be nothing left out so far as the High Court is concerned which could be provided for in Entry 11A of List III which earlier was provided in Entry 3 of List II.

10. Similarly, it would be interesting to note that so far as Courts other than the High Courts and the Supreme Court, are concerned, there is no other entry except Entry 11A in List III. If the Entry 11A in List III was not there, then neither the Central nor the State Legislatures were competent to constitute, organise and confer jurisdiction on the Courts other than the High Courts and the Supreme Court. It is, therefore, plain that as Entry 11A is the only entry which confers powers on the State and the Central Legislatures to constitute, organise and confer jurisdiction and also deal with all incidental matters so far as it relates to Courts other than the High Courts and the Supreme Court and it is because of this that in this entry they have not used the word 'jurisdiction' but used a wider term 'administration of justice'. As it will be clear from the discussion above that the entries pertaining to the High Court and the Supreme Court have used terms constitution, organisation, conferral of jurisdiction and powers whereas nowhere the term administration of justice was used whereas in Entry 11A of List III the phraseology used is constitution, organisation and administration of justice. In this context if the argument advanced by the learned Advocate General is analysed that the phrase 'administration of justice' has to be read separately and is not controlled by the last part of this entry the phraseology 'except the Supreme Court and the High Courts, the it will mean that this term 'administration of justice' will cover all Courts including the Supreme Court and the High Courts. But so far as the other Courts than the Supreme Court and the High Courts are concerned, this entry only talks of constitution and organisation and in this context the term' administration of justice' as interpreted by their Lordships of the Supreme Court in State of Bombay v. Narottamdas AIR 1951 SC 69 will mean that so far as High Courts and the Supreme Court are concerned, Entry 11-A also confers powers on the two Legislatures to confer jurisdiction and powers for which separate entries already existed as has been stated above and, therefore, it clearly appears that this phraseology' administration of justice' in respect of the High Courts and the Supreme Court is mere repetition or redundancy. It is plain that these entries have to be read consistently with each other and, therefore, it could not be interpreted that when the matters about jurisdiction and powers have already been provided for in the entries quoted above separately in respect of the High Courts and the Supreme Court, 'still this phraseology was a mere repetition and in this view of the matter, therefore, it appears that the only way in which Entry, 11-A could be interpreted is that the three things 'administration of Justice', 'constitution' and 'organisation' are controlled by the last part of this entry, meaning thereby that this Entry 11A, whole of it, pertains to all Courts, except the Supreme Court and the High Courts, This matter was considered by the Supreme Court in In re Special Courts Bill AIR 1979 SC 478, where their Lordships had occasion to consider the Entry 11-A. Their Lordships observed :

' The challenge to the legislative competence of Parliament to provide for the creation of Special Courts is devoid of substance. Entry 11-A of the Concurrent List relates to 'administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Courts'. By virtue of Article 246(2), Parliament has clearly the power to make laws with respect to the constitution and organisation, that is to say, the creation and setting up of Special Courts Clause 2 of the Bill is therefore within the competence of the Parliament to enact'

11. This question was also considered by a Bench of five Judges of this Court in Abdul Taiyab v. Union of India AIR 1977 Madh Pra 116 (FB). In this case a contention was advanced on the basis of the language of the entry which now is Entry 11-A in List III which was earlier Entry 3 in List II. Paragraphs 41, 42 and 43 of the judgment read as follows :

'41. The main argument of Shri Y. S. Dharmadhikari, which was 'supported and elaborated by Shri Gulab Gupta apearing for the High Court Bar Association, Jabalpur, is that the constitution of permanent Benches is a matter falling exclusively within the State List and as such the Parliament had no jurisdiction to legislate on the subject In order to appreciate the argument, it is necessary to refer to the various entries in the three Lists in the Seventh Schedule of the Constitution having a bearing on the subject The relevant entries are reproduced below :

'List I -- Union List 77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court

78. Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Court; persons entitled to practise before the High Court

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

List II -- State List

3. 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

65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list

List III -- Concurrent List

46. Jurisdiction and power of all courts, except the Supreme Court, with respect to any of the matters in this List'

42. The contention of Shri Dharmadhikari, learned counsel for the petitioners, is that under Entry 78 of the List I, the Parliament is competent to legislate only in respect of 'constitution and organisation of the High Courts' and not its jurisdiction and powers except in relation to any of the matters in List I vide Entry 95. He referred in this connection to the language of Entry 77 which empowers the Parliament to legislate in respect of constitution, organisation, jurisdiction as well as powers of the Supreme Court He urged that since the words 'jurisdiction and powers of the High Courts' are omitted from Entry 78, it follows that the power to legislate in respect of general jurisdiction and powers of the High Court was not assigned to the Parliament except in respect of the matters falling within List I for which special provision is made in Entry 95 of List I According to him, the State Legislature alone is competent to legislate in respect of the general jurisdiction and powers of the High Court under the head 'Administration of Justice' in Entry 3 of the State List He, therefore, urged that Sub-section (2) and Sub-section (3) of Section 1 of the Act in so far as they deal with the jurisdiction and powers of the Benches of the High Court are ultra vires and, therefore, the President in exercise of his powers under Sub-section (2) of Section 51 was not competent to make any provision regarding jurisdiction of the Benches of the High Court which falls within the purview of 'Administration of Justice'.

43. In support of his arguments, Shri Dharmadhikari relied to a Jarge extent on the decision of the Supreme Court in State of Bombay v. Narottam AIR 1951 SC 69 and the decision of the Calcutta High Court in' Amarendra Nath v. Bikash Chandra AIR 1957 Cal 534 wherein the aforesaid decision of the Supreme Court was considered and discussed in detail and it was held that the State Legislature alone is competent to invest the High Court with general jurisdiction and powers in all matters civil and criminal It is, therefore, necessary to scrutinize these two decisions carefully.'

It appears that all the Judges were unanimous in holding that Entry 3 did not confer any power on the State Legislature to provide for the sitting of the High Court In this decision the following passage from the judgment in State of Bombay v. Narottamdas (supra) were quoted and followed:

'It is a fundamental principle of the construction of a constitution that every thing necessary for the exercise of powers is included in the grant of power. Every thing necessary for effective execution of power of legislation must therefore, be taken to be conferred by the constitution with that power.'

Similarly, in this judgment it was observed :

' It cannot be doubted that jurisdiction could be conferred under the local Acts of a State on the High Court and could also be withdrawn as all those matters would be covered under Item 3 (Administration of Justice) List II of the Seventh Schedule of the Constitution But what is purported to be done under Section 51(2) of the States Reorganisation Act is not conferral of jurisdiction under any special enactment of the State but it is pertaining to the constitution and reorganisation of the High Court itself. It could not be disputed that the States Reorganisation Act was passed by the Parliament exercising powers under Articles 2 and 3 of the Constitution, which runs......'

In fact, the question as is raised in this case was not precisely raised either in Abdul Taiyab v. Union of India AIR 1977 Madh Pra 116 (FB) or in any other case before their Lordships of the Supreme Court

12. In Hakim Singh v. Shiv Sagar AIR 1973 All 596 (FB) the U. P. High Court (Abolition of Letters Patent Appeals) Act (14 of 1962) came up for consideration and in this decision although their Lordships by majority held the Act to be valid but while considering it their Lordships observed :

'In case'semi colon', is replaced by'coma' or is completely disregarded, Entry 3 shall be 'administration of justice, constitution and organisation of all courts.' We speak of administration of justice in a Court and not of a Court In this view of the matter' semi colon' must be regarded as a part of the statute showing that one subject is 'administration of justice' and another is 'constitution and organisation'. It is a different thing that the two subjects are similar but each has to be considered separately.

We are alive to the difficulty that if the punctuation mark is duly considered and 'administration of justice' is regarded as a separate head, it shall be open to the State Legislature to enact a law not only in respect of the subordinate courts but in respect of High Courts and Supreme Court also. Such difficulty shall not arise if the view already expressed above is adopted, namely, that 'administration of justice? does not include the field which must be reserved for 'constitution and organisation'. Under Article 145 of the Constitution the Supreme Corut has, with the approval of the President, the power to make rules for regulating generally the practice and procedure of the Court, but such rules are subject to the provisions of any law made by Parliament In other words, the Parliament has the law making power in respect of the regulation of the practice and procedure of the Supreme Court, When this matter forms part of 'Constitution and organisation' it shall have to be excluded from 'administration of justice'. Consequently, if the expression 'administration of justice' is properly interpreted, it shall exclude within its legislative field 'practice and procedure' of the Supreme Court and also of the High Courts; and under Entry 3, List II the State Legislature shall not be competent to make any law on this subject'

Similarly, their Lordships realised the difficulty and observed:

'When constitution and organization of the High Courts' has been placed in Entry 78 of the Union List I, while 'administration of justice' without any restrictions as to courts in Entry 3 of State List II, what may be included in constitution and organisation' must be excluded from the legislative field of administration of justice', If such a view is not adopted it can be said that under the head 'administration of justice' the State Legislature can make laws for the Supreme Court also. Further, the underlying object of uniformity in the functioning of the High Courts cannot be achieved unless there are common or similar rules of practice and procedure governing them. As in the case of laws, there can be variations, within permissible limits with respect to subject matters enumerated in the respective lists and of course subject to the provisions of the Constitutioa Broadly speaking it can, therefore, be said that among other things' practice and procedure of High Courts comes within the exclusive field of 'constitution and organisation' and is excluded from the legislative field of'administration of justice.'

and ultimately what their Lordships observed was:

'When the matter is considered in this light, the Principal Act, namely, the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962, cannot be said to be ultra vires of the State Legislature which had received the assent of the President It abolished Letters Patent Appeals from the judgement or order of a single Judge of the High Court made in the exercise of the appellate jurisdiction in respect of a decree or order made by a court subject to the Superintendence of the High Court The question is whether this enactment can be placed under Civil Procedure Code. That is the only subject matter under which such a law could be made in view of the fact that Letters Patent Appeals fall withm 'constitution and organisation.' A subject which is within the exclusive competence of the Parliament'

Finally it appears that their Lordships took the view of the legislation on 'Land' and it was observed:

'To sum up, the subject matter of special Appeals (Letters Patent Appeals) to the same High Court against the decision of a single Judge of the High Court is covered by the expression' constitution and organisation' and falls in Entry 78 of Union List 1 This matter does not fall within the competence of the State Legislature. The State Legislature has, however, the power to effectively legislate on matters enumerated in the State List II and with the assent of the President in Concurrent List III of the Seventh Schedule of the Constitution of India; and for effective legislation, where the pith and substance of the enactment falls within the competence of the State Legislature, it can incidentally trench upon a matter which may otherwise be within the exclusive competence of another legislature. The Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance 1972 and the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1972 are technically speaking on a matter which is within the exclusive competence of the Parliament in that they touch a question of'constitution and organisation' of the High Court; but since such a provision was necessary for effective legislation on 'Land', it does not amount to colourable piece of legislation. Considering that the pith and substance of the legislation is within the competence of the State Legislature both the Amending Ordinance and the Amending Act are not ultra vires of the State Legislature.

The provisions thereof are not discriminatory and do not violate Article 14 of the 'Constitution. The Amending Ordinance cannot, even otherwise, be successfully challenged Both Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance, 1972 and Uttar Pradesh High Court (Abolition of Letters Patent Appeals) (Amendment) Act 1972 are valid enactments, duly enacted by the State Legislature. Therefore, no Special Appeal is maintainable against the order of the single Judge passed in a proceeding under Article 226 of the Constitution of India, to the extent it is prohibited under these enactments.'

In Rajinder Singh v. Kultar Singh AIR 1980 Punj & Har 1 (FB) their Lordships were considering the validity of Punjab Courts (Haryana Amendment) Act (20 of 1977) and relying on Hakim Singh v. Shiv Sagar AIR 1973 All 596 (FB) their Lordships ruled that this law was valid, while considering Entry 3 in List II and their Lordships also held the phrase 'administration of justice' in Entry 3 as separate from constitution and organisation of all courts except the Supreme Court and the High Courts because of the semi colon as it was observed :

'I am afraid, I find myself unable to agree with this contention of the learned counsel After the words 'Administration of Justice' in Entry 3, there is a semi-colon and this punctuation cannot be discarded as being inappropriate. The punctuation has been put with a definite object of making this topic as distinct and not having relation only to the topic that follows thereafter. If the punctuation of semi-colon is taken to be inappropriate, then the entry may read 'Administration of justice constitution and organisation of all Courts, except the Supreme Court and the High Courts.' Apparently, this would appear not only to be an absurd reading but also would make the language both faulty and ungrammatical. Hence, I find no escape from the conclusion that 'Administration of justice' occurring in Entry 3 is a distinct topic.'

It appears, therefore, that in these two decisions the logic on which reliance was placed is on the basis of, semi-colon separating 'administration of justice' from 'constitution and organisation' but this logic, in view of a detailed analytical study of all the List stated above does not appear to be correct and in these two decisions their Lordships themselves expressed that if the term 'administration of justice' is interpreted in the wider sense as it should be, then it will cover the matter about which there is a specific provision in the various Lists and also in separate Articles of the Constitution where constitution, organisation and general jurisdiction of the High Courts and the Supreme Court have been specifically provided In this view of the matter, therefore, it appears that the only way in which these entries could be interpreted is that Entry 11A only means powers of the two Legislatures in respect of Courts other than the High Courts and the Supreme Court and in this view of the matter, therefore, it appears that the only List under which power is withdrawn for passing a law like this or repealing or taking away the right of appeal conferred under the Letters Patent would be by law under Entry 78 or Entry 95 of List I. It is also pertinent to note that this jurisdiction conferred under Letters Patent is not jurisdiction conferred under any special law which could be said to be a law regarding any matter enumerated in any of these Lists At best it could only be said that it is inherent jurisdiction of the Court as has been provided for in the Letters Patent and this inherent jurisdiction could only be covered under the terms as have been used in Entry 78 of List I as constitution and organisation have been consistently interpreted to mean to do all that which is necessary and to confer jurisdiction to make the Court a complete working institutioa In this view of the matter, therefore, in our opinion, this law Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 is beyond the competence of the State Legislature as it does not fall within the ambit of Entry 11-A in List III of the Seventh Schedule of the Constitution.

13. 'It was also contended that the jurisdiction conferred under Clause 10 of the Letters Patent is not the jurisdiction conferred under any of the Acts which could be falling within the scope of any of the entries except Entry 78 in List 1 as Letters Patent is the law constituting and organising the High Court, as it reads:

'Letters Patent Constituting a High Court of Judicature at Nagpur.

George the fifth by the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas, King Defender of the Faith, Emperor of India

To all whom these Presents shall come, greetings: Whereas in the Government of India Act it was amongst other things enacted that it should be lawful for Us by Letters Patent to establish a High Court of Judicature in any territory in British India whether or not included within the limits of the local jurisdiction of another High Court and to confer on any High Court so established any such jurisdiction, powers and authority as were vested in or might be conferred on any High Court existing at the commencement of that Act:

And whereas the Province known as the Central Provinces is now subject to the jurisdiction of the Court of the Judicial Commissioner of the Central Provinces which was established by an Act of the Governor General of India in Council, being Act No. XIV of 1865, and was continued by later enactments and no part of the said province is included within the limits of the local jurisdiction of any High Court: --'

It was, therefore, contended that this right of appeal conferred under Clause 10 was the inherent jurisdiction of the High Court which was conferred while constituting and organising the High Court itself, and in exercise of powers under Entry 78 of List I. This could only be done by the Central Parliament and not by the State Legislature as it fell within the exclusive jurisdiction of the Central Parliament The phrases ' constitution' and ' organisation' of the High Courts have been considered by the Five Judge Bench of this Court in the case referred to above as it was observed :

'It is, therefore, clear that the expression 'constitution and organisation' is an expression of wide connotation holding within its ambit not merely the constitution of High Court but its establishment at a particular place with the requisite jurisdiction and powers to enable it to function as a full-fledged High Court for a particular territory. Incidentally, a part of the matter may be covered by the Entry 'administration of justice' falling within the State List but that would not make any difference to the power of the Parliament to make provision for all matters which fall within the purview of Entry 78 of the Union List'

Similarly, in the judgment it was held that Section 51(2) of the States Reorganisation Act is a matter relating to the constitution and organisation of the High' Court and which could not be said to be falling within the ambit of Entry 3 'administration of justice' in List II as it then as it has already been referred to above.

14. It is, no doubt, true that Kochikka v. Kunjipennu AIR 1961 Ker 226 (FB), Hakim Singh v. Shiv Sagar AIR 1973 A11596(FB) and Rajinder Singh v. Kultar Singh AIR 1980 Punj & Har 1 (FB) are cases where the terminology appearing in Entry 11A of List III has been interpreted to mean administration of justice separate from constitution and organisation of all Courts, except the Supreme Court and the High Courts, and the main basis of the reasoning is that by use of punctuation semi-colon after'administration of justice1 this entry in the List has been separated into two parts and administration of justice is not controlled by the last phrase 'except Supreme Court and the High Courts' but it appears that a very peculiar situation has not been examined that if administration of justice is not controlled by the last part of this Entry, then the State Legislature could even pass a law about the jurisdiction and powers of the Supreme Court which appears illogical It is significant that so far as Supreme Court and the High Courts are concerned, there are clear entries in List I, i.e. Entries 77, 78 and 95. What has been provided in Entry 77 about the Supreme Court has been provided in Entries 78 and 95 about the High Courts. It is, therefore, clear that if the phrase 'administration of justice' occurring in Entry 11A empowers the State Legislature to enact about the jurisdiction of the High Court and the Supreme Court, then it will run contrary to Entries 77 and 78 in List L

15. It is, therefore, clear that what has been understood by the use of semi-colon in Entry 11-A is rather too technical a view. In Oxford Advanced Learner's Dictionary of Current English 'semi-colon' has been explained as under:

'1 (Formal) Used to separate main clause, not (usually) joined by a conjunction, which are considered so closely connected as to belong to one sentence; The sun was setting now; the shadows were long. He had never been to Russia before; however, it has always been one of his life-long ambitions.

2. Used instead of a comma to separate from each other parts of a sentence that are already separated by commas : There are two facts to consider : first, the weather; second, the expense.'

Even reading what is understood by semicolon it appears to be clear that it is nothing better than a comma and in this context if the punctuations in Entry 11-A are examined, after 'administration of justice' semi-colon has been used, then after the phrase ' constitution and organisation of all courts' comma has been used and thereafter it is stated 'except the Supreme Court and the High Courts.' It, therefore, is difficult to understand that this will mean 'administration of justice' as a separate item and the rest as a separate item because even after constitution and organisation of all Courts' there is a comma and if what is indicated by the meaning of semi-colon or comma as referred to above, then it will mean that 'administration of justice' and 'constitution and organisation of all Courts' are two parts of the sentence and the last part 'except the Supreme Court and the High Courts' controls every thing which has been stated earlier and as discussed above, in our opinion, that only appears to be proper construction of this entry in List III.

16. The implication of comma after 'constitution and organisation of all Courts' is significant as it is clear that if there would have been no comma after 'constitution and organisation of all courts' then it could be said that this coupled with 'except the Supreme Court and the High Courts' was one complete sentence and as it is clear that comma has been used after the phrase' constitution and organisation of all Courts' it is clear that by use of this comma the sentence has been split up and the only meaning which could be attributed to the last part' except the Supreme Court and the High Courts' will mean that it governs both the paras in the sentence mentioned earlier. The significance of a comma was considered by their Lordships of the Supreme Court in Mohd. Shabbir v. State of Maharashtra AIR 1979 SC 564 where a comma was absent and their Lordships observed:

'The absence of any comma after the word 'stocks' clearly indicates that the clause 'stocks or exhibits for sale' is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, Section 27 of the Act would not be attracted'

17. 'In the light of the discussion above, therefore, in our opinion, the law affecting the inherent jurisdiction of the High Court which was conferred by Letters Patent while constituting and organising the High Court could not be taken awav by a law passed in exercise of powers under Entry 11-A of List III as admittedly the constitution and organisation which includes conferral of inherent jurisdiction would only be covered under Entry 78 of List I and, therefore, the Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 is passed by the Legislature without any authority and, therefore, is ultra vires.

18. 'In this view of the matter, therefore, the Division Bench in Letters Patent Appeal No. 1 of 1932, decided on 30th Sept 1982, does not appear to lay down good law. It is, therefore, overruled and it is held that the Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 is ultra vires and it does not take away the right of appeal granted under Clause 10 of the Letters Patent, and it is, therefore, held that the three appeals Nos. 4, 5 and 7, all of 1983, are maintainable.

C.P. Sen, J.

19. I had the privilege of going through the judgment of Hon'ble the Acting Chief Justice Shri G.L. Oza and I regret with due respect that I am unable to subscribe to the views expressed by him. The question is about the legislative competence of the State Legislature to abolish Clause 10 of the Letters Patent by the M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyara 1981, (hereinafter referred to as the Adhiniyam) which received the assent of the President and then came into force with effect from 1st July 1981.

20. The High Court of Judicature at Nagpur was constituted under the Letters Patent of His Majesty the King Emperor dated 2nd Jaa 1936 issued under Section 113 of the Government of India Act, 1915. Under the States Reorganisation Act, 1956, from 1st Nov. 1956 the High Court of Judicature at Nagpur became the High Court for the State of Madhya Pradesh with its main seat at Jabalpur. Consequently, the powers and functions of the High Court of Madhya Pradesh are referable to the Letters Patent and to the Constitution of India Clause 10 of the Letters Patent provided for appeals from decisions of single Judges in civil appellate judgments or orders to the Division Bench on a certificate of fitness granted by the Judge deciding the case. Clause 38 of the Letters Patent is quoted . hereunder : --

' And we do further ordain and declare that all the provisions of our Letters Patent are subject to the legislative powers of the local legislature and of the Indian Legislature, and also of the Governor General in Council under Section 71 of the Government of India Act; and also of the Governor General under Section 72 of that Act; and may be in all respects amended and altered thereby'.

Section 2 of the Adhiniyam abolishes appeal from judgment or order of the one Judge of the High Court made in exercise of original or appellate jurisdiction and provides that no appeal arising from a suit or proceeding which includes a writ petition under Articles 226 & 227 of the Constitution instituted or commenced, whether prior or subsequent to the commencement of this Act, shall lie to the High Court from a judgment order or decree of one Judge of the High Court made in exercise of original jurisdiction or in exercise of appellate jurisdiction in respect of a judgment order or decree made by a Court subject to the superintendence of the High Court, notwithstanding anything contained contrary in Clause 10 of the Letters Patent The question is whether this provision is intra-vires or ultra-vires of the Constitution. It will be useful to mention relevant Entries in three different Lists of the 7th Schedule of the Constitution regarding constitution, organisation, jurisdiction and power of Courts.

Union List: -- Entry No. 77 : -- Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court

Entry No. 78 :-- Constitution and organisation( including vacations) of the High Courts except provisions as to officers and* servants of High Court; persons entitled to practice before the High Courts,.

Entry No. 95 :-- Jurisdiction and powers of all Courts, except the Supreme Court with respect to any of the matters in this; Admiralty jurisdiction.

State List:-- Entry No. 3 :-- Officers and servants of the High Court; procedure in rent and revenue Courts; fees taken in all Courts except the Supreme Court

Entry No. 65 : -- Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List

Concurrent List:-- Entry No. 11-A: --Administration of justice; constitution and organisation of all Courts, except the Supreme Court and the High Courts.,

Entry No. 13 :-- Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration

Entry No. 46 : -- Jurisdiction and power of all Courts, except the Supreme Court, with respect to any of the matters in this List

In all the three Lists, there is an Entry regarding jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in that List Interpreting these Entries, the Supreme Court in In re, Special Courts Bill, 1978 AIR 1979 SC 478 has held that the operation of the three last-mentioned entries is expressly limited by a qualifying clause, which limits the field of legislation to the matters mentioned in the particular list in which the entry appears Entry 95 of List I relates to jurisdiction and powers of all Courts, except the Supreme Court, 'with respect to any of the matters in this List'. Entry 65 of List II relates to jurisdiction and powers of all Courts, except the Supreme Court 'with respect to any of the matters in this List'. Entry 46 of List III relates to jurisdiction and powers of all Courts, except the Supreme Court 'with respectto any of the matters in this List'

21. Entry No. 3 in the State List was originally as under : --

(Administration of Justice; constitution and organisation of all courts, except the Supreme Court and the High Courts). Officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court The bracketed portion has been lifted from the State List and made into Entry No. 11-A of Concurrent List by 42nd amendment of the Constitution in 1976. The Supreme Court in State of Bombay v. Narottamdas AIR 1951 SC 69 had the occasion to consider similar entries in the Act of 1935. These entries are as follows: --

Entry 53, List I: 'Jurisdiction and powers of all Courts except the Federal Court with respect to any of the matters in this List......' Entries 1 & 2, List II:- '1...... the administration of justice, constitution and organisation of all Courts except the Federal Court'

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

Entry 15, List III:-- 'Jurisdiction and powers of all Courts, with respect to any of the matters in this List'.

Interpreting the words 'administration of justice, constitution and organisation' the Supreme Court held as under: --

'The legislative power conferred on the Provincial Legislature by Item 1 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). 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 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 causes

The power conferred by Item 1 of List II is not curtailed or limited by power of legislation conferred on the two Legislatures under Items 53 of List I, 2 of List II and 15 of List III On the other hand, these three items confer on the respective Legislatures power to legislate when dealing with particular subjects within their exclusive legislative field to make laws in respect to the jurisdiction and powers of Courts that will be competent to hear causes relating to those subjects; in other words this is a power of creating special jurisdiction only.'

The Supreme Court further held : --

'The doctrine of pith and substance postulates, for its application, that the impugned law is substantially within the legislative competence of the particular legislature that made it, but only incidentally encroached upon the legislative field of another Legislature. The doctrine saves this incidental encroachment if only the law is in pith and substance within the legislative field of the particular Legislature which made it' When the vires of an enactment is challenged, and there is any difficulty in ascertaining the limits of its power, the difficulty must be resolved, so far as possible, in favour of the legislative body : Diamond Sugar Mills v. State of UP. AIR 1961 SC 652, putting the most liberal construction upon the relevant legislative entry so that it may have the widest amplitude: Navinchandra v. Commr. of LT. AIR 1955 SC 58. The entries in the different Lists should be read together without giving a narrow meaning to any of them: State of Bombay v. Balsara AIR 1951 SC 318. The powers of the Union and the State Legislatures are both expressed in precise and definite terms. There can be no reason in such a case of giving a broader interpretation to one power than to the other: Ramkrishna v. State of Bihar AIR 1963 SC 1667. In case of apparent overlapping between the Entries the doctrine of pith and, substance' has to be appointed to find out the true nature of a legislation and the Entry within which it would fall: Second G.T.O. v. Hazareth AIR 1970 SC 999. When one item is general and another specific, the latter will exclude the former: State of Bombay v. Narottamdas(Supra).

22. It is significant that in Entry No. 77 in List I, the words used are 'constitution, organisation, jurisdiction and powers of the Supreme Court' but in Entry No. 78 the words used are 'constitution and organisation (including vacations) of the High Courts. The words 'jurisdiction and powers' are missing from this Entry. So the words 'constitution and organisation' have to be given a restricted meaning and it may not cover the entire field of administration of justice which words are of a very wide connotation. The restricted meaning for the words 'constitution and organisation' is also evident by the use of words 'jurisdiction and powers of all Courts except the Supreme Court' in other Entries i.e. Entry No. 95 of List I 65 of List II and 46 of List III. According to me, the words 'administration of justice' would cover constitution, organisation, jurisdiction and powers of all Courts. So in Entry No. 11-A which is in the Concurrent List the words 'administration of justice' are qualified by a semi-colon with the words 'constitution and organisation of all courts, except the Supreme Court and the High Courts'. The use of semicolon after 'administration of Justice' means the entire administration of justice including constitution and organisation of all Courts except the Supreme Court and the High Courts is covered under this List It may be argued that if such a wide interpretation is given then the State Legislature would also have the power regarding jurisdiction and powers of the Supreme Court but this cannot be so because there is a specific Entry regarding Supreme Court which is Entry No. 77 of List I which covers the entire field of the Supreme Court, so this has to be excluded from Entry 11-A, Similarly, constitution and organisation of the Supreme Court and the High Courts are provided in Entry Nos. 77 & 78 of List 1 So Entry No. 11-A of List III provides for constitution and organisation of all courts except the Supreme Court and the High Courts. The semi-colan after the words 'administration of justice' signifies that this has to be treated as the main subject According to me, the Letters Patent appeal could be abolished under this Entry both by the State Legislature and also by the Parliament This finds support from Clause 38 of the Letters Patent which declares that all the provisions of Letters Patent are subject to the legislative powers of the local legislature and of the Indian Legislature i.e. the State Legislature and the Parliament

23. I am fortified in my view by a Full Bench decision of the Kerala High Court in Kochikka v. Kunjipennu, AIR 1961 Ker 226 wherein it has been held as under : --

'So far as the High Courts are concerned, the topic of jurisdiction and powers in general is not separately mentioned in any of the entries. But administration of justice as a distinct topic finds a place in entry 3 of List II, even though this Entry excludes constitution and organisation of the High Court, such constitution and organisation having been assigned exclusively to Parliament as per Entry 78 of List L Since the topic of administration of justice is included in the State List alone, the State Legislature is undoubtedly competent to enact a law to define and regulate the jurisdiction and power of the High Court in the matter of administration of justice.

But the State Legislature is not competent to legislate on all matters relating to the administration of justice. This power of the State Legislature has been cut down to a large extent by the express provisions contained in the Constitution itself so far as the High Court is concerned'

A Special Bench of the Calcutta High Court Pramatha Nath v. Chief Justice, H.C. Cal AIR 1961 Cal 545 has held as under: -

'The matter of organisation of the HighCourt includes primarily things like theappointment of the Judges, the division intodepartments, making provision andarrangements for the housing of the Courtsor, in other words, matters connected withthe giving of final shape to the Court so that itmay start functioning But the matter of itsrunning and management and its actualfunctioning is entrusted to the State Legislatureunder the power to legislate with respect toAdministration of Justice. Clauses 37 & 38 of theCharter establishing the Supreme Court atCalcutta, Section 9 of the High Court Act, 1861, Sections 106, 108 and 112 of the Government ofIndia Act 1915 and Section 223 of the Governmentof India Act, 1935 indicate that all along thispower to regulate the sittings was in the HighCourt Moreover, Article 225 of the Constitution'gives very clear indication that the power ofregulating the sittings of the Court is intendedto be included in the power in relation to'Administration of Justice'. Logically thereforethe same power was not intended to beincluded in the subject of 'organisation' asoccurring in item 78 of List I, This appears tobe the reasonable interpretation which shouldbe adopted in avoiding overlapping and conflictbetween Entry 3 of List II and Entry 78 of ListI.'

A Full Bench of the Punjab & Haryana High Court in Rajinder Singh v. Kultar Singh, AIR 1980 Punj & Har 1 has held as under :-

'So far as the High Courts are concerned, the topic of jurisdiction and powers in general is not separately mentioned in any of the entries of List I but 'Administration of Justice' as a distinct topic finds a place in Entry 3 of List II (now entry 11-A of List III).

The expression' Administration of Justice' occurring in entry 3 of List II of the 7th Schedule has to be construed in its widest sense so as to give power to the State Legislature to legislate on all matters relating to administration of justice.

After the words 'Administration of justice' in entry 3 there is a semi-colan and this punctuation cannot be discarded as being inappropriate. The punctuation has b.een put with a definite object of making this topic as distinct and not having relation only to the topic that follows thereafter. Under entry 78 of List I, the topic of jurisdiction and powers of the High Courts is not dealt with. Under entry 3 of List 2 the State Legislature can. confer jurisdiction and powers or restrict or withdraw the jurisdiction and powers already conferred on any of the Courts except the Supreme Court, in respect of any statute. Therefore, the State Legislature has the power to make a law with respect to the jurisdiction and powers of the High Court'

I am also supported in my view by the Division Bench decision of this Court in Balkrishna Das v. Sadhusingh. LPA No. 1 of 1982, D/- 30-9-1982 wherein it has been held as follows :--

'The expression 'Jurisdiction and power1 occurring in entry No. 46 has been construed by the Supreme Court in In re, Special Courts Bill 1978, AIR 1979 SC 478 to confer legislative power for the purpose of regulating the right of appeal or in other words conferral or withdrawal of a right of appeal Accordingly, entry No, 46 in List III read with entry 11-A and entry 13 (herein is sufficient to confer concurrent power on the Parliament as well as State Legislatures to enact a law regulating the right of appeal in the High Court under the Letters Patent Section 100A introduced in the Code of Civil Procedure by an amendment made in 1976 by the Parliament, abolished Letters Patent Appeals arising out of judgments in second appeals and the remaining Letters Patent Appeals provided by Clause 10 of the Letters Patent have been abolished by the State enactment This is within the competence of the State legislature, the power to legislate In respect of entries in List III being concurrent with the only further requirement of obtaining the assent of the President under Article 254 of the Constitution. The MR Act No. 29 of 1981 abolishing the remaining Letters Patent Appeals in this State has received the assent of the President under Article 254(2) of the Constitution and is, therefore, a valid piece of legislation.'

24. However, the learned Acting Chief Justice has opined that it is difficult to understand that by using semi-colan after the words 'administration of justice' in Entry 11-A of List III, this will mean 'administration of justice' as a separate item and the rest as a separate item because even after 'constitution and organisation of all courts' there is a comma and if what is indicated by the meaning of semi-colan or comma as referred to above, then it will mean that 'administration of justice' and' constitution and organisation of all courts' are two pans of the sentence and the last part 'except the Supreme Court and the High Courts'' controls every thing which has been stated earlier and, in our opinion, that only appears to be proper construction of this entry in List III The implication of comma after 'constitution and organisation of all courts' is significant as it is clear that if there would have been no comma after ' constitution and organisation of all courts' then it could be said that this coupled with 'except the'Supreme Court and the High Courts' was one complete sentence and as it is clear that comma has been used after the phrase 'constitution and organisation of all courts' it is clear that by use of this comma the sentence has been split up and the only meaning which couid be attributed to the last part'except the Supreme Court and the High Courts' will mean that it governs both the parts in the sentence mentioned earlier. In the light of the discussion above, in our opinion, the law affecting the inherent jurisdiction of the High Court which ( was conferred by Letters Patent white construing and organising the High Court could not be taken away by a law passed in exercise of powers under Entry IIA of List III as admittedly the constitution and organisation which includes conferral of inherent jurisdiction would only be covered under Entry 78 of List I and, therefore, the MP. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniam, 1981, passed by the Legislature is without any authority and, therefore, is ultra vires Therefore, the learned Acting Chief Justice is of the view that under Entry 78 read with Entry 95 of List I only Letters Patent Appeal could be abolished by the Parliament and not by the State legislature since residuary powers are with the Parliament. All the entries have to be read harmoniously. Since there is no specific entry regarding courts other than the Supreme Court and the High Courts it has to be held that Entry 11-A of the Concurrent List is only concerning these Courts, that is why in the entry there is a mention 'except the Supreme Court and the High Courts'. So the only general entries left under which Letters Patent could be abolished are Entries 78 and 95 of List I. If that was so, Entry 11-A would have been' administration of justice, except the Supreme Court and the High Courts'. It may be mentioned that it has not been considered that in Entry No. 78 the ward 'jurisdiction' 'has not been used though it has been used in the earlier entry so far as the Supreme Court is concerned which means that the words 'constitution and organisation' have to be given restricted meaning and it should not include jurisdiction and powers of the Courts, though under Entries 78 read with 95 the Parliament is also competent to define the territorial and pecuniary jurisdiction of the High Courts while constituting and organising High Court or its Benches, As has been observed by the Supreme Court in State of Bombay v. Narottamdas (AIR 1951 SC 69) (supra) that 'constitution and organisation' carries with it the concept of some general jurisdiction considering that the courts of taw duly established cannot function unless some general jurisdiction is conferred on them. According to me, the Parliament has also power to abolish Letters Patent Appeal as has already been done so far as Letters Patent Appeals lay under CP.C by inserting Section 100A by amending Act Na 104/76. Now in view of Section 100A of the Code and Section 2 of the Adhiniyam Letters Patent Appeals have altogether been abolished

25. The view taken by the learned Acting Chief Justice finds support from the Full Bench decision of the Allahabad High Court in Hakim Singh v. Shiv Sagar, AIR 1973 All 596 wherein it has been held that the subject-matter of Special Appeals (Letters Patent Appeals) to the same High Court against the decision of a single Judge of the High Court is covered by the expression 'constitution and organisation' and falls in Entry 78 of Union List I This matter does not fall within the competence of the State Legislature. The Slate Legislature has, however, the power to effectively legislate on matters enumerated in the State List II and with the assent of the President in Concurrent List III of the Seventh Schedule of the Constitution of India; and for effective legislation, where the pith and substance of the enactment falls within the competence of the State Legislature, it can incidentally trench upon a matter which may otherwise be within the exclusive competence of another legislature. The U.P. High Court (Abolition of Letters Patent Appeals), (Amendment) Ordinance, 1972 and the UP. High Court (Abolition of Letters Patent Appeals (Amendment) Act, 1972 are technically speaking on a matter which is within the exclusive competence of the Parliament in that they touch a question of constitution and organisation' of the High Court but since such a provision was necessary for effective legislation of 'land', it does not amount to colourable piece of legislatioa Considering that the pith and substance of the legislation is within the competence of the State Legislature both the Amending Ordinance and the Amending Act are not ultra vires of the State Legislature. The Allahabad High Court was considering the validity of UP. High Court (Abolition of Letters Patent Appeals) Act, 1962, and the U.P. High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance 1972 and Amendment Act of 1971 Under the principal Act, Letters Patent Appeals have been abolished against the judgment of a single Judge in second appeal or in first appeal while by the amendment Ordinance and the Act Letters Patent Appeals against the order of single judge's proceedings under Articles 226 & 227 of the Constitution arising out of the orders of Board of Revenue and the Director of Consolidation under the land legislation detailed thereunder have been abolished The validity of the principal Act has been upheld as being covered by Entry No. 13 of the Concurrent List Le. Civil Procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constituvion, limitation and arbitratioa In view of this decision, abolition of Letters Patent Appeals by the Adhiniyam can be justified under Entry No. 13 also i.e. regarding Civil Procedure in the Concurrent List The learned Acting Chief Justice has also relied on a Full Bench decision of this Court in Abdul Taiyab v. Union of India, AIR 1977 Madh Pra 116. The majority view was of G.L. Oza, J. (as he then was) while the minority view was of Raina, J. The Bench was considering the validity of the Presidential Notification dated 18th Nov. 1968 regarding constitution and defining territorial jurisdiction of the Benches at Indore and Gwalior under the States Reorganisation Act, 1956. The majority view was that under Section 51(2) of the Slates Reorganisation Act the President may after consultation with the Governor and the Chief Justice of the High Court establish permanent Benches and the Parliament had the legislative competence to provide tor the enactment under Articles 2 to 4 read with Entries 78 & 95 of List I of the Constitution, while the minority view was that the words in Entry No 78 'constitution and organisation of High Courts? are wide enough to include jurisdiction and powers of High Court which are necessary to clothe the High Court to enable it to function as an effective judicial organ of the State which means conferring territorial jurisdiction on the Benches That was a case under the States Reorganisation Act regarding establishment of permanent Benches of the M.P. High Court and defining their territorial jurisdiction. The majority view did consider Entry No. 3 of the State List (which was subsequently split up and pan of which is now Entry No. 11-A of the Concurrent List) and held jurisdiction could be conferred under the local Acts of a State on the High Court and could also be withdrawn as all those matters would be covered under Item 3 'Administration of Justice' of List II of the Seventh' Schedule of the Constitution. It may be mentioned that the words 'Administration of Justice; constitution and organisation of all courts, except the Supreme Court and the High Courts' were lifted from this Entry and has been made into Entry No. 11A of the Concurrent List

26. Therefore, I am of the opinion that abolition of Letters Patent Appeal under Section 2 of the Adhiniyam is intra vires of the Constitution and is within the competence of the State Legislature. This opinion is also regarding connected Company Appeal Nos. 4/83 and 7/83.

B.M. Lal, J.

27. I have had the advantage of perusing the judgments which have been written by the Hon'ble the Chief Justice, Shri G. L Oza and Hon'ble Shri Justice C.P. Sea No doubt, they have dealt with the controversy in issue very exhaustively considering all the relevant provisions of the Constitution of India and the authorities right from different High Courts of the country to the Supreme Court of India but with due respect to the view expressed by Hon'ble Shri C.P. Sen, J., I find myself unable to agree with them and the findings expressed and reached by him. However, agreeing with the views expressed and conclusion reached by the Hon'ble the Chief Justice, Shri G.L. Oza, I would like to express my own views as according to me, the question that has arisen for consideration is of great public importance and of first impression

28. At the very outset, I must state that I am of the opinion that when the vires of a progressive enactment is challenged and there is any difficulty in ascertaining the limits of its powers, the difficulty must be resolved giving harmonious constructions to the relevant entries of Schedule VII of the Constitution of India so far as it is possible in favour of the legislative body putting the most liberal construction upon the relevant entry so that it may have the widest amplitude and its declaring ultra vires may not lead to suffer the poor masses whose interests are likely to be affected adversely in our welfare State which is of a democratic set up.

29. But in the case in hand, what I see is that while enacting the M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981, the age old rights guaranteed to the litigants (aggrieved party) have been taken away in hot haste advice under the zeal of bulk disposals departing from the normal norms L e. listening the cases patiently, giving deep thinking wisely and judging impartially. In this way, the rights of the litigants have been snatched away and as such, by the above referred enactment, now, against the judgment of a single Judge, no appeal would lie before a Division Bench of this Couri. Thus, the poor litigants who are not financially well off are prevented to go to the Supreme Court to get the wrong done to them redressed In this way, their valuable rights have been abridged as compared to rich people who could readily afford to go to the Supreme Court Therefore, I am of the opinion that this piece of legislation cannot be said to be a progressive legislation and with this angle, I will examine the Legislative competence of the State Legislature which has enacted the M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981.

30. Facts leading to this petition have been discussed in detail by the Hon'ble the Chief Justice and Hon'ble Shri Justice Sen and it is, therefore, not necessary for me to repeat them again. Therefore, I would like to discuss the real point in issue directly without referring to the facts in detail.

31. The sole question before us is as to whether a right of appeal conferred under Clause 10 of the Letters Patent of Nagpur High Court could be taken away by the State Legislature by enacting the M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, -1981 which received the assent of the President of India on 21-6-1981.

32. The validity and the competence of the State Legislature by enacting the above referred Adhiniyam came for hearing before the Division Bench of this Court on 30-9-1982 which has dismissed the L.P.A. No. 1 of 1982 in motion hearing, holding that the State Legislature is fully competent, in view of the provisions of Schedule VII, List III, Entry No. 11A read with Entry No. 46, to enact the Adhiniyam referred to above. This case was pointed out by the learned counsel appearing for the appellant who was challenging the vires of the Adhiniyam. Therefore, the question for decision was referred to the Larger Bench and that is how this Full Bench was constituted and the matter placed before us, for decision.

33. Now, I see that the High Court of Judicature at Nagpur was established under Letters Patent Appeal of King Emperor on 2-1-1936 which was issued under Section 113 of the Government of India Act, 1915 and after Reorganisation of the States which took place on 1-11-1956, the Nagpur High Court became the High Court of Madhya Pradesh at Jabalpur. Clause 10 of the Letters Patent Appeal provides for appeal from the decision of a Single Judge to the Division Bench. Now, before discussing the competence of the State Legislature, I have to see whether there is any provision in Letters Patent Appeals which empowers the Legislature to amend the provision contained in Letters Patent Appeals. I see that Clause 38 of the Letters Patent Appeals provides that appropriate legislature could amend the provisions of Letters Patent Appeals. Therefore, now I have to consider as to which is the appropriate Legislature i.e. the Central Legislature or the State Legislature which could amend it suitably or repeal it In this connection, I see that provisions of Article 225 of the Constitution of India contemplate jurisdiction of the High Court and it further says that the powers of the High Court are protected subject to the provisions of the Constitution and provisions of any law enacted by the appropriate Legislature. Therefore, I reach the conclusion that powers and jurisdiction of the High Court under Clause 10 of the Letters Patent Appeals could only be altered or taken away by the competent Legislature alone.

34. Now, after considering the relevant entries enumerated in Lists I, II and III of Sen. VII of the Constitution of India, I have to see which entry is relevant and directly deals and gives legislative power relating to constitution and organisation of the High Court To consider the relevant entries, it is necessary to refer the relevant entries of Lists I, II and Hi The relevant entries of List I, Schedule VII are as under:--

Schedule VII

List I -- Union List Entry No. 77 :--Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court

Entry No. 78 :-- Constitution and organisation(including vacations) of the High Courts except provisions as to officers and servants of High Court; persons entitled to practice before the High Courts

Entry No. 95 :-- Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this; Admiralty jurisdictioa

Entry No. 77 relates to Supreme Court and Entry No. 78 deals; directly with the constitution and organisation of the High Courts. By this entry, the Union is given exclusive power over the constitution and organisation of the High Courts. By virtue of Articles 216 and 217 of the Constitution, the constitution of High Courts and the power of appointment of the High Court Judges have been vested in the President The power over constitution of the High Courts is given to Parliament for the sake of uniformity.

35. The relevant entries of List II of Sch. VII are as under: --

State List:-- Entry No. 3 :-- Officers and servants of the High Courts; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court Before 42nd Amendment Act, 1976, 'Administration of Justice' in general was a State subject in Entry No. 3 but after 42nd amendment, the words 'Administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Court' have been deleted from Entry No. 3 of List II and engrafted as a new entry vide Entry No. 11A of List III by 42nd Amendment Act, 1976. But this entry also says 'except the Supreme Court and the high Courts'. As far as Entry No. 65 of List II is concerned, it only discusses jurisdiction and powers of all Courts, except the Supreme Court

36. The relevant entries of List III of Sch, VII are as under: --

Concurrent List:-- Entry No. 11A. : --Administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Courts.

Entry No. 13:-- Civil procedure, including ail matters, included in Code of Civil Procedure ai the commencement of this Constitution, limitation and arbitratioa

Entry No. 46 :-- Jurisdiction and power of all courts, except the Supreme Court, with respect to any of the matters in this List

I see that initially 'Administration of justice' in general was a State subject in Entry No. 3 of List II of Schedule VII till 42nd amendment of 1976. But now the words.' Administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Courts have been deleted from Entry No. 3 of List II and engrafted as new entry vide, Entry No. 11A in List III by 42nd amendment of 1976. But a bare reading of Entry No. 11A will show that it says, 'except the Supreme Court and the High Courts'. Hence, under List III, by virtue of Article 254 of the Constitution even the State Legislature has no legislative powsr to legislate any law for the simple reason that the jurisdiction to legislate any law relating to Supreme Court and the High Courts is curtailed by the word 'except'. However, I see that the words 'Jurisdiction and power' also appear in Entry No. 46 as well But in my opinion where there is apparent overlapping between two entries then the real intention of the Legislature is to be judged by reading all the relevant entries together. In this context, Entry No. 11-A excludes the jurisdiction of the Supreme Court and the High Courts whereas Entry No. 46 gives 'jurisdiction and power of all courts'. Hence, the words 'all courts' also mean 'except High Courts' otherwise, there was no necessity to mention 'except the Supreme Court and the High Courts' in Entry No. 11 A. Therefore, I am of the opinion that Entry No. 46 only gives jurisdiction to legislate any law relating to subordinate Courts except the High Courts and, therefore, Entry No. 46 is no aid to legislate any law like the present one which is under challenge.

37. In this reference, an' identical matter was considered by the Allahabad High Court in which the validity of enacting UP. High Court (Abolition of Letters Patent Appeals) (Amendment) Ordinance(U.P. Ordinance 12 of 1972 and the UP. High Courts (Abolition of Letters Patent Appeals) Act( 14 of 1962) (as amended by UP. High Court (Abolition of Letters Patent Appeals) (Amendment! Ordinance (UP. Ordinance 12 of 1972) later replaced by U.P. High Court (Abolition of Letters Patent Appeals) (Amendment) Act (32 of 1972) were under challenge, Hon'ble D.S. Mathur, J. speaking for the Bench said in para 35 of the judgment; delivered in Hakim Singhv. Shiv Sagar AIR 1973 All 596 (FB) as under: --

'Broadly speaking, it can be laid down that in the case of two competing or overlapping entries existing in different Lists both not being within the legislative competence qf the same legislature, each entry must be given its widest amplitude consistent with the reservation of a field of legislation for another entry, and the width of such interpretation be not such as to make either of the entries a nullity or to unreasonably cut down the amplitude thereof In the case of such competing entries the field of legislation for an entry which can be regarded as special and not general, shall exclude the field of a general entry and in order not to make any of the entries futile or otiose, such amplitude may be given to the special entry as not to unduly reduce the scope of the general entry. The scope of the special entry can be restricted to matters which must be comprehended therein. It shall thereby be possible to maintain the scope of a general entry which must be given the widest amplitude and at the same time the special entry shall cover matters which must be included in such entry.'

While considering this identical matter by the Allahabad High Court, all the aspects of the entries of Sch. VII were considered and Allahabad High Court held that. State Legislature is not competent to pass such legislation which squarely and specifically falls within the ambit of Entry No. 78 of List I of Schedule VII (See Hakim Singh's case) (supra).

38. Therefore. I am of the view that the passing of such enactment relating to M.P. Uchcha Nyayalaya (Letters Patent Appeals, Samapti) Adhiniyam, 1981, comes within the four corners of Entry No. 78 of List I and the Entry No. 11A read with Entry No 46 of List III is of no assistance for the reasons stated by me above which specifically excludes the jurisdiction of the Supreme Court and the High Courts, Therefore, I am of the opinion that the State Legislature is not competent to enact the M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 and hence I, concurring with the views expressed by Hon'ble the Chief Justice, declare it ultra vires of the Constitution of India

39. Consequently, it is declared that the rights of the Letters Patent Appeal guaranteed under Clause 10 of the Letters Patent Appeal, still survive.

FINAL


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