# f ' JAMSHED N. GUZDAR v. STATE OF MAHARASHTRA AND ORS

- **Citation:** [2005] 1 S.C.R. 223
- **Court:** Supreme Court of India
- **Decided:** 2005-01-11
- **Case number:** Civil Appeal No. 2452 of 1992
- **Bench:** R.C. Lahoti, Shivaraj V. Patil, K.G. Balakrishnan, B.N. B Srikrishna, G.P. Mathur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/f-jamshed-n-guzdar-v-state-of-maharashtra-and-ors-20357
- **Pages:** 56

## Headnote

Constitution of India, 1950; Articles 2, 3, 4, 14, 19, 132, 134, 136, 216,
217, 221, 222, 223, 224, 226, 227, 230 and 246(2); Entries 77, 78, 79 and C
95 of List I, Entry 3 of List II, Entries II-A, 13, 46 and 65 of list-Ill/Bombay
City Civil Court Act, 1948/lelters Patent (Amendment) Act, 1948/Maharashtra
Civil Court (Enhancement of Pecuniary Jurisdiction and Amendment) Act,
1977/Bombay City Civil Court and Bombay Court of Small Causes
(Enhancement of Pecuniary Jurisdiction & Amendment) Act, 1986/Maharashtra
High Court (Hearing of Writ Petitions by Division Bench and Abolition of D
letters Patent Appeals) Act, 1986/Madhya Pradesh Uchha Nyayalaya (letters
Patent Appeal Samapti) Adhiniyam, 1981:
,.
Bombay City Civil Court and Bombay Court of Small Causes
(Enhancement of Pecuinary Jurisdiction & Amendment) Act, 1987Maharashtra High Court (Hearing of Writ Petitions by Division Bench and E
Abolition of letters Patent Appeals) Act, 1986 -Constitutionality of-Held:
By way of amendment in the Acts, disparity in pecuniary jurisdiction removed
by conferring unlimited pecuniary jurisdiction on the City Civil Court at par
with other Civil Courts in other parts of the State of Maharashtra-Po, ;er of
legislature to confer or take away general jurisdiction of the Courts, other F
than Supreme Court, forms part of the administration of justice and not forming
">·
part of the Constitution and organizations of High Courts-State legislature
could confer general jurisdiction on all Courts in terms of Entries 3, 11-A and
46 of the Concurrent List-Jurisdiction and powers of High Court dealt
separately under Entry I 1-A purportedly for bifurcation of legislative powers
possessed by the Centre and the State legislature-But the subject Constitution G
and Organization of Supreme Court and High Courts rests with the Union in
the Scheme of the Constitution-It cannot be said that Parliament alone has
,"'t
the exclusive competence to invest the High Courts with General Jurisdiction
referable to Constitution and Organizations of High Courts-Investing the
223
H
224
SUPREME COURT REPORTS
[2005] I S.C.R ..
A City Civil Courts with unlimited jurisdiction in terms of amending Acts by the
State does not amount to dealing with the subject Constitution and Organization
of the High Courts-Hence constitutional validity of hath the Acts, 1986 and
1987 Act, upheld.
Madlry11 Pr11desll (Ucllclr11 Ny11y11ly11 Letters P11te11t Appe11ls S11mapti)
B Adlri11iy11m, 1981-Constitutionality of-Held: Since State Legislature
competent to pass law relating to general jurisdiction of High Courts dealing
with administration of justice, Adhiniyam cannot be declared unconstitutional/
invalid-Hence, constitutional validity of the Adhiniyam upheld-Interpretation
of Statutes.
c
E11try 13 of List-I/I-Scope of-Held: In the mailer of Civil Procedure
the Parliament and the State legislature acquire the concurrent Legislative
competence.
E11try 3 of List-II/ before amendmen vis-a-·vis Entry 11 of list-III after
D amendment rlw Enlly 65 of list-II-Implication of-Held: Administration of
justice is a State subject-General Jurisdiction includes jurisdiction and powers
of all Courts including High Courts for administration of justice, such power
rests with the Stale.
Emry I I-A, List-Ill-Use of Semicolon after 'administration of justice'-
E Signification of-Discussed.
'Admi11istr11tio11 of Justice' vis-a-vis 'General Jurisdiction '-Relation
between-Discussed.
Absence of provision for right lo appeal in a Statute-Effect ofF Discussed.
Words 1111d Pl1r11ses:
'Constitution', 'organization' and 'administration of justice '-Meaning
of
G
Doctrines:
Doctrine of 'pith and substance '-Applicability of
The questions which arose for determin:iltion in these appeals were
H as to whether the Bombay City Civil Court and Bombay Court of Small
.l.N. GUZDAR v. STATE
225
Causes (Enhancement of Pecuniary Jurisdiction & Amendment) Act, 1986 A
(1987 Act), which already received assent of the President, Maharashtra
High

## Text

_Characters 0–39,947 of 140,846. This is a partial read: ask again with offset=39947 for what follows._

f '
JAMSHED N. GUZDAR
A
v.
STATE OF MAHARASHTRA AND ORS.
JANUARY 11, 2005
[R.C. LAHOTI, CJ., SHIVARAJ V. PATIL, K.G. BALAKRISHNAN, B.N.
B
SRIKRISHNA AND G.P. MATHUR, JJ.]
Constitution of India, 1950; Articles 2, 3, 4, 14, 19, 132, 134, 136, 216,
217, 221, 222, 223, 224, 226, 227, 230 and 246(2); Entries 77, 78, 79 and C
95 of List I, Entry 3 of List II, Entries II-A, 13, 46 and 65 of list-Ill/Bombay
City Civil Court Act, 1948/lelters Patent (Amendment) Act, 1948/Maharashtra
Civil Court (Enhancement of Pecuniary Jurisdiction and Amendment) Act,
1977/Bombay City Civil Court and Bombay Court of Small Causes
(Enhancement of Pecuniary Jurisdiction & Amendment) Act, 1986/Maharashtra
High Court (Hearing of Writ Petitions by Division Bench and Abolition of D
letters Patent Appeals) Act, 1986/Madhya Pradesh Uchha Nyayalaya (letters
Patent Appeal Samapti) Adhiniyam, 1981:
,.
Bombay City Civil Court and Bombay Court of Small Causes
(Enhancement of Pecuinary Jurisdiction & Amendment) Act, 1987Maharashtra High Court (Hearing of Writ Petitions by Division Bench and E
Abolition of letters Patent Appeals) Act, 1986 -Constitutionality of-Held:
By way of amendment in the Acts, disparity in pecuniary jurisdiction removed
by conferring unlimited pecuniary jurisdiction on the City Civil Court at par
with other Civil Courts in other parts of the State of Maharashtra-Po, ;er of
legislature to confer or take away general jurisdiction of the Courts, other F
than Supreme Court, forms part of the administration of justice and not forming
">·
part of the Constitution and organizations of High Courts-State legislature
could confer general jurisdiction on all Courts in terms of Entries 3, 11-A and
46 of the Concurrent List-Jurisdiction and powers of High Court dealt
separately under Entry I 1-A purportedly for bifurcation of legislative powers
possessed by the Centre and the State legislature-But the subject Constitution G
and Organization of Supreme Court and High Courts rests with the Union in
the Scheme of the Constitution-It cannot be said that Parliament alone has
,"'t
the exclusive competence to invest the High Courts with General Jurisdiction
referable to Constitution and Organizations of High Courts-Investing the
223
H
224
SUPREME COURT REPORTS
[2005] I S.C.R ..
A City Civil Courts with unlimited jurisdiction in terms of amending Acts by the
State does not amount to dealing with the subject Constitution and Organization
of the High Courts-Hence constitutional validity of hath the Acts, 1986 and
1987 Act, upheld.
Madlry11 Pr11desll (Ucllclr11 Ny11y11ly11 Letters P11te11t Appe11ls S11mapti)
B Adlri11iy11m, 1981-Constitutionality of-Held: Since State Legislature
competent to pass law relating to general jurisdiction of High Courts dealing
with administration of justice, Adhiniyam cannot be declared unconstitutional/
invalid-Hence, constitutional validity of the Adhiniyam upheld-Interpretation
of Statutes.
c
E11try 13 of List-I/I-Scope of-Held: In the mailer of Civil Procedure
the Parliament and the State legislature acquire the concurrent Legislative
competence.
E11try 3 of List-II/ before amendmen vis-a-·vis Entry 11 of list-III after
D amendment rlw Enlly 65 of list-II-Implication of-Held: Administration of
justice is a State subject-General Jurisdiction includes jurisdiction and powers
of all Courts including High Courts for administration of justice, such power
rests with the Stale.
Emry I I-A, List-Ill-Use of Semicolon after 'administration of justice'-
E Signification of-Discussed.
'Admi11istr11tio11 of Justice' vis-a-vis 'General Jurisdiction '-Relation
between-Discussed.
Absence of provision for right lo appeal in a Statute-Effect ofF Discussed.
Words 1111d Pl1r11ses:
'Constitution', 'organization' and 'administration of justice '-Meaning
of
G
Doctrines:
Doctrine of 'pith and substance '-Applicability of
The questions which arose for determin:iltion in these appeals were
H as to whether the Bombay City Civil Court and Bombay Court of Small
.l.N. GUZDAR v. STATE
225
Causes (Enhancement of Pecuniary Jurisdiction & Amendment) Act, 1986 A
(1987 Act), which already received assent of the President, Maharashtra
High Court (Hearing of Writ Petitions by Division Bench and Abolition
of Letters Patent Appeals) Act, 1986 (1986 Act), which also received the
assent of the President were constitutionally valid, and as to whether the
Full Bench of the High Court of Madhya Pradesh was right in striking B
down the provisions of Letters Patent Appeals by bringing the Madhya
Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam,
1981.
The principal question that arose for consideration relates to the
legislative competence of the State legislature in passing these enactments. C
Further, with regard to the 1987 Act, it was contended that in the absence
of infrastructure and necessary facilities, it cannot be brought into force
unle~s .he State Government satisfies that there are sufficient number of
court halls and other infrastructure including the requisite number of
judges available to discharge their functions in the City Civil Court. Two
other contentions required to be considered are - (i) whether in the absence D
of necessary infrastructure and the requisite number of judges in the city
civil court, the action of the State Government in issuing the notification
1 ,
was arbitrary and unreasonable and (ii) also whether the notification was
issued unfairly due to extraneous consideration.
Dismissing the appeals, the Court
HELD: I.I. Only the city civil court which has been established for
Greater Bombay was having limited jurisdiction upto Rs. 50,000 and under
the 1987 Act, the disparity in the pecuniary jurisdiction has been removed
E
by conferring unlimited jurisdiction on the city civil court like its F
counterparts in other cities and towns in the State of Maharashtra and
also the jurisdiction of the Small Causes Court is enhanced from Rs. 10,000
to Rs. 25,000 like Civil Judge, Junior Division in other cities. 1987 Act is
prospective in effect. 1245-G, H; 246-Al
1.2. The State Legislature has power to confer general jurisdiction G
on all the courts except the Supreme Court under Entry 11A of the
Concurrent List falling within the meaning of 'administration of justice'.
Hence, the 1987 Act is within the competence of the State Legislature.
1250-CI
1.3. The State Legislature is the sole repository of power to confer H
' i
226
SUPREME COURT REPORTS
[2005] I S.C.R.
A jurisdiction on all the courts except the Supreme Court and High Court
under Entry 3 of the State List prior to Forty··second Amendment in the
,,
Constitution and thereafter the Parliament as well as the State Legislatures
have power to confer" general jurisdiction on all the courts .including the
High Courts under Entry I IA of the Concurrent List. Entry 46 of the
B
Concurrent List deals with the special jurisdiction in respect of the matters
in the Concurrent List. One of the matters in the Concurrent List is the
Civil Procedure Code. The combined reading of Entry llA, Entry 13 and
Entry 46 of the Concurrent List makes the position clear that the 1987
Act is not beyond the legislative competence of the State Legislature when
it deals with pecuniary jurisdiction of civil courts. (250-D-E-F)
c
1.4. Entries 77 and 78 of the Union List deal with 'constitution' and
'organisation' of the Supreme Court and the High Courts because after
coming into force of the Constitution, the Supreme Court was required
to be set up and so also the High Courts were required to be established
and/or reconstituted. The expressions 'constitution' and 'organisation' of
D the High Courts in Entry 78 are referable to Articles 2, 3 and 4 of the
Constitution. The investment of power in the cases, where a High Court
is set up in a reorganized State, is referable to Article 4 of the Constitution,
which is an independent power not referable to Entry 78 of List I.
(251-B-C; 261-F)
"
E
State of Bombay v. Narothamdas Jethabhai and Anr., (1951) SCR 51,
followed.
lndu Bhushan De and Ors. v. The State of West Bengal and Ors., AIR
(1972) Calcutta 160, relied on.
F
Amarendra Nath Roy Chowdhury v. Bikash Chandra Ghosh and Anr.,
AIR (1957) Calcutta 534, approved.
:
.. (
1.5. The words 'constitution' and 'organisation' have their own
meaning as against expressions 'jurisdiction>' and 'powers', but in the
G scheme of the Constitution the subject 'constitution' and 'organisation'
of Supreme Court and High Courts rests with the Union. !251-DI
1.6. It is clear that the Parliament is the sole repository of powers
as far as the 'constitution', 'organisation', 'jurisdiction' and 'powers' of
.r.
the Supreme Court is concerned. Conscious omissions of the words
H 'jurisdiction' and 'powers' in Entry 78, looking to the said words included
' .
"'
J.N. GUZDAR v. STATE
227
in Entry 77 of the Union List, it is clear that the 'jurisdiction' and 'power' A
of the High Courts are dealt with as a separate topic under the caption
'administration of justice' under Entry I IA of the Concurrent List. The
exclusion of 'jurisdiction' and 'powers' from Entry 78 of the Union List
appears to be meaningful and intended to serve a definite purpose in
relation to bifurcation or division of legislative powers relating to B
conferment of general jurisdiction of High Courts. 1250-G-H; 251-AI
2.1. The general jurisdiction of the High Couns is :lealt with in Entry
I IA of the Concurrent List under caption 'administration of justice',
which has a wide meaning and includes administration of civil as well as
criminal justice. The expression 'administration of justice' has been used C
without any qualification or limitation wide enough to include the 'powers'
and 'jurisdiction' of all the courts except the Supreme Court. 1251-EI
2.2. The semicolon (;)after the words 'administration of justice' in
Entry I IA has significance and meaning. The other words in the same
Entry after 'administration of justice' only speak in relation to D
'constitution' and 'organisation' of all the courts except the Supreme
Court and High Courts. Ii follows that under Entry I IA State Legislature
has no power to constitute and organize Supreme Court and High Courts.
It is an accepted principle of construction of a constitution that everything
necessary for the exercise of powers is included in the grant of power. The E
State Legislature being an 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 the High Court with such
general jurisdiction and powers including the territorial and pecuniary
jurisdiction and also to take away such jurisdiction and powers from the F
High Court except those, which are specifically conferred under the
Constitution on the High Courts. [251-F-G-H; 252-AI
3.1. It is not possible to say that investing the city civil court with
unlimited jurisdiction/taking away the same from the High Court amounts G
to dealing with 'constitution' and 'organisation' of the High Court. Under
Entry I IA of List III the State Legislature is empowered to constitute and
organize city civil court and while constituting such court the State
Legislature is also empowered to confer jurisdiction and powers upon such
courts inasmuch as 'administration of justice' of all the courts including
the High Court is covered by Entry t IA of List III, so long as Parliament H
228
SUPREME COURT REPORTS
[2005] I S.C.R.
A does not enact law in that regard under Entry 11-A. 1252-BI
3.2. From Entry 13 it follows that in respect of the matters included
in the Code of Civil Procedure and generally in the matter of civil
procedure the Parliament or the State Legislature, as provided by Article
246(2) of the Constitution, acquire the concurrent legislative competence.
B The 1987 Act deals with pecuniary jurisdiction of the courts as envisaged
in the Code of Civil Procedure and as such the State Legislature was
competent to legislate under Entry 13 of List Ill for enacting 1987 Act.
1252-C-DI
C
State of Bombay v. Narothamdas Jethabhai and Anr., 119511 SCR 51,
followed.
Amarendra Nath Roy Chowdhury v. Bikash Chandra Chose and Anr.,
AIR 44 (1957) Calcutta 534, approved.
D
3.3. The only purpose of the amendment was to bring uniformity as
far as the 'constitution and organization of the High Courts' in the
different States were concerned. Particularly taking notice of the fact that
the High Courts in different Provinces had been functioning for several
years and there was no consistency in their established practices, it was
proposed to bring all the High Courts in the States under the jurisdiction
E of Parliament so that there was some uniformity in the organization of
the different High Courts in India. As the judgment of the Calcutta High
Court in the case of Amarendra Nath Choudhary correctly points out, Entry
3 (prior to its amendment on 3.1.1977) (or Entry llA after amendment)
read with Entry 65 of List II ("administration of justice") is a State subject
F and the jurisdiction and powers of all courts in the State, including the
High Courts, in respect of administration of justice, which must include
"general jurisdiction" is a State subject. 1258-F-G-H; 259-BI
G
Amarendra Nath Roy Chowdhury v. Bikash Chandra Chose and Anr.,
AIR 44 (1957) Calcutta 534, approved.
3.4. It is true that the Calcutta High Court in the case of Amarendra
Nath Choudhary noticed that under Entry 78 of List I, Parliament was
given power to set up the High Courts, but did not have power to invest
them with general jurisdiction, but had power to invest them with special
jurisdiction under Entry 95 of List I. The State Legislature would have
H the jurisdiction to invest the High Courts, set up by Parliament, with the
;
. .
.:,
.l.N. GUZDAR "·STATE
229
necessary general jurisdiction under Entry 3 of List II ("Administration A
of Justice"); both Parliament and the State legislature also had the
competence to make laws to invest the High Courts with special
jurisdiction under Entry 65 of List III. 1259-B-CI
3.5. The words "administration of justice; constitution and
organization of all courts except the Supreme Court and the High Courts" B
were removed from Entry 3 and inserted as Entry 11 A in the Concurrent
List. Consequently, on and after 3.1.1977 boih Farliament and State
Legislature are competent to legislate with respect to the subject
"administration of justice" which would be wide enough to invest the High
Court "constituted and re-organised" by Parliament with the general C
jurisdiction. Thus, after 42nd amendment of the Constitution, the situation
emerges as under:-
(a) Parliament alone has the competence to legislate with respect
to Entry 78 of List I to 'constitute and organize' the High
Court;
(b) Both Parliament and State Legislature can invest such a High
Court with general jurisdiction by enacting an appropriate
legislation referable to 'administration of justice' under Entry
11 A of List Ill .
(c) Parliament may under Entry 95 of List I invest the High
Court with jurisdiction and powers with respect to any of the
matters enumerated in List I.
(d) State Legislature may invest the High Court with the
jurisdiction and powers with respect to any of the matters
D
E
enumerated in List II
F
(e) Both Parliament and State Legislature may by appropriate
legislation referable to Entry 46 of List Ill invest the High
Court with jurisdiction and powers with respect to any of the
matters enumerated in List III.
Hence, it cannot be said that Parliament alone has the exclusive G
competence to invest the High Court with the "general jurisdiction"
referable to "constitution and organization of the High Court".
1259-D-E-F-G-H; 260-A-BI
State of Maharashtra v. Kusum Charudutt Bharma Upadhye, 83 Bombay
LR 75, held inapplicable.
H
230
SUPREME COURT REPORTS
[2005 J I S.C.R.
A
Geetika Panwar v. Government of NCT of Delhi and Ors., 99 (2002)
DL T 840, distinguished.
.I"
I
4.1. The expression "Administration of Justic:e" has wide amplitude
covering conferment of general jurisdiction on all courts including High
B
Court except the Supreme Court under Entry 11-A of List Ill. It may be
also noticed that some of the decisions rendered dealing with Entry 3 of
List II prior to 3.1.1977 touching" Administration of Justice" support the
view that conferment of general jurisdiction is covered under the topic
"Administration of Justice". After 3.1.1977 a part of Entry 3 namely
"Administration of Justice" is shifted to List III under Entry 11-A. This
c only shows that topic "Administration of Justice" can now be legislated
both by the Union as well as the State Legislatures. As long as there is no
Union Legislation touching the same topic, and there is no inconsistency
between the Central legislation and State legislation on this topic, it cannot
be said that State Legislature had no competence to pass the 1986 Act and
the 1987 Act. (260-D-E-FJ
D
K. Kumarswamy Kumandan and Bros. v. Premier Electric Co., AIR
(1959) AP 3; Shivarudrappa Girimallappa Saboji and Anr. v. Kapurchand
Meghaji Marwadi and Ors., AIR (1965) Mysore 76; Indo-Mercantile Bank
Lt. v. Commissioner, Qui/on Municipality, AIR (1961) Kerala 96 and Ahmed
}-
E
Moideen Khan and Ors. v. Inspector of 'D' Division, AIR (1959) Madras
261, approved.
4.2. The State Legislature was also competent to enact the 1987 Act
under Entry 13 read with Entry 46 of List III. The jurisdiction of civil
court, particularly pecuniary jurisdiction of civil courts, was specially
F covered by the Civil Procedure Code on the date of commencement of the
Constitution. [268-Fl
5. The High Courts have power and jurisdiction to deal with such
matters as are conferred by the Constitution and other statutes. This
power of" Administration of Justice" has been included in the Concurrent
G List after 3.1.1977 possibly to enable both Centre as well as States to confer
jurisdiction on High Courts und~r various enactments passed by the
Centre or the State to meet the needs of the respective States in relation
to specific subjects. Thus, viewed from any angle, it is not possible to agree
-1''
that the 1986 Act and 1987 Act are beyond the competence of the State
H
Legislature. [269-B-CI
J.N. GUZDAR v. STATE
231
1
""-
6.1. Looking to what is found by the High Court on facts in relation A
I "
to infrastructure, and keeping in view the settled position of law there
exists no good reason to take a different view. Hence, the view expressed
by the High Court in deferring the implementation of the impugned
Notification to a future date is concurred with. 1273-CI
All India Judges Association v. Union of India, AIR (1992) SC 165, B
A.K. Roy v. Union of India, AIR (1982) SC 710 and R.K. Porwal v. State of
Maharashtra, AIR (1981) SC 1127, referred to.
6.2. It is open to the State Government to apply to this Court seeking
permission for implementation of the said Notification placing on record
necessary material to show that there is adequacy of infrastructure and C
the requirements as to number of judges and court rooms etc. are satisfied.
In this regard a report from the High Court is also required to be called
as and when the State Government applies to this Court seeking
permission for implementation of the notification. 1274-F-G]
6.3. It is also open to the State of Maharashtra to take necessary steps D
to amend Section 3 of the 1986 Act providing for provision of an appeal.
Right of appeal is statutory and not a constitutional right. This apart, if a
statute does not provide an appeal in respect of certain matter, the party
still will have remedy in approaching the High Court or this Court, as
the case may be, in exercise of power of judicial review including under E
Article 136 of the Constitution. 1274-G; 275-A]
6.4. It was competent for the State Legislatures to pass law relating
to general jurisdiction of the High Courts dealing with the topic
'administration of justice' under Entry 11-A of List III. Assuming that
incidentally 1986 Act and the Madhya Pradesh Uchcha Nyayalya (Letters
Patent Appeals Samapti) Adhiniyam, 1981 touch upon the Letters Patent, F
the 1986 Act and the Adhiniyam cannot be declared either as
unconstitutional or invalid by applying doctrine of pith and substance. The
constitutional validity of 1987 Act, 1986 Act and the Adhiniyam is upheld.
(275-E-FI
Association of Natural Gas and Ors. v. Union of India and Ors., [20041
4 sec 489, followed.
Prafulla Kumar Mukherjee and Ors. v. Bank of Commerce Ltd., Khulna,
AIR 34 (1947) PC 60 and Bharat Hydro Power Corpn. Ltd. and Ors. v. State
G
of Assam and Anr., 12004] 2 SCC 553, referred to.
H
A
232
SUPREME COURT REPORTS
[ 2005] I S.C.R.
7. The contention that the Notification has been issued due to
pressure brought about by a section of lawyers and for extraneous
considerations is rejected, since no particulars were 1~iven and no material
was placed on record before the High Court and even before this Court
except repeating this ground. (275-D(
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2452 of 1992.
From the Judgment and Order dated 29.4. I 992 of the Bombay High
Court in W.P. No. 738 of 1992.
WITH
C
C.A. Nos. 2529, 2530/92, 1222-24/85, T.C. (C) Nos. 8-11 of 1989.
Mohan Parasaran, Additional Solicitor General, T.R. Andhuarujina, K.K.
Singhvi, U.U. Lalit, Dr. N.M. Ghatate, Navin Prakash, Gaurav Aggrawal, P.
Parrneswaran, Adv. for Attorney General for India, U.A. Rana, Shyam Divan,
Sadeep Kharel, Devesh Kumar, Arvind Kumar, Madhup Singhal, Ashish,
D Brij Bhushan, S.D. Mogre, P.S. Gidwani, Surya Kant, S.S. Shinde, Mukesh
K. Giri, V.N. Raghupathy (N.P.), Sakesh Kumar, Satish K. Agnihotri, Shyam
Dewan, Mrs. Rakhi Ray, Ms. Bina Gupta, M.N. Shroff, V.B. Joshi, Gopal
Balwant Sathe (NP), D.M. Noargokar, H.K. Puri, Ujjwal Banerjee, S.K. Puri,
Shiv Gupta, Pramod Swarup, (NP), S.N. Bhat for the appearing parties.
E
The Judgment of the Court was delivered by
SHIV ARAJ V. PATIL J. The Constitutional validity of the Bombay
City Civil Court and Bombay Court of Small Causes (Enhancement of
Pecuniary Jurisdiction & Amendment) Act, 1986 (Maharashtra Act No. XV
of 1987) (for short 'the 1987 Act), which received assent of the President on
F 4.5.1987, Maharashtra High Court (Hearing of Writ Petitions by Division
Bench and Abolition of Letters Patent Appeals) Act, 1986 (Maharashtra Act
XVII of 1986) (for short 'the 1986 Act'), which received the assent of the
President on 28.2.1986, and the correctness of the Full Bench decision of the
High Court of Madhya Pradesh striking down the provisions of the Madhya
Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam,
G 1981 (for short 'the Adhiniyam) abolishing Letters Pat<ent appeals as invalid
are under challenge in these matters.
Civil Appeal No. 2452/1992
2. This appeal is directed against the order of the Division Bench of the
H High Court of Maharashtra made in Writ Petition No. 738 of 1992. The
J.N. GUZDAR v. STATE [PATIL. .l.J
233
. .-.
appellant herein filed writ petition by way of public interest litigation A
questioning the constitutional validity of the the 1987 Act. In addition to
challenging the constitutional validity of the aforementioned Act, he also
sought for declaration that the Notification dated 20th August, 199I issued
by the State of Maharashtra as illegal, arbitrary and violative of Articles 14
and I9(l)(g) of the Constitution of India. The High Court, after dealing with B
the rival contentions, dismissed the writ petition by the impugned judgment
upholding the validity of the 1987 Act and deferring the implementation of
the Notification dated 20.8.1991 till 2.10.1992. After the impugned judgment
was delivered, the appellant orally sought for leave to appeal to Supreme
Court under Article 132( I) read with Article 134-A of the Constitution of
India. This appeal is by certificate granted by the High Court under Article c
132(1) read with Article 134 of the Constitution of India.
3. Although the 1987 Act received the presidential assent on 4.5.1987,
it was not implemented for over four years between 4.5.1987 to 20.8.1991
for want of infrastructure and other requirements at the Bombay City Civil
Court. The High Court of Bombay had indicated to the Government that D
before the said Act could be brought into force, the City Civil Court should
be adequately equipped to handle the transfer of jurisdiction. The High Court
-'!
in 1988 had categorically stipulated that minimum 110 judges would be
necessary as a pre-condition for the transfer of jurisdiction to the City Civil
Court for the implementation of the said Act. The High Court had indicated
the requirements such as requisite number of court halls, judges, chambers, E
residences, books and staff etc. It appears there were several representations
both for and against the implementation of the Act. On 20.8.1991, State of
Maharashtra issued the notification to bring the 1987 Act into force with
effect from 1.5.1992. Contending that there was no necessary infrastructure
and other requirements were not satisfied to take care of the transfer of F
jurisdiction to deal with the cases and that there was no legislative competence
for passing such Act by the legislature of State of Maharashtra, Writ Petition
No. 738 of 1992 was filed, as already indicated above, challenging the
constitutional validity of the 1987 Act as well as the afore-mentioned
notification of 20.8.1991 bringing the 1987 Act into force with effect from G
1.5.1992. On 15.4.1992, rule was issued and permission was given for
)
intervention among others to the Bombay Bar Association, Bombay
,"").
Incorporated Law Society, the Indian Merchants' Chamber and the Bombay
City Civil and Sessions Court Bar Association. After hearing the arguments
at considerable length and dealing with the rival contentions, the Division
Bench of the High Court passed the impugned judgment on 29.4.1992 in H
234
SUPREME COURT REPORTS
[2005] I S.C.R.
A terms already mentioned in the beginning of this judgment.
Civil Appeal Nos. 2592 of 1992 and 2530 of 1992
4. These two appeals are filed by Bombay City Civil and Sessions
Court Bar Association and State of Maharashtra respectively aggrieved by
B the second part of the judgment dated 29.4.1992 passed in Writ Petition No.
738 of 1992, i.e., deferring the implementation of the Notification dated
20.8.1991.
T.C. Nos. 8-1 i/1989
C
5. A writ petition No. 1953of1987 was filed by one Jaimini B. Chinai
challenging the constitutional validity of the 1986 Act. While issuing rule,
the High Court stayed the implementation of the said Act observing that
certain questions raised in the writ petition were of substantial nature having
far-reaching consequences and were of public impon:ance. State of Maharashtra
D filed a transfer petition No. 685 of 1988 in this Court seeking transfer of the
said writ petition No. 1953 of 1987 to this Court. Thi~ Court, by order dated
24.3 .1988, ordered for transferring the said petition to be heard along with
Civil Appeal Nos. 1222-24 of 1985 filed by State of Madhya Pradesh against
Full Bench judgment of the Madhya Pradesh High Court which held the
Adhiniyam to be unconstitutional as they involved identical issues of legislative
E competence.
6. Some other writ petitions were filed in the High Court seeking
declaration that the 1986 Act, i.e., the Maharashtra High Court (Hearing of
Writ Petitions by Division Bench and Abolition of Letters Patent Appeals]
Act, 1986 (Act No. XVII of 1986) is ultra vires the Constitution and null and
F void in law. Transfer petition Nos. 685-88/89 were filed before this Court
seeking transfer of writ petitions to this Court. This Court passed order
withdrawing the writ petitions which were pending in the High Court of
Bombay for being heard along with Civil Appeal Nos. 1222-24/85 filed by
State of Madhya Pradesh. These transfer petitions were numbered as Transfer
G Case (C) Nos. 8-11/1989. The grounds raised in the writ petitions to challenge
the constitutional validity of the 1986 Act are that the said Act is beyond the
competence of the State Legislature and is also violative of Article 14 of the
Constitution of India; in the Statement of Objects and Reasons, it is stated
that the 1986 Act is on the lines of the Adhiniyam. The Adhiniyam had been
declared ultra vires and beyond the competence of the State Legislature by
H a Full Bench of Madhya Pradesh High Court in the case of Balkrishna Das
·-
L
J.N. GUZDAR v. STATE [PATIL, J.]
235
and Ors. v. Perfect Potte1y Company ltd. Jabalpur and Ors.'; the 1986 Act A
which deals with the organization and general jurisdiction of High Court is
beyond the legislative competence of the State Legislature having regard to
Entries 77 and 78 of List I, Entry 11-A of List Jll, Entry 95 of List I, Entry
65 of List Ill and Entry 46 of List Ill and the 1986 Act is arbitrary,
unreasonable and violative of Article 14 of the Constitution of India. Further B
that a right of appeal is a substantial right and one appeal on facts and law
is a necessary ingredient of the system of justice. Moreover, abolition of
Letters Patent Appeals denies the litigants, on the original side of the High
Court, the benefit of appeals statutorily provided for under various Central
statues such as Contempt of Courts Act, the Companies Act, the Arbitration
Act, etc.
Civil Appeal Nos. 1222-24/85
7. These appeals are filed by the State of Madhya Pradesh questioning
the validity and correctness of the impugned judgment dated 27.8.1984 passed
c
by the Full Bench of the Madhya Pradesh High Court.
D
8. A company petition No .. 5/83 was filed by respondent Nos. 4-17
under Sections 397-398 of the Companies Act, 1956. The Company Judge
substantially dismissed the said Company Petition. However, the learned Judge
granted relief under Section 398(I)(b) by directing proportionate representation
on the Board of Directors. Three Company Appeal Nos. 4, 5 and 7 of 1983 E
were filed, aggrieved by the order made in the company petition. In view of
the provisions of the Adhiniyam abolishing Letters Patent Appeals in the
High Court, respondent no. 2 filed S.L.P. (C) No. 16066/83 against the
aforementioned decision of the Company Judge. Later, the said SLP was
withdrawn. The Division Bench of the High Court referred the question of
maintainability of appeals to Full Bench in view of the provisions of F
Adhiniyam abolishing Letters Patent Appeals. Earlier, a Division Bench had
upheld the validity of the Adhiniyam. The Full Bench of the High Court, by
a majority of 2: I declared the Adhiniyam to be ultra vires the Constitution
by its judgment dated 27.8.1984. Hence, the State of Madhya Pradesh is in
appeal before this Court challenging the validity and correctness of the G
impugned judgment passed by the Full Bench of the High Court.
9. It may be stated here itself, in all these matters, the principal question
that arises for consideration relate to the legislative competence of the State
I.
AIR (1985) MP 42.
H
236
SUPREME COURT REPORTS
[2005] I S.C.R.
A legislatures of Maharashtra and Madhya Pradesh in passing the enactments.
Further, in Civil Appeal No. 2452 of 1992, in addition to challenging the
constitutional validity of the 1987 Act, it is contended that even ifthe validity
of the Act is upheld for want of infrastructure and necessary facilities, it
cannot be brought into force unless the State Government satisfies that there
B are sufficient number of court halls and other infrastructure mentioned
including the requisite number of judges available to discharge their functions
in the City Civil Court.
l 0. The contention of Mr. T.R. Andhyarujina, learned Senior Counsel
for the appellant in Civil Appeal No. 2452/92 and Transferred Case (C) Nos.
C 8-11/1989 was that the 1987 Act affected the "constitution and organisation
of the High Court" by abolishing original civil jurisdiction of the High Court
and as such it was beyond the legislative competence of the State Legislature
because such a legislation is within the exclusive legislative competence of
Parliament under Entry 78 List I of Seventh Schedule of the Constitution. In
his submissions on this point, he traced the history of working of High Court
D and City Civil Court and Letters Patent jurisdiction of High Court. In support
of his submissions, he cited few decisions. Alternatively, he urged that even
ifthe 1987 Act was intra-vires having regard to lack of infrastructure including
requisite judges in City Civil Court it was an arbitrary or unreasonable exercise
of statutory power vested in the Government to bring into operation the 1987
"
E Act and hence the Government Notification dated 20.8.1991 bringing into
operation the 1987 Act was illegal. He also added that the said Notification
was issued by the Government under pressure for collateral and extraneous
reasons only to appease a section of agitating lawyers who went on hunger
strike etc. Elaborating his submission on point no. I, he submitted that it is
only the Parliament which has the exclusive legislative competence under
F Entry 78 of List I to make a law relating to "the constitution and organization
of the High Courts". The State Legislature has, however, the concurrent
legislative powers to legislate in respect of the constitution and organization
of all courts excepting the Supreme Court and the High Courts as per Entry
11-A of List III; prior to 3.1.1977, the State had exclusive legislative
G competence to constitute and organize courts other than the Supreme Court
and the High Courts under Entry 3 of List l1 which was amended to transfer
it to Entry 11-A in List lll by the Constitution 42nd Amendment Act, 1976.
According to the learned Senior Counsel, the general jurisdiction of a civil
court as opposed to its special jurisdiction in respect of a particular subject
matter relates to the constitution of a court and flows from the very Act
H constituting it. Thus, the general jurisdiction of the High Court is the subject
.J.N. GU ZOAR v. STATE [PATIL. .J.]
237
covered by Entry 78 of List I falling within the exclusive legislative A
competence of Parliament. On the other hand, the general jurisdiction of a
court other than the Supreme Court and the High Court is a subject that was
under Entry 3 of List II prior to the Constitution 42nd Amendment Act, 1976.
He also contended that the State Legislature has also the legislative competence
to make laws conferring special jurisdiction on courts or taking away such B
special jurisdiction from courts in respect of subjects in the Lists II and III
by virtue of Entry 65 or Entry 46 respectively; this, however, is not general
jurisdiction of a court arising from its constitution. He cited the decision of
~
State of Bombay v. Narothamdas Jethabhai and Anr., to show how the scheme
relating to jurisdiction of court was explained.
11. The learned Senior Counsel also urged that "constitution" of a court
of law necessarily includes its general jurisdiction. No court can be constituted
without jurisdiction; jurisdiction and consti'tution of a court are inseparable;
otherwise it would be an ineffective institution in name only; the ordinary
dictionary meaning of the word "constitution" of a court is sufficiently wide
c
to include the jurisdiction of a court. In common parlance also, if a court is D
to be constituted, it must necessarily be constituted with its heart and soul,
namely, its jurisdiction. Consequently, a law in its true content and purport
relating to the jurisdiction of the High Court can only be made by Parliament.
The 1987 Act abolishes the general civil jurisdiction of the High Court
affecting its constitution, therefore, it was beyond the competence of the E
State Legislature inasmuch as the constitution and organization of the High
. Courts is vested in the Union Parliament. The learned Senior Counsel drew
our attention to the scheme of the constitution of courts under Govt. of India
Act, 1935 and submitted that the scheme under that Act relating to the
Constitution and organization of the High Courts was different. The Provincial
Legislature had the exclusive legislative competence to make law relating to F
the constitution and organization of all courts except the Federal Court (under
Entry 2 of List II of the Provincial List). Consequently, the Provincial
Legislatlfre had the legislative competence to constitute a court including a
High Court and to legislate in respect of its jurisdiction. This being the
position, this Court in Narothamdas Jethabhai (supra) upheld the validity of G
the Act as validly made under Entry I List II of the Govt. of India Act, 1935.
He also drew our attention to certain passages in the case of Narothamdas
Jethabhai relating to word "constitution" of a court. He stated that the words
"constitution of court" as explained in Narothamdas Jethabhai was followed
:2.
[19511SCR51.
H
238
SUPREME COURT REPORTS
[2005] I S.C.R.
A in a subsequent judgment of this Court in Supreme Court Legal Aid Committee
,;..
representing undertrial prisoners etc. v. Union of India and Ors'. Thus,
according to him, Parliament alone could make law abolishing the general
original civil jurisdiction of an existing High Court as it directly and
substantially related to its constitution which is a subject falling in exclusive
B jurisdiction of Parliament under Entry 78 of List I of the Constitution. He
took pains to explain as to the scope and ambit of different Entries in three
Lists touching the subject in controversy and reason for the Constitution
42nd Amendment Act of I 976 in relation to Entry No. 3 of List II as amended
and creating a new Entry 11-A in List III. According to him the change was
brought about deliberately so that Parliament alone should be given the power
C under the scheme of the Constitution to make legislation which substantially
affected the constitution and organization of the higher judiciary. According
to him, several other provisions of the Constitution also support this view.
For instance, Article 230 read with Entry 79 of List I gives Parliament the
exclusive competence to deal with "extension of the jurisdiction of a High
Court to and exclusion of jurisdiction of a High Court from, in Union
D Territory". He also referred to Articles 216, 217, 221, 222, 223 and 224 to
show that the President of India and Govt. of India alone have powers in
respect of the matters stated in those Articles to secure a unified higher
judiciary in matters provided in these Articles.
E
I2. Although the I 987 Act on its face purports to state that it is only
enhancing the general jurisdiction of Bombay City Civil Court, in effect it
abolishes the ordinary original civil jurisdiction of the High Court of Bombay
in entirety. The Govt. of India has taken the same stand as the appellant. In
Geetika Panwar v. Government of NCT of Delhi and Ors.', the Full Bench
of Delhi High Court has taken the view which supports the case of the
F appellant. Subsequently, accepting the position, Parliam1!nt has made a law
in regard to High Court of Delhi. The learned Senior Counsel also submitted
that the 1987 Act cannot be held to be constitutionally valid even on the
principle of pith and substance of the legislation.
13. On ground No. 2, the learned Senior Counsel reiterated that for
G want of necessary infrastructure including the requisite number of judges in
the City Civil Court, it was an arbitrary and unreasonable exercise of statutory
power vested in the Government to bring into operation the I 987 Act by
3.
[1994]SCC73l.
H 4.
99 [2002] DL T 840 (FB).
.l.N. GUZDAR v. STA TE [PATIL . .I.]
239
.A·
issuing the impugned Notification dated 20.8.1991. Facts and figures are also A
given in this regard relating to number of civil suits pending as on 31.12.2002
in the City Civil Court even at the existing limits of pecuniary jurisdiction i.e.
Rs. 50,000.