# Th• State of Trip11ra v. Tiie ProviHce oj Eayt Bengal

- **Citation:** [1951] 1 S.C.R. 51
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Case number:** Civil Appeal No. 10 of 1950
- **Bench:** SAIYID FAZL Au, PATANJALI SAsTRI, Mehr Chand Mahajan, MuKHERJEA, DAs JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/th-state-of-trip11ra-v-tiie-provihce-oj-eayt-bengal-101
- **Pages:** 77

## Headnote

Bombay City Civil Court Act (XL of 1948)-Provi11cial Act
constituting City Civil Court to try suits of civil nature of value up
to Rs, 10,000-Provision empowering Provincial GQl/ernmmt to
invest court with jurisdiction up to Rs. 25,000-Validity of ActPower of Provincial Legislature to make laws relating to ju•isdic·
tion of courts-Delegation of legislative powers-Condition11l lr:gis·
lation-Governmetit of India Act, 1935, Seventh Schedule, List I,
items 28 & 53; List II, items 1 & 2; List Ill, items 15-Powei· to
make laws as to 'Administration
of /ustice"
and "Constitution
and organisation of courts", whether includes power to define
"/urisdiction and powers" of courts-Interpretatio11 of Lists-Reference to legislative practice-Doctrine of pith and substance.
The Bombay City Civil Court Act of 1948, an Act passed by
the Provincial Legislature of Bombay, provided by s. 3 that the
Provincial
Government may,
by
notification
in
the
official
Gazette, establish for the Greater Bombay a court to be called the
, Bombay
City
Ci,·il
Court, and that this court shall, notwithstanding anything contained in any law, have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil
nature not exceeding Rs. 10,000 in value arising
within Greater
Bombay except certain kinds of suits which were specified in the
tection. Section 4 of the Act provided that subject to the excep-:
tions :specified in s. 3 the Provincial Government may, by notifica-,
1950
Th• State of
Trip11ra
v.
Tiie ProviHce oj
Eayt Bengal
1950
Dec. 20
1950
State of Bombay
••
Narothamda.r
Jethabai and
Anot~r.
52
SUPREME COURT REPORTS
[1951]
tion in the official Gazette, invest the City Civil Court with jurisdiction to receive, try and dispose of all suits and other
proceeJings of a civil nature arising within the Greater Bombay and of
such value not exceeding Rs. 25,000 as may be specified in the
notification. Section 12 barred the jurisdiction of the
Bombay
High Court to try suits and proceedings cognizable by the City
Civil Court. In exercise of the powers conferred by s. 4 the Provincial Government invested the City Civil Court with jurisdiction
to rcccivCt try and dispose of all suits and proceedings of a ch il
nature not exceeding Rs. 25,000 in value.
The first respondent
instituted a suit in the High Court of Bombay for recovery of
Rs. 11,704 on the basis of a promissory note, contending that the
PrOYincial Legislature had no power to make laws with respect to
jurisdiction of courts in regard to suits on promissory notes which
was, a matter covered by item 53 of List I, and the Bombay City
Civil Court Act of 1948 was therefore ult1·a vires.
It was further
contended on his behalf that in any event s. 4 of the Act was invalid as it involved a delegation of legislative powers to the Provincial Government and that
the
suit was therefore cognisahle
by the High Court.
Held by tne Full Court.-(i) that the impunged Act was a
law with respect to a matter enumerated in List II and was not
ultra vires; (ii) that as the legislature had exercised its judgn1cnt
and determined that the Citv Civil Courts should be invested
with
pecuniary jurisdiction up to ·Rs. 25,000 and all that was left to the
discretion of the Provincial Government \Vas the
determination
of the conditions under which the court should be invested with
the enhanced jurisdiction, s. 4 did not involve any delegation of
legislative -powers but was only an instance of conditional legislation and was not ultra vi1·es or invalid on this ground; (iii) inasmuch as the impunged Act was in pith and substance a law with
respect to a matter covered by List II, the fact that it incidentally affected suits relating to promissory notes (a subject falling
within items 28 and 53 of List I) would not affect its validity an<l
the suit was accordingly not cognisable by the High Court.
Per FAZL ALI, MEHR CHAND MAHAJAN AND MuKHERJE.A JJ.-
The power of the Provincial Legislature to make lay..·s
with
respect
to
"adminis

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'
S.C.R.
SUPREME COURT REPORTS
51
Orders passed by the Governor-General of India under
the Indian Independence Act has still to be decided,
I refrain from expressing any opinion on this point.
In the result, the appeal, in my opinion, should be
allowed and I concur in the order which has been made
by my learned brother Patanjali Sastri, J.
Appeal allowed .
.Agent for the Appellant : R. R. Biswas.
Agent for the Respondent : P. K. Bose.
Agent for the Intervener: P. A. Mehta.
STATE OF BOMBAY
"·
NAROTHAMDASJETIIABAIAND
-
ANOTIIER
(SAIYID FAZL Au, PATANJALI SAsTRI, MEHR CHAND
MAHAJAN, MuKHERJEA and DAs JJ.J
Bombay City Civil Court Act (XL of 1948)-Provi11cial Act
constituting City Civil Court to try suits of civil nature of value up
to Rs, 10,000-Provision empowering Provincial GQl/ernmmt to
invest court with jurisdiction up to Rs. 25,000-Validity of ActPower of Provincial Legislature to make laws relating to ju•isdic·
tion of courts-Delegation of legislative powers-Condition11l lr:gis·
lation-Governmetit of India Act, 1935, Seventh Schedule, List I,
items 28 & 53; List II, items 1 & 2; List Ill, items 15-Powei· to
make laws as to 'Administration
of /ustice"
and "Constitution
and organisation of courts", whether includes power to define
"/urisdiction and powers" of courts-Interpretatio11 of Lists-Reference to legislative practice-Doctrine of pith and substance.
The Bombay City Civil Court Act of 1948, an Act passed by
the Provincial Legislature of Bombay, provided by s. 3 that the
Provincial
Government may,
by
notification
in
the
official
Gazette, establish for the Greater Bombay a court to be called the
, Bombay
City
Ci,·il
Court, and that this court shall, notwithstanding anything contained in any law, have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil
nature not exceeding Rs. 10,000 in value arising
within Greater
Bombay except certain kinds of suits which were specified in the
tection. Section 4 of the Act provided that subject to the excep-:
tions :specified in s. 3 the Provincial Government may, by notifica-,
1950
Th• State of
Trip11ra
v.
Tiie ProviHce oj
Eayt Bengal
1950
Dec. 20
1950
State of Bombay
••
Narothamda.r
Jethabai and
Anot~r.
52
SUPREME COURT REPORTS
[1951]
tion in the official Gazette, invest the City Civil Court with jurisdiction to receive, try and dispose of all suits and other
proceeJings of a civil nature arising within the Greater Bombay and of
such value not exceeding Rs. 25,000 as may be specified in the
notification. Section 12 barred the jurisdiction of the
Bombay
High Court to try suits and proceedings cognizable by the City
Civil Court. In exercise of the powers conferred by s. 4 the Provincial Government invested the City Civil Court with jurisdiction
to rcccivCt try and dispose of all suits and proceedings of a ch il
nature not exceeding Rs. 25,000 in value.
The first respondent
instituted a suit in the High Court of Bombay for recovery of
Rs. 11,704 on the basis of a promissory note, contending that the
PrOYincial Legislature had no power to make laws with respect to
jurisdiction of courts in regard to suits on promissory notes which
was, a matter covered by item 53 of List I, and the Bombay City
Civil Court Act of 1948 was therefore ult1·a vires.
It was further
contended on his behalf that in any event s. 4 of the Act was invalid as it involved a delegation of legislative powers to the Provincial Government and that
the
suit was therefore cognisahle
by the High Court.
Held by tne Full Court.-(i) that the impunged Act was a
law with respect to a matter enumerated in List II and was not
ultra vires; (ii) that as the legislature had exercised its judgn1cnt
and determined that the Citv Civil Courts should be invested
with
pecuniary jurisdiction up to ·Rs. 25,000 and all that was left to the
discretion of the Provincial Government \Vas the
determination
of the conditions under which the court should be invested with
the enhanced jurisdiction, s. 4 did not involve any delegation of
legislative -powers but was only an instance of conditional legislation and was not ultra vi1·es or invalid on this ground; (iii) inasmuch as the impunged Act was in pith and substance a law with
respect to a matter covered by List II, the fact that it incidentally affected suits relating to promissory notes (a subject falling
within items 28 and 53 of List I) would not affect its validity an<l
the suit was accordingly not cognisable by the High Court.
Per FAZL ALI, MEHR CHAND MAHAJAN AND MuKHERJE.A JJ.-
The power of the Provincial Legislature to make lay..·s
with
respect
to
"administration
of
justice"
and
"constit\~tion
:1nJ
organisation of all courts" under item I of List II is \vide enough
to include the power to make la\\'S with regard to the jurisdiction
of courts established by the Provincial Legislature ; the
object of
item 53 of List I, item 2 of List II and, item 15 of List III is to
<onfer special powers on the Central and the Provincial
Legislatures to make laws relating to the jurisdiction of courts with
rcslpect to the particular matters that arc referred to in Lists I and JI
respectively and the Concurrent List, and these provisions do
not
in any \vay curtail
the power of Provincial Legislature under
Item I of List II to make laws with regard to jurisdiction of ~·
and to confer jurisdiction on ~ourts established by it to
try
all
causes of a civil nature subject to the power of the C.Cntral and
•
S.C.R.
SUPREME COURT REPORTS
53
Provincial Legislatures
to make special provisions relating
to
particular subjects referred to in the Lists.
Per PATANJALI
SAsTRI and , DAs JJ.-The words "administration of justice" and "constitution and organisation of all
courts" in item 1 of List II must be understood in a restricted
sense excluding from their scope "jurisdiction and powers
of
courts" as the latter subject is specially dealt with in item
2
of List II. Itan 1 of l;ist II docs not therefore by itself authorise
legislation with respect to jurisdiction and powers of courts, but
the legislative power under item 2 in regard to 'jurisdiction and
powers of courts'', . which can
legitimately be exercised
with respect to any of the matters in List II, can be exercised with respect to administration of justice as this is one of the matters
enumerated in that List, with the result that the subject of
general jurisdiction of courts is brought within the authorised area
of provincial legislation; and as the Provincial Legislature is
thus
competent to make a law with respect to the general jurisdiction
of the court, the apparent conflict with the central
legislative
power under item 53 of List I can be resolved by invoking the
doctrine of pith and substance and incidental encroachment.
[The legislative practice which prevailed in India before
1935
was relied on in this case in support of the view that the Provincial Legislatures had power under the constitution of 1935 to
invest courts constituted by them with general pecuniary juri9diction. J
/
Quaere : Whether it was not open to the Legislatures of India
under the Government of India Act of 1935 to delegate their
legislative powers to other agencies.
Queen v. Burah (52A 178) applied.
/atindra Nath Gupta v.
Province of Bihar (1949 F.C.R. 596) distinguished.
Mulchantl
Kund<Jmmal /agtiani v. Raman (51 Born. L. R. 86), United Pl"D~
vinces v. Atiqa Begum (1940 F.C.R. 110) and Prafulla Kumar
Mukherj~a and Others v. Bank of Commerce,
Khulna
(1947
F.C.R. 28) referred to.
)..
APPELLATE
JuRISDICTION : Civil Appeal No. 10 of
1950.
Appeal from a Judgment of the High Court of
Judicature at Bombay
(Chagla C.J. and Tendolkar J.)
dated 29th March, 1950, in Suit No. 24 of 1950.
1950. December 20. The Court delivered Judgment
"
as follows :
FAZL Au J.-1 have read the judgment
prepared
by my brother, Mahajan J., and generally agree with
his conclusions and reasonings, but, having regard
to
State of Bo1P11NiY
v.
Narotlumultu
Jctleabal •d
Anot/e,e,.
F111I Ali J.
19SO
Slate· of Bombay
v.
Naiothamdm
J'1ha6ai and
Another.
Faz/ Ali J.
54
SUPREME COURT REPORTS
[1951]
the importance of the points raised, I wish to add a
short judgment of my own.
There are really three questions to be decided in tlm
appeal, and they are as follows:
( 1) Whether the Bombay City Civil Court
Act,
1948 (Act XL of 1948), is ultra vires the Legislature of
the State of Bombay ;
(2) Whether in any event section 4 of the above
Act is ultra vires the State Legislature ; and
(3) Whether the Bombay High Court has jurisdiction to try the suit.
The first and the third questions have been answered
by the High Court in favour of the appellant, and the
second question has been answered in favour of the
respondents. In this Court, the appellant attacked the
judgment of the High Court in so far as it concerns
the second
question,
whereas
the first
respondent
at\acked it in so far as it concerns the first and the
third questions.
The Bombay City Civil Court Act purports to
c~eate
an additional civil court for Greater Bombay having
jurisdiction to try, receive and dispose of all suits and
other proceedings of a civil nature not exceeding a
certain value, subject to certain exceptions which need
not be referred to here. It was contended on behalf of
the respondents that the Act is ultra vires the Legislature of the State of Bombay, because it confers
jurisdiction on the new court not only in respect of
matters which the Provincial Legislature is competent
to legislate lfpon. under List II of the 7th Schedule to
the Government of India Act, 1935, but also in regard
to matters in respect of which only the Central or
Federal Legislature can legislate under List I (such as
for instance, promissory notes, which is one of the subjects mentioned in entry 28 of List I). To understand
this argument, it is necesssary to refer to entry 53 of
List I, entries 1 and 2 of List II and also entry 15 of
List III. These entries run as follows:-
Entry 53, List I :-
<:
•
•
•.
S.C.R.
SUPREME COURT REPORTS
55
"Jurisdiction and powers of all courts except the
Federal Court, with respect to any of the matters in
this List ...... "
Entries 1 and 2, List 11-
" l. ....... the administration of· justice ; constitution
and organisation of all courts except the
Federal
Court ...... •·
"2. Jurisdiction and powers of all courts except the
Federal Court, with respect to any of the matters in this
List ...... "
Entry 15, List 111-
"Jurisdiction and powers of all courts except the
Federal , Court, with respect to any of the matters in
this List."
The respondents' contention may appear at the first
sight to be a plausible one, but, in my opinion, it is
not well founded in law. For the purpose of correctly
deciding the question raised, we must first try to
understand the meaning of the following items in entry
1 of List II, "administration of
justice,
constitution
and organization of all courts except the Federal
Court." A reference to the three Legislative Lists
shows that "administration of justice" is entirely a
provincial subject on which only the Provincial Legislature can legislate. The same remark applies to "constitution and organization of all courts except the
Federal
Court." The expression "administration
of
justice" has a wide meaning, and includes administration of civil as well as criminal justice, and in my
opinion entry 1 in List II, which I have quoted, is a
complete and self contained entry. In this entry, no reference is made to the jurisdiction and powers of
courts, because the expressions "administration of justice" and "constitution and organitiation
of courts",
which have been used therein without any qualification
or limitation, are wide enough to include the power
and jurisdiction of courts, for how can justice be administered if courts have no power and jurisdiction to
administer it, and how can courts function without
any power or jurisdiction. Once this fact is clearlr
1950
State of 11omha)'
y.
N-t/iatrlda1
Jethobai and
Alllitier.
Ftltl/ Ali J.
1950
Stale of Borrtbay
v.
N"""""""""
.Jethabai ll1Ul
AnatMr
Faz/ Ali J.
56
SUPREME COURT REPORTS
[1951)
grasped, it follows that, by virtue of the words used
in entry l of List II, the Provincial Legislature
can
invest the courts constituted by it with power and
jurisdiction to try every cause or matter that can be
dealt with by a court of civil or criminal jurisdiction,
and that the expression "administration of justice"
must necessarily include the power to try suits and
proceedings of a civil as well as criminal nature,
irrespective of who the parties to the suit or proceedings
or what its subject-matter may be. This power must
necessarily include the power of defining, enlarging,
altering, amending and diminishing the jurisdiction of
the courts and defining their jurisdiction
territorially
and pccuniarily.
The question then arises as to the exact meaning of
,.
entry 2 of List II and entry 53 of List I, which
are
•
said to militate against the above construction.
These
entries, in my opinion, confer· special powers on Provincial and Central Legislatures, as opposed to the
general power conferred on the Provincial Legislature
by entry 1 of List II, the special powers being the
logical consequence or concomitant of the power of the
two Legislatures to legislate with regard to the matters
included in their respective Legislative Lists. The effect
of these entries is that while legislating with regard to
the matters in their respective Legislative Lists. the
two Legislatures are competent also to make provisions
in the several Acts enacted by them, concerning the
jurisdiction and powers of courts. in regard to the
subject-matter of the Acts,
because otherwise
the
legislation may not be quite complete or effective. The
words used in entry 2 of List II and entry 53 of List
I are wide enough to empower the two Legislatures to
legislate negatively
as
well
as
affirmatively
with
regard to the jurisdiction of the courts in
respect
of
the matters within their respective legislative ambits.
In other words, they can exclude or bar the jurisdiction
of the courts in regard to those matters, and they can
also confer special jurisdiction on
certain
courts.
They can also, apart from the general power which the
<ourts usuallv exercise, confer power on the courts to
S.C.R.
SUPREME COURT REPORTS
pass certain special orders, instances of which I shall
give later.
In this connection, reference may be made
to section 9 of the Code of Civil Procedure, which
provides that-
"the Courts shall have jurisdiction to try all
of a civil nature excepting suits
of
which
cognizance is either expressly or impliedly barred."
suits
their
This
section
obviously
postulates
among
other
things the barring of the jurisdiction of the civil courts
by Legislatures with respect to particular classes of
suits of a civil nature, and the statute-book abounds
in instances in which the jurisdiction of the civil courts.
is barred under Acts passed by the Central and Provincial Legislatures. There are also many Acts providing that any suit or proceeding concerning the subjects
matters of those Acts shall be triable by the court or
courts specified therein.
Such provisions are to be
found in a number of Acts enacted both prior to and
after the enactment of the Government of India Act,
1935, and there can be no doubt that the British·
Parliament while e11acting that Act was fully aware of
the existing legislative practice obtaining
in
this
country as well as . of the fact that the provisions in
question were sometimes . necessary and
therefore
it
empowered the Central and Provincial Legislatures
to
make them under entry 53 of List I and entry 2 of
List II, respectively.
This, in my opinion, is the true
meaning of these entries, and it also explains why a
separate entry was necessary enabling the two
Legislatures to legislate with regard to the power and jurisdiction of the courts in respect of the subject-matters
mentioned in the three Legislative Lists. But for an
express provision like that made in the entries referred
to above, the two Legislatures might not have
been ·
able to confer special jurisdiction on the courts
in
regard to the matters set out in the Legislative Lists;
nor could they have been able to bar the
jurisdiction
of the ordinary courts in regard to them, however
necessary 1 or. tdesirable such a course might have appeared to thcm.
, I. I
19SO
State 9f Bombay
V.
NarothamdaJ
J ethabai and
Aaotller.
Faz/ A.Ii J.
1950
State of Bom~•Y
•.
Narothanult#
Jethaboi and
Another.
Faz/ Ali J.
•
58
SUPREME COURT REPORTS
[1951]
It should be noted that the words used in these
entries are : "jurisdiction and power".
"Power" is a
comprehensive word, which includes all the procedural
and substantive powers which may be exercised by a
court, but the full significance of the use of the word
in the context can be grasped only by reading a large
number of local and special Acts in which power has
been given to Courts to pass certain special and unumal orders. For example, section 13 of the Indian
Aircraft Act, 1934, provides that-
"where any person is convicted
of
an offence
punishable under any rule made under clauses ...... the
Court by which he is convicted may direct that the
aircraft or article or suq,stance, as the case may be in
respect of which the offence has been committed, shall
be forfeited to His Majesty."
Reference may also be made to section 24 of the
Indian A;rms Act, 1878, which provides that-
"when any person is convicted of an offence punishable under this Act, committed by him in respect of
any arms, ammunition or military stores, it shall
be
in the discretion of the convicting Court or Magistrate
further to direct that the whole or any portion of such
arms, ammunition or military stores, and any vessel
.................. shall be confiscated."
(See also section 10 of the Central Excises and Salt
Act, 1944 [Act I of 1944], and section 13 of the Food
Adulteration Act, 1919
[Bengal
Act VI of 1919],
which are in similar terms, and the various Acts relating to money-lenders and money-lending which confer special power on the courts of reopening several
kinds of transactions for the relief of debtors.)
It seems to me that the word "power" was added to
, the word "jurisdiction", in ent~y 53 of List I, entry 2
of List II, and entry 15 of List III, in order to enable
the two Lagislatures to grant special powers like those
I have mentioned to the courts which are to deal with
the subject-matter of any special legislation.
A reference to the Acts passed after the enactment
of the Government of India Act, 1935, will show that
..
•
S.C.R.
SUPREME COURT REPORTS
59
special provisions with regard to the jurisdict_ion
of
courts have been made even after the passing of that
Act, in a large number of Central and local Acts. Confining ourselves to the Acts
pa.~sed by
the Bombay
Legislature, since we are concerned here with one of
such Acts, we find that in The Bombay Probation of
Offenders Act, 1938 (Bombay Act No. XIX of 1938),
section 3 empowers the following courts "to exercise
powers under the Act,-(a) the High Court, (b) a Court
of Session, (c) a District Magistrate, (d) a Sub-Divi-
. IM'
f)
l'dM'
"
s10na
.. ag1strate, , e
a sa.ane
. ag:strate ......... .
Similarly, in The Bombay Agricultural Produce Marketii Act, 1939, section 23
provides that "no offence
under this Act ...... shall be tried by a court other than
that of a Presidency Magistrate, or a Magistrate of the
· First Class or a Magistrate of the Second Class special-
.>-
ly empowered in this behalf." Section 11 of the Bombay
Cotton Control Act, 1942,
provides that "no criminal
court inferior to that . of a Presidency Magistrate or a
Magistrate of the Second Class shall try
any offence
under this Act".
Section 19 of the Rombay Sales of
Motor Spirit Taxation Act, 1946, and section 5 of the
Bombay Harijan Temple Entry Act, 1947,
are
pro-
,.
Yision which exclude the jurisdiction of courts under
certain circumstances.
Similar instances may be multiplied from the Acts of the Central
Legislature and
other Provincial Legislatures, but, in my opinion, the
instartc:es I have quoted are sufficient to show (1) that
the practice which prevailed before
the
Government
of In<lia Act has continued even after its enactment,
and (2) that the words "jurisdiction and powers" have
been consistently construed to bear the meaning which
I have attributed to them.
The interpretation which is sought to be put on the
entries by the respondent is in my opinion open to the
following objections :-
( l) It involves the curtailment of the meaning
of
the expression "administration of justice" in such a
way as to rob it of its primary content-the jurisdiction and powers of the court, without which justice
cannot be administered.
1950
State of Bombay
v.
Nurothamdas
Jcthabai and
Another.
Faz/ A.Ii J.
1950
Stat• of Bomboy
v.
Naro'thamdtu
lethobai and
Anotner.
Fatl Ali J.
60
SUPREME COURT REPORTS
[1951]
(2) It makes it necessary to read entry 2 of List II
as part of entry 1 of the same List, though it has been
separately numbered as an
independent entry.
This
is opposed to the scheme followed in the three Legislative Lists, which seems to be that each particular
entry should relate to a separate
subj~ct or group of
cognate subjects, each subject or
group
of
subjects
being independent of the others (subject only
to
incidental overlapping). The construction
suggested
by the respondents makes it necessary to assume that
though according tG their line of reasoning the word~
"jurisdiction and
powers of courts, etc."
occurring in
entry 2 of List II should have been put in entry 1 of
the same List, being intimately connected
with
the
subject of "administration of justice and the constitution and organization of courts", it was without any
apparent reason numbered separately
and
made an
independent entry.
(3) The
suggested
construction
would
exclude
from
the
jurisdiction
of
the
Provincial
Courts
a large number of matters which normally
come
before courts exercising civil or
criminal jurisdiction
and, if it is accepted, the courts will not be able
to function in the fullest sense unless
both the
Provincial and Central Legislatures have by piecemeal
legislation or otherwise exhausted their power of legislating on all the subjects comprised in Lists II and I
respectively. Even after they
have exhausted
such
power, the courts will not be able to deal with important matters, such as contracts, transfer of property,
arbitration, wills and succession,
criminal
law,
etc.,
which are subjects mentioned in List III, until one of
the two Legislatures has legislated in regard to those
subjects, which raises two important questions :-
(1) Which of the two Legislatures has to do it fim;
and (2) How is the conflict to be avoided?
That the construction put by the respondents will
lead to anomalous results which could not have
been
within the contemplation of the
British
Parliament
while enacting the Government of India Act,
1935,
may be illustrated by one or two examples. Reference
·•
S.C.R.
SUPREME COURT REPORTS
61
might here be made to entry 26 of List I,
which deals
with "carriage of passengers and goods by sea or by
air." It should be supposed that if any of the goods
carried by air are lost and a suit is instituted in regard
to them, the suit will be triable by the Court baving
jurisdiction over the matter under the Civil Procedure
Code, subject to any special legislation on the subject
by the Central Legislature, in spite of the fact that the
carriage of goods and passengers by sea or by air is a
subject mentioned in List I. But, on the view propounded before us by the respondent, the Provincial
civil courts will not be competent to try such a suit,
unless they are empowered to do so by the Central
Legislature. In order to show to what absurd result
this doctrine may be pushed, and in order to .avoid the
criticism of taking for granted what is in controversy,
we may take a very extreme example, because
tlie
soundness of the respondents' contention can be tested
only by trying to find out what would .happen if we
were to stretch it to the utmost limit to which it can be
stretched. Entrv 13 in List I is : "the Banaras Hindu
University and
the Aligarh
Muslim
University."
Under entry 53 of List I, the Central Legislature has
power to legislate in regard to the jurisdiction
and
powers of courts in respect of the subject-matter
of
entry 13. It may therefore be supposed, having regard
to the wide language used in entry 13, that it is open to
the Central Legislature to enact that suits in which
these Universities are concerned as plaintiff or as defendant, will be triable only by the particular
court
mentioned in the enactment concerned and that no
other court shall have jurisdiction in regard to such
suits.
It is difficult to think that until such a legislai1on is made, a court which would otherwise be the
proper court, has no jurisdiction to try
any
suit
in
which one of these Universities is a party, no matter
what the subject-matter of the suit may be. I am certain that the framers of the Government of India Act
did not contemplate such a result.
~
We all know that at the date when the Government
of India Act, 1935, was passed, there were in existence
5-8 S. C. India/67
1950
Stat' of Bombay
v.
Narothamdas
Jethabai and
Another.
Fazl Ali J.
195'0
State Of Bombay
v.
Narothamdas
Jethabai and
Another.
Faz! Ali J.
62
SUPREME COURT REPORTS
[1951 J
in the different Provinces a large number of courts of
law and the administration of justice throughout
the
Provinces was in the hands of these provincial courts.
The civil courts in the Province used to try all suits
and proceedings of a civil nature which
are
triable
under section 9 of the Civil Procedure Code, and the
criminal courts used to try all criminal cases which are
triable under the Code of Criminal Procedure.
The
jurisdiction and power of the courts were not confined
to cases in regard to the subjects stated in List II, nor
were they debarred from dealing with cases relating to
matters which have been assigned to List I. '.fhe jurisdisction of the courts depended in civil cases on a "cause
of action" giving rise to a civil liability, and in criminal cases on the commission of an offence, and on the
provisions made in the two Codes of Procedure
as
to
the venue of the trial and other relevant. matters.
It
seems to me that the Government of India Act, 1935,
did not contemplate any drastic change in the existing
system of administration of justice, but what it "contemplated
was
that
that
system
should
continue
subject to future legislation by the
proper Legislature.
Central or Provincial, harrying the
jurisdiction
of
courts or conferring jurisdiction or power on special
courts with regard to the matters included
in the
appropriate
Legislative
Lists, should there be any
occasion
for
such
special
legislation.
Under
the
Government
of
India
Act,
1935,
every
Province
became
more
or less
an autonomous unit with a
complete machinery for administering justice
to
the
fullest extent.
In my opinion, there is nothing in the
Act of 1935 to show that there was any intention on
the part of its framers to affect the machinery so
drastically a·s to confine it to the administration
of
a
mere partial or truncated kind of justice relating only
to matters specified in List II.
Mr. Setalvad,
the
learned
Attorney-General, who
appeared on behalf of the appellant, in supporting the
impunged Act, argued before us that for the purpose
of deciding this appeal, we might also refer to entry 4
of List III.
His contention was that the impunged
..
•
•-
·,,.
S.C.R.
SUPREME COURT REPORTS
63
Act having had the assent of the Governor-General, it
would be permissible to see what powers the Provincial
Legislature co1:1ld exercise under Lists II and III taken
together. If the course which he suggests is adopted,
then the subjects on which the Provincial Legislature
can legislate would be : (1) administration of justice;
(2) constitution and organization of courts; and (3)
civil procedure, including all matters included in the
Code of Civil Procedure at the date of the passing of
the Government of
India
Act,
1935.
One
of the
matters included in the Civil Procedure Code is the
jurisdiction of courts.
Section 9 of the Code provides,
:as I have already stated, that the courts shall havt'!
jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or
impliedly
barred.
There are also
provisions
in the
Code dealing with the territorial and pecuniary jurisdiction of
the courts.
The three entries
will
thus
cover exactly the field which is covered by item 14 of
section 92 of the Canadian Constitution which com.
prises
the
following
matters :
"administration
of
justice in the Provinces, including
constitution, maintenance and organization of provincial courts both of
civil and criminal jurisdiction including procedure in
civil matters in
those courts."
It has been held in
Canada that the words referred to above include the
power and jurisdiction of courts, and, under that item,
the Provincial Legislature can confer the · widest power
on the courts.
It seems
to me
that
the
approach
suggested
by the learned
Attorney-General is
useful
for testing whether entry 2 of List II was intended to
be treated as the sole and only basis of the power of the
Provincial
Legislature
to
confer
jurisdiction
on
the
provincial courts and
whether it was
really the
intention of the British
Parliament to empower the
Provincial Legislature to confer jurisdiction of . only
such a limited character as can be conferred on the provincial courts under entry 2 of List II, if that entry is
treated as a self-sufficient entry.
In my opinion, the
correct
view is to
hold that it· is not
necessary to
call into aid
either entry 4 of
List III or any of the
19,0
State of Bomb4r
'V·
Narotham4u
Jethabai ·Olld
Anot/ter.
Fazl Ali •
1930
Stat< of Bombay
y.
Na1othamdas
lel/JQbal and
Another.
Faz/ All I.
64
SUPREME COURT REPORTS
[1951]
provisions of the Canadian Constitution in this case,
and that the words "administration of justice; constitution and organization of courts" are by themselves
sufficient to
empower the
Provincial
Legislature to
invest a new court with all the power which has been
conferred upon it by the Impugned Act. It is of course
open to the Central Legislature to bar the jurisdiction
of the new court by a special enactment with regard
to any of the matters in List I, but so long as such
jurisdiction is not barred, the court will have jurisdiction to try all suits and proceedings of a civil nature as
enacted in the Act in question.
I think that if the
Provincial Legislature had merely enhanced the pecuniary jurisdiction of any of the existing civil courts
there could have been no objection to that course. Why
then should
there be any objection when, instead of
investing one of the existing courts with power to try
suits and proceedings of a civil nature not exceeding a
certain amount, the
Legislature
has created
a new
court and invested it with the same power,
Perhaps, it will be simpler to deal at this stage with
the third question, namely, whether the Bombay City
Civil Court has jurisdiction to try a suit based on a
promissory note.
So far as this point is concerned,
the respondent bases his contention on entries 28 and
33 of List I, Entry 28 relates to "cheques, bills of excha,nge, promissory notes and other like instruments".
Entry
53, as already
stated,
relates to
"jurisdiction
and powers of courts with respect to any of the matters
in List I." It is contended on behalf of the respondent
that the effect of these two entries, when they arc read
together, is that no court can try a suit relating to a
promissory note, unless it is invested with the jurisdiction to try such a suit by the Central Legislature by virtue of the power given by entry 53 of List I. The question so raised is covered by the answer to the first question, and I shall only add that the answer already
given to that question finds some support in the case of
Prafulla Kumar
Mukherjee and
Others v. Bank of
Commerce Limited, Khulna('), in which the argu-
('l [1947]F.C.R.28.
..
f
•.
S.C.R.
SUPREME COURT REPORTS
65
ments of the respondents before the Privy Council proceeded on the same lines as the arguments of the respondents before us.
The question raised in that case
was as to the validity of the Bengal Money-lenders'
Act, 1940, which limited the amount recoverable by a
money-lender on his loans · and interests on them, and
prohibited the payments of sums larger than those permitted by the Act. The validity of the Act was questioned by the respondent Bank in certain suits brought
by them to recover loans and interests alleged to be due
on promissory notes
executed
by the appellants-borrowers as
well as
in suits
brought by
the debtors
claiming relief
under the
Act.
The argument put
forward on behalf of the Bank was that the Bengal
Legislature by
the
impugned
Act had
attempted
to
legislate on
subjects
expressly
forbidden
to it
and expressly and exclusively reserved for the Federal
Legislature, that is to say, in relation to promissory
notes
and
banking,
which
are
reserved · for the
Federal Legislature
exclusively,
under
entries
28
and 38
respectively of List I.
On the
other hand,
the arguments put forward
on behalf of
the appellants was that thf" impugned Act was in pith and
substance legisla(10n dealing with money-lending and
that in so far as it dealt with promissory notes or
banking that was only
incidental or ancillary to the
effective use of the admitted legislative powers of the
Provincial
Legislature
to
deal
with money-lending.
This
argument
of the
appellants
was substantially
accepted by the Privy Council.
· The second point raised on behalf of the respondent
relates to the validity of section 4 of the Act, which
runs as follows :-
"Subject to the exceptions specified in section 3, the
Provincial
Government, may by notification in the
Official Gazette, invest the City Civil Court with jurisdiction to
receive, try and
dispose of all · suits and
other proceedings of a civil nature, arising within the
Greater Bombay and of such
value not
exceeding
Rs. 25,000 as may be specified in the notification."
1950
State of Bombay
..
Narothamda8
Jethabai and
Another.
Mahajan J.
1950
State of Bombay
••
Narothamdas
.letAabai and
Another.
Mahajan J.
66
SUPREME COURT REPORTS
(1951]
It is contended that this section is invalid, because
the Provincial
Legislature has
thereby
delegated its
legislative powers to the Provincial Government which
it cannot do.
This contention does not appear to me
to be sound.
The section itself shows that the Provincial Legislature having exercised its judgment and
determined
that the New
Court should be invested
with
jurisdiction to try
suits and
proceedings of a
civil nature of a value not exceeding Rs. 25,000, left it
to the Provincial Government to determine when the
Court should be invested with this larger jurisdiction,
for which the limit had been fixed.
It is clear that if
and when the New Court has to be invested with the
larger jurisdiction, that jurisdiction would be due to no
other authority
than the Provincial
Legislature itself
and
the
court
would
exercise that
jurisdiction by
virtue of the
Act itself.
As several of
mv learned
colleagues have
pointed
out,
the
case of ·Queen v.
Bur ah (1), the authority of which was not questioned
before us, fully covers the contention raised, and the
impugned provision is an instance of what the Privy
Council has designated as conditional legislation, and
does not really delegate any legislative power but merely prescribes as to how effect is to be given to what the
Legislature has already decided. As the Privy Council
has pointed out, legislation conditional on the use of
particular powers or on the exercise of a limited discretion entrusted by the Legislature to persons in whom
it places confidence, is no uncommon thing,
and in
many
instances it
may be
highly
convenient
and
desirable.
Examples
of such
legislation
abound
in
England, America and other countries.
As some of the
American Judges
have
remarked,
"there are
many
things upon which wise
and useful
legislation must
depend
which cannot be
known to the law-making
power and must therefore be the subject of enquiry and
determination outside the halls of legislation
(Field v.
Clark) (2).
Mr. Setalvad, the learned Attorney-General
who appeared
on behalf of the
appellant, contended
that
in
this
country
even delegated legislation
is
( 1) 3 A.C. 889.
(') 143 u. S.649.
•
•
...
S.C.R.
SUPREME COURT REPORTS
67
permissible, but I do not consider it necessary to ~o
into that question, because the principle enunciated m
Queen v. Burah (1) is sufficient to dispose of the contention raised here. I think that the present case stands
well outside what was laid down by the Federal Court
in /itendranath Gupta v. The Province of Bihar(2), as
two of my colleagues who were parties to the majority
decision in that case have pointed out.
In the result, this appeal is allowed .
PATANJALI
SAsTRI
J.-This appeal raises the important question of the constitut10nal validity of the
Bombay
City
Civil
Court
Act,
1948
(hereinafter
referred to as the Act) and though I concur in the conclusion reached by the majority of my learned brothers
I wish to state precisely the reasons which lead me to
that conclusion.
The first respondent brought the suit in the High
Court at Bombay on its original side
for
recovery of
Rs. 11,704 from the second respondent on promissory
notes.
Notwithstanding
that the
jurisdiction of
the
High Court to try suits cognisable by the City Civil
Court was barred under section 12 of the Act and the
pecuniary limit of the jurisdiction of the latter court
had been enhanced from Rs. 10,000 to Rs. 25,000 by
a notification issued
by the Provincial Government
under section 4 of the Act, it was stated in the plaint
that the High Court had jurisdiction to try the suit
because the
Act as
well as
the said notification was
ultra
vires and void.
In view of
the constitutional
issues thus raised, the State of Bombay, the appellant
herein was on its own motion, made a party defendant.
The High Court (Chagla C. J. and Tendolkar J.)
held (1) the Act was intra vires, but (2) that section 4
which authorised the Provincial
Government
to
enhance the jurisdiction of the City Court up to the limit
of Rs. 25,000 amounted to a delegation of legislative
power, and as such, was void and inoperative, with
the result that the suit, which exceeded Rs. 10,000 m
( 1) SI. A. 178.
(') [1949] F.C.R.