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Amarendra Nath Roy Chowdhury Vs. Bikash Chandra Ghose and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberMatter No. 29 of 1957
Judge
Reported inAIR1957Cal534,61CWN630
ActsCode of Civil Procedure (CPC) , 1908 - Order 37; ;Constitution of India - Articles 14, 245 and 246; ;Calcutta City Civil Court Act, 1953 - Sections 3, 4 and 19; ;Bengal General Clauses Act, 1899 - Section 23; ;General Clauses Act, 1897 - Section 23
AppellantAmarendra Nath Roy Chowdhury
RespondentBikash Chandra Ghose and anr.
Appellant AdvocateG.P. Kar, Adv.
Respondent AdvocateR.C. Deb, Adv.
DispositionApplication dismissed
Cases ReferredPrafulla Kumar v. Bank of Commerce Ltd.
Excerpt:
- ordersinha, j. 1. the petitioner in this case challenges the validity of the city civil court act, being west bengal act xxi of 1953, which was passed by the west bengal legislature and has received the assent of the president, such assent being published in the calcutta gazette, extraordinary, dated the 1st september 1953. it is stated to be an act to establish an additional civil court for the city of calcutta. it is to be called the city civil court act, 1953, and was to come into force on such date as the state government might by notification in the official gazette, appoint. for the purposes of this application the following provisions of the act are important:---''3. (1). the state government may, by notification in the official gazette, establish a civil court to be called the.....
Judgment:
ORDER

Sinha, J.

1. The petitioner in this case challenges the validity of the City Civil Court Act, being West Bengal Act XXI of 1953, which was passed by the West Bengal Legislature and has received the assent of the President, such assent being published in the Calcutta Gazette, Extraordinary, dated the 1st September 1953. It is stated to be an Act to establish an additional Civil Court for the City of Calcutta. It is to be called the City Civil Court Act, 1953, and was to come into force on such date as the State Government might by notification in the Official Gazette, appoint. For the purposes of this application the following provisions of the Act are important:---

''3. (1). The State Government may, by notification in the Official Gazette, establish a Civil Court to be called the City Civil Court.

(2). The City Civil Court shall be deemed to be a Court subordinate to and subject to the superintendence o the High Court within the meaning of the Letters Patent for the High Court and of the Code of Civil Procedure, 1908.

4. (1). There shall be appointed a Chief Judge of the City Civil Court and as many other Judges of that Court as the State Government thinks fit.

(2). Each of the Judges of the City Civil Court may exercise all or any of the powers conferred on that Court by this Act or by any other law tor the time being in force.

5. (1). The local limits of the jurisdiction of the City Civil Court shall be the City of Calcutta.

(2). Subject to the provisions of Sub-section (3) and (4), and of Section 9, the City Civil Court shall have jurisdiction and the High Court shall not have jurisdiction to try suits and proceedings of a civil nature, not exceeding rupees ten thousand in value.

(3). The City Civil Court shall have jurisdiction and the High Court shall not have jurisdiction to try any proceedings under -

(i). the Guardians and Wards Act, 1890, and (ii). Part X of the Indian Succession Act, 1925, in respect of succession certificates. (4). The City Civil Court shall not have jurisdiction to try suit and proceedings of the description specified in the First Schedule.

(5). All suits and proceedings which are not triable by the City Civil Court shall continue to be triable by the High Court or the Small Cause Court or any other Court, tribunal or authority, as the case may be, as heretobefore.'

2. It will be necessary to deal with the First Schedule in some detail later on. It is sufficient to mention here that under Item 5 of the First Schedule, suits and proceedings exceeding Rs, 5,000 in value relating to or arising out of, bills of exchange, hun-dis or other negotiable securities for money as well as letters of credit or letters of advice are excluded from the jurisdiction of the City Civil Court; but suits and proceedings relating to or arising out of, cheques, promissory notes not exceeding Rs. 10,000 in value, which would otherwise have been tried in the Ordinary Original Civil Jurisdiction of the High Court of Calcutta, will now be tried and determined by the City Civil Court. Tho petitioner states that he intends to file a suit under O. XXXVII of the Code of Civil Procedure for a sum of Rs. 3,500 based upon a promissory note, in this High Court in its Ordinary Original Civil Jurisdiction. He says that his plaint is ready but he has been' prevented from filing the suit because of the provisions of the City Civil Court) Act. The petitioner also challenges the appointment ofi the respt. Sri Bikash Chandra Ghose, Chief Judga of the City Civil Court, on the ground that his appointment is not in accordance with law. Before I proceed further, it will be convenient to refer to the several notifications whereby the City Civil Court was established and the Chief Judge appointed. As I have stated above, the Act was passed by the West Bengal Legislature in 1953, but it was to come into force on such date as the State Government may, bynotification in the Official Gazette, appoint. Section 3 lays down that the State Government may, by notification in the Official Gazette; establish a Civil Court to be called the City Civil Court. Three orders were made 011 the 14th February 1957, which were published simultaneously in an extraordinary issue of the Calcutta Gazette published on the 20th February 1957, The first notification is No, 1057-], by which the Governor appointed the 23rd day of February 1957, as the date on which the Act shall come into force. By notification No. 1058-J the Governor was pleased to establish with effect from 23rd day of February 1957 a Civil Court to be called a City Civil Court. By notification No. 1059-J, the Governor was pleased to establish with effect from 23rd February 1957, for the Presidency Town of Calcutta the Court of Session, to be called a City Sessions Court. By notification No. 1214-J dated the 20th February 1957, the Governor in exercise of power conferred by Sub-section (1) of Section 4 of the City Civil Court Act of 1953, was pleased to appoint the respondent No. 1, who was then employed as the Additional Chief Presidency Magistrate, Calcutta, to be the Chief Judge of the City Civil Court. This notification has not been published in the Gazette yet, or at least was not at the time of the hearing of the application.

3. The points taken by Mr. Kar on behalf of the petitioner may be summarised as follows:--

(1) The City Civil Court Act of 1953 is not with-in the competence of the West Bengal Legislature. Therefore it is ultra vires and void.

(2) That the provisions of the said Act, in so far as they purport to take away, curtail, restrict or alter the jurisdiction of the High Court, are beyond the competence of the State Legislature, and are therefore ultra vires and void.

(3) That the West Bengal Legislature, in constituting and organising a City Civil Court, by passing the said Act, was in fact reorganising and reconstituting the High Court, which is beyond its competence.

(4) That the Act deals with subjects which are in pith and substance beyond the competence of the West Bengal Legislature and as such are ultra vires.

(5) That the Act is discriminatory, and takes away beneficial advantages conferred on litigants of obtaining summary relief under Order XXXVII of the Code of Civil Procedure, and therefore offends against Article 14 of the Constitution.

(6) That the appointment of respondent No. 1 is bad, inasmuch as he was appointed even before the City Civil Court came into force and even before the Court was constituted under the Act.

4. I shall now deal with the main point, namely, that the Act and the constitution of the City Civil Court thereunder, are beyond the competence of the State Legislature. In order to appreciate the arguments under this heading, it will be necessary to refer to certain entries in the Seventh Schedule of the Constitution of India. The relevant entries are set out 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 of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Courts;

.....

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.

13. Civil Procedure, including all matters inclu-ded in the Code of Civil Procedure at the commence- ment of this Constitution, limitation and arbitration.

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

5. There has been a substantial departure in the enumeration of the subjects in the different Lists ay occurring in the Constitution, from that which occurred in the Government of India Act, 1935. In order to appreciate the argument, it is necessary also to set out the relevant entries in the Government of India Act, 1935.

''List I -- Federal Legislative List.

Entry 53. Jurisdiction and powers of all Courts, except the Federal Court, with respect to aay of the matters in this List.....

List II -- Provincial Legislative List.

Entry 1. ..... the administration of justice, constitution and organisation of all Courts, except the Federal Court .....

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

List III -- Concurrent Legislative List. Entry 4. Civil Procedure, including the Law of Limitation and all matters included in the Code ot Civil Procedure at the date of the passing of this Act.....

Entry 15. Jurisdiction and powers of all Courts except the Federal Court with respect to any of the matters in this List.'

6. The argument of Mr. Kar appearing on behalf of the petitioner is as follows: He says that under the Government of India Act, 1935, the constitution and organisation of the High Court, as also its jurisdiction and powers, were provincial subjects, whereas under the Constitution, these subjects have been expressly taken away from the competence of the State Legislature and have been made Union subjects. Mr. Kar argues that the State Legislature is not competent to enact any legislation which affects the constitution and organisation, or jurisdiction or powers of the High Court He says that by takingaway a part of the jurisdiction and powers of the High Court and conferring it upon the City Civil Court, the State Legislature has affected the constitution and organisation and certainly the jurisdiction and powers of the High Court, and this it cannot do.

7. A consideration of the legislative items set out above will show that the matter is more complicated than is stated in the argument. There can be no doubt that under the Government of India Act, 1935, the constitution and organisation of the High Court was a provincial subject. The jurisdiction and powers of the High Court in respect of any matter in List II was of course a provincial subject. With regard to its jurisdiction and powers in respect of items in List I or List III, that was a matter of controversy and in fact forms the subject-matter of a decision of the Supreme Court, State of Bombay v. Narottam Das, : [1951]2SCR51 . In the Constitution of India, there has certainly been a significant departure. The 'constitution and organisation' of the High Court has expressly been made a Central subject. But while, under Entry 77 in List I, the 'constitution, organisation, jurisdiction and powers' of the Supreme Court has been made a Central subject, only the 'constitution and organisation' of the High Court has been made a Central subject in Entry 78, which does not speak of its 'jurisdiction and powers'. In Entry 1 of List II of the Government of India Act, 1935, 'administration of justice' was a provincial subject, and it continues to be so under the Constitution. Thus, while the 'constitution and organisation' of the High Court has been allocated to the Centre, the State retains the power to legislate on 'administration of justice'. Then again, while the 'jurisdiction and powers' of the High Court has not been mentioned in Entry 78 of List I in the Seventh Schedule of the Constitution, Entry 95 gives the Parliament jurisdiction and power over all courts excepting the Supreme Court with respect to any of the matters in List I, But the jurisdiction and powers of all Courts in. respect of administration of justice is still a state subject and this would include the High Court.

8. Mr. Kar has argued that the reason for this variation in the List is that while the general administration of justice within the State has been left to the State, the High Courts have been definitely withdrawn from the ambit of. the legislative power of the State Legislatures, and entrusted to Parliament. Just as under the Government of India Act, 1935, the Provincial Legislature couid not affect or deal with the Federal Court, similarly, under the Constitution the State Legislature cannot deal with or affect in any way the High Court, It is only Parliament that can do so. On the other hand, Mr. Dev argues that this method of construction or interpretation is wholly incorrect. He says that the proper method of interpretation would be as follows: Firstly, we are not entitled to exclude from consideration any thing which appears in a Statute, or add to what appears in the Statute already. If there has been an omission, there must be an object behind it. Similarly if anything has been added, there must be an object in doing so. Bearing this rule of interpretation in mind, he has invited me to look at the entries in Lists I and II of the Seventh Schedule of the Constitution. He says that Entry 77 in List I clearly shows that the constitution, organisation, juris-diction and powers of the Supreme Court are central subjects. In Entry 78, the words 'jurisdiction and powers' have been dropped, and there must be a significance attached to this. The significance must be that it was intended not to include that entry in the central List. Coming, however, to Entry 95, a plain reading suggests that the jurisdiction and power of the High Court in respect of any matters in List I would be a central subject. That would leave outstanding the jurisdiction and powers of the High Court in respect of matters in Lists II and III, which might then seem to be covered by Entries 65 in List II and 46 in List III. Mr. Dev points out that the meaning of Entries 95 in List I, 65 in List II and 46 in List III of the Constitution which correspond to Entry 53 in List I, Entry 2 in List II and Entry 15 in List III of the Government of India Act of 1935, have been explained in the Supreme Court decision mentioned above. It has been held that they relate to legislation conferring power and jurisdiction in respect of a special matter to a particular court-According to Mr. Dev, the enumeration of the subjects in the Seventh Schedule do not show that it was intended to take out the High Court from the cognisance of the State Legislature altogether and put it under the Parliament. According to him, the words 'constitution and organisation' as used in Entry 78 of List I do not include, and was not meant to include, the words 'jurisdiction and powers'. He has taken me through the provisions in the body of the Constitution to show that the constitution and organisation of High Courts has already been provided for in the body of the Constitution, and very little remains to be done. He has also indicated the reasons why it was necessary to vest Parliament with the power in regard to the constitution and organisation of the High Court, and take it away from the purview of the State Legislature.

9. Before I proceed further, I think it would be useful to examine the provisions relating to the constitution and organisation of High Courts, contained in the body of the Constitution. Chapter V in Part V of the Constitution, deals with the question of High-Courts in the States. Article 214 provides that there shall be a High Court for each State. Thus the Constitution itself provides for a High Court in a State and prescribes the number of High Courts that a State can have. Article 215 lays down that every High Court shall be a court of record and shall have all the powers of such a Court, Article 216 lays'1 down what is described in the margin as the 'constitution of High Courts'. It lays down that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. Article 217 lays down the qualifications for appointment and the conditions of service of a High Court Judge, Article 220 puts restriction on Judges practising in a High Court over which he has presided. Article 221 provides for the salaries of the Judges. Article 222 deals with the transfer of a Judge from one High Court to another. Article 223 deals with the appointment of an acting Chief Justice. Article 224 deals with the appointment of additional and acting Judges. Article 225 deals with the jurisdiction of existing High Courts, This is a very important provision and the relevant part runs as follows:

'Subject to the provisions of this Constitution and to the provisions of any law of the appropriateLegislature 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.'

10. Article 226 deals with the power of High Courts to issue certain writs. Article 227 confersupon the High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Article 229 provides that the appointment of officers and servants of a High Court shall be made by the Chief Justice or such other Judge or officer as he may direct. He can also prescribe rules for their conditions of service, but this is subject to provisions of any law made by the Legislature of the State. Article 230 granted power to Parliament to extend the jurisdiction of a High Court to, or exclude the jurisdiction from, any State-specified in the first schedule other than, or any area not within, the State in which the High Court has its principal seat. Article 231 lays down restrictions upon the powers of the State Legislature to affect the jurisdiction of a High Court exercising jurisdiction outside the State where it has its principal seat. Article 232 provides for the interpretation of certain terms in the event of a High Court exercising jurisdiction in more than one State.

11. Articles 230--31--32 have now been substituted by the new Articles 230 and 231 by the Constitution (Seventh Amendment) Act 1956. There is no longer any power to extend the jurisdiction of a High Court to a State other than the State where it has its principal seat, although under Article 230 it can still extend its jurisdiction to a Union territory. A new power has however been granted by the new Article 231, namely that Parliament can now establish a common High Court for two or more States or for two or more States and a Union territory. The word 'High Court' has been defined in Art, 366(14). The definition is as follows;

' 'High Court' means any court which is deemed for the purposes of this Constitution to be a High Court for any State and includes-

(a) any Court in the territory of India constitutedor reconstituted under this Constitution as a High Court, and

(b) any other Court in the territory of Indiawhich may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution.'

12. The only other relevant provision which falls to be considered are Articles 3 and 4 of the Constitution. Article 3 provides for the formation of new States and alteration of areas, boundaries or names of existing States. Article 4 runs as follows:

'(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidentaland consequential provisions (including provisions asto representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.

(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of Article 368.'

13. Mr. Dev says that the enumeration of the above provisions amply demonstrates how the Constitution has in its body provided for the constitution and organisation of High Courts. It has provided for the establishment of a High Court as a Court of record in each State, and also for the continuation of existing High Courts. It has prescribed how the number of Judges should be fixed and their conditions of service. So far as the appointment of its officers and servants is concerned, that has been left to the Chief justice. Then what remains to be done about the constitution and organisation? Mr. Dev argues that very little remains to be done. In fact, he points out that the only important thing that is left to Parliament to do in respect of High Courts was to exercise rights under Articles 230--31--32, and now Articles 230-31, namely, the extension of jurisdiction of existing High Courts and/or the establishment of a common High Court for two or more States or two States and a Union territory. According to Mr. Dev this was the very reason which impelled the framers of the Constitution to shift the legislative power relating to the constitution and organisation of a High Court, from the State to the Centre. If the jurisdiction of a High Court has to be extended, or if a common High Court has to be established for two or more States or two States and a union territory, it cannot be done by an individual State, but can only be properly done by the Centre. Therefore, the argument of Mr. Deb comes to this: The Constitution, while expressly providing that the question of the jurisdiction and powers of the Supreme Court should be a central subject, has omitted to mention it in entry 78. Unless, therefore, the omission is supplied by entry 95, it must be concluded that the jurisdiction and powers of a High Court is not a central subject. Only the 'constitution and organisation' of a High Court has been made a central subject, and in view of the provisions of the Constitution, it is not possible to include the words 'jurisdiction and powers' within the words 'Constitution and organisation'. This aspect will have to be more fully considered, because Mr. Kar on behalf of the petitioner has strongly relied on certain observations of the Supreme Court in the decision mentioned above, to the effect that 'constitution and organisation' does include the concept of 'jurisdiction and powers'.

14. On the face of it, it would seem that under entry 95 in List I, the jurisdiction and powers of a High Court in respect of entries in List I are central subjects. Similarly the plain meaning of Entry 65 in List II would seem to indicate that the jurisdiction and power of the High Court in respect of matters in List II rightly belong to the State Legislature. But tho matter is not so simple as it appears on the surface. The Supreme Court, in the decision above-mentioned, has explained the real meaning of these entries and how they are intended to confer power upon Parliament and the State Legislature respectively, to create special Courts, and how they should not be taken so as to confer or take away general jurisdiction under the heading of 'administration ofjustice'. It will, therefore, be necessary now to consider the Supreme Court decision mentioned above in some detail.

15. In : [1951]2SCR51 , the Supreme Court was considering the Bombay City Civil Court Act XL of 1948. That Act was promulgated by the Provincial Legislature of Bombay, and the provisions are analogous to the Act we are considering in this case. It purported to create an additional Civil Court for greater Bombay, having jurisdiction to try, receive and dispose of all suits and other proceedings of a civil nature not exceeding a certain value. Under Section 4 of that Act, the Provincial Government was authorised to enhance the limit of jurisdiction which was originally fixed at Rs. 10,000/-. Section 12 of the Act barred the jurisdiction of the High Court to try suits cognisable by the City Civil Court. The decision deait with the Government of India Act, 1935 for the Constitution had not yet come into being. The petitioner presented a plaint before the High Court of Bombay for filing a summary suit for the recovery of the sum of Rs. 11,704/5/4 alleged to be due under three promissory notes. As the question of jurisdiction was important, the matter was referred to the sitting Judge in Chambers who held that Section 4 of the Act was ultra vires of the Provincial Legislature and that the High Court had jurisdiction to hear the suit. Thereafter the matter was transferred to a Division Bench of the High Court which upheld the decision of the single Judge, and there was a further appeal to the Supreme Court. Two questions were canvassed before the Supreme Court: (1) Whether the City Civil Court Act was ultra vires of the Legislature of the Province of Bombay in so far as it dealt with the jurisdiction and powers of the High Court and City Civil Court with respect to matters in List I in the Seventh Schedule of the Government of India Act, 1935 and (2) whether Section 4 of the Act was void as it purported to delegate to the Provincial Government legislative authority in the matter of investing the City Civil Court with extended jurisdiction. It was held by the Supreme Court that the City Civil Court Act of Bombay was not ultra vires, but was within the competence, of, the Provincial Legislature of Bombay. It also held that there was proper delegation and that Section 4 was valid, but with that aspect of the question we are not concerned with in this case. Although all the learned Judges in the Supreme Court came to the same conclusion, they differed in the reasoning and there may be said to be a majority and a minority judgment. It was contended before the Supreme Court on behalf of the respondent in that case that the Act was ultra vires the legislative powers of the province of Bombay because it conferred jurisdiction on the new' Court, not only in respect of matters which the Provincial Legislature was competent to legislate upon under List II of the Government of India Act, 1935, but also in regard to matters in respect of which only the Central or Federal Legislature could legislate under List I (such as, for instance promissory notes, which is one of the subjects mentioned in Entry 28 of List I). The argument was in substance as follows:

16. It was stated that in List I, there is Entry 53 conferring upon the Centre the power to legislate regarding the jurisdiction and power of High Courts in respect of any matters in List I. In Entry 1 of List XI, the words 'constitution and organisation' oc-curred but not 'jurisdiction and powers'. In Entry 2, jurisdiction and power of all Courts except the Federal Court was a Provincial subject but only with respect to any of the matters in List II. It was argued that promissory notes, being a Central subject, the jurisdiction and power of the High Court in respect of promissory notes, that is to say, in respect of all litigation concerning promissory notes, would be a Central subject, and therefore, the Provincial Legislature could not encroach upon that jurisdiction. It was argued on behalf of the appellant that the words 'administration of justice' in Entry 1 of List II was quite sufficient, and that the Provincial Legislature had power to make a law, not merely constituting a new Court, but investing such Court with general jurisdiction and powers to receive, try and determine all suits and other proceedings including suits based on promissory notes. I set out below a summary of the findings of the learned Judges which will show how they differed on certain points although they came to an agreement on the final conclusion:

Fazl Ali, J.

17. 1. The expression 'ad- ministration of justice' has a wide meaning and includes administration of civil as well as criminal justice. Entry 1 in List II is a complete and self-contained Entry. In this Entry no reference is made to the jurisdiction and powers of Courts, because the expressions 'administration of justice' and 'constitution and organisation' of Courts which have been used therein without any qualifica- tion or limitation, are wide enough to include the power and jurisdiction of Courts, for justice cannot be administered if Courts have no power and jurisdiction to administer it. Courts cannot function without any power or jurisdiction.

2. By virtue of the words used in Entry 1 ofList II, the Provincial Legislature can invest theCourts constituted by it with power and jurisdictionto try every cause or matter that can be dealt withby a Court of civil or criminal jurisdiction, and theexpression 'administration of justice' must necessarilyinclude the power to try suits and proceedings of acivil as well as criminal nature irrespective of whoare the parties to the suit or proceeding or what itssubject matter really is. This power must necessarilyinclude the power of defining, enlarging, altering,amending and diminishing jurisdiction of Courts anddefining their jurisdiction territorially and pecuniarily.

3. The word 'power' was added to the word 'jurisdiction' in Entry 53 of List I, Entry 2 of List II, and Entry 15 of List III, in order to enable thetwo Legislatures to grant special power to the Courts which are to deal with the subject matter of any such legislation. In other words, they relate to legislation conferring power and jurisdiction in respect of a special matter. Thus a special Court may be constituted to deal with matters in the respective Lists or Courts may be specially granted jurisdiction to deal with such matters, in which case the general jurisdiction of other Courts would be excluded.

4. Entry 2 in List II cannot be read with Entry 1 because the scheme followed in the three legislative Lists is that each particular entry should re-lute to a separate subject or group of cognate subjects, each subject or group of subjects being independent of the others (subject only to incidental overlapping). The argument that the Centre andProvinces alone would respectively be entitled to invest Courts with jurisdiction and power to try suits and proceedings in respect of matters falling in their respective legislative lists is bad on the ground that the suggested construction would exclude from the jurisdiction of the Provincial Courts large number of matters which normally came before Courts exercising civil or criminal jurisdiction, and if it was excluded, Courts would hot be able to function in the fullest sense unless both the provincial and central legislature had by piecemeal iegislation exhausted their power of legislating on all the subjects enumerated in Lists I and II and even then Courts would not be able to deal with important matters, such as contracts, transfer of property, arbitration, wills and succession, criminal law, etc,, which are subjects mentioned in List III, until one of the two Legislatures had legislated in regard to those subjects.

Mahajan, J.

18. 1. 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 organisation 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 are sufficient to confer upon the Provincial Legislature the right to regulate and provide for the whole machinery connected with the administration of justice in the Provinces. Legislation on the subject of administration of justice and constitution of Courts of justice would be ineffective and incomplete unless and until Courts established under it were clothed with a jurisdiction and power to hear and decide causes. It was diffi-cult to visualise a statute dealing with administration of justice and constitution and organisation of Courts without a definition of the jurisdiction and powers of those Courts, as without such definition such a statute would be like a body without a soul. To enact it would be idle formality. By its own force, it would not have power to clothe a Court with any power or jurisdiction whatsoever. It would have to look to an outside authority and to another statute to become effective. Such an enactment was unknown to legislative practice and history. Parliament by making administration of justice a Provincial subject could not be considered to have conferred power of legislation on the Provincial Legislature of an ineffective and useless nature.

2. By making administration of justice a Provincial subject and by conferring on the Provincial Legislature power to legislate on this subject, Parliament conferred on that Legislature an effective power which included within its ambit law-making power on the subject of jurisdiction of Courts. The Provincial Legislature could therefore bring into existence a Court of general jurisdiction to administer justice on matters coming before it within certain territorial and pecuniary limits, subject of course to the condition that such general jurisdiction may be expressly or implicdly taken away by the provisions of other laws.

3. Under Item 1 of List II, the Provincial Legislature had complete competence, not only to establish Courts for the administration of justice but to confer on them jurisdiction to hear all causes of acivil nature, and this power was not curtailed or limited by power of legislation conferred on the two Legislatures under Items 52, 2 and 15 of the three Lists. On the other hand, these three items conferred on the respective Legislatures, power to legislate, when dealing with particular subjects within their exclusive legislative fields, 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 was a power ot creating special jurisdiction only.

Mukherjea J.

19. 1. Different topics in the same legislative List should not be read as exclusive of one another. As there can be no question of conflict between two Items in the same List, there is no warrant for restricting the natural meaning of one, for the simple reason that the same subject might in some aspect come within the purview of the other.

2. The right to set up Courts and to provide for the whole machinery of administration of justice has been given exclusively to the Provincial Legis- . lature. The word 'Court' certainly means a place where justice is judicially administered. The appointment of Judges and Officers, or the mere setting apart of a place where the Judges are to meet are not sufficient to constitute a Court. A Court cannot administer justice unless it is vested with jurisdiction to decide cases and the constitution of a Court necessarily includes its jurisdiction.

3. Entry 1 of List II uses the expression 'administration of justice and constitution and organisation of all Courts' in a perfectly general manner. It can therefore be legitimately interpreted to refer to a general jurisdiction to decide cases not limited to any particular subject. On the other hand, Entry 53 in List I, Entry 2 in List II and Entry 15 in List III relate' to particular matters appearing in the three Lists and what they contemplate is a vesting of jurisdiction in Courts with regard to such specific Items only. In one case jurisdiction is 'general' as is implied in the expression 'administration of justice' while in the other, jurisdiction is 'particular' as is limited to particular matters and hence exclusive. In this country there have always been civil Courts exercising general jurisdiction. Particular jurisdictions again have been conferred on some one or the other of these Courts to try cases relating to certain specified matters, e.g., insolvency, probate or guardianship proceedings, compulsory acquisition of land or cases arising out of different Rent Acts.

4. Thus construed, the result is that the Provincial Legislature can endow Courts which it sets up, with general jurisdiction to decide all cases which, according to the law of the land, are triable in a Court of law, and all these powers can be exercised under Entry I of List II. If the Central Legislature or the Provincial Legislature chooses to confer certain jurisdiction on certain Courts except the matters enumerated in their appropriate legislative Lists, they can exercise such power under the three entries specified above. But the exercise of any such power by the Central Legislature would not in any way-conflict with the powers exercisable by the Provincial Legislature under Entry 1 of List II. The expression 'general' must always be understood as being opposed to what is 'special' or exclusive. If the Central Legislature vests any particular jurisdiction upona Court in respect to a Central matter, that matter would cease to be a general matter and consequently, Courts having general jurisdiction would no longer deal with them, but the general jurisdiction of such Courts would not be affected thereby.

20. These judgments may be said to constitute the majority view, while the judgment delivered by Patanjali Sastri J. and Das J. (as he then was) constitute the minority view. The minority view may he summarised thus :

Patanjali Sastri, J.

21. 1(sic) If Entry I in List II does not by itself enable the Legislature to confer general jurisdiction, Entry 2 certainly does, when read with Entry 1. 'Administration of justice' is one of the matters mentioned in List II itseli'. The Provincial Legislature therefore is competent under Entry 2 to legislate about conferring jurisdiction on Courts with respeet to administration of justice, that is to say, general jurisdiction to administer justice by adjudicating on all matters brought before them, except of course, matters excluded expressly or by implication either by an existing law continued in force or by statute passed by the appropriate Legislature under entries in the three Lists relating to jurisdiction and powers of Court. In other words, though 'administration of justice' in Entry 1 does not authorise legislation with respect to jurisdiction and powers of Courts, legislative power under Entry 2 in regard to the latter topic, which can be legitimately exercised 'with respect to any of the matters in this List', can be exercised with respect to 'administration of justice', one of the matters comprised in that List, with the result that the subject of general jurisdiction is brought within the authorised area of Provincial legislation.

2. When one Provincial Legislature is found competent to make a law with respeet to the general jurisdiction of Courts, the apparent conflict with the Central legislative power under Entry 53 of List I can be resolved in a given ease by invoking the doctrine of pith and substance and incidental encroachment. For that rule, though not of much assistance in considering Entries 1 and 2 which, occur in the same List II, has its legitimate application in ascertaining the true character oi an enactment and attributing it to the appropriate List where the Federal and Provincial Lists happen to overlap. Accordingly, if the Legislature of Bombay was, in conferring jurisdiction on the City Civil Court, to hear and determine all suits of a civil nature, really legislating on a subject which is within the ambit of its legislative power, if in doing so, it encroached on the forbidden field marked off by Entry 53 of List I, the encroach-ment should be taken to be only incidental.

Das, J.

22. 1, Where there was no separate provision authorising the making of laws with respect to jurisdiction and powers of Courts and therefore the authority to make laws with respect to the jurisdiction and powers of Courts had of necessity to be found in the words 'administration of justice (As was the case under the British North America Act 1867), it might be argued that jurisdiction and powers of Court has to be spelt out of the words,' 'administration o justice'. In the Bombay City Civil Court Act, there was no compelling reason to follow this rule of interpretation. Regard being had to the use of the various phrases, it is clear that the intentionof Parliament was not under Entry I in List II by itself to authorise the provincial legislature to make any law with respect to jurisdiction and powers of Courts.

2. It is not correct that Entry 1 in List II gave general powers to the Provincial Legislature to make laws conferring general jurisdiction and powers on Courts constituted by it while Entry 53 in List I, Entry 2 in List II and Entry 15 in List III conferred special powers on the Federal and Provincial Legislatures to make laws conferring special jurisdiction and powers with respect to matters specified in their respective Lists. If Entry 1 in List II gave general powers, Entry 2 in List II would then be wholly redundant, for the wider power itself would include the lesser power. Special power to confer special jurisdiction would be meaningless if it were included in the general power also.'

3. Entry 1 in List II should be construed and react as contouring on the Provincial Legislature all powers with respect to administration of justice and constitution and organisation of Courts minus the power to make laws with respect to jurisdiction and powers of Courts. But this shortcoming in Entry 1 is supplied by Entry 2 in List II. Under Entry 2 of List If, the Provincial Legislature had power to make laws with respect to jurisdiction and powers of Courts with respeet to any of the matters enumerated in List II and 'administration of justice' in Entry 1 is one of the matters in List II. Therefore, the Provincial Legislature had power to confer the widest general jurisdiction on any Court or take away the entire jurisdiction from any existing Court. The impugned Bombay Act may therefore be well supported as a Jaw made by the Provincial Legislature under Entry 2 read with Entry 1 in List II.

23. The application of these principles to the facts of this case is by no means a simple task. It will be observed that the Supreme Court decision was based on the Government of India Act, 1935, while the present case is based on the Constitution. As I have shown above, there has been a substantial change in the relevant entries relating to legislative competency. Under the Government of India Act, 1935, Entry 1 in List IT was comprehensive. 'Administration of justice' was included as well as 'con-stitution and organisation' of the High Court. The only thing that was wanting in Entry 1 was that 'jurisdiction, and powers' of the High Court was not specifically included. According to the majority judgment, Entry 1 as it stood was quite sufficient to confer upon the State Legislature the power to legislate in respect of the jurisdiction and powers of all Courts including the High Court, It was pointed cut (Fazl Ali, J., Mahajan J., Mukherjea J.) that the words 'administradon of justice' and 'consti-tution and organisation' of Courts are wide enough to include their jurisdiction and. powers, because there cannot be a Court without power and jurisdiction to administer justice. According to Mahajan J., a Court could not bo constituted so that it will have to look to an outside authority, and to another statute passed by such authority, to become effective. 'Such an encroachment' says the learned Judge, 'was unknown to legislative practice and history'. But, this rare phenomenon has now occurred, because under the Constitution, Entry 78 in List I gives Par-1liament power in respect of the 'constitution and organisation' of High Courts, whereas 'administration of justice' which includes general jurisdiction and the 'jurisdiction and powers' of the High Court with regard to 'administration of justice', that is to say, with regard to general jurisdiction, has been made a state subject, (Entries 3 and 65). The position, therefore, is as follows : The 'constitution and organisation' of the High Court is a central subject. Parliament can constitute and organise a High Court, and invest it with jurisdiction and powers in respect of matters which are contained in List I; but it can do no morel Mr. Deb has been constrained to admit that this is the position. Mr. Kar, on the other hand, has strongly argued that the consensus of opinion expressed in the Supreme Court decision cited above was that 'constitution and organisation' includes, and must include 'jurisdiction and powers'. This however is not strictly accurate. What the learned Judges have held is that the words 'administration of justice' and 'constitution and organisation' of Courts, include the concept of jurisdiction and powers. It has not been clearly held that if the word 'constitution and organisation' stood alone, the result would have been the same. After all, one must construe the Entries as they stand. There can be no doubt that the word 'administration of justice' includes the concept of general jurisdiction. If the word 'constitution and organisation' in Entry 78 of the Union List includes general jurisdiction, then it is plain that both the Union and the State have the power of legislating with regard to general jurisdiction of the High Court, a construction which clearly cannot be accepted. Mr, Kar is therefore constrained to argue that 'administration of justice' in Entry 3 List II excludes 'administration of justice', so far as the High Court is concerned. This again is a construction that is impossible to accept. In Entry 3 List II the words 'administration of justice' stands by itself and, there-fore, the 'administration of justice' in all Courts with-n the State, which must necessarily include general jurisdiction, must be held to be a State subject. That being so, the word 'constitution and organisation' in Entry 78 List I must be given a restricted meaning ind cannot include 'administration of justice', that is to say, the exercise of general jurisdiction by High Courts within the States. I must confess that the position is somewhat curious. Under the Consti-ution, Parliament can constitute and organise, that is to say, set up, a High Court, but it cannot vest it with general jurisdiction. It can only vest it with a limited jurisdiction confined to subjects appearing in List I. On the other hand, a State cannot set up a High Court or interfere with its 'constitution and organisation', and yet it is the only body which can vest it with general jurisdiction to administer justice. Mr. Kar points out that this may give rise to the most extra-ordinary situations. Parliament may set up' a High Court but the State may refuse to vest it with jurisdiction and the very same situation would arise which is being condemned as an impossibility in the Supreme Court decision mentioned above, namely, the existence of a Court without jurisdiction, or the setting up of a Court which would be dependent on a statute passed by another legislature for being clothed with jurisdiction. There can be no doubt that this state of things is contrary to what is known as 'legislative practice'. Mr. Kar has pointed out that Parliamentitself has not construed it in that fashion. He points out to at least two recent legislations wherein Parliament has not only constituted or reconstituted a High Court, but has also invested it with jurisdiction and powers. The first statute is the Andhra State Act of 1953. This was an Act which constituted the State of Andhra and there is no doubt that the Act provided for a High Court to be established in Andhra and invested it with jurisdiction and powers. The next statute referred to is the States Reorganisation Act, 1956, being Act No. 37 of 1956. This was an Act to provide for the reorganisation of the States of India, and for matters connected therewith. As is well known, a high powered commission was appointed to make recommendations about the reorganisation of States. The Commission made its recommendations, which necessitated the passing of the said Act. Under the Act, the various States in the Indian Union were reorganised. Under Part V of the said Act, High Courts were constituted, reconstituted, and/or abolished, in respect of the component States of the Union. It thus appears that Parliament not only constituted or organised High Courts but also vested them with jurisdiction and powers. This, however, is explained by having recourse to Articles 3 and 4 of the Constitution. As stated above, Article 3 provides for the formation of new States and the alteration of existing States, and Article 4 lays down that any law for effecting this alteration may contain all the provisions necessary to give effect to it, and no such law shall be deemed to be an amendment of the Constitution. In other words, normally Parliament would have no power to set up a High Court and vest it with' general jurisdiction, but it can do so in the case of the formation of new States or alteration of areas, boundaries and names of existing states as contemplated under Article 3 of the Constitution. Mr. Deb argues that one of the reasons which impelled the framers of the Constitution to frame Entry 78 in the way it has been done, is the knowledge that so far as constitution and organisation of existing High Courts are concerned, very little remains to be done, and in the case of the formation and reorganisation of the States, Parliament would have all necessary powers under Article 4 of the Constitution. Thus, it was thought sufficient to invest Parliament under Entry 78 with the power of the 'constitution and organisation' of a High Court without including in it the power to vest it with general jurisdiction. The learned Advocate General referred me to the draft constitution and the Constituent Assembly Debates on the subject. In the draft constitution, Entry 52 in List I dealt with the Constitution, organisation, jurisdiction and powers of the Supreme Court. Entry 53 dealt with the extension of jurisdiction of a High Court outside the State in which it hasi its principal seat or exclusion of such jurisdiction and Entry 54 dealt with the powers of all Courts except the Supreme Court in respect of any matters in List I. In List II, Entry 2 dealt with the administration of all Courts except the Supreme Court and Entry 3 dealt with the jurisdiction and powers of all Courts in List II. Thus, the draft constitution followed the Government of India Act 1935 and even the Constitution and organisation of the High Court was a State subject During the debates in Parliament, Entry 52 in List I of the draft constitution was amended and the amendment moved byDr. Ambedkar which was adopted was as follows :

'52 : Constitution and organisation of the Supreme Court and the High Court; jurisdiction and powers of the Supreme Court and fees taken therein; persons entitled to practise before the Supreme Court or any High Court.'

This forms the basis of Entries 77. and 78 in List I, as they finally emerged. During the debate, strong exception was taken to the removal of the High Courts from the provincial list to the Union list. Dr. Ambedkar, the sponsor of the Bill, pointed out that Articles 182-A, 193, 197, 201 and 207 of the draft Constitution already dealt with the High Courts. 'The only matter that is left to the Provincial Legislatures' said the doctor 'is to fix jurisdiction of the High Courts in a pecuniary way or with regard to the subject-mutter. The rest of the High Court is placed within the jurisdiction of the Centre.' Sir Alladi Krishna Swami Ayyar explained why constitution and organisation of the High Courts was made a Central subject. He said;

'There must be uniformity in the organisation of the High Courts in the different parts of India, subject of course to the provisions of the Constitution. Therefore, in so far as the organisation is concerned, with a view to emphasise the principle of uniformity, and to see that there is uniformity in the different High Courts, this power is transferred to the Central Legislature. It will be rpalised that there are High Courts and High Courts.' There are High Courts which have been functioning for several years, for a century. There are High Courts which have come into being recently, and it is proposed to bring all the High Courts in the States under the jurisdiction of Parliament, and see that there is a certain uniformity in the organisation and constitution of the different High Courts in India. The only Legislature which can function in this regard is the Parliament. That is why that part of the amendment provides for it.'

Mr. Kar however objects to my referring to the Constituent Assembly debates and cites the Supreme Court decision, State of Travancore-Cochin v. Bombay Co. Ltd., AIR 1952 SC 366 at p. 368 (B). Reference is also made to Gopalan v. State of Madras, : 1950CriLJ1383 and Administrator-General of Bengal v. Premlal Mullick, 22 Ind App 107 (118) (PC) (D). It has been held that a Statute cannot be interpreted with reference to the speeches made by members of the Legislature. In the Travancore-Cochin case (B) (supra), it was pointed out that there are American authorities which support the view that such material can be used to ascertain the purpose of a Statute but not for ascertaining its meaning. The learned Judges did not condemn this view-point though they did not follow it. In Charanjilal Chaudhury v. The Union of India, : [1950]1SCR869 , Fazl AH, J., referred to proceedings in Parliament and said as follows:

'I am aware that legislative proceedings cannot be referred to for the purpose of construing an Act or any of its provisions, but I believe that they are relevant for the proper understanding of the circumstances under which it was passed and the reasons which necessitated it.'

We can therefore only look into the materials stated above to find out the circusmtances under which the constitution and organisation of High Courts was taken but of the State list and vested in Parliament.No further aid in its construction can be received. Coming now to the minority judgment in State of Bombay v. Narottamdas Jethabhai (A) (supra), we find that the learned Judges were not inclined to accept the proposition that Entry 1 in Last II of the. Government of India Act, 1935, attracted the jurisdiction and powers of the High Court, without recourse being had to Entry 2. The learned Judges-also repelled the contention that Entry 2 only conferred special powers to constitute special Courts or conferred merely special jurisdiction. According to Das, J. (as he then was), since the phrase 'administration of justice' was used in juxtaposition to the phrases 'constitution and organisation* and 'jurisdiction. and powers', it was not permissible to include within one phrase the concept of the others. His final decision was based on the reasoning that the word 'administration of justice' in Entry 1, read with Entry 2 conferred upon the State Legislature the power to invest the High Court with jurisdiction and powers in respect thereof.

24. In my opinion, the present position may be summarised as follows :--

(1) The 'constitution and organisation, jurisdiction and powers' of the Supreme Court, are Union subjects.

(2) While 'jurisdiction and powers' of the Supreme Court have been expressly included in Entry 77 of List I, these words have been deliberately left out in Entry 78 of the same List, in respect of the High Courts, This omission is not supplied by Entry 95 because that Entry only enables jurisdiction and powers to be given in respect of the matters enumerated in List I. To speak of 'jurisdiction and powers' of the High Courts in respect of 'constitution and ; organisation' of the High Courts would be meaningless.

(3) If nothing else was to be found relating to the subject, in any other part of the Constitution, then it might have been necessary to imply that it was the intention of the framers of the Constitution to include the concept of 'jurisdiction and powers' within the phrase 'constitution and organisation' of the High Courts in Entry 78. In that event, the result would be that if a High Court was constituted or organised by a Parliamentary Statute, it would automatically be vested with general jurisdiction to administer justice.

(4) This construction, however, is not permissible because it is in conflict with Entry 3 in List II or Entry 3 read with Entry 65. It is only the 'State Legislature that can vest a High Court with general jurisdiction to administer justice.

(5) While it is controversial as to whether Entry 78 in List I includes 'jurisdiction and powers' of the High Court, it is clear that under Entry 3 of List II or Entry 3 read with Entry 65, 'administration of justice' is a State subject and the 'jurisdiction and powers' of all Courts in the State including the High Court in respect of administration of justice, which must include general jurisdiction, is a State subject.

(6) This construction does give rise to a curious result, namely, that Parliament is given under Entry 78 a power to set up a High Court but not to vest it with jurisdiction excepting in a limited way under Entry 95. Ordinarily, and in so far as legislative practice is concerned, this state of things should not happen, but it has in fact happened under our Constitution.

(7) But the evil effects inherent in such an unusual provision in the Constitution is mitigated by the fact that: (a) for the most part, the 'constitution and organisation' of the High Courts have already been provided for in the body of the Constitution, and (b) in the case of the formation of new States or reorganisation of existing States, there is ample power under Article 4 of the Constitution to clothe Parliament with' the power to invest High Courts with the necessary 'jurisdiction and powers of every description.

(8) The State Legislature being the appropriate body to legislate in respect of 'administration of justice', and to invest all Courts within the State including the High Court, with general jurisdiction and powers in all matters civil and criminal, it must follow that it can invest a High Court with general jurisdiction and powers (including territorial and pecuniary jurisdiction), and also take away such jurisdiction and powers from the High Court.

(9) So fat as the Calcutta City Civil Court is concerned, there can be no question that the State Legislature is competent to constitute such a Court and vest it with general jurisdiction, since that comes specifically and plainly within the scope of Entry No. 3 or Entry No. 3 read with Entry 65 in List II. The question is us to whether it can at the same time take away any part of the jurisdiction and powers of the High Court.

(10) It has been argued that the setting up of the City Civil Court, with a specified jurisdiction, and the taking away of the same jurisdiction from the High Court, was nothing more or less than doing something which affected the 'constitution and organisation' of the High Court. This again depends on the answer to the question as to whether the words 'constitution and organisation' necessarily include the concept of 'jurisdiction and powers' meaning thereby, general jurisdiction and powers relating to the administration of justice. So far as these words are used in Entry 78 of List I, the answer must clearly be in the negative. The constitution and organisation of High Courts has been made a Central subject in this limited sense because :

(a) It was necessary to have uniformity in the urbanisation of all High Courts and this could only be effected by Parliament.

(b) The Constitution provides for extension of the jurisdiction of a High Court beyond the State where it has its principal scat and also for a common High Court in two States or two States and a Union terri-tory. This can only bo effected by Parliament. But beyond this, no necessity was felt of granting to Parliament the power to invest High Courts with general jurisdiction for the administration of justice, which was a provincial subject before and continues to be a State subject.

(11) It follows that the taking away of some of the general jurisdiction and powers of the High Court and vesting the same in the City Civil Court would not necessarily mean, that the State Legislature was doing anything which could be said to be an infringement of Entry 78 in List I, It was doing what it had power to do under Entry 3, or under Entry 3 read with Entry 65, of List II.

25. In view of the reasons given above, the points Nos. 1, 2 and 3 advanced by Mr. Kar must be rejected.

26. I now come to point No. 4. This argumentof Mr. Kar is more or less on the lines of the argument advanced in State of Bombay v. Narottamdas Jethabhai (A) (supra). He argues that under Section 5 of the Act read with the First Schedule, jurisdiction has beqn conferred upon the High Court in respect of certain matters which are specifically to be found in List I, that is to say, the Union List. It is argued that in so far as jurisdiction has been conferred or taken away in respect of such items, there has been a clear breach of the law. Mr. Kar has drawn my attention to the following entries in the First Schedule and the corresponding entries in List I.

Entry in List I Impugned Act :

No. 48Stock Exchange and future market...4(ii) of 1st Schedule.No. 41Import and Export...4 (i) of 1st Schedule.No. 46Bill of Exchange,Hundis and other negotiable securities...5 of 1st Schedule.Nos. 36 and 46.Cheques, Currency notes and Promissory Notes...5 of 1st Schedule.

Let us consider the question of a suit on promissory notes. Promissory notes would come under Entry No. 46 in List I. We find in item 5 of the 1st Schedule in the Act, that suits and proceedings exceeding Rs. 5,000 in value, relating to or arising out of bill of exchange or hundis or other negotiable securities are excluded, but not suits and proceedings relating to or arising out of promissory notes. The result is that Section 5 of the Act applies in full force and all suits on promissory notes not exceeding Rs. 10,000 in value are to be filed in the City Civil Court. The question is whether this is an encroachment by the State Legislature into the domain reserved for Parliament. The precise point has been dealt with in the Supreme Court decision cited above. In this connection, Fazl Ali, J., referred to the Federal Court decision, Prafulla Kumar v. Bank of Commerce Ltd., Khulna, 1947 FCR 23 : (AIR 1947 PC 60) (F). In the Federal Court case, the impugned Act was the Bengal Money-lenders' Act, 1940, which limited the amount recovered by the money-lender on his loans and interest on them, and prohibited payments of sums larger than what was permitted by the Act. While money-lending was a provincial subject, the subject of promissory notes was a Central one. It was held that the legislation dealing in money-lending, in so far as it dealt with promissory notes, was only incidental or ancillary to the effective use or the admitted use of legislative powers of the provincial Legislature to deal with money-lending. Patanjali Sastri, J., said as follows (para 27) :--

When once the provincial Legislature is found competent to make a law with respect to the general jurisdiction of Courts, the apparent conflict with the Central legislative power under Entry 53 of List I can be resolved in a given case by invoking the doctrine of pith and substance and incidental encroachment. For that rule, though not of much assistance in construing Entries 1 and 2 which occur in the same List II, has its legitimate application in ascertaining the true character of an enactment and attributing it to the appropriate list where the Federal and the Provincial iists happen to overlap. Accordingly, if the Legislature of Bombay was, in conferringjurisdiction on the City Civil Court to hear and determine all suits of a civil nature, really legislating 011 a subject which was within the ambit of its legislative power, and if in doing so, it encroached on the forbidden field marked off by Entry 53 of List I, the encroachment should be taken to be only incidental. It may be that such encroachment extends to the whole of that field, but that is immaterial, as pointed out by the Judicial Committee in 1947 FCR 28: (AIR 1947 PC 60) (F):

There can be little doubt


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