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Narsing Das Tansukdas Vs. Chogemull and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal435
AppellantNarsing Das Tansukdas
RespondentChogemull and anr.
Cases ReferredGhulam Nizamuddin v. Akhtar Hussain Khan
Excerpt:
- derbyshire, c.j.1. this is an appeal from a decision of panckridge, j. given on 14th december 1937, whereby he held that part of a consent decree of this high court was barred from execution by reason of the provisions of sections 34 and 35, bengal agricultural debtors act, 1935. the decree in question was in suit no. 1051 of 1935 and was dated 20th december 1935; it provided for the payment of rs. 52,000 with interest in certain instalments, and the charging of certain properties set out in the schedule for the payment of the said decretal amount. the plaintiffs are a registered firm carrying on a business as commission agents at no. 9, armenian street, calcutta. the defendants are members of a joint hindu family governed by the mitakshara school and are said to be carrying on a.....
Judgment:

Derbyshire, C.J.

1. This is an appeal from a decision of Panckridge, J. given on 14th December 1937, whereby he held that part of a consent decree of this High Court was barred from execution by reason of the provisions of Sections 34 and 35, Bengal Agricultural Debtors Act, 1935. The decree in question was in Suit No. 1051 of 1935 and was dated 20th December 1935; it provided for the payment of Rs. 52,000 with interest in certain instalments, and the charging of certain properties set out in the schedule for the payment of the said decretal amount. The plaintiffs are a registered firm carrying on a business as commission agents at No. 9, Armenian Street, Calcutta. The defendants are members of a joint Hindu family governed by the Mitakshara School and are said to be carrying on a coparcenary business in piece-goods at Jalpaiguri, Bengal, under the name and style of Sewlal Momraj Agarwalla. Chogemull is described as the karta of the said Hindu family. The plaintiffs supplied the defendants with piece-goods from time to time and also lent them money on hundis bearing interest at 12 per cent, per annum. The moneys owing were to be paid by the defendants to the plaintiffs at No. 9, Armenian Street, Calcutta. On 7th August 1934, accounts between the parties were adjusted and stated in writing in the plaintiffs' books and signed by the defendants. The amount so stated as owing was Rupees 72,435-13.6. On 28th May 1935 the plaintiffs' claim with interest amounted to Rs. 80,491-13-9. In para. 5 of the plaint in the original suit it was stated:

That the plaintiffs' cause of action arose partly within and partly without the limits of the jurisdiction of the Original Side of the High Court in Calcutta. Plaintiffs crave leave to institute the suit in the Calcutta High Court 'under Clause 12 of the Letters Patent.'

2. Such leave was granted. On 20th December 1935, a decree was passed by the Calcutta High Court (Original Side) in favour of the plaintiffs against the defendants for the sum of Rs. 52,000 with interest at 6 3/4 per cent, per annum from the date of the decree until realization. The decree was by consent. In a schedule annexed to the terms of settlement and forming part of the decree certain properties were mentioned as being charged with the payment of the decretal amount. The properties comprise lands and buildings in Jalpaiguri and some shares in certain companies. All the properties mentioned are situate in the town of Jalpaiguri and are houses or shops with land; none of them are described as agricultural. It is further stated in the decree that the plaintiffs are entitled to take out execution against the properties charged and sell the same without the necessity of a separate suit, and that the plaintiffs have the right to have a receiver appointed on notice to the defendants. There was default on the defendants' part in carrying out the terms of the decree and on 30th August 1937 the Official Receiver of the High Court was appointed receiver of the properties above mentioned, including the shares. On 9th September 1937, in order to save the expenses of the Official Receiver, by an order of the Court, the Official Receiver was discharged and two attorneys, Messrs. R.C. Deb and J.N. Sharma, were appointed joint receivers of the properties charged in place of the Official Receiver with liberty to sell the said shares (but not the real property) and pay the proceeds of the sale to the plaintiffs or their attorneys in satisfaction of the decree. On or about 18th September 1937, the defendants applied under Section 8, Bengal Agricultural Debtors Act, to the Sannyashi Kata Debt Arbitration Board, situate in the District of Jalpaiguri, for settlement of their debts in accordance with the provisions of that Act. On that date a notice, pursuant to the Rules framed under the Act, was sent by the Chairman of the Sannyashi Kata Debt Arbitration Board to the Original Side of this Court as follows:

It is submitted that I notify under Section 34, Bengal Agricultural Debtors Act of 1935,that a petition with particulars of debt under Section 8 of the said Act, has been received by this Board. A debt has been mentioned therein as due by Ohhogmul Agarwalla and Kishorilal Agarwalla, sons of late Momraj Agarwalla, and Bhojraj Agarwalla, Oaste Vaisya, of Sannyashi Kata. And in respect of the said debt, Suit No. 1051 of 1935 is pending in your Court between Narsingdas Tansukdas, a registered firm carrying on business as Commission Agents, Oaste Oswal of No. 9, Armenian Street, Caloutta, and the above parties.

3. This notice was received by the High Court on 21st September 1937 and copies of it were sent by the Registrar, Original Side, to the attorneys of both parties on 29th September 1937. On 8th November 1937, the defendants' solicitors wrote to the plaintiffs' solicitors informing them of the application to the Debt Settlement Board and further stating:

In the circumstances, under Section 34 of the said Act, all proceedings herein are stayed until the disposal of the application before the Board.

4. On 14th December 1937, there was an application before Panckridge, J. by the joint receivers for directions to sell the shares above mentioned, but Panckridge J. made the order now appealed from dismissing the application declaring that it was barred by Sections 34 and 35, Bengal Agricultural Debtors Act, 1935. Apparently, after 18th September 1937 there was some difficulty in the proceedings before the Sannyashi Kata Debt Arbitration Board which has not been clearly explained to us, and about 3rd June 1938 fresh proceedings under the Debt Settlement Act were begun by the defendants before the Debt Arbitration Board in the Jalpaiguri Sadar District. On 3rd June 1938 another notice, similar in terms to the one set out above was sent to the Registrar of this Court by the Jalpaiguri Sadar Special Debt Arbitration Board and was received by this Court on 6th June 1938. It was admitted before Panckridge J. and before us that at the time of the making of the order now appealed from there was before the Court a proper notice to the Court under the Act. It will be proper at this stage to set out the relevant provisions of the Act in question which was passed by the Government of Bengal before the Government of India Act of 1935 came into operation. (After narrating the various provisions of the Act his Lordship proceeded.) Section 55 gives the Local Government power to make rules for carrying out the purposes of this Act in certain specified particulars. By Sub-section (2) the Local Government may by rule provide what is the maximum amount of debt which can be dealt with under the provisions of the Act. We are informed that no maximum amount of debt has been so fixed. The Act is clearly intended to deal with the burden of debt lying upon agriculturists, and it involves a considerable interference with the rights of creditors under the ordinary processes of law. By reason of Sections 38 and 40 the Debt Settlement Tribunals, which are composed mainly of laymen, are placed outside the superintendence of the High Court. The question for decision is whether this Court is prevented by the Bengal Agricultural Debtors Act from executing one of its own decrees. In the Court below it was contended that the Act had no application to the Original Side of the High Court because the Court's original jurisdiction is ordinarily exercised within an area in the centre of Calcutta bounded by the Circular Road and the river Hooghly which has not been notified under Section 1, Sub-section (3) of the Act. If it is conceded that the High Court is a 'Civil Court' within the meaning of the Act, I should agree with Panckridge J.'s order for the reasons he has given. By Section 1, Sub-section (2), the Act extends to the whole of Bengal and if the High Court is a Civil Court it seems to me that the provision of Section 35, namely 'notwithstanding anything contained in any Acts no decree of a Civil Court shall be executed for the recovery of a debt included in an application under Section 8 or a statement under Sub-section (1), Section 13, until after the application has been dismissed by the Board in respect of such debt; or an award in which such debt is included has ceased to subsist under Sub-section (5), Section 29,' applies. The provision of Section 1, Sub-section (3) that the Act 'shall come into force in such, areas and on such dates as the Local Government may by notification direct' has reference to the setting up of the Debt Settlement Board in the local areas under Section 3. Once these Boards are set up, the Act has come into force in those areas by reason of Sub-section (2), and its provisions apply to the whole of Bengal.

5. It has been argued before us that the High Court is not a 'Civil Court' within the meaning of the Bengal Agricultural Debtors Act. We have been told that this argument was raised before Panckridge J., but as he did not deal with it in his judgment it would appear that it was not argued very strenuously. However we must deal with it now. There' is no definition of 'Civil Court' in the Act, and it is noteworthy that although Civil Courts and Revenue Courts are mentioned in the Bengal Agricultural Debtors Act, the High Court is not mentioned. If the words 'Civil Court' Include the High Court it is clear that the jurisdiction of the High Court to hear and determine suits is interfered with by Sections 33 and 34 and to execute its own decrees by Section 35 of the Act. Again, in such an event, a decree of the High Court would, under Section 36, be treated as a nullity in certain events. If such indeed were the case, the statute ought to state it clearly and definitely. In the case in John Balfour v. James Malcolm (1842) 8 Cl & E 4851 at pp. 496 & 500 Lord Campbell said:

There can be no doubt that the principle is that the jurisdiction of the Supreme Courts can only be taken away by positive and clear enactments in an Act of Parliament.

Substitute for the word 'Parliament' 'the appropriate and competent Legislature' and those words apply in the present case. The jurisdiction of this Court to hear and determine suits and to execute its decrees is of long standing. The Regulating Act of 1773 (13 Geo. III Cap. 63) Section 13 gave the Supreme Court

full power and authority to exercise and perform all Civil, Criminal, Admiralty and Ecclesiastical jurisdiction, and to do all such other things as shall be found necessary for the administration of justice, and the due execution of all or any of the powers which, by the said Charter, shall or may be granted and committed to the said Court.

6. Clause 15 of the Charter gave the Court power to execute its decrees through the Sheriff. The High Courts Act of 1861 (24 and 25 Viet., Cap. 104) which abolished the Supreme Court and established this High Court in its place provided in Section 9 that the High Court

shall have and exercise all such Criminal, Civil, Admiralty, Vice-admiralty, Testamentary, Intestate, original and appellate jurisdiction, and all such powers and authority for and in relation, to the' administration of justice in the Presidency for which it is established, as Her Majesty by such Letters Patent grant and direct, subject however to such directions and limitations as to the exercise of the original, Civil and Criminal jurisdiction beyond the limits of the Presidency and as may be prescribed thereby; and, save as by such Letters Patent may be otherwise directed, and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High Court to be established in the Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last mentioned Courts.

7. The Letters Patent of 1865 provided in Clause 11 that the Court

shall have and exercise ordinary original civil jurisdiction within suoh looal limits as may from time to time be declared and prescribed by any law made by competent legislative authority for India....

8. These local limits were fixed by the Calcutta High Court (Jurisdiction Limits) Act, 1919, as the area bounded by the Circular Eoad, Calcutta, and the Western Bank of the river Hooghly. Clause 12 of the Letters Patent provides: 'The High Court shall be empowered to try and determine suits of every description....

9. Clause 16 of the Letters Patent provides:

The High Court shall be a Court of Appeal from the Civil Courts of the Bengal Division of the Presidency of Fort William and from all other Courts subject to its superintendence.

10. Clause 44 of the Letters Patent provides

that the provisions of the Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council and also of the Governor-General in Council under Section 71, Government of India Act, 1915, and also of the Governor-General in cases of emergency under Section 72 of that Act....

11. In the Government of India Act, 1915, Section 106 declared that:

The High Courts have such jurisdiction and all such powers and authority over, or in relation to, the administration of justice, as are vested in them by the Letters Patent and, subject to the provisions of any such Letters Patent all such jurisdictions, powers and authority as are vested in those Courts at the commencement of this Act.

12. If the words 'Civil Court' include the High Court then the Bengal Agricultural Debtors Act passed by the Bengal Local Legislature in 1935, and assented to by the Governor-General on 29th March 1936, clearly cuts down the powers of the High Court to hear suits and execute its decrees which it has derived from the Regulating Act through the Supreme Court and from the High Courts Act, the Letters Patent and the Government of India Act, 1915, and so interferes with the Government of India Act, 1915. That, it appears to me, would be contrary to Section 80-A, Sub-section (4), Government of India Act, 1915, which provides that:

The Local Legislature of any Province has not power to make any law affecting any Act of Parliament.

13. I cannot construe the Bengal Agricultural Debtors Act as enacting something contrary to the Government of India Act, 1915, when another construction is possible and yet consistent with the purpose and meaning of the Act as a whole. If the two words in question were 'Civil Court' (without the two initial capital letters) it might well be said that they mean all Courts in the Province exercising civil jurisdiction. But the words are 'Civil Courts' (with initial capital letters); that would indicate that they mean a particular class of Court exercising civil jurisdiction well understood when the words 'Civil Court' aroused. It is common in this Province to refer to 'Civil Courts' as distinct from the High Court. Thus, there are 'Civil Court' holidays quite distinct from 'High Court' holidays. Clause 16 of the Letters Patent of 1865 provides that:

The High Court shall be a Court of Appeal from the Civil Courts (capitals) of the Bengal Division of the Presidency of Fort-William and from all other Courts subject to its superintendence.

14. That clearly recognizes Civil Courts as a class of Courts of civil jurisdiction separate from, and subordinate to, the High Court. The Bengal, Agra and Assam Civil Courts Act, 1887, which repealed the Bengal Civil Courts Act, 1861, provides in Section 3 that:

There shall be the following classes of Civil Courts under this Act: (1) the Court of the District Judge; (2) the Court of the Additional District Judge; (3) the Court of the Subordinate Judge; and (A) the Court of the Munsif.

15. The Civil Courts above mentioned are the Courts with which the agriculturists, as defined in the Bengal Agricultural Debtors Act, are normally concerned; they are situate in the districts where the agriculturists live and work; they are side by side, very often, with the Revenue Courts mentioned in the Act in the same context as Civil Courts. The agriculturist is concerned, only occasionally, with the High Court in Calcutta when an appeal from the local. Court comes up, as provided by Clause 16 of the Letters Patent; the agriculturist practically never uses the Original Side of the-High Court, which is situated in the heart of the capital of Bengal and exercises ordinary original civil jurisdiction over an area which contains no agricultural land. In my view, the words 'Civil Courts' in the Bengal Agricultural Debtors Act have the same meaning as they have in Clause 16 of the Letters Patent and in the Bengal Civil Courts Act, 1887, namely those Courts of civil jurisdiction in Bengal subordinate to the High Court, to wit, the Courts of the District Judge, the Additional District Judge, the Subordinate Judge, and the Munsif. It follows that in my view the words 'Civil Court' in the Bengal Agricultural Debtors Act, 1935, do not include ; the High Court. It has been argued in this case by the respondents that such a construction will interfere with the operation of the Bengal Agricultural Debtors Act. K the Act is confined to relieving the burden of genuine agricultural debtors, as defined in the Act, such interference, if any, wilt' be very infrequent. The present case has arisen because persons who were traders have sought to shelter themselves under the Act. Such attempts if not carefully-scrutinized and dealt with promptly and strictly in accordance with the provisions-of the Act can only have the effect o bringing the Act into disrepute and destroying trading credit upon which the prosperity of the province, including the-agriculturists, depends. The proper administration of the Bengal Agricultural Debtors Act and any amendment of the Act which-may be necessary or desirable to carry out its purposes are matters for the consideration of the Government. This Court is solely concerned with the administration of justice according to law. For the above reasons I am of opinion that the appeal should be allowed, the order of the Court below set aside and an order made in terms of the summons of 30th November 1937. The appellant will get his costs here and below. The costs of this Court will be taxed as of an appeal against a decree.

Lort-Williams, J.M.

16. The debt referred to in the present case was contracted in Calcutta, and a consent decree in respect of it was passed in the High Court in its-original jurisdiction. Section 1(2), Bengal Agricultural Debtors Act, provides that it extends to the whole of Bengal, and (3) that it shall come into force in such areas on such dates as the Local Government may, by notification, direct. Section 2(8) provides that 'debt' includes all liabilities of a debtor with certain exceptions which are not relevant. Section 3(1) provides that the Local Government may, by notification, establish one or more Debt Settlement Boards for any local area specified in the notification. Calcutta does not lie within any such area, though the debtor in question resides in such an area. The first question therefore which arises is, whether the Act, and especially Sections 32 to 36 thereof, applies to local areas in Bengal such as Calcutta in which no such Board has been established. It has been decided in Bhagwan Dayal Sahu v. Chandulal Agarwalla : AIR1938Cal23 that it does not. I respectfully disagree with that decision. The Act extends to the whole of Bengal. The provision in Section 1(3) that it shall come into force in such areas as the Local Government may by notification direct means that it shall come into force so far as concerns the establishment of Debt Settlement Boards as provided in Section 3 and all matters arising under the provisions of the Act consequent upon such establishment. 'Debt' includes all liabilities of a debtor, and Section 11 provides that every debtor's application under Section 8 for settlement of his debts shall contain a statement of debt which shall include the names and addresses of his creditors, the total amount claimed by each creditor, the history of each such debt, and a declaration that all his debts have been included. The scheme and purpose of the Act being for the settlement of all the debtor's debts, it cannot have been intended that it should apply only to debts contracted within local areas for which Debt Settlement Boards had been established, and that other debts contracted in Bengal, but without such areas, should be excluded.

17. The next question to be decided is whether the Act, or especially Sections 32 to 36 thereof, applies to the High Court in its original jurisdiction. At first sight, it would appear that it does not. The Act applies to 'Civil Courts'; there is no definition of this expression in the Act and the term is well known in Bengal as applying to Courts established under the Bengal Civil Courts Act, 1871, and the Bengal, Agra and Assam Civil Courts Act, 1887. But, it is not very profitable to consider in what sense a term is used in other Acts. The expression 'Civil Court' is used in several. Acts, in some of which it applies to the High Court and in some of which it does not. It is necessary to consider the provisions of the particular Act in order to discover the sense in which a particular expression is used in it. Section 14(3) provides that certain documents shall not be admissible in evidence against the debtor in any suit by a creditor unless certain things are proved to the satisfaction of the Civil Court, meaning the Court in which such suit has been instituted. Section 18(1) provides that in determining the-amounts of debts, the Board shall accept the decree of a Civil Court as conclusive between the parties to the decree. Section 22(5) provides that if within five years of the order declaring the debtor insolvent any property is declared by a Civil Court to belong to the insolvent debtor, such property shall be available for distribution among his creditors. Apart from the general structure of the Act, these Sections indicate that the Act applies to the High Court in its original jurisdiction. It would be unreasonable to construe these Sections as if such satisfaction, decrees and orders of the High Court were to be excluded.

18. There remains for decision the main and the most important question, whether the Act, so far as it purports to limit the jurisdiction of the High Court in its original jurisdiction, is beyond the powers of the local Legislature. Assuming that the Act applies to the High Court, that it does purport to limit that jurisdiction is beyond question. The provisions of Section 18(4) preclude the Court from adjudicating upon the existence or amounts of debts concerning which a Board has given a decision. Section 21 limits the Court's discretion with regard to costs, and its power to execute its own decrees. Sections 25(3) and 27(2) provide for supersession of the Court's decisions. Sections 32 to 36 provide that a Board may stay proceedings in the High Court ex parte, that the Court may not entertain certain suits and proceedings, that a Board may stay proceedings in the High Court by notification, that the Court shall not execute certain of its decrees, and that certain other of its decrees shall be treated as nullities. That such provisions are beyond the power of the local Legislature is, in my opinion, equally beyond question. The terms of Section 80-A(4), Government of India Act, 1919, are clear and unambiguous, and provide expressly that 'the Local Legislature of any province has not power to make any law affecting any Act of Parliament.' The powers and jurisdiction of the High Court are derived partly from the Letters Patent and partly from Acts of Parliament. The first of these Acts was Statute 24 and 25 Viet. Cap. 104 being 'an Act for establishing High Courts of Judicature in India.' Section 9 thereof not only gave all such jurisdiction, power and authority as was subsequently granted by Letters Patent, but preserved to the High Court all jurisdiction and every power and authority which had been vested in any of the Courts abolished under the Act. That Act was repealed by the Government of India (Consolidating) Act, 1915, but Section 106 thereof gave all such jurisdiction, powers and authority as were vested in the High Court by Letters Patent and at the commencement of the Act, and the validity of any Letters Patent was expressly preserved. This Act was amended in 1916 and 1919, and as amended became the Government of India Act. The provisions of the Bengal Agricultural Debtors Act, to which I have referred, clearly 'affect' Section 106 of Government of India Act, which is an Act of Parliament, and so are ultra vires.

19. Our attention has been drawn to the case in Ghulam Nizamuddin v. Akhtar Hussain Khan : AIR1933All764 in which it was stated by Bennet J. that the Local Legislature has power (with previous sanction) to pass laws affecting the jurisdiction and powers of the High Court, whether derived from the Government of India Act, the Letters Patent or the Code. In the first place, it is to be observed that the learned Judge's remarks were in the nature of obiter dicta. They were not necessary for the decision of the issues raised in that case, and formed no part of the conclusion arrived at by Mukherji, J., the other member of the Bench. Secondly, they were, in my respectful opinion, based upon a patent fallacy, namely that the devolution rules made under the provisions of Section 45-A must be read along with the Sections of the Act, and so read may contradict and override the specific provisions of the Sections. But Section 45-A does not declare that the rules are part of the Act. It does not confer any powers except the power to make rules providing for the classification of central and provincial subjects, for devolution of authority in respect of provincial subjects and for allocation of revenues, for agency in relation to central subjects and for transfer of provincial subjects, all of which subjects are dealt with in Sections of the Act. I do not think that any of the devolution rules, if correctly interpreted, override or contradict, or were intended to override or contradict, the express provisions of the Act as set out in the Sections. If any of them are inconsistent with the Sections the latter must prevail.

20. In Schedule 1, Part 1 of the Devolution Rules central subjects are classified and No. 16 covers civil law, including laws regarding status, property, civil rights and liabilities, and civil procedure. No. 41 covers legislation in regard to any provincial subject, in so far as such subject is in Part 2 of the schedule stated to be subject to legislation by the Indian Legislature. In Part 2 provincial subjects are classified, and No. 17 covers administration of justice including constitution, powers, maintenance and organization of Courts of civil and criminal jurisdiction within the province; subject to legislation by the Indian Legislature as regards High Courts, Chief Courts and Courts of Judicial Commissioners, and any Courts of criminal jurisdiction. It makes a clear distinction between Civil Courts and High Courts and inferentially excludes the latter. It is true that this rule indicates that the Indian Legislature and Provincial Legislatures have concurrent powers of legislation on these subjects. But the schedule is subject to specific provisions in the Sections of the Act, and Provincial Legislatures may only legislate on such matters, subject to the overriding provisions of the Sections. That is to say, they may only legislate with regard to the administration of justice, etc. so long as they are able to do so without 'affecting any Act of Parliament,' as provided in Section 80-A(4). Moreover, the power to repeal or alter the provisions of Section 106, Government of India Act, has by Section 131 (3) been saved expressly for the Indian Legislature. This was necessary because of the provisions of Section 65. For these reasons I agree that this appeal must be allowed.

Bartley. J.

21. The matter agitated before us is not the precise question at issue in the Court below. As formulated there, it was

whether 'Civil Court' when used in the Act, is confined to a Civil Court within whose jurisdiction the whole or any part of an area notified under Section 1(3) lies.

22. The exact question argued before us is whether, on receipt of a notice under Section 34, Bengal Agricultural Debtors Act, the High Court can or cannot proceed to execute a decree duly made in the exercise of its original civil jurisdiction. The answer depends on whether the words 'Civil Court' when used in the Act, include the High Court. The Act itself contains no definition of a Civil Court. Definitions existing in other Central or Provincial Acts, to which reference has been made in argument, sometimes include, sometimes exclude, the High Court. They do not help apart altogether from the consideration that the interpretation of one statute cannot be used in construing another not made with the same intent. The Bengal Agricultural Debtors Act is a Provincial Act, for which previous sanction was obtained under Section 80-A, Government of India Act, 1919. The Preamble sets out that it is expedient to provide for the relief of agricultural debtors and to amend the law governing the relations between them and their creditors. Certain of the reliefs so provided are set out in Sections 33 to 36 of the Act. Section 33 debars any Civil Court from entertaining a suit, application, or proceedings in respect of debts included in an application, or payable under an award, made under the Act. Section 35 bars the execution of decrees of a Civil Court for the recovery of a debt in certain cases. Section 36 declares that a decree of a Civil Court shall, in certain circumstances, be treated as a nullity. The unequivocal effect of the language used in these Sections is to curtail the jurisdiction of a Civil Court. The jurisdiction of the High Court to 'do all such things as shall be found necessary for the administration of justice, and the due execution of all or any of the powers granted under its Charter ' (to quote the language of Statute 13 Geo. III, Cap. 63, by which it was enacted that a Supreme Court should be established at Port William in Bengal by Charter or Letters Patent) is a jurisdiction inherited from the Supreme Court. Under the Indian High Courts Act of 1861, all jurisdiction and every power and authority whatsoever vested in the Supreme Court which was abolished by that Act, was conferred on the High Court. That Court was created by the Letters Patent of 1862 and continued by the Letters Patent of 1865. By the provisions of the Government of India Act, 1919, a consolidating Act, the High Courts were declared to have such jurisdiction and all such powers and authority over the administration of justice as are vested in them at the commencement of this Act. The jurisdiction thus conferred was, by the Act itself, Section 131(9), made subject to legislation by the Indian Legislature, and a corresponding alteration was made in the Letters Patent. At the material time therefore, the High Court had jurisdiction, derived from an Act of Parliament, to do all things necessary for the due execution of all powers granted under its Charter. Under the same Act that jurisdiction was subject to legislation by the Indian Legislature. In contrast to the Indian Legislature, the Local Legislature of any Province was debarred, under Section 80-A(4), Government of India Act, from making any law, affecting an Act of Parliament. The Bengal Agricultural Debtors Act, being a local Act incurs that disability. In so far therefore as it purports to affect the provisions of the Government of India Act, it would be ultra vires the powers of the local Legislature. It was suggested in argument that under the Government of India Act itself, and the Devolution Rules framed under Section 45-A, a local Legislature was empowered to make a law affecting that Act. The contention appears unsound.

23. The general powers conferred on local Legislatures by Section 80-A to make laws for the peace and good government of a province, are subject in the first place to the provisions of the Government of India Act itself. In the second place, a local Legislature cannot, without previous sanction, make any law regulating a central subject or a provincial subject declared by the Devolution Rules to be either in whole or in part, subject to legislation by the Indian Legislature. The restriction here referred to has been removed in the case of the Bengal Agricultural Debtors Act; for which the necessary sanction was obtained. Local legislation is however still controlled by the provisions of the Government of India Act itself, and Section 80-A(4) provides that a local Legislature has not power to make any law affecting any Act of Parliament. The powers of the Central Government to modify the provisions of the Government of India Act are set out in Clause 44, Letters Patent, in Section 131(3) of the Act itself, and in Schedule 5 to the Act. It is clear from that Schedule that the jurisdiction, powers and authority of High Courts can only be modified by the Indian Legislature. It would follow then that any provision in a local Act which purported to affect the jurisdiction of the High Court would be ultra vires the powers of that Legislature. As pointed out previously, the provisions of the Bengal Agricultural Debtors Act affect the jurisdiction of Civil Courts. In so far however as the provisions of that Act are concerned, they must be construed on the presumption that the Legislature was aware of the existing state of law, under which local legislation could not affect, and therefore could not have been intended to affect, an Act of Parliament: vide Ex parte Kent County Council (1891) 65 Q.B. 725. It follows from this that the words 'Civil Court' when used in the Bengal Agricultural Debtors Act cannot be held to include the High Court. I would therefore agree with my Lord the Chief Justice and with Lort-Williams J. that this appeal should be allowed.

Nasim Ali J.

24. The point for determination in this appeal is whether the High Court is a 'Civil Court' within the meaning of Section 34, Bengal Agricultural Debtors Act, 1935. The words ' Civil Court' have not been defined in this Act. They have not been used in the same sense in the various statutes of this country passed by the Indian Legislature or by the Provincial Legislatures. It will not therefore be safe to look to other statutes to ascertain the meaning in which these words have been used in the Act under consideration. A ' Civil Court ' may be said to be a Court which decides purely civil questions between persons seeking their civil rights. A Revenue Court may also be a Civil Court in this sense. The Bengal Agricultural Debtors Act however makes a distinction between a Civil Court and a Revenue Court. The provisos to Sections 18(1) and 22(5) of the Act may support the view that the words 'Civil Court' include the High Court also, act the meaning of these words is to be ascertained from the Act as a whole because it must be presumed that the Legislature used the same words in the same sense in the whole Act unless there were indications to the contrary. There is a presumption that in making an Act a Legislature acts intra vires. If on one interpretation of the words 'Civil Court' the entire Act becomes intra vires of the Provincial Legislature and on another interpretation some of the provisions in the Act become ultra vires the interpretation which makes all the provisions in the Act intra vires must be preferred. Section 34 of the Act does not simply lay down a rule of procedure analogous to Section 106. Civil P.C. This Section not only lays down that the suit or proceeding before the Civil Court is to be stayed pending the decision of the Board, but it also lays down that the suit or proceeding in the Civil Court shall abate so far as it relates to the debt which is the subject-matter of the decision by the-Board. The language of Sections 33 to 36 and the Proviso to Section 25(3) is not such as would-justify the interpretation that these Sections only create a personal bar in the way of the enforcement of the rights of a certain class of creditors of this Province. It is clear from the provisions of the Act that by the Act a special tribunal with a special procedure has been set up to settle the disputes relating to the debts of the agriculturists of this province in order to oust the jurisdiction of the ordinary Courts over those matters in this Province.

25. The question therefore is whether the Provincial Legislature can pass an Act validly so as to affect the jurisdiction, power and authority of the Courts in this Province. These Courts, so far as they are-relevant for the purpose of the present appeal, are: (1) the High Court, (2) the Courts constituted by the Bengal, Assam and N.W.P. Civil Courts Act passed by the Governor-General in Council in the year 1887. Bengal Agricultural Debtors Act was passed by the Bengal Legislature with the sanction of the Governor-General under Sub-section (3) of Section 80-A of the Government of India Act, 1915-1919. Section 106 of this Act of Parliament declares the jurisdiction and powers of the High Courts in India in these terms:

(1) The several High Courts are Courts of record and have such jurisdiction, original and appellate, including Admiralty jurisdiction in respect of offences committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the Court, and power to make rules for regulating the practice of the Court, as are vested in them by Letters Patent, and subject to the provisions of any such Letters Patent, all such jurisdiction, powers and authority as are vested in those Courts-respectively at the commencement of this Act.

26. Clauses 12 and 16 of the Letters Patent define the Original and Appellate jurisdiction of this Court. By Clause 44 of the Letters Patent the provisions of the Letters Patent are subject to the legislative powers of the Indian Legislature. By Section 106(1a) of the Act the Letters Patent establishing or vesting jurisdiction, powers or authority in a High Court may be amended from time to time by His Majesty by further Letters Patent. It is therefore clear that the jurisdiction, powers and authority of the High Court can be affected either by His Majesty by further Letters Patent or by the Indian Legislature. The next question is whether the powers of the Indian Legislature to affect the jurisdiction and powers of the High Court can be exercised by the Provincial Legislature with the sanction of the Governor-General under Section 80(a)(3), Government of India Act, 1919, the material portion of which is as follows:

The Local Legislature of any province may not without the previous sanction of the Governor-General, make or take into consideration any law.

* * * * * * *(e) regulating any central subject ; or (f) regulating any provincial subject which has been declared by rules under this Act to be, either in whole or in part, subject to legislation by the Indian Legislature, in respect of any matter to which such declaration applies.

27. Sub-section 4 of Section 80-A however lays down that the local Legislature of any province has not power to make any law affecting any Act of Parliament. The rules referred to in Clause (f) of Sub-section 3 were framed under Section 45-A of the Act. Rule 3 of these Rules provides:

(1) For the purpose of distinguishing the functions of the Local Governments and Local Legislatures of Governor's provinces from the functions of the Governor-General in Council and the Indian Legislature, subjects shall in those provinces be classified in relation to the functions of Government as central and provincial subjects in accordance with the lists set out in Schedule 1.

(2) Any matter which is included in the list of (provincial subjects set out in Part II of Schedule 1 shall, to the extent of such inclusion, be excluded from any central subjects of which but for such inclusion it would form part.

28. Schedule 1 consists of two parts: the first part deals with central subjects and the second part deals with provincial subjects. Clause 41 of Part I is in these terms:

Legislation in regard to any provincial subject in so far as such subject is in Part II of this schedule stated to be subject to legislation by the Indian Legislature, and any powers relating to such subject reserved by legislation to the Governor-General in Council.

29. Clause 17 of Part II provides:

Administration of justice, including constitution, powers, maintenance and organization of Courts of Civil and Criminal jurisdiction within the province; subject to legislation by the Indian Legislature as regards High Courts, Chief Courts and Courts of Judicial Commissioners and any Courts of criminal jurisdiction.

30. The constitution and powers of the Courts within the province excepting the High Court are therefore provincial subjects and are excluded from central subjects by operation of Sub-section 2 of Section 45-A of the Act. The Bengal Agricultural Debtors Act, therefore so far as it affects the jurisdiction of the moffussil Courts is intra vires of the Bengal Legislature. The High Court comes under Clauses (e) and (f) of Sub-section 3 of Section 80-A of the Act. This sub-section is however controlled by Sub-section 4. The effect of Clause (f) in Sub-section 3 read with Sub-section 4 in my opinion is that the local Legislature can make laws regarding the High Court provided such laws do not affect the jurisdiction, powers and authority of the High Court vested in it by the previous Acts of Parliament which were confirmed by Section 106, Government of India Act, 1915. Sanction obtained by the Provincial Legislature under Sub-section 3 of Section 80-A cannot therefore validate laws passed by the Provincial Legislature which affect the jurisdiction and powers of the High Court vested in it by Parliament. I have already pointed out that the provisions contained in Sections 25 (3), 33, 34, 35 and 36, Bengal Agricultural Debtors Act, affect the jurisdictions and powers of the Courts mentioned therein. If the words 'Civil Court' in those Sections include High Court the provisions contained in those Sections would be ultra vires of the Bengal Legislature. If, on the other hand, those words exclude the High Court the entire Act would be intra vires of the Bengal Legislature. I have already said that it is permissible to presume that an Act passed by the Legislature is intra vires of that Legislature. I would therefore interpret the words 'Civil Court' to mean the Civil Courts in the province excepting the High Court. If however the Legislature intended to include the High Court within the expression 'Civil Court' then I must declare that the provisions of the Act including Section 34, so far as they affect the jurisdiction and the powers of the High Court vested in it by Act of Parliament, are ultra vires of the Bengal Legislature. I would therefore allow the appeal.

Mitter, J.

31. The questions in this appeal relate to the interpretation, scope and validity of Section 34, Bengal Agricultural Debtors Act (Bengal Act 7 of 1936) so far as it affects the powers of this Court in its ordinary original civil jurisdiction. Both the appellants and respondents are dealers of piece-goods, and for the purpose of this appeal it must be taken that the respondents are debtors as defined in the said Act. In June 1935 the plaintiffs, who are the appellants before us, filed a suit in the Original Side of this Court against the defendants-respondents for recovery of a sum of Rs. 80,491-13.9. Of this sum, Rs. 72,435-13-6 was claimed on account of the price of piece-goods supplied on credit and Rs. 8056-0-3 on account of interest. The suit terminated in a consent decree for Rs. 52,000 on 20th December 1935. By the terms of settlement the defendants agreed to pay Rs. 52,000 with interest at 9 per cent, per annum in instalments. Some properties which included shares in Joint Stock Companies were charged and a provision was made that in default of the payment of the first instalment of Rs. 11,000 the whole of the decretal amount would become due and the plaintiffs would be entitled to take out execution, to have a receiver appointed over the charged properties and to have them sold. The judgment-debtors made default and the Official Receiver was appointed receiver of the charged properties. Later on, the Official Receiver was discharged and on 9thr September 1937 Messrs. R.C. Deb and J.N. Sharma were appointed joint receivers of the charged properties with power to sell the shares in the Joint Stock Companies. Before the joint receivers could sell, the judgment-debtors filed an application under Section 8, Bengal Agricultural Debtors Act, before the Debt Settlement Board at Sannyasikati in the District of Jalpaiguri, in which application they included the debt due by them to the appellants on the basis of the consent decree passed by this Court. The said Board issued a notice on 18th September 1937 under Section 34 of the said Act. The notice which was addressed to the Registrar of this Court was received by him on 21st September 1937. As the judgment-debtors' solicitor had informed the joint receivers that a' notice under Section 34 had been issued by the Sannyasikati Debt Settlement Board, the joint receivers held a meeting on 24th November 1937 and resolved to move the Court. On 9th November 1937 the decree-holders filed an application in which they prayed for an order for directing the joint receivers to sell the shares. This application was heard by Panckridge J. who held that the joint receivers could not sell the shares till the notice under Section 34 had been withdrawn by the Debt Settlement Board.

32. Three questions arise in this appeal, namely: (i) whether the notice under Section 34 is effective or not, as Calcutta is not included in the notification issued under Section 1(3) of the Act; (ii) whether the words 'Civil Court' used in Section 34 include the High Court and (iii) whether Section 34 is ultra vires so far as it affects the power of the High Court to execute its own decree.

1. In the judgment of Panckridge J., there is an elaborate discussion of the first of the aforesaid points. Disagreeing with the decision pronounced in the Appellate Side of this Court in Bhagwan Dayal Sahu v. Chandulal Agarwalla : AIR1938Cal23 by a Division Bench he held that Section 34 will have its operation though Calcutta is not a notified area. I hold that the decision of Panckridge, J. on this point is sound and I agree with the reasons given by him, except that I reserve; my opinion with regard to the question of the extra territorial effect of the Act.

2. The second question raised is not free from difficulty. The difficulty is mainly created by reason of the language employed in the Act itself. In my judgment the question must be approached by keeping in view the following fundamental principles namely: (a) that the same word or the same set of words must be prima facie construed in the same sense in the different parts of the same statute ; (b) that jurisdiction of a superior Court can be taken away by the Legislature only by clear and unambiguous language. This rule, I take it, does not mean that the jurisdiction of such Courts can be taken away only by express words, though language to that effect has been employed in some old cases, e.g. (1760) 2 Burr 5. Rex v. Morely (1760) 2 Burr 1040. The high authority of Lord Eldon and Sir George Jessel however do not limit the rule within such narrow limits. In Attorney General v. Mayor and Corporation of Dublin (1827) 1 Bligh (NS) 312 at p. 55 the former made the following observations:

This provision does not oust the jurisdiction of the Court of Chancery, because that jurisdiction cannot in my judgment be taken away but by express words or by words creating a necessary implication to that effect,

and in Jacobs v. Brett (1875) 20 Eq. 1 at pp. 6 and 7 the latter made the following observations:

In the next place, I think nothing is better settled than that an Act of Parliament which takes away the jurisdiction of a superior Court of law must be expressed in clear terms, I do not mean to say that it may not be done by necessary implication as well as by express words, but at all events it must be done clearly. It is not to be assumed that the Legislature intends to destroy the jurisdiction of a superior Court. You must find the intention not merely implied but necessarily implied.

33. In John Balfour v. James Malcolm (1842) 8 Cl. & F 485 the House of Lords held that the jurisdiction of the Court of Session of Scotland to determine all actions or suits relative to the 'Water Companies Act 59 Geo. III, C. 116, had been taken away by Section 80 of the said Act, though no mention was made therein of the Court of Session. That decision proceeded upon the view that the words that 'no other Court or Courts but the Sheriff depute appointed by His Majesty' were to try those disputes arising under the said Act had by necessary implication ousted the jurisdiction of the Court of Session, (c) The third fundamental principle is that a particular meaning assigned by the Court to a particular word used in one statute should not necessarily be attributed to the same word used in another statute, unless the scope and object of the two statutes be similar. The third principle takes away the force of the argument of the learned Advocate-General that the phrase 'Civil Court' occurring in many other Acts, both of the Indian and the Bengal Legislature, include the High Court within its ambit (e.g. Workmen's Compensation Act, Income-tax Act, Registration Act, Indian Succession Act, Bengal Public Demands Recovery Act, Bengal Court of 'Wards Act, etc.).

34. To find in what senses the Legislature has used the phrase 'Civil Court' in Section 34, Bengal Agricultural Debtors Act, it is necessary, in my judgment, to examine in the first instance the scope and scheme of the Act. The Act is intended for granting by a comparatively cheap method relief to agricultural debtors through the medium of Debt Settlement Boards established by the Local Government in areas notified under Section 3 of the Act. The proceedings are to begin on an application either by the debtor or by the creditor made before such a Board. The application must be for settlement of all the debts of the debtor. It may be dismissed by the Board summarily under Section 13(3) or on grounds mentioned in Section 17. If the application is not so dismissed the Board has to proceed according to the following scheme. The amount of debts, principal and interest separately, must be first determined by the Board. Then follows the scheme of settlement. If there is an agreement between the debtor and a creditor of his or a number of them the agreement has, subject to the rules framed under the Act, to be recorded by the Board and incorporated in its award. This is an ordinary case.

35. The remaining provisions of this portion of the Act bring out two distinct schemes. The first is, if I may call it, the scheme of compulsory settlement of his debts. If creditors whose claims amount to over 40 per cent, [or over 60 per cent, in the case mentioned in Proviso (ii) to Section 19] of the-total indebtedness of the debtor, agree to a settlement the remaining creditors can be indirectly forced to come to a settlement on the offer of the debtor to settle on such terms which the Board may consider to be fair. The Board may embody the terms of this compulsory settlement in its award to be made in the form prescribed in Section 25 or without making an award may grant a certificate to the debtor in the prescribed form in respect of the debt in respect of which such an offer had been made by the-debtor (Section 19). When such a certificate is granted the creditor affected is free to go to a Court of law to enforce his claim, but he is placed by the Act under a disadvantage. He cannot get costs on his success and he can get interest not according to the contract rate but only simple interest at the rate of 6 per cent, on the principal amount of the loan as determined by the Board. The decree which he may get cannot forthwith be executed, but he will have to wait till all the other creditors whose claims-have been included in the Board's award have been satisfied or till such an award has ceased to subsist by reason of the provisions of Sub-section 5 of Section 29 or if there be no award, for a period which may extend to 10 years. When however an award has been, made by the Board, the Act contemplates-payment in instalments which may extend, to a period not exceeding twenty years. The compulsory settlement can be made by-the Board or certificate of the aforesaid nature and effect can be granted by it only if there is a settlement by way of compromise between the debtor and a number of his creditors whose dues amount to over 40 per cent, or 60 per cent, of his total indebtedness as the case may be. If there is no such settlement by way of compromise the Board is powerless and the first of the two schemes through which relief was intended to be given to the debtor fails.

36. The second scheme may then be put into operation. For the enforcement of this scheme, the Board must come to a finding that the debtor would be unable to pay up in the course of 20 years, and on that finding declare him insolvent. The consequences of an adjudication order under the Act are of a twofold nature: (1) The Board may reduce his debts to such an amount as it would be possible for the insolvent to pay in instalments covering a period not exceeding 20 years, and in that case direct payment in annual instalments. He is not divested of his properties but is given the chance to clear up his liabilities so reduced from the produce raised on his land by his labour. Here the Legislature proceeds on the basis that labour of an agriculturist is an asset in itself and his creditors ought to have also the benefit of his future labour; or (2) the Board may direct the sale of his properties under the machinery of the Bengal Public Demands Recovery Act (except his dwelling house and such portion of his land as the Board may set apart for his maintenance under Sub-section 4 of Section 22) and direct the distribution of the sale proceeds among his creditors in the manner directed by it.

37. The fundamental scheme of the Act therefore is for complete administration of the affairs of an agricultural debtor through machinery of the Debt Settlement Boards. To effect the said purpose, it is necessary in the first instance to ascertain and determine the total indebtedness of the debtor by the Debt Settlement Board and the Legislature has made provision for the same. If the debtor makes the application before the Board, he must state therein his dues to all his creditors and he must disclose all his properties. If the application be by a creditor, he must not only specify therein his own dues, but mention therein the names and addresses of the other creditors of the debtor and the particulars of his properties, so far known to him (Section 11). After the application, be it by the debtor or by a creditor, is admitted, the Board has to take steps for ascertaining the names of, and the amounts due to all the creditors [Sections 13 and 18(2)]. The object of the Legislature as expressed in the Act itself, namely complete and beneficent administration of the affairs of an agricultural debtor, burdened or overburdened with debts, would be frustrated unless the Debt Settlement Boards were given in the first instance final jurisdiction to determine the total liability of the debtor [and this the Legislature has done in Sections 18(4)], and unless in the next place the ordinary tribunals of the land are directed to keep their hands off as long as proceedings before the Debt Settlement Board are pending or till the award made by it had spent itself. Sections 33 to 36 in my judgment have this intent, and the words 'Civil Court' used in those Sections must mean and include all Civil Courts of the land, that is, all Courts which can entertain suits for the enforcement of money claims. The phrase 'Civil Courts' used in Sections 33, 34, 35 and 36 means in my judgment Courts of Civil Judicature, and would include a superior Court of Civil Judicature, e.g. the High Court.

38. A consideration of some of the other Sections of the Act also point to the same conclusion. To take a few Sections: the phrase 'Civil Court' has been used in the Proviso to Section 18(1). It must include the High. Court, otherwise incongruous would be the result, for then a decree of the High Court would have before the Board no value whereas that passed by an inferior Court would be conclusive. The Proviso to Section 22(5) affords another argument in favour of the view that the Legislature intended to include within the phrase 'Civil Court,' all Courts, superior or inferior, of Civil Judicature. I accordingly hold that the words 'Civil Court' in Section 34 includes the High Court, exercising original civil jurisdiction.

39. The last question is whether Section 34 of the Act affects the jurisdiction of this Court and if it does, whether to that extent it is ultra vires the powers of the Provincial Legislature. I cannot accept the argument of the respondents that that Section and the cognate Sections beginning from 33 only prevent a creditor of an agricultural debtor from instituting or continuing suits and proceedings in Civil Courts while an. application for settlement of the debts of his debtor-is pending before the Board or the award made by the latter is subsisting. The plain words of the Sections militate against this view. Nor can I agree with the contention that Section 34 preserves the jurisdiction of this Court, but only lays down a rule of procedure, a rule analogous to the rule laid down in Section 10, Civil P.C. Section 34 goes beyond staying proceedings in Civil Courts. The stay is only the first step intended to keep free and unfettered the powers and jurisdiction of the Board conferred by the Act, for as soon as the Board makes the award and in the award includes the debt in question the suit or proceedings pending in the Civil Court, and which had been stayed, abates. If there were proceedings in execution pending in the Civil Court, those proceedings would come to an end for all times, for the award supersedes the decree of the Civil Court (Section 36). There is moreover no analogy between Section 10, Civil P.C. and Section 34 of the Act, for in the former case the Court in which the suit is pending itself stays it. Its jurisdiction is not curtailed or affected, but the stay under the terms of Section 34 of the Act is one imposed from an outside authority. The first part of Section 34 of the Act cannot therefore be regarded as laying down merely a rule of procedure in the sense used by the Lord Chancellor in Secy. of State v. Moment (1913) 40 Cal. 391. Sections 33 to 36 of the Act must in my judgment be read together, for they deal with the different stages of a suit or proceedings in the Civil Court in relation to the proceedings before the Board. The first case is where no suit had been instituted in a Civil Court in relation to the debt concerned but where the proceedings are or have already been before the Board, either the application is pending or the award made is subsisting. In this case a Civil Court cannot entertain the suit. The second is where the Board's jurisdiction is invoked after the suit had already been instituted in the Civil Court. There the first effect is the stay of these proceedings in the civil suit, with the ultimate possibility of the suit and proceedings being put an end to for ever Section 34 therefore affects the jurisdiction of the Civil Court and as I have already held that the phrase 'Civil Court' includes the High Court, it affects the jurisdiction of that Court by putting a fetter on its power to execute its own decree through its own processes.

40. The supreme Court was established in Bengal in 1774 under a Charter dated 26th March of that year under the Regulating Act of 1773 (13 Geo. III c. 63). The Court so established was authorized not only to determine cases but to execute its own decrees through its own sheriff (Clause 15 of the Charter). In 1861 the High Courts Act and the Indian Councils Act (24 and 25 Viet. c. 104 and 24 and 25 Viet. c. 67 respectively) were passed. By Section 9 of the former Act all powers and jurisdiction which the supreme Court then had were vested in the High Court. The Governor-General in Council was given the power to deal by legislation with the extent of the jurisdiction of High Courts to the extent mentioned therein. Section 22 of the Indian Councils Act made it unlawful for the Governor-General-in-Council to make laws and regulations affecting the High Courts Act of 1861, or any Act of Parliament passed after 1861. In 1865 the second High Courts Act was passed by Parliament and the Letters Patent issued, in 1862 under the Act of 1861 was superseded by a Letters Patent issued in that year. This Letters Patent with some subsequent amendments is still in force. Clause 44 of the Letters Patent expressly declares that all provisions of the Letters Patent so issued are subject to the legislative powers of the Indian Legislature (Governor-General in Legislative Council).

41. It is now necessary to examine the relevant provisions of the Government of India Act (1915-19). It is a consolidating Act. All the preceding Indian Councils Acts, and the High Courts Act of 1865 were repealed. The legislative powers of the Indian Legislature are defined in Section 65 and of the Provincial Legislatures in Section 80-A. There are three limitations on the powers of the former, the first of which is relevant to the case before us. It runs thus:

Provided that the Indian Legislature has not, unless expressly so authorized by an Act of Parliament, power to make any law repealing or affecting (i) any Act of Parliament passed after the year one thousand eight hundred and sixty and extending to British India....

42. The phrase 'any Act of Parliament, etc.,' to my mind includes not only an Act of Parliament passed after 1860 and any other Act to be passed by it in future but also the series of Government of India Acts from 1915 to 1919. This provision is virtually a re-enactment of Section 22, Indian Councils Act of 1861. The extent to which the Indian Legislature can interfere with the powers and jurisdiction of the High Courts are exactly defined in Schedule 5. It cannot interfere with the constitution of those Courts, but can by legislation curtail or extend their jurisdiction. By reason of Section 106, this High Court has now and will continue to have till the amendment of its Letters Patent by His Majesty or till the Indian Legislature intervenes, the same jurisdiction and powers which it had under the repealed Indian High Courts Act. The powers of the Provincial Legislatures are defined in Section 80-A. They have power to make laws for the peace and good Government of the province, terms which are very wide. But this power is subject to, the provisions of the Act. Sub-section (3) empowers those Legislatures to make laws, but with the previous sanction of the Governor-General, among others, in matters

(e) regulating any central subject, or (f) regulating any provincial subject which has been declared by rules under this Act to be, either in whole or in part, subject to legislation by the Indian Legislature, in respect of any matter to which such declaration applies.

43. Sub-section (4) enacts that:

The local Legislature of any Province has not power to make any law affecting an Act of Parliament.

44. If the matter had not been complicated by the Devolution Rules framed under See. 45-A of the Act the position would have been absolutely clear. On the construction that Sub-section (4) controls all the foregoing Sub-sections of Section 80-A, Punyendra Narain Deb v. Jagendra Narayan Deb : AIR1936Cal593 the Provincial Legislature even with previous sanction of the Governor. General could not have affected, curtailed or extended the jurisdiction and powers of this Court as conferred by the statute of Parliament (S. 106) and if it had passed such a piece of legislation it would have been ultra vires. It is necessary therefore to consider the scope and effect of the Devolution Rules of 1920 on the subject. Section 45-A(1) enacts that

provision may be made by rules under this Act: (a) for the classification of subjects in relation to the functions of Government as central and provincial subjects, for the purpose of distinguishing the functions of the Local Governments and Local Legislatures from the functions of the Governor-General in Council and the Indian Legislature.

45. In this Act no special mention has been made of the authority which is to make those rules and therefore those rules have to be made under the procedure laid down in Section 129-A. Those rules are to be made by the Governor-General in Council with the sanction of the Secretary of State in Council and are to be laid before both the Houses of Parliament. Those rules are to be void only if on an address being presented to His Majesty within a certain time by either Houses of Parliament praying for annulling those rules or any of them His Majesty in Council annuls the same. The Devolution Rules of 1920 were made under the above procedure. In Part 1 of Schedule A of those rules are specified the central subjects and in Part 2 the provincial subjects. Item 17 of Part 2 consists of two portions. The first portion creates no difficulty. By reason of the provisions made in the first portion, Provincial Legislatures would be competent to legislate on matters concerning the administration of justice including constitution, power, maintenance and organization of Courts of Civil, and Criminal jurisdiction within the province. The Courts contemplated in this portion are not chartered High Courts, they are the Muffasil Courts, both Civil and-Criminal, Courts of Small Causes in Presidency towns and the Presidency Magistrate's Courts. The second portion o Item 17 creates the difficulty. That portion is complementary to Item 41 of Part 1 of Schedule A. These two (so far as they are relevant to the case before us), taken together; mean that the Provincial Legislatures are, competent to legislate in matters relating) to the administration of justice by the chartered High Courts, in matters relating not only to the power and maintenance, but; also relating to the constitution of such Courts, but the legislations by the Provincial Legislatures are subject to the legislations by the Central Legislature. This means that in case of conflict of the laws passed by the Provincial Legislature and those passed by the Central Legislature concerning High Courts, the law passed by the latter would prevail.

46. Mr. Banerjee's argument on the two-items (No. 41 of Part 1 and the second part of Item 17 of Part 2) is that they are ultra vires. He says that Section 45-A(1)(a), Government of India Act, provided for rules-being made for the classification of subjects into Central and Provincial for the purpose of distinguishing the functions of the-Local Legislature from the functions of the Indian Legislature. But as the right to legislate in certain specified matters relating to chartered High Courts have been, vested' by the statute itself in the Indian Legislature only there is no scope for the framing of rules in that respect under Section 45-A(1)(a). His second contention is-that, inasmuch as power has been taken, away by the statute from the Local Legislatures to pass laws which may affect. statutes of Parliament in concerning High Courts, the last part of Item 17, Part 2 of Schedule 1 of the Devolution Rules, if it means-that the Local Legislatures can modify the provisions of the Government of India Act relating to the constitution, powers and jurisdiction of chartered High Courts, is-ultra vires. His third contention is that that part of Item 17 must be taken to have-conferred on the Provincial Legislatures powers to legislate in respect of only such powers etc., of the chartered High Court as has been conferred not by a statute of Parliament but by the Indian Legislature by laws made under the authority of Section 131 read with Schedule 5. The first two contentions amount in substance to the contention that that part of Item 17 of the Devolution Rules is ultra vires. In my judgment this Court and no Court in the British Empire can say that any rule made under the procedure prescribed in Section 129-A is ultra vires. In Dale's case (1881) 6 Q.B.D. 376 Brett L.J. made the following observations at p. 455 of the report:

I am of opinion that the rules and orders have statutory authority, for not only is the authority given to certain persons by statute to draw them up, but it is provided that they shall be laid before Parliament for a certain time, and if not objected to are then to be binding. Wherever that provision is introduced into an Act of Parliament it seems to me that the rules and orders, if not objected to by Parliament, become part of the statute.

47. In Institute of Patent Agents v. Joseph Lockwood (1894) A.C. 347 though Lord Morris expressed a different opinion, the 16rd Chancellor expressed an opinion similar to that of Brett L. J. in Dale's case (1881) 6 Q.B.D. 376. The principle seems to me to be that Parliament must be taken to have sanctioned them. If rules so made become part of the statute itself, no question that the Devolution Rules or any part of them is ultra vires arises, because the legislative authority of Parliament is supreme. I cannot accordingly agree with the first two contentions of Mr. Banerjee. To me it seems that the question is one of interpretation only and the same rules of interpretation are to be applied where two parts of the same statute are in conflict. The governing intention of the Legislature must be found out and that part which agrees with that intention must be given effect to and the other part rejected as being repugnant. In cases like the one before us the governing intention must prima facie be taken to be that expressed in the Section of the statute and not in the rules framed under it: per Lord Herschell L.C. in Institute of Patent Agents v. Joseph Lockwood (1894) A.C. 347 at p. 360. In the case before us, in the absence of any indication to the contrary the enactment must be taken as the governing consideration and the rule only subordinate. There is some force in Mr. Banerjee's third contention on this part of the case, for the construction put by him upon the second part of Item 17 of Part 2 of Schedule A of the Devolution Rules avoids to a large extent its conflict with Section 80-A (4) and Section 131(3) read with Schedule 5. The only portion which purports to give power to the Provincial Legislature to make laws which may affect the constitution of Chartered High Courts and which cannot be reconciled with the statute on the basis of Mr. Banerjee's contention will have to be rejected on the ground of repugnancy. Even in this respect the Indian Legislature has not the power. I cannot accordingly agree with what Bennet J. has said by way of obiter in Ghulam Nizamuddin v. Akhtar Hussain Khan : AIR1933All764 , for the effect of his judgment is that those items of the Devolution Rules have sup. planted the relevant provisions of the Act. To put it in the language which I have used before he has taken the governing intention of Parliament to have been expressed not in the statute itself [S. 80-A (4)] but in those rules. I accordingly hold that by reason of the provisions of Section 80-A (4) and Section 131 (3) read with Sch. 5, Section 34, Bengal Agricultural Debtors Act, so far as it relates to proceedings of this Court, is ultra vires, notwithstanding the fact that sanction had been accorded to the Local Legislature by the Governor-General under Section 80-A (3). I would accordingly allow the appeal on this ground only.


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