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D. Gobalousamy and anr. Vs. the Union Territory of Pondicherry and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberWrit Petn. Nos. 2634 of 1966 and 3294 of 1968 (P)
Judge
Reported inAIR1970Mad419
ActsPondicherry Civil Courts Act, 1966 - Sections 6; Government of Union Territories Act, 1963 - Sections 18; Constitution of India - Articles 239A and 248
AppellantD. Gobalousamy and anr.
RespondentThe Union Territory of Pondicherry and ors.
Appellant AdvocateN. Arunachalam, Adv.
Respondent AdvocateM.K. Nambiar, Adv. for Govt. Pleader for Pondicherry and ;Habibullah Bedshe, Adv.
Excerpt:
.....for pondicherry and a council of ministers provided. while investing the legislative assembly of a union territory with power to make laws with respect to matters enumerated in the state and concurrent lists, the overriding power of parliament under article 246(4) is indicated by section 18(2) of the act. under section 18 of act xx of 1963, parliament has invested the legislative assembly of pondicherry with power to make laws with respect to any of the matters enumerated in the state and concurrent lists of the seventh schedule to the constitution. entry 3 of the state list in vii schedule, covers legislation with respect to administration of justice, constitution and organisation of all courts except the supreme court and the high court, officers and servants of the high..........and received the assent of the president on 21st october, 1966. it extends to the whole of the union territory of pondicherry and section 1(3) of the act provides that it shall come into force on such date as the government may by notification in the official gazette, appoint. different provisions of the act may be brought into force on different dates. the scheme of the enactment, in the main, is to substitute for the tribunal superieurd' appeal, courts of tribunal declare instance and judge de paix, courts exercising civil jurisdiction, courts of district judge, subordinate judge and munsif respectively. certain transitory provisions are made and certain special provisions are enacted for pending proceedings. in substance, the old judicial system is sought to be abolished and the.....
Judgment:
1. In these related petitions under Article 226 of the Constitution, the validity of the Pondicherry Civil Courts Act, XII of 1966 is challenged. W.P. No. 2634 of 1966 has been filed by D. Gobalousamy, Advocate Council and President of the Bar Association, Pondicherry and W.P. No. 3294 of 1968 by J. Gnany, President of the Court of First instance, Pondicherry, who, besides attacking the validity of the Act on general grounds, raises grounds personal to him.

2. The impugned Act was passed by the Legislative Assembly of Pondicherry, and received the assent of the President on 21st October, 1966. It extends to the whole of the Union Territory of Pondicherry and Section 1(3) of the Act provides that it shall come into force on such date as the Government may by notification in the Official Gazette, appoint. Different provisions of the Act may be brought into force on different dates. The scheme of the enactment, in the main, is to substitute for the Tribunal Superieurd' Appeal, Courts of Tribunal declare instance and Judge de Paix, Courts exercising civil Jurisdiction, Courts of District Judge, Subordinate Judge and Munsif respectively. Certain transitory provisions are made and certain special provisions are enacted for pending proceedings. In substance, the old judicial system is sought to be abolished and the judicial system with its hierarchy of Courts prevailing in the neighbouring States substituted. While the affidavit in support of the petition covers a wide ground of attack on the validity of the Act the arguments before us are confined within very narrow limits. The competency of the Pondicherry Legislative Assembly to enact the Civil Courts Act and particularly Section 6 of the Act which Indicates in the new set up the successor Courts under the Act to the existing Courts is questioned. It is submitted that the Legislative power for the enactment is to be found only under Entry 3 of the State List, and that, under Article 246(4), Parliament and Parliament alone has power to make laws with respect to any matter in the State List for the Union Territories. On the premises it is argued that there has been an unconstitutional delegation by Parliament of legislative powers when under the Government of Union Territories Act XX of 1963, it invested the Legislative Assembly for the Union Territory of Pondicherry legislative powers with respect to entries in the State List of the VII Schedule to the Constitution. Virtually what is questioned is the related provisions of Act XX of 1963, the contention being that there under there has been an abdication of Legislative power by Parliament.

3. Article 246 which distributes the legislative powers between the Parliament and State Legislatures, invests, under Article 246(4), Parliament with plenary power of legislation for the Union Territories with regard to any subject. Under that Article, Parliament has power to make laws with respect to any matter for any part of the territory of India not Included in a State notwithstanding that such matter is a matter enumerated in the State List. While exclusive power to legislate with respect to the matters enumerated in the State List is assigned under Article 246(3) to Legislatures of States specified in the First Schedule to the Constitution, there is no distribution of legislative power specifically to Legislative Assemblies of Union Territories in Part XI of the Constitution and the power to legislate for Union Territories even with respect to matters enumerated in the State List is found in Parliament under Article 246(4). But Article 246(4) has to be read along with Article 239A inserted by the Constitution (14th Amendment) Act of 1962, Article 239A invests Parliament with power to constitute local Legislatures or Council of Ministers or both for certain Union Territories. It runs thus:--

"(1) Parliament may by law create for any of the Union Territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry, --

(a) a body, whether elected or partly nominated and partly elected, to function as Legislature for the Union Territory, or

(b) a Council of Ministers, or both with such constitution, powers and functions, in each case, may be specified in the law.

(2) Any such law as is referred to in Clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution."

In enacting Act XX of 1963, Parliament has only exercised the power invested on St by the Constitution under Article 239A. Under Act XX of 1963, a Legislative Assembly has been created for Pondicherry and a Council of Ministers provided. Section 18 of the Act which defines the legislative power of the Legislative Assembly of a Union Territory reads:--

"(1) Subject to the provisions of this Act, the Legislative Assembly of a Union Territory may make laws for the whole or any part of the Union Territory with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution in so far as any such matter is applicable in relation to Union Territories.

(2) Nothing In Sub-section (1) shall derogate from the powers conferred on Parliament by the Constitution to make laws with respect to any matter for a Union Territory or any part thereof."

While investing the Legislative Assembly of a Union Territory with power to make laws with respect to matters enumerated in the State and Concurrent Lists, the overriding power of Parliament under Article 246(4) is indicated by Section 18(2) of the Act. It is provided by the subsection that even after the Legislative Assembly is created for a Union Territory, Parliament shall possess paramount power of legislation with respect to any matter for a Union Territory or part thereof.

Manifestly, acting under Article 239A of the Constitution, Parliament, creating a Legislative Assembly for a Union Territory, can invest it with such powers and functions as by law it chooses to specify. Now, under Section 18 of Act XX of 1863, Parliament has invested the Legislative Assembly of Pondicherry with power to make laws with respect to any of the matters enumerated In the 'State' and 'Concurrent' Lists of the Seventh Schedule to the Constitution. Entry 3 of the State List in the VII Schedule covers legislation with respect to 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 and fees taken in all Courts except the Supreme Court. It is admitted that the topic of legislation of the impugned Pondicherry Civil Courts Act falls under Entry 3 of the State List. Indubitably, if the Pondicherry Legislative Assembly has power to enact laws with respect to matters in the State List, it has the requisite legislative power to pass the Civil Courts Act now impugned. To confine the powers of legislation with reference to Union Territories to Parliament alone, is to wholly ignore the Constitution 14th Amendment Act, When Parliament, pursuant to the power vested In it under the Constitution, provided by law a Legislative Assembly for the Union Territory of Pondicherry and Invested the Legislature with certain legislative powers, it is a misconception to refer to such investiture of legislative power as abdication by Parliament of its power of legislation under Article 246(4). Nor can the due exercise by Parliament of its power under Article 239A be referred to as unconstitutional delegation. The legislative power of Parliament to enact Act XX of 1963 and particularly Section 18 therein is unassailable. It is found in Article 239A read with Article 248 and Entry 97 of the Union List The several provisions in the Constitution have to be read harmoniously and, the significant provision, Clause (2) of Article 239A has to be kept in mind. By virtue of the clause, even If a law made by Parliament creating local Legislature for a Union Territory and investing it with legislative power 'contains provisions which amends or has the effect of amending the Constitution', any such law shall not be deemed to be an amendment ol the Constitution for the purpose of Article 368. It is pertinent in this context to refer also to Section 21 of Act XX of 1963 which deals with inconsistencies between laws made by Parliament and those made by Legislative Assembly. Section 21 reads:---

"If any provision of law made by the Legislative Assembly of a Union Territory is repugnant to any provision of law made by Parliament, then, the law made by Parliament, whether passed before or after the law made by the Legislative Assembly of the Union Territory, shall prevail and the law made by the Legislative Assembly of the Union Territory shall, to the extent of the repugnancy, be void.

Explanation-- For the purposes of this section, the expression "law made by Parliament" shall not include any law which provides for the extension to the Union Territory of any law In force in any other part of the territory of India or any law made before the commencement of this Act, In relation to any matter with respect to which the Legislative Assembly of the Union Territory has power to make laws."

The second limb of the Explanation to Section 21 answers the contention that the impugned Pondicherry Act XII of 1966 in general and Section 6 of the Act In particular are violations of related existing law of the Centre with reference to Pondicherry.

4. It is next urged that Article 239A empowers Parliament to create by law a body to function as a Legislature for a Union Territory only with such constitution, power and functions, as may be specified in the law, but that Section 18 of Act XX of 1963 invests a Legislative Assembly thus created with power to make laws in respect of any matter enumerated in the State Last and Concurrent List of the VII Schedule in so far as any such matter is applicable to a Union Territory. The argument is that, when all the topics of legislation under the State List and Concurrent Lists are given to a Legislative Assembly thus created, it is not a specification of powers which is what Article 239A provides for. Learned counsel would contend that Parliament, under Article 239A, is expected to select particular topics of legislation from the Lists and invest the Legislative Assembly of a Union Territory legislative power with respect to them only and not to delegate power of legislation over all the topics in the Lists According to counsel, to specify certain power, is not to grant power wholesale or in general. We are unable to appreciate the force of this contention. As we have indicated supra, under Article 246 there is no distribution of legislative power to a Legislative body of a Union Territory. Legislative powers are found scheduled under three different Lists, 'Union', 'State' and 'Concurrent' Lists. What Article 239A plainly provides is that the law, which creates a legislative body, should itself mention the powers of the legislative body. The law Itself must define its constitution, powers and functions. Webster's New 20th Century Dictionary gives the following meanings to the word 'specify':

"to mention, describe, or define in detail; to state definitely; to include as an Item in a set of specifications; to state explicitly as a condition."

There is no limitation on Parliament under Article 239A, that in mentioning or denning the powers of the legislative body which the Parliament has created, it should not vest the body with all powers it could but should select and invest the body with some only of the topics for legislation. The petitioners seek to read in Section 18 of the Act XX of 1963 an infraction of the Constitution for which there is no warrant. It follows that the argument that Section 18 of the Act XX of 1963 is beyond the powers of Parliament under Article 239A is devoid of merits, and the Pondicherry Civil Courts Act, Act XII of 1966, is a valid enactment within the legislative competency of the Legislative cAssembly of Pondicherry.

5. W.P. No. 2634 of 1966, filed by the President of the Bar Association, Pondicherry fails and is dismissed. The rule nisi is discharged. There will be no order as to costs. W.P. No. 3294 of 1968, wherein the President of the Court of First Instance, Pondicherry, has raised certain contentions special to him, will be heard on the merits.


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