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PETITIONER: STATE OF BOMBAY

       Vs.

RESPONDENT: NAROTHAMDAS JETHABAI ANDANOTHER

DATE OF JUDGMENT: 20/12/1950

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN

CITATION:  1951 AIR   69            1951 SCR   51  CITATOR INFO :  F          1951 SC 332  (330)  F          1952 SC 252  (65)  R          1957 SC 510  (8)  R          1962 SC1044  (8)  E          1968 SC 888  (7)  R          1970 SC1453  (6)  RF         1972 SC1061  (80)  RF         1973 SC1461  (2100)  R          1983 SC1019  (52)  RF         1986 SC1323  (31)  F          1986 SC1783  (3)

ACT:     Bombay City Civil Court Act (XL of 1948)--Provincial Act constituting  City Civil Court to try suits of civil  nature of  value up to Rs. 10,000--Provision empowering  Provincial Government  to  invest  court with  jurisdicton  up  to  Rs. 25,000--Validity of Act---Power of Provincial Legislature to make  laws relating to jurisdiction   of  courts--Delegation of legislative powers--Conditional legislation-Government of India  Act, 1935,  Seventh Schedule, List I, items 28 &  53; List II, items 1 & 2; List III, item 15 --Power to make laws as  to  "Administration of Justice"  and  "Constitution  and organisation  of courts ", whether includes power to  define "Jurisdiction  and  powers"  of  courts--interpretation   of Lists--Reference  to legislative practice--Doctrine of  pith and substance.

HEADNOTE:     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 Civil 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 nob  exceeding  Rs. 10,000 in value arising within Greater Bombay except certain kinds of suits which were specified in the section.  Section

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4 of the Act provided that subject to the exceptions  speci- fied in 8. 3 the Provincial Government may, by  notification in  the official Gazette, invest the City Civil  Court  with jurisdiction to 52 receive, try and dispose of all suits and other  proceedings of  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 receive, try and dispose of  all suits  and proceedings of a civil 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  Provincial Legislature had no power to make laws with respect to juris- diction  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  ultra vires.   It was further contended on his behalf that in  any event s. 4 of the Act was invalid   as it involved a delega- tion of legislative powers to the Provincial Government  and that the suit was therefore cognisable by the High Court.     Held by the Full Court.--(i) that the impugned 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 judgment and determined that the City Civil Court should be  invested with pecuniary jurisdiction up to  Rs.  9,5,000 and  all that was left to the discretion of  the  Provincial Government  was  the determination of the  conditions  under which the court should be invested with the enhanced  juris- diction, s. 4 did not involve any delegation of  legislative powers  but was only an instance of conditional  legislation and  was  not ultra vires or invalid on this  ground;  (iii) inasmuch as the impugned 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 and the suit was  accordingly  not cognisable by the High. Court.     Per FAZL ALI, MEHR CHAND MAHAJAN and MUKHERJEA JJ. --The power  of the Provincial Legislature to make laws  with  re- spect  to "administration of justice" and "constitution  and organisation of all courts" under item 1 of List II is  wide enough to include the power to make laws with regard to  the jurisdiction of courts established by the Provincial  Legis- lature; the object of item 53 of List I, item 9, of List  II and  item 15 of List III is to confer special powers on  the Central and the Provincial Legislatures to make laws  relat- ing to the jurisdiction of courts with respect the  particu- lar  matters that are referred to in Lists I and II  respec- tively and the Concurrent List, and these provisions do  not in  any   way curtail the power of   Provincial  Legislature under  Item I of List II to make laws with regard to  juris- diction  of  courts  and to confer  jurisdiction  on  courts established  by it to try all causes of a civil nature  sub- ject to the power of the Central and 53 Provincial Legislatures to make special provisions  relating to particular subjects referred to in the Lists.    Per  PATANJALI  SASTRI and DAS JJ.--The  words"  adminis- tration  of justice" and "constitution and  organisation  of all  courts"  in item 1 of List II must be understood  in  a

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restricted  sense excluding from their  scope  "jurisdiction and powers of courts" as the latter subject is  specifically dealt  with in item 2 List II.  Item 1 of List II  does  not therefore  by itself authorise legislation with  respect  to jurisdiction and powers of courts, and the legisltive  power under  item  9. 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   competant 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 jurisdiction].     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 (59. A 178).applied.  Jatindra Nath Gupta v.  Province  of  Bihar  (1949  F.C.R.  596)  distinguished. Mulchand  Kundanmmal Jagtiani v. Raman (51 Born. L.R. 86  :, United Provinces v. Atiqa Begum 1940 F.C.R. 110)and Prafulla Kumar Mukherjea and Others v. Bank of Commerce, Khulna (1947 F.C.R. 28) referred

JUDGMENT: 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  ALI  J.--I have read the judgment prepared  by  my brother,  Mahajan J., and generally agree with  his  conclu- sions and reasonings, but, having regard to 54 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  this 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 jurisdicion 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 attacked it in so far as  it  concerns the first and the third questions.     The  Bombay City Civil Court Act purports to  create  in additional  civil court for Greater Bombay having  jurisdic-

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tion  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 maters which the Provincial Legislature is compe- tent to legislate upon 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  in- stance,  promissory  notes,  which is one  of  the  subjects mentioned in entry 28 of List I).  To understand this  argu- ment, it is necessary to refer to entry 53 of List , entries 1  and  2  of List II and also entry 15 of  List  II.  These entries run as follows :-- Entry 53, List I :--- 55     "Jurisdiction and powers of all courts except the Feder- al  Court,  with  respect  to any of  the  matters  in  this List    ......." Entries 1 and 2, List II :--     "1   ......  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 III :--     "Jurisdiction and powers of all courts except the Feder- al 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  jus- tice"  is  entirely a provincial subject on which  only  the Provincial  Legislature can legislate. The same  remark  ap- plies to "constitution and organization of all courts except the  Federal Court." The expression "administration of  jus- tice"  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  organi- zation 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 clearly 56 grasped,  it  follows that, by virtue of the words  used  in entry  1 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 proceeding or what its subject-matter may be.  This power

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must  necessarily include the power of defining,  enlarging, altering,  amending and diminishing the jurisdiction of  the courts  and  defining their jurisdiction  territorially  and pecuniarily.     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  spe- cial 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  legisla- tion 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 courts usually exercise, confer power on the courts to 57 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 suits  of a civil nature’ excepting  suits of  which their  cognizance is either expressly or impliedly barred."     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 proceed- ing  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  Par- liament-while  enacting  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 or desirable such a course

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might have appeared to them. 8 58     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 unusual 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  arti- cle  or substance, 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 Arms 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  mili- tary  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  Adul- teration  Act,  1919 [Bengal Act VI of 1919], which  are  in similar terms, and the various Acts relating to  money-lend- ers  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 entry 53 of List I, entry 2 of  List II,  and  entry 15 of List III, in order to enable  the  two Legislatures  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 59 special provisions with regard to the jurisdiction 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 passed 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 a empowers the following courts "to  exer- cise powers under the Act,--(a) the High Court, (b) a  Court of Session, (c) a District Magistrate, (d) a  Sub-Divisional Magistrate,  (e) a salaried Magistrate  ......  " Similarly, in  the Bombay Agricultural Produce Markets Act, 1939,  sec- tion  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  Magis- trate  of the Second Class specially empowered in  this  be- half."  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 Bombay Sales of Motor Spirit Taxation Act, 1946, and section 5  of the Bombay Harijan Temple Entry Act, 1947, are  provi- sions which exclude the jurisdiction of courts under certain

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circumstances.  Similar instances may be multiplied from the Acts of the Central Legislature and other Provincial  Legis- latures, but, in my opinion, the instances I have quoted are sufficient  to  show (1) that the practice  which  prevailed before the Government of India 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 :-     (1).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. 60     (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  sepa- rately 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 subject 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 to their line of reasoning the  words "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 "admin- istration  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 piece- meal  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 first; 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 61 might  here be made to entry 26 of List I, which deals  with "carriage  of passengers and goods by sea or by b 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 having jurisdiction  over the  matter under the Civil Procedure Code, subject  to  any special  legislation on the subject by the Central  Legisla- ture,  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

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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 the  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.  Entry 13 in List I  is: "the Banaras Hindu University and the Aligarh  Muslim University." Under entry 53 of List I, the Central  Legisla- ture  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 legislation 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 62 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.   The jurisdiction 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  contem- plate any drastic change in the existing system of  adminis- tration of justice, but what it contemplated was  that  that system  should  continue subject to  future  legislation  by the  proper Legislature; Central or Provincial, barring  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  Govern- ment of India Act, 1935, every Province became more or  less an autonomous unit with a complete machinery for administer- ing justice to the fullest extent.  In my opinion, there  is nothing in the Act of 1935 to show that there was any inten- tion  on the part of its framers to affect the machinery  so drastically as to confine it to the administration of a mere partial  or truncated kind of justice relating only to  mat- ters specified in List II.     Mr.  Setalvad,  the ]earned Attorney-Genera],   who  ap- peared  on  behalf of the appellant, in supporting  the  im- pugned Act, argued before us that for the purpose of  decid- ing  this appeal, we might also refer to entry 4  List  III.

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His contention was that the impugned 63 Act having had the assent of the Governor-General, it  would be permissible to see what powers the Provincial Legislature could  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 organiza- tion  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 have  jurisdic- tion  to try all suits of a civil nature excepting suits  of which  their  cognizance is either  expressly  or  impliedly barred.   There are 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 comprises 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  provin- cial  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 64 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  Legisla- ture  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 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 Legis- lature 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

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28 relates to "cheques, bills of exchange, 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  are  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  Legisla- ture 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 Khulnal (1), in which the arguments of the (1) [1947] F.C.R.28. 65 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 promisso- ry   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 the impugned Act was in pith  and substance legislation 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." 9 66     It  is contended that this section is  invalid,  because the Provincial Legislature has thereby delegated its  legis- lative  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  pro- ceedings  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 jurisdic- tion, for which the limit had been fixed.  It is clear  that

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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 my learned colleagues  have  pointed out, the case of Queen v. Burah (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.               (2) 143 U.S. 649, 67 permissible,  but I do not consider it necessary to go  into that question, because the principle enunciated in 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  Jitendranath 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  ques- tion  of  the constitutional 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 orginal 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  cog- nisable 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 autho- rised 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  ex- ceeded Rs. 10,000 in (1)5 I.A. 178.               (2) [1949-50] F.C.R. 595.

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68 value  and was not cognisable by the City Court  apart  from the  impeached  notification, was       held  to  have  been property  laid in the High Court.      Both  these  findings have been challenged before us    as erroneous, the first by the first respondent and the  second by the appellant.    On the first point, learned counsel for    the first  re- spondent  urged that section 100 of the Government of  india Act, 1935, read with entries 53 of List I, 2 of List II  and 15 of List III, the relevant parts of which are in identical terms,   namely,   "jurisdiction  and powers of  all  courts except the Federal Court with respect to any of the  matters in  this List", conferred power on Legislatures  in  British India  to make laws with respect to jurisdiction  of  courts only in relation     to matters falling within their respec- tive  legislative fields, and that, therefore,  the  expres- sions  "administration  of justice"  and  "constitution  and organisation of courts" in entry 1 of List II, although they might be wide enough, if that entry stood alone, to  include the topic of "jurisdiction and powers of courts", should not be  construed in that comprehensive sense as such  construc- tion  would give no effect to the limiting words in entry  2 which would then become meaningless indeed  if those expres- sions  in entry 1 included the power to legislate  with  re- spect to jurisdiction also, there would be no need for entry 2,  while, on the other hand, without including such  power, they  would still have ample content, as various other  mat- ters relating     to administration of justice and constitu- tion  of courts would have to be provided for,   The  scheme disclosed  by the three separate entries in identical  terms in  the  three lists was said to be this:   The,  Provincial Legislatures  were to have the power of constituting  courts and  providing for administration of justice, but the  power to invest the courts with jurisdiction was to rest with  the Federal  Legislature in respect of the matters mentioned  in List I and with the Provincial Legislature in respect of the matters mentioned in List Ii, while both the Federal and the Provincial Legislatures were to have such power with respect to 69 the matters mentioned in List III subject to the  provisions of section 107.  It was, therefore, submitted that the  Act, in  so far as it purported to provide by section 3 that  the City  Civil Court established thereunder "shall have  juris- diction  to receive, try and dispose of all suits and  other proceedings  of a civil nature not exceeding Rs.  10,000  in value  and  arising  within Greater  Bombay"  (with  certain exceptions not material here) was ultra vires the Provincial Legislature, constituting as it did a direct invasion of the Federal field marked out by entry 53 of List I.   As all the three entries dealt with the same topic of jurisdiction  and powers  of courts, there was no room, it was said,  for  the application of the doctrine of incidental enroachment.     The  argument  is not without force.   The  Bombay  High Court  in Mulchand v. Raman (1), which was followed  by  the learned Judges in the present case, and the Attorney-General who adopted the same line before us, invoked the doctrine of pith  and substance in answer to the argument on  behalf  of the respondent. But that doctrine, while it often  furnishes the  key  to  the solution of problems arising  out  of  the distribution of overlapping legislative powers in a  Federal system, is not of much assistance in meeting the  difficulty in  finding any usefulness in entry 2 if under entry  1  the Provincial  Legislature were intended to have the  power  to legislate  generally  with respect to the  jurisdiction  and

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powers of courts.  The greater power must include the  less. A similar  difficulty in construing entry 4 of List III  and entry 2 of List II arose in Stewart v. Brojendra Kishore (2) and  led  a  Division Bench of the Calcutta  High  Court  to construe  the expression "civil procedure" occurring in  the former entry in a "limited sense" as excluding  jurisdiction and powers of courts. After referring to the decision of the Judicial  Committee  in In re  Marriage  Reference(3)  where "marriage  ,and divorce" in the Dominion List was  construed as  excluding  matters  relating to  the  "solemnisation  of marriage  (1)  51 B.L.R. 86.                    (3) [1912] A.C.  880. 628  (2) A.I.R. 1939 Cal. 628 70 in  the province" because the latter topic was  specifically included  in  the Provincial List, the  learned  Judges  ob- served:   "The position is similar here.  ’Civil  procedure’ in  the Concurrent Legislative List must be held to  exclude matters relating to jurisdiction and powers of courts  since special provision is made for those matters elsewhere in the lists."   "To hold otherwise", they pointed out,  "would  be completely  to  wipe out the second entry in the  Provincial Legislative List." Learned counsel for the first  respondent strongly  relied on that decision and suggested that, if  it had  been  brought to the notice of the  learned  Judges  in Mulchand  v. Raman (1), their decision might well have  been the other way.     On  the other hand, the Attorney-General submitted  that there  could be no question of conflict between two  entries in the same list and that the natural meaning of one  should not   be  restricted  simply because of the presence of  the other.   He placed reliance on the following observations of Gwyer  C.J. in Aliqa Begum’s case (4)  "It would be  practi- cally impossible  for  example  to  define  each item in the Provincial  List  in such a way as to make it  exclusive  of every  item in that list and Parliament seems to  have  been content to take a number of comprehensive categories and  to describe  each  of  them  by  words  of  broad  and  general import...I  think,  however, that none of the items  in  the lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all  ancillary or  subsidiary  matters which can fairly and  reasonably  be said  to  be comprehended in it." These  observations  were, however,  made to support the conclusion that the  power  to legislate with respect to" collection of rents" under  entry 21  of List II includes the power to legislate with  respect to  any  limitation on the power of a  landlord  to  collect rents,  that  is to say, with respect to  the  remission  of rents  as  well, and that, therefore, the  United  Provinces Regularisation  of  Remissions Act, 1933, was  intra  vires. General observations made in such context (4) [1940] F.C.R. 110,134 71 do  not answer the objection that the wider construction  of entry 1 would deprive entry 2 of all its content and  reduce it  to useless lumber.  I am therefore, of opinion that  the words"’  administration  of justice" and  "constitution  and organisation of courts" occurring in entry 1 must be  under- stood  in  a  restricted sense excluding  from  their  scope "jurisdiction and powers of courts" dealt with  specifically in entry 2.     This does not, however, compel the conclusion that it is beyond  the  competence  of the  Provincial  Legislature  to confer  general  jurisdiction on courts constituted  by  it,

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for, if entry 1 does not by itself enable the legislature to do  so, entry 2 certainly does when read with entry  1.   It should  be  remembered--and this is what  the  argument  for restricting the legislative power of provinces in regard  to jurisdiction overlooks--that "administration of justice"  is one of the matters mentioned in List II itself. The  Provin- cial  Legislature, therefore, is competent under entry 2  to legislate  conferring jurisdiction on courts  with   respect to administration of justice, that is to say, general juris- diction to administer justice by adjudicating on all matters brought  before  them, except, of course,  matters  excluded expressly  or by implication either by an existing law  con- tinued  in force or by a statute passed by  the  appropriate legislature under the entries in the three Lists relating to jurisdiction  and powers of courts. In other  words,  though "administration  of justice" in entry 1 does  not  authorise legislation  with  respect  to jurisdiction  and  powers  of courts, the legislative power under entry 2 in regard to the tatter  topic,  which can be  legitimately  exercised"  with respect  to any of the matters in this List," can  be  exer- cised with respect to administration of justice, one of  the matters  comprised  in that List, with the result  that  the subject of general jurisdiction is brought within the autho- rised area of provincial legislation.  This view thus leaves a field in which entry 2 could apply.     When once the Provincial Legislature is found  competent to  make a law with respect to the general  jurisdiction  of courts,  the apparent conflict  with the 72 central  legislative power under entry 53 of List I  can  be resolved  in a given case by invoking the doctrine  of  pith and substance and incidental encroachment.  For, that  rule, though not of much assistance in construing entries 1 and  2 which occur in the same List II, has its legitimate applica- tion in ascertaining the true character of an enactment  and attributing it to the appropriate list where the Federal and the Provincial Lists happen to overlap. Accordingly, if  the Legislature of Bombay was, in conferring jurisdiction on the City Civil Court to hear and determine all suits of a  civil nature, really legislating on a subject which was within the ambit  of  its  legislative power, and if in  doing  so,  it encroached on the forbidden field marked off by entry 53  of List 1, the encroachment should be taken to be only inciden- tal.  It may be that such encroachment extends to the  whole of that field, but that is immaterial, as pointed out by the Judicial  Committee in the Khulna Bank case(1).  One of  the questions their Lordships put to themselves in that case was "Once it is determined that the pith and substance is money- lending, is the extent to which the federal field is invaded a material matter?"  Answering the question in the  negative their  Lordships  observed:  "No doubt it  is  an  important matter, not, as their Lordships think, because the  validity of  an Act can be determined by discriminating  between  de- grees  of invasion, but for the purpose of determining  what is  the pith and substance of the impugned Act.  Its  provi- sions  may advance so far into the federal territory  as  to show  that its true nature is not concerned with  provincial matters,  but the question is not, has its trespassed,  more or  less,  but is the trespass, whatever it be, such  as  to show that the pith and substance of the impugned Act is  not money  lending but promissory-notes or banking ?  Once  that question  is determined, the Act falls on one or  the  other side of the line and can be seen as valid or invalid accord- ing  to its true content". In answering the  objection  that that  view does not give sufficient effect to the  words  of

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precedence used in section 100 of the Government of (1) [1947] F.C.R.28. 73 India  Act as between the three Lists, their Lordships  went on  to say "No doubt where they come in conflict List I  has priority  over Lists III and II, and List III  has  priority over  List  II; but the question still remains  priority  in what respect?  Does the priority’ of the Federal Legislature prevent  the  Provincial Legislature from dealing  with  any matter which may incidentally affect any item in its list or in  each case has one to consider what the substance  of  an Act  is and whatever its ancillary effect, attribute  it  to the  appropriate list according to its true character ?   In their Lordships’ opinion the latter is the true view."     The test for determining whether in pith and substance a particular  enactment  falls within one list or  another  is further  elucidated in a passage quoted with  approval  from Lefroy’s  Treatise  on Canadian Constitutional  Law  in  the judgment  of  the  Federal Court in  the  Bank  of  Commerce case(1). "It seems quite possible" says the learned  writer, summarising the effect of the Privy Council decisions on the point "that a particular Act regarded from one aspect  might be intra vires of a Provincial Legislature and yet  regarded from another aspect might also be intra vires of the  Domin- ion  Parliament.   In other words, what is  properly  to  be called the subject-matter of an Act may depend upon what  is the true aspect of the Act. The cases which illustrated this principle  show.  by ’aspect’ here must  be  understood  the aspect   or   point   of   view   of   the   legislator   in legislating--the  object, purpose and scope of the  legisla- tion.   The  word  is used subjectively  of  the  legislator rather  than  objectively of the  matter  legislated  upon." Applying  that test there can be little doubt that  the  im- pugned Act must, in its pith and substance, be attributed to List  II.  as the legislators of Bombay were  certainly  not conferring  on the new court, which they  were  constituting under  the  Act, jurisdiction with’ respect to  any  of  the matters  in List I.  They were, as section 3  clearly  indi- cates constituting a new court, the Bombay City Civil Court, and investing it with the (1) [1944] F.C.R.126,139. 10 74 general  jurisdiction  to try all suits of  a  civil  nature within  certain.  pecuniary and territorial limits,  and  if they were acting, as I have endeavoured to show, within  the scope of the legislative power conferred on them under entry 2 read with entry 1 of List II, it seems immaterial that the enactment, so far as one aspect of jurisdiction, namely, its conferment,   is  concerned, encroaches practically  on  the whole of the federal field marked out by entry 53 of List I. The encroachment, however, would still leave ample room  for the  exercise by the Centre of its legislative  power  under entry  53  in regard to other aspects  of  jurisdiction  and powers of courts.     This  view is strongly reinforced by a consideration  of the legislative practice prevailing in this country prior to the passing of the Government of India Act, 1935. That it is legitimate to have regard to legislative practice in  deter- mining  the scope of legislative powers has been  recognised in decisions of high authority (e.g., Croft v. Dunphy)  (1), It had long been the practice in this country to  constitute and  organise  courts  with general  jurisdiction  over  all persons  and matters  subject only to certain pecuniary  and territorial limitations, and to confer special  jurisdiction

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limited to certain specified cases or matters either on  the ordinary courts in addition to their general jurisdiction or on  tribunals set up to deal with such matters  exclusively. The  various  Provincial  Civil Court Acts as  well  as  the provisions of the Civil and Criminal Procedure Codes  invest the courts, both civil and criminal, with general  jurisdic- tion, that is to say, power to adjudicate in respect of  all persons  and all matters except those that are  specifically excluded or brought within the cognisance of tribunals  with special  or  limited jurisdiction extending  only  to  those matters.   The grading of the courts too in their  heirarchy has reference to the pecuniary and territorial limits rather than to the nature and kind of the subject-matter which they are  empowered  to deal with.  It is reasonable  to  presume that this system  of  organisation  of  courts  in   (1) [1933] A.C. 156,165 75 British India was known to the framers of the Government  of India Act, 1935, and it cannot be readily supposed that they wanted  to introduce a radical change by which the power  of constituting  courts  and providing  for  administration  of justice  is  to be vested in  the  Provincial  Legislatures, while jurisdiction has to be conferred by piecemeal legisla- tion by the Federal and Provincial Legislatures with respect to specific matters falling within their respective legisla- tive fields which are by no means capable of c]ear  demarca- tion.   The  constitutional puzzles which such a  system  is likely  to  pose  to the legislatures no less  than  to  the courts and the litigant public in the country whenever a new court is constituted in finding out by searching through the legislative  lists,  whether  jurisdiction to  deal  with  a particular  matter  or power to make a particular  order  is validly conferred by the appropriate legislature  must  make one pause and examine the relevant provisions of the Govern- ment  of  India Act to see if there is anything in  them  to compel  the acceptance of so novel a system.   After  giving the  matter  my careful consideration, I am  convinced  that both  the  language  of the provisions  and  the  antecedent legislative practice support the conclusion that the Provin- cial Legislatures  which have the exclusive power of consti- tuting and organising courts and of providing for the admin- istration  of  justice in their respective  provinces,  have also  the power of investing the courts with general  juris- diction.     On the question whether section 4 of the Act operates as a delegation of legislative power, I entirely agree with the reasoning  and conclusion of my learned brother Das who  has said all I wish to say in his judgment which I have had  the advantage  of reading, and, like him, I reserve  the  larger question raised by the Attorney-General as to how far it  is open  to  the  legislatures in this  country,  while  acting within their authorised areas, to delegate their legislative powers  to other agencies.  I find it no more  necessary  in the present case to decide that point than in Jatindranath 76 Gupta’s  case(I) where I preferred to rest my decision on  a narrower ground.     It  follows that the High Court has no  jurisdiction  :0 hear  and determine the first respondent’s suit and I  agree that the appeal should be allowed. MAHAJAN J.--This is an appeal from the judgment of the  High Court of Judicature at Bombay dated the 29th March, 1950, in Suit  No. 240 of 1950, holding that section 4 of the  Bombay City Civil Court Act (Bombay Act XL of 1948) is ultra  vires the Provincial Legislature.

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   The facts are that on the 6th February, 1950, the  first respondent presented a plaint to the Prothonotary and Senior Master  of the High Court for filing a summary suit  against the  second  respondent to recover a sum  of  Rs.  11,704-24 alleged  to  be due under promissory notes.  This  suit  was instituted in the High Court, in contravention of  a notifi- cation dated the 20th January, 1950, issued under section  4 of  the  City Civil Court Act, under which suits up  to  the pecuniary  limit  of Rs. 25,000 could be heard only  by  the City Civil Court, and not by the High Court. As the question of  jurisdiction was of importance, the matter was  referred to  the sitting Judge in Chambers.  On 23rd February,  1950, the learned Judge admitted the plaint holding that section 4 of  the Act was ultra vires the Provincial  Legislature  and the  notification issued under it was consequently  inopera- tive  and that the High Court had jurisdiction to  hear  the suit.   The first respondent thereupon took out summons  for judgment  against the second respondent. On the  application of the AdvocateGeneral, the State  of Bombay  was  impleaded as  defendant at this stage and the proceedings were  trans- ferred  to a Division Bench of the High Court. The  Division Bench upheld the view of the Judge in Chambers and  returned the  cause to him for disposal on the merits.  The State  of Bombay,  dissatisfied with this decision, has preferred  the present appeal. (1) [1949-50] F.C.R. 595. 77     Two  questions have been canvassed in this  appeal:  (1) whether the City Civil Court Act is ultra vires the legisla- ture  of the Province of Bombay in so far as it  deals  with the  jurisdiction  and powers of the High   Court  and  City Civil Court with respect to matters in List I of the Seventh Schedule  of  the  Government of India Act,  1935;  and  (2) whether  section  4  of the Act is void as  it  purports  to delegate to the Provincial Government legislative  authority in   the matter of investing the City Civil Court  with  ex- tended jurisdiction.     Bombay  Act of 1948 came into force on 10th  May,  1948. It was considered expedient to establish an additional civil court  for  Greater  Bombay presumably with  the  object  of relieving  congestion  of work on the original side  of  the Bombay  High Court. Sections 3, 4 and 12 of the Act  are  in these terms :--     "3.   The State Government may, by notification  in  the Official Gazette,  establish for the Greater Bombay a court, to  be called the Bombay City Civil Court.   Notwithstanding anything contained in any law, such court shall have  juris- diction  to receive, try and dispose of all suits and  other proceedings  of  a civil nature not exceeding  ten  thousand rupees  in  value, and arising within  the  Greater  Bombay, except suits or proceedings which are cognisable--     (a)  by the High Court as a Court of Admiralty or  Vice- Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary,  intestate or matrimonial jurisdiction, or     (b) by the High Court for the relief of insolvent  debt- ors, or     (c)  by the High Court under any special law other  than the Letters Patent, or (d) by the Small Cause Court:  Provided that the State Government may, from time to  time, after consultation with the High Court, by a like  notifica- tion extend the jurisdiction of the City Court to any  suits or  proceedings which are cognisable by the High Court as  a court having testamentary or

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78 ntestate  jurisdiction or for the relief of insolvent  debt- ors.   4.    Subject to the exceptions specified in section a the State  Government  may by notification in the  Official  Ga- zette,  invest the City 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 twenty-five thousand rupees as  may  be specified in the notification.     12.  Notwithstanding anything contained in any law,  the High  Court  shall not have jurisdiction to  try  suits  and proceedings cognisable by the City Court:     Provided  that the High Court may, for any special  rea- son, and at any stage remove for trial by itself any suit or proceeding from the City Court."     On the second question the High Court held that  section 4 of the Act was inoperative as it purported to delegate the law-making powers of the legislature to an outside authority and hence the notification issued in pursuance of it had  no effect whatsoever and did not take away the jurisdiction  of the  High Court to try the present suit. On the first  ques- tion  the  High  Court placed reliance on  its  own  earlier decision  in  Mulchand Kundanmal Jagtiani v.  Raman  Hiralal Shah(1),  and held that the Act was intra vires  the  Bombay Legislature.   The appellant assails the correctness of  the decision of the High Court on the second point and  supports the  decision on the first point.  The first respondent,  on the  other hand, while supporting the decision of  the  High Court on the second question, challenges its correctness  in regard to the first question.  The learned  Attorney-General contends  that the High Court placed an erroneous  construc- tion  on sections 3 and 4 of the Act; that reading  the  two sections together the effect is that the legislature has set up the City Civil Court  with  an initial  jurisdiction   of Rs.  10,000 and has placed an  outside limit  of Rs.  25,000 on its pecuniary jurisdiction and that it (1) 51 Bom. L.R, 86. 79 has left to the discretion of the Provincial Government  the determination  of the circumstances under which this  exten- sion of the pecuniary jurisdiction between Rs. 10,000 to Rs. 25,000  is to take place.  It was said that section 4 is  in the nature of a conditional legislation and that under it no legislative  function has been delegated to  the  Provincial Government.   The learned Chief Justice in the  court  below disposed of this contention with the following,observations:     "I  am  also conscious of the fact that an Act  must  be construed  in  a manner  which  would reconcile its  differ- ent sections but  with the  best of intention in the world I do  not  see how it is possible to read sections   3  and  4 together  so  as  to come to the conclusion  for  which  the AdvocateGeneral contends.  To my mind it is patent that  the Legislature  never  applied its mind to the question  as  to whether the new court which it was setting up should have  a jurisdiction higher than that of Rs. 10,000. It never passed any  judgment  on  that question.  It never  laid  down  any policy  with regard to that question and section 4 is not  a section  which merely directs the Provincial  Government  to carry  out the policy laid down by the  legislature   ...... but  it is a section which confers upon the Provincial  Gov- ernment the power to confer jurisdiction upon the Court,  or in  other words, it is a section which entitled the  Provin- cial Government to lay down its policy as to whether the new Court  should have the increased jurisdiction up to  twenty-

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five thousand rupees."     I find it difficult to accept this view.  Without apply- ing  its  mind to the question as to whether the  new  Court which  it was setting up should have a  jurisdiction  higher than Rs. 10,000, how could the legislature possibly enact in section  4 that the pecuniary jurisdiction of the new  court would  not exceed Rs. 25,000.  The fixation of  the  maximum limit of the court’s pecuniary jurisdiction is the result of exercise  of legislative will, as without arriving  at  this judgment  it would not have been able to determine the  out- side limit of the pecuniary jurisdiction of the new 80 court.   The  policy  of the legislature in  regard  to  the pecuniary  jurisdiction of the court that was being  set  up was settled by sections 3 and 4 of the Act and it was to the effect  that  initially its pecuniary jurisdiction  will  be limited  to Rs. 10,000 and that in future  if  circumstances make it desirable- and this was left to the determination of the Provincial Government-it could be given jurisdiction  to hear  cases  up  to the value of Rs. 25,000.   It  was  also determined that the extension of the pecuniary  jurisdiction of the new court will be subject to the provisions contained in  the  exceptions  to section 3.  I am  therefore  of  the opinion  that  the learned Chief Justice was  not  right  in saying that the legislative mind was never applied as to the conditions subject to which and as to the amount up to which the  new court could have pecuniary jurisdiction.  All  that was left to the discretion of the Provincial Government  was the  determination of the circumstances under which the  new court would be clothed with enhanced pecuniary jurisdiction. The  vital  matters of policy having  been  determined,  the actual  execution of that policy was left to the  Provincial Government and to such conditional legislation no  exception could be taken.  The section does not empower the Provincial Government to enact a law as regards the pecuniary jurisdic- tion  of the new court and it can in no sense be held to  be legislation  conferring legislative power on the  Provincial Government.     In  Queen  v. Burah(1), section 9 of Act XXII  of  1869, which  was a piece of legislation analogous to section 4  of the  City  Civil Court Act, was held intra  vires  by  their Lordships  of the Privy Council.  By the 9th  section  power was conferred on the Lieutenant Governor of Bengal to deter- mine whether the Act or any part of it should be applied  to certain districts.  In other words, authority to extend  the territorial  limits  of  the operation of  the  statute  was conferred on the Lieutenant Governor and such extension  had the  result of depriving the High Court of its  jurisdiction in those areas and of conferring jurisdiction in respect  to them (1) 5 I.A. 178. 81 on the commissioner.  Objection was taken as to the validity of section 9 on the ground that it was legislation  delegat- ing  legislative power and was therefore void,  Their  Lord- ships negatived this contention and held that section 9  was intra  vires the Governor General’s power to make  laws  and was a piece of conditional legislation.  That was a case  of an  extension of territorial limits within which an  Act  of the Legislature was to be in force, whereas the present is a case of extension of pecuniary limits of a court’s jurisdic- tion.  In principle, there seems no difference  between  the two cases and the present case is therefore within the  rule of  the decision in Queen v. Burah(1).  Their  Lordships  in holding section9 intra vires made the following observations

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:-     "Their Lordships think that it is a fallacy to speak  of the  powers  thus  conferred upon  the  Lieutenant  Governor (large as they undoubtedly are) as if, when they were  exer- cised, the efficacy of the acts done under them would be due to  any other legislative authority than that of the  Gover- nor, General in Council.  Their whole operation is, directly and  immediately, under and by virtue of this Act  (XXII  of 1869)  itself.   The proper Legislature  has  exercised  its judgment  as to place, person, laws, powers, and the  result of  that judgment has been to legislate conditionally as  to all these things.  The conditions having been fulfilled, the legislation is now absolute.  Where plenary powers of legis- lation exist as to particular subjects, whether in an  Impe- rial  or  in a Provincial Legislature, they  may  (in  their Lordships’ judgment) be well exercised, either absolutely or conditionally.   Legislation,  conditional  on  the  use  of particular  powers, or on the exercise of a limited  discre- tion,  entrusted  by the Legislature to persons in  whom  it places  confidence, is no uncommon thing; and, in many  cir- cumstances. it may be highly convenient.  The British  Stat- ute  Book  abounds  with examples of it; and  it  cannot  be supposed that the Imperial Parliament did not, when  consti- tuting the (1) 5 I A. 178,   11 82 Indian  Legislature,  contemplate this kind  of  conditional legislation  as within the scrape of the legislative  powers which  it  from time to time conferred.  certainly  used  no words to exclude it."     These  observations appositely apply to the  legislative provision  contained in section 4 of the impugned  Act.  The true distinction is between the delegation of power to  make the  law which necessarily involves a discretion as to  what it shall be and conferring authority or discretion as to its execution,  to  be exercised under and in pursuance  of  the law.   Objection may be taken to the former but not  to  the latter.   Reference in this connection may also be  made  to the  decision  of the Supreme Court of America in  Field  v. Clark(1) wherein referring to Locke’s case(2) the  following observations were made :-     "To assert that a law is less than a law, because it  is made  to  depend  on a future event or act, is  to  rob  the Legislature  of the power to act wisely for the public  wel- fare whenever a law is passed relating to a state of affairs not  yet  developed, or to things future and  impossible  to fully  know."   The proper distinction the  court  said  was this:  "The Legislature cannot delegate its power to make  a law, but it can make a law to delegate a power to  determine some  fact or state of things upon which the law  makes,  or intends make, its own action depend.  To deny this would  be to  stop  the wheels of government.  There are  many  things upon  which  wise and useful legislation must  depend  which cannot  be known to the law-making power, and,  must  there- fore,  be a subject of inquiry and determination outside  of the halls of legislation."      The High Court in support of its view placed considera- ble reliance on the decision of the Federal Court in  Jatin- dra  Nath Gupta v. The Province of Bihar(3) and it was  con- sidered that the present case fell1 within the ambit of  the rule therein laid down. It seems to me that the decision  in the Bihar case has no application to  the case in hand.  The Federal Court there was (1) 143 U.S.649.                  (3) [1949] F.C.R.595.

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(2) 72 Pa.491. 83 dealing with an Act which contained the following provisions in section 1, sub-section (3) :-     "The Act shall remain in force for a period of one  year from the date of its commencement:     Provided that the Provincial Government may, by  notifi- cation,  on  a resolution passed by the   Bihar  Legislative Assembly  and  agreed to by the Bihar  Legislative  Council, direct  that  this Act shall remain in force for  a  further period  of one year with such modifications, if any, as  may be  specified in the notification."    In connection with this proviso I said in my judgment  in that  case that the power conferred therein was much  larger than  was conferred on the Lieutenant Governor in  Queen  v. Burah(1) inasmuch as it authorised the Provincial Government to  modify the Act and also to re-enact it. It  was  pointed out  that "distinction between delegation of power  to  make the  law which necessarily involves a discretion as to  what it  shall be, and conferring discretion or authority  as  to its execution to be exercised Under and in pursuance of  the law is a true one and has to be made in all cases where such a question is raised." The following observations made by me there  pointedly bring out the distinction between  the  two cases :-     "The  proviso  which  has been assailed  in  this  case. judged on the above test, comes within the ambit of delegat- ed legislation, and is thus an improper piece of legislation and is void.  To my mind, it not only amounts to  abdication of  legislative authority by the Provincial Legislature,  it goes  further and amounts to setting up a parallel  Legisla- ture  for  enacting a modified Bihar Maintenance  of  Public Order  Act and for enacting a provision in it that that  Act has  to  be  enacted for a further period of  one  year.   A careful analysis of the proviso bears out the above  conclu- sion. It may be asked what does the proviso purport to do in terms and in substance ? The answer is that it empowers  the Provincial Government to issue a notification saying (1) 5 I.A. 178. 84 that the Provincial Act shall remain in force for a  further period  of one year with such modifications, if any, as  may be  specified in the notification  ......   Modification  of statute amounts to re-enacting it partially. It involves the power to say that certain parts of it are no longer parts of the statute and that a statute with X sections is now enact- ed with Y sections. In the act of modification is involved a legislative power as a discretion has to be exercised wheth- er certain parts of the statute are to remain law in  future or  not or have to be deleted from it. The power  to  modify may  even involve a power to repeal parts of it. A  modified statute  is not the same original statute. It is a  new  Act and logically speaking, it amounts to enacting a new law."     I  have not been able to follow how  these  observations concerning  the  Bihar statute could be relied upon  by  the High  Court  in support of its decision in  respect  10  the invalidity of section 4 of the Bombay City Civil Court  Act. The two provisions are not analogous in any manner whatsoev- er  and  that  being so, no support can be  derived  by  the respondent from this decision.     In  the concluding portion of his judgment under  appeal the learned Chief Justice observed as follows:-     "  Now applying once more these tests to the City  Civil Court  Act, we find that the Legislature in the exercise  of its legislative power has set up a Civil Court with a limit-

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ed  jurisdiction under section 5 of the Act. It has not  set up  a  court  with jurisdiction  higher  than  ten  thousand rupees. Having set up a court of limited jurisdiction it has given to the Provincial Government under section 4 the power to center upon that court a higher jurisdiction up to  twen- ty-five  thousand rupees. Now this power which is  conferred upon  the Provincial Government is a power which could  only have been exercised by the Legislature itself."     It seems to me that the above observations are based  on a  construction of sections 3 and 4 of the Act  which  these sections cannot legitimately bear. As already observed.  the Legislature set up a Civil Court for Greater 85 Bombay and decided that, to start with, it will have pecuni- ary  jurisdiction up to  Rs. 10,000.  It also decided at the same  time  that it would also have jurisdiction up  to  Rs. 25,000 as soon as circumstances, necessitate it the  Provin- cial  Government was constituted the judge of those  circum- stances. What the limit  of that jurisdiction was to be  was in unmistakeable  terms enacted in section 4 of the Act.  It was  not  left to the will of the Provincial  Government  to confer  on  that court any pecuniary  jurisdiction  that  it liked to  confer upon it. It would be by force of the legis- lative power of section 4 that the City Civil Court will  be vested  with enhanced jurisdiction but that  vesting  cannot take  place till a notification is issued by the  Provincial Government.  It is  conditional on that event only.     For  the reasons given above, in my judgment, the   High Court  was  in error in holding that section 4 of  the  City Civil  Court  Act was void and ultra  vires  the  Provincial legislature.   In  this view the notification  issued  under section 4 must be held to be effective. That being so, it is unnecessary  to go into the question raised by  the  learned Attorney-General that assuming that section 4 of the Act was delegation of legislative power, it was still valid.     The next question to decide is whether the Act is  ultra vires the Bombay  Legislature.  In order  to appreciate  Mr. Seervai’s  contention on this point it is necessary  to  set out  some of the provisions of the Government of India  Act, 1935.  relevant to the enquiry. These are contained in  sec- tion  100. and in the Seventh Schedule in entries 28 and  53 of List I, entries 1 and 2 of List II, and entries 4 and  15 of List III.  They are in these terms:--     Sec.  109. (1) Notwithstanding anything in the two  next succeeding sub sections, the Federal Legislature, has, and a Provincial  Legislature  has  not power to  make  laws  with respect  to any of the matters enumerated in List I  in  the Seventh Schedule to this Act (hereinafter called the "Feder- al Legislative List.") 86     (2) Notwithstanding anything in the next succeeding  sub section,  the Federal Legislature, and, subject to the  pre- ceding subsection, a Provincial Legislature also, have power to make laws with respect to any of the  matters  enumerated in   List III in  the said Schedule (hereinafter called  the "Concurrent Legislative List.") -   (3) Subject to the two preceding sub-sections, the Provin- cial  Legislature has, and the Federal  Legislature      has not,  power to make laws for a Province or any part  thereof with respect 10 any of the  matters enumerated in List II in the said Schedule (hereinafter called the" Provincial Legis- lative List.")     (4) The Federal Legislature has power to make laws  with respect to matters enumerated in the Provincial  Legislative List except for a Province or any part thereof.

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   List I. 23. Cheques, bills of exchange, promissory notes and other like instruments.  55.  Jurisdiction  and  powers of all  courts,  except  the Federal  Court, with respect to any of the matters  in  this list and, to such extent as is expressly authorized by  Part IX  of this Act, the enlargement of the appellate  jurisdic- tion  of  the Federal Court, and the conferring  thereon  of supplemental powers.     List  II. 1. Public order (but not including the use  of His  Majesty’s naval, military or air forces in  aid      of the  civil power); the administration of justice;  constitu- tion  and  organization of all courts,  except  the  Federal Court,  and  fees  taken therein; preventive  detention  for reasons  connected  with the maintenance  of  public  order; persons subject to such detention.     2.  Jurisdiction  and powers of all  courts  except  the Federal  Court, with respect to any of the matters  in  this list; procedure in Rent and Revenue Courts. List III.4. Civil Procedure, including the Law of Limitation and all matters included in the Code of  Civil Procedure  at the  date  of  the passing of this Act; the  recovery  in  a Governor’s Province or a Chief 87 Commissioner’s  Province of claims in respect of  taxes  and other public demands, including arrears of land revenue  and sums recoverable as such, arising outside that Province.   15.   Jurisdiction  and powers of all  courts  except  the Federal  Court, with respect to any of the matters  in  this list.     Mr. Seervat contends that section 3 of the impugned  Act is void because it directly trenches on the exclusive legis- lative powers of the Centre conferred on it by List     I of the Seventh Schedule inasmuch as ’it confers jurisdiction on the  new  court in respect to all cases of a  civil  nature. The  expression  "all cases of a  civil  nature"  presumably brings  within  the  ambit of the Act suits  in  respect  to subjects contained in List I. He urged that the three  simi- lar  entries  in the three is, name]y, entry 53 in  List  I, entry  2 in List II and entry 15 in List III indicated  that in  respect to the subjects covered by the three  fields  of legislation demarcated for the two Legislatures the  Parlia- ment  empowered  each of them respectively to make  laws  in respect to jurisdiction and power of courts and that in view of the provisions of section 100 of the Constitution Act the Provincial Legislature had no power to make any law  confer- ring  jurisdiction on courts in respect to subjects  covered by  List  I. In other words, the Federal  Legislature  alone could legislate on the jurisdiction and powers of a court in regard  to the subjects in List I. Similarly in  respect  of subjects contained in the Provincial List, jurisdiction  and power of courts could only be determined by a law enacted by the  Provincial  Legislature and that in  respect  of  items contained in List III, both Legislatures could make laws  on the  subject  of jurisdiction and powers of courts.  It  was said that the exceptions and the proviso to section 3 of the City Civil Court Act in dear terms disclosed that  jurisdic- tion  in  respect to the subjects on  which  the  Provincial Legislature  had  no competence to legislate was  also  con- ferred on the new court. Section’12 of the Act by which  the High Court was deprived of all jurisdiction on matters  that fell 88 within the jurisdiction of the City Civil Court was assailed on  similar  grounds.  In regard to  the  legislative  power conferred under entry I of List 11 on the Provincial  Legis-

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lature  it was contended that this wide power stood  limited by  the  three  entries above mentioned and  that  under  it legislation could only be made to the extent of establishing and  organizing courts but no legislation under it was  per- missible in respect to the powers of those courts.     The  learned Attorney-General, on the other  hand,  con- tends  that  the Act is intra vires the  Bombay  Legislature under entry 1 of List II and under entries 4’ and 15 of List III, it having received the assent of the  Governor-General. It  was urged that the Provincial Legislature had  exclusive legislative  power on the subject of administration of  jus- tice  and  constitution and organization of all  courts  and that this power necessarily included the power to make a law in  respect  to the jurisdiction of courts  established  and constituted by it and that the impugned legislation in  pith and  substance  being on the subject  of  administration  of justice,  it  could  not  be held ultra  vires  even  if  it trenched on the field of legislation of the Federal Legisla- ture.   In regard to entry 53 of List I, entry 2 of List  II and  entry 15 of List II of the Schedule, it was  said  that these conferred legislative power on the respective Legisla- tures  to confer special jurisdiction on established  courts in respect of particular subjects only if it was  considered necessary  to do so.  In other words the argument  was  that the  Provincial Government could create a court  of  general jurisdiction  legislating under entry 1 of List II and  that it  was  then open to both the Central  and  the  Provincial Legislatures  to  confer special jurisdiction on  courts  in respect  to  particular  matters that were  covered  by  the respective  lists.   In my opinion, the  contention  of  the learned  Attorney-General  that the Act is intra  vires  the Bombay  Legislature under entry 1 of List If is sound and  I am  in respectful agreement with the view expressed  by  the Chief Justice of Bombay on this point in Mulchand  Kundanmal Jagtiani v. Raman Hiralal 89 Shah (1).  The learned Chief Justice when  dealing with this point said as follows:- "If, therefore, the Act deals with administration of justice and  constitutes a court for that purpose and confers  ordi- nary civil jurisdiction upon it,  in  my opinion, the legis- lation  clearly falls within the legislative  competence  of the Provincial Legislature and is covered by item 1 of  List 11  of  Schedule 7.  That item expressly  confers  upon  the Provincial Legislature the power to legislate with regard to the  administration  of  justice and  the  constitution  and organization of all courts except the Federal Court.  It  is difficult to imagine how a court can be constituted  without any  jurisdiction, and if Parliament has made  the  adminis- tration of justice exclusively upon the Provincial  Legisla- ture  the  power to constitute and organize all  courts,  it must  follow,  that  the power is given  to  the  Provincial Legislature  to confer the ordinary civil jurisdiction  upon the  courts to carry on with their work.  Item 2 of List  II deals  with jurisdiction and power of all courts except  the Federal  Court  with respect to any of the matters  in  this list,  and Mr. Mistree’s argument is that item 1 is  limited and  conditioned by item 2 and what he contends is that  the only power that the Provincial Legislature has is undoubted- ly  to  create  courts, but to confer upon  them  only  such jurisdiction as relates to items comprised in List II. I  am unable  to accept that contention or that interpretation  of List 11 in Schedule 7. Each item in List 11 is an  independ- ent  item, supplementary of each other, and not  limited  by each  other  in any way.  Item 1 having  given  the  general

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power  to  the  Provincial Legislature with  regard  to  all matters  of  administration of justice and with  regard   to the  constitution  and organization of all  courts,  further gives the power to the Legislature to confer special  juris- diction,  if  needs be, and special power, if needs  be,  to these  courts with regard to any of the items  mentioned  in List 11. It is impossible to read item 2 as curtailing (1) 51 Bom. L.R. 86. 12 90 and restricting the very wide power with regard to  adminis- tration  of justice given to  the   Provincial  "Legislature under  item 1.  Similarly in List I the Federal  Legislature has  been given the power under item 53 to confer  jurisdic- tion and power upon any court with regard to matters falling under  any  of the items in that list,  and,  therefore,  it would be competent to the Federal Legislature to confer  any special  jurisdiction or power which it thought proper  upon any  court with regard to suits on promissory notes or  mat- ters  arising under the Negotiable Instruments  Act...".  It seems  to  me that the legislative power  conferred  on  the Provincial  legislature by item 1 of List II has  been  con- ferred  by use Of language which is of the widest  amplitude (administration of justice and constitution and organization of all courts).  It was not denied that the phrase  employed would include within its ambit legislative power in  respect to  jurisdiction  and power of courts  established  for  the purpose  of administration of justice.  Moreover, the  words appear to be sufficient to confer upon the Provincial Legis- lature  the  right  to regulate and provide  for  the  whole machinery  connected with the administration of  justice  in the  PrOvince.  Legislation on the subject       administra- tion of justice and constitution of courts of justice  would be  ineffective and incomplete unless and until  the  courts established under it were clothed with the jurisdiction  and power  to hear and decide causes. It is difficult to  visua- lise  a statute dealing with administration of  justice  and the  subject  of  constitution and  organization  of  courts without a definition of the jurisdiction and powers of those courts,  as without such definition such a statute would  be like  a  body without a soul. To enact it would be  an  idle formality.  By  its  own force it would not  have  power  to clothe  a court with any power or  jurisdiction  whatsoever. It would have to look to an outside authority and to another statute  to become effective.  Such an enactment is, so  far as I know, unknown to legislative practice and history.  The Parliament by making administration  of  justice  a  provin- cial subject 91 could not be considered to have conferred power of  legisla- tion  on the  Provincial  Legislature  of an ineffective and useless nature.  Following the line of argument taken by Mr. Mistree before the High Court of Bombay,  Mr. Seervai stren- uously  contended that the only legislative power  conferred on  the Provincial Legislature by entry 1 of List II was  in respect to the establishment of a court and its constitution and that no legislative power was given to it to make a  law in  respect  to jurisdiction and power of the  court  estab- lished by it.      The  argument, logically analysed, comes to this:  that a statute will contain the name of the court, the number  of its judges, the method of their appointment, the salaries to be  drawn by them and it will then stop short at that  stage and  will not include any provision defining the  powers  of the tribunal or its other jurisdiction and that the court so

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constituted  could acquire jurisdiction only when a law  was made relating to its jurisdiction and powers by the  Federal Legislature  under  entry 53 of List I,  by  the  Provincial Legislature under entry 2 of List II and by either  Legisla- ture  under entry 15 of List III.  The learned counsel  con- tended that this peculiar result was the natural consequence of  a  federal constitution with divided  powers,  and  that entries 53, 2 and 15 of the three respective lists limit and curtail the wide power conferred on the Provincial  Legisla- ture  by  item 1 of List II.  It is difficult to  accede  to this  contention  because it would amount  to  holding  that though  the Provincial Legislature under item 2 of  List  II has been given the widest power of legislation in the matter of administration of justice and constitution and  Organiza- tion of courts and though that field has been demarcated for it  as its exclusive field of legislation, yet all  that  it can  do, acting within that field, is merely to establish  a court  without  any competency to function and that  in  can only  become an effective instrument for administering  jus- tice  by  laws enacted elsewere or  under  powers  conferred under  other  items of the different lists. I am  unable  to read items 53, 2 and 15 of the three respective 92 lists  as  imposing limitations on legislative   power  con- ferred  on the Province by item 1 of List II.  Such  a  con- struction of the Act would not only do violence to the plain language  of item 1 of List II but would be contrary to  its scheme  under  which administration of justice  was  made  a provincial subject.  It is significant that no other  Legis- lature has been given the power to   bring into existence  a court.   A court without powers   and jurisdiction would  be an anomaly as it would not   be able to discharge the  func- tion  of administration of   justice and the statute  estab- lishing such a court could   not be said to be a law on  the subject of administration    of justice. It is a fundamental principle of the construction of a constitution that  every- thing  necessary for the exercise of powers is  included  in the  grant of power. Everything necessary for the  effective execution of power of legislation must therefore be taken to be conferred by the constitution with that power. It may  be observed that in exercise of legislative power under item  1 of List 11 a provincial Legislature can alter the  constitu- tion  of the existing courts, can abolish  them,  reorganize them  and  can establish new courts.   If  the  construction contended for by Mr. Seervai is accepted, then the  existing courts  re-established  or re-organised  by  the  provincial Legislature  would not be able to function till  legislation under item 53 of List I, under item 2 of List II or item  15 of  List III also simultaneously was made.  I do  not  think that such a result was in the contemplation of parliament.      Mr. Seervai with some force argued that it full  effect is given to the comprehensive phraseology employed in item 1 of List II, then it would result in making the provisions of item 2 of List II, of item 53 of List I and item 15 of  List III nugatory. in other words, if the provincial  Legislature could  bring into existence a court of general  jurisdiction which  could  hear all causes on subjects  concerning  which legislative  power was divided in the three lists, then  the conferment  of legislative power on the Federal  Legislature under item 53 of List 1, on the provincial Legislature under item 2 in List II and on both the Legislatures under 93 item  15 of List III was purposeless.  In my  opinion,  this argument is not a valid one and the premises on which it  is based are not sound.  The three lists of subjects  contained

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in  Schedule  7 have not been drawn up with  any  scientific precision and the various items in them overlap.  The  point kept  in  view in drawing up the lists was to see  that  all possible  power  of legislation was included  ,within  their ambit.   By  making administration of justice  a  provincial subject  and  by conferring on  the  Provincial  Legislature power  to legislate on this subject and also on the  subject of  constitution  and  organization  of  courts,  Parliament conferred  on  that  Legislature an  effective  power  which included  within its ambit the law-making power on the  sub- ject of jurisdiction of courts.  The Provincial  Legislature could  therefore bring into existence a court  with  general jurisdiction  to  administer justice on all  matters  coming before  it within certain territorial and pecuniary  limits, subject of course to the condition that such general  juris- diction  may  be expressly or impliedly taken  away  by  the provisions of other laws. The Parliament having divided  the field of legislation between the two Legislatures, naturally thought  that as a corollary or a necessary  consequence  of this  division  of  legislative power it  was  necessary  to provide  by way of a complementary provision  a  legislative power specifically on the two Legislatures in respect to the jurisdiction  and  powers of courts on subjects  which  were within their exclusive legislative field.  If a  Legislature could  exclusively legislate in respect to  particular  sub- jects,  as a necessary  consequence it should also have  the power  to legislate in respect to jurisdiction and power  of the court dealing with that subject.  It is this power  that has  been conferred by entries 53, 2 and 15 above  mentioned on  the  two Legislatures.  Entries 42  and 99  of  List  I, entries  37 and 42 of List II and entries 25 and 36 of  List III  are  of  a  similar   consequential   character.    The respective Legislatures are  therefore competent  to  confer special  powers on courts and can create  special  jurisdic- tions acting under those powers in respect to 94 their  divided fields of legislation.  Instances of  confer- ment  of powers and jurisdiction on courts to hear cases  on particular  subjects  were well known to  Parliament.   Such powers had been conferred on different courts in respect  of testamentary and intestate jurisdiction, admiralty jurisdic- tion,  under the Indian Companies Act, under the  Succession Act,  Guardians  and Wards Act and under the  various.  Rent Acts and Acts dealing with relief of indebtedness.  In  view of the division of powers in respect to different  subjects, power  was given under item 53 of List I, item 2 of last  II and  item 15 of List III to the different Legislatures  when dealing  with those subjects also to legislate on the  ques- tion of jurisdiction and powers of the courts. This  confer- ment of legislative power to create special jurisdiction  in respect  to particular subjects does not in any way  curtail the  legislative power conferred on the Provincial  Legisla- ture  under item 1 of List II.  As soon as special  legisla- tive power under item 53 of List I, under item 2 of List  II and item 15 of List III is exercised, the causes that  arise in  respect  to those subjects would then only be  heard  in jurisdictions  created  by  those statutes and  not  in  the courts  of  general jurisdiction entrusted with  the  normal administration of justice.  In the language of section 9  of the  Code  of Civil Procedure, jurisdiction of  the  general courts will then become barred by those statutes.     I am therefore of the opinion that under item 1 of  List II  the Provincial Legislature has complete  competence  not only  to establish courts for the administration of  justice but  to confer on them jurisdiction to hear all causes of  a

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civil nature, and that this power is not curtailed or limit- ed by power of legislation conferred on the two Legislatures under  items 53, 2 and 15 of the three lists.  On the  other hand,  these three items confer on the  respective  Legisla- tures  power to legislate when dealing with particular  sub- jects within their exclusive legislative field to make  laws in respect of jurisdiction and powers of courts that will be competent  to  hear causes relating to  those  subjects;  in other words, this is a  power of creating special 95 jurisdictions  only. This interpretation of the  entries  in the  lists is not only in accordance with the scheme of  the statute but it harmonizes the different entries in the lists and  does  not make any of them nugatory and  in  effective. The interpretation contended for by Mr. Seervai would reduce the  power  of the Provincial Legislature under  item  1  to almost nothingness.     The crux of the case is whether item 1 of List 11 should be  given a limited construction which makes it nugatory  or whether a limited construction is to be placed on items  53, 2 and 15 of the three lists. I have no hesitation in holding that  both  in the light of principles  of  construction  of statutes and principles of legislation, the course to  adopt is the one that I have indicated above.     Finally, it was contended that section 12 of the Act  in any case was a void piece of legislation as it deprived  the High  Court of its jurisdiction even in respect to  subjects contained in List I of the Seventh Schedule.  In view of the construction  that I have placed on item 1 of List  II  this argument has no force. If the Legislature has power to bring into existence a court and confer jurisdiction and power  on it,  a fortiori     it has power to take away the  jurisdic- tion  and power that already exist in other  courts.   More- over,  the  Bombay  City Civil Court Act in  section  a  has excepted  from the jurisdiction of the new court  all  cases which  the High Court can hear under any special  law.  Spe- cial law has been defined as a law applicable to a  particu- lar  subject.  If under List 1 of the Seventh  Schedule  the Federal Legislature by any law determines that a case has to be  heard by the High Court, section 5 will not  affect  the jurisdiction of that court in any manner whatsoever.     The  result,  therefore, is that the Bombay  City  Civil Court  Act is a statute which is wholly within the  legisla- tive  field of the Province under item 1 of List II and  its validity cannot be affected even if it incidentally trenches on other fields of legislation.  It is not a statute dealing with  any of the subjects mentioned in List I and  therefore it cannot be said that the 96 Provincial  Legislature  has in any way  usurped  the  power demarcated  for  the Centre.  In view of this  conclusion  I think  it unnecessary to pronounce any opinion on the  other points raised by the learned Attorney-General.   For the reasons given above I allow the  appeal  preferred by  the Government of Bombay and set aside the  decision  of the  High  Court holding that section 4 of  the  City  Civil Court Act (XL of 1948) is void.  In the circumstances of the case  I  leave the parties t9 bear their own  costs  of  the appeal. MUKHERJEA  J.--In my opinion this appeal should  be  allowed and I concur substantially in the line of reasoning  adopted by  my  learned brother Mahajan J. in his  judgment.  Having regard  to  the constitutional importance of  the  questions raised in this case, I would desire to add some observations of mine own.

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   There are really two questions which require  considera- tion in this appeal.   The first is whether section 4 of the Bombay  City Civil Court Act, 1948, is void and  inoperative by  reason  of its amounting to a delegation  of  legisltive powers  by   the Provincial Legislature  to  the  Provincial Government  of  Bombay. The Bombay High Court  has  answered this  question  in the affirmative and it is  entirely  upon this  ground  that the judgment appealed against  is  based. The  propriety of this decision has been challenged  by  the learned  Attorney-General  who appeared on   behalf  of  the State  of  Bombay in support of this appeal.  On  the  other hand,  Mr. Seervai, appearing on behalf of the  respondents, has   not  only  attempted  to repel  the   contention   ad- vanced  by  the  learned Attorney-General, but has sought to support the judgment appealed against on another and a  more comprehensive  ground  which, if accepted,  would  make  the entire Bombay City Civil Court Act a void piece of  legisla- tion, as being an encroachment by the Provincial Legislature upon the field of legislation reserved for the Centre  under List I of Schedule 7 to the Government of India Act, 1935. 97     As regards the first point, I agree that the  contention of the appellant is sound and must prevail. I have no  hesi- tation  in holding that the Legislature in  empowering   the Provincial Government to invest the City Court, by notifica- tion,  with  jurisdiction of such value  not  exceeding  Rs. 25,000  as  may be  specified in the Notification,  has  not delegated  its legislative authority to the Provincial  Gov- ernment.  The provision relates only to the  enforcement  of the  policy which the Legislature itself has laid down.  The law  was  full  and complete when it  left  the  legislative chamber permitting the Provincial Government to increase the pecuniary  jurisdiction  of the City Court up to  a  certain amount  which was specified in the Statute itself. What  the Provincial  Government is to do is not to make any  law;  it has  to execute the will of the Legislature  by  determining the time at which and the extent to which, within the limits fixed  by  the Legislature, the jurisdiction  of  the  court should be extended. This is a species of conditional  legis- lation which comes directly within the principle  enunciated by  the Judicial Committee in The Queen v.  Burah(1),  where the  taking effect of a particular provision of law is  made to depend upon determination of certain facts and conditions by an outside authority.     The learned Judges of the Bombay High Court in coming to their decision on the point seem to have been influenced  to some  extent  by the pronouncement of the Federal  Court  in Jatindranath Gupta v. Province of Bihar(2), and the learned. Counsel  for the respondents naturally placed reliance  upon it.  I was myself a party to the majority decision  in  that case and expressed my views in a separate judgment. I do not think  that  there is anything in my  judgment  which  lends support  to  the contention which the respondents  have  put forward. I stated expressly in course of, my Judgment on the authority  of  the well known American decision  in  Locke’s appeal(3) that a legislature may not  (1)  5 I.A. 178.                  (3)-13  American  Reports 716.  [1949] F.C.R. 596. 13 98 delegate  its powers to make law-but "it can make a  law  to delegate  a power to determine some fact or state of  things upon  which the law makes or intends to make its own  action depend  "; and that the inhibition against  delegation  does

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not  extend  to  legislation which is  complete  in  itself, though  its operation is made to depend  upon  contingencies the ascertainment of which is left to an external body.     The subject-matter of dispute in the Bihar case was  the validity  of a proviso engrafted upon section 1,  subsection (3) of the Bihar Maintenance of Public Order Act.  The  sub- section  laid down that the Act would remain in force for  a period  of one year from the date of its  commencement.  The proviso  then added "that the Provincial Government may,  by notification on a resolution passed by the Bihar Legislative Assembly  and  agreed to by the  Bihar  Legislative  Council direct  that  this Act shall remain in force for  a  further period  of one year with such modifications, if any, as  may be  specified in the notification." Mr. Seervai  would  have been probably right in invoking the decision in that case as an authority in his favour if the proviso  simply  empowered the  Provincial Government, upon compliance with the  condi- tions prescribed therein, to extend the duration of the  Act for  a further period of one year, the maximum period  being fixed by the Legislature itself.  The proviso, however, went further  and authorised the Provincial Government to  decide at the end of the year not merely  whether the Act should be continued for another year but whether the Act itself was to be  modified  in  any way or not. It  was  conceded  by  the learned Counsel appearing for the Province of Bihar that  to authorise  another body to modify a statute amounts  to  in- vesting that body with legislative powers. What the  learned Counsel  contended for, was that the power  of  modification was  severable from the power of extending the  duration  of the  statute and the invalidity of one part of  the  proviso should  not  affect its other part.  To this  contention  my answer  was  that the two provisions were  inter-related  in such  a manner in the statute that one could not be  severed from the other. 99 Obvious]y,  the facts of this case are quite different,  and all  that  I  need say with regard to  my  pronouncement  in Jatindranath  Gupta’s case is that the principle upon  which that  case was decided is not applicable and cannot  be  at- tracted, to the present case.     I may state here that a question in the broad form as to whether a Provincial Legislature exercising its  legislative powers within the limits prescribed by the Imperial  Parlia- ment  in the Government of India Act, 1935,  could  delegate its  legislative functions in any manner to an  outside  au- thority as it thought proper, was neither raised nor decided in Jatindranath Gupta’s case.  The learned  Attorney-General has  not  very properly invited any final decision  on  that point in the present case and I would refrain from  express- ing any opinion upon it. ’     The second point appears to be of some complexity and it was  decided by the Bombay High Court adversely to  the  re- spondents  on the basis of an earlier pronouncement  of  the same  Court  in Mulchand v. Raman(1). The arguments  of  Mr. Seervai are really directed at assailing the correctness  of this  earlier decision which the learned Judges held  to  be binding  on them in the present case. The contention of  Mr. Seervai, in substance, is, that the Bombay City Civil  Court Act,  which is a piece of provincial legislation,  is  ultra vires the  legislature inasmuch as it purports to endow  the City  Court, which it brings into existence, with  jurisdic- tion  to  receive, try and dispose of "all suits  and  other proceedings of a civil nature" with certain exceptions  that are  specified in the different sub-sections of  section  8. What  is said is that the expression "all suits of  a  civil

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nature"  is wide enough to include suits in respect to  mat- ters  specified  in List I of the Seventh  Schedule  of  the Constitution  Act with regard to which the Central  Legisla- ture  alone is competent to confer jurisdiction  on   courts under entry 53 of the said List. It is argued that so far as the Provincial Legislature is concerned, it may empower  all courts  (except  the  Federal Court)  with  jurisdiction  in respect to any of the matters in the Provincial List. (1) 51 Bom. L.R. 86. 100 and  it  may also be capable of exercising  like  powers  in regard  to  subjects enumerated in the  Concurrent  List  as provided  for  in  article 15 of List III,  subject  to  the conditions  laid down in section 107 of the Act. But as  the scope of section 3 of the Bombay City Civil Court Act is not limited to matters in Lists II and III only and its language can  embrace subjects coming under List I as well, and  fur- thermore  as the different subjects both within and  outside the provincial and concurrent fields dealt with by section 3 are  inextricably, intertwined and not capable of  severance or  demarcation,  the  whole Act must be held  to  be  ultra vires.     In  answer  to this, it has been urged  by  the  learned Attorney-General that amongst the subjects included in  Item 1 of the Provincial List are "the administration of  justice and  constitution and organization of all courts except  the Federal  Court",  and these  expressions  obviously  include within their ambit the conferring of general jurisdiction to hear  and decide cases upon courts which are set up  by  the Provincial Legislature, and without which they cannot  func- tion  as  courts  at all.  ’It is said that Item  2  of  the Provincial  List which mentions "jurisdiction and powers  of all  courts except the Federal Court with respect to any  of the  matters  in  this List" does not in any  way  limit  or curtail the ordinary connotation of the ,expressions "admin- istration of justice and constitution of courts" as used  in Item I of the said List referred to above.     It cannot be disputed that the words "administration  of justice"  occuring in Item 1 of the Provincial List,  unless they are limited in any way, are of sufficient amplitude  to confer upon the Provincial Legislature the right to regulate and  provide  for  the whole machinery  connected  with  the administration of justice. Section 92, of the North  America Act deals with the exclusive powers of the Provincial Legis- latures and clause (14) of the section speaks of "the admin- istration  of  justice in the Provinces" as  including  "the constitution,   maintenance  and organization of  Provincial Courts." In interpreting this provision of the  constitution it has been held in North America that the words 101 "constitution,  maintenance  and  organization  of   courts" plainly include the power to define the jurisdiction of such courts  territorially as well as in other  respects(2).  Mr. Seervai argues that this might be the normal meaning of  the words  if  they  stood alone. But if Items 1 and  2  of  the Provincial List are read together, the conclusion cannot  be avoided that the expressions "administration of justice  and constitution  of  courts" do not include  "jurisdiction  and powers of courts" which are separately dealt with under Item 2.   To  find out, therefore, the extent of  powers  of  the Provincial  Legislature in respect     conferring  jurisdic- tion  upon courts, the relevant item to be looked to is  not Item 1 but Item 2 of the Provincial List.     The  contention in this form seems to me to  be  plainly unacceptable.  I agree with Mr. Setalvad that the  different

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topics  in the same Legislative List should not be  read  as exclusive  of one another.  As was observed by  Sir  Maurice Gwyer  in The United Provinces v. Atiqa Begum(1), "the  sub- jects  dealt  with in the three Legislative  Lists  are  not always  set  out  with scientific definition.  It  would  be practically  impossible for example to define each  item  in the Provincial List in such a way as to make it exclusive of every other item in that List, and Parliament seems to  have been  content to take a number of  comprehensive  categories and to describe each of them by a word of broad and  general import   ......  I think that none of the items in the  List is to be read in a narrow or restricted sense, and that each general  word should be held to extend to all  ancillary  or subsidiary  matters which can fairly and reasonably be  said to  be comprehended in it."  As there can be no question  of conflict  between  two items in the same List, there  is  no warrant  for restricting the natural meaning of one for  the simple  reason  that the same subject might in  some  aspect come within the purview of the other.     The difficulty,-however, arises when we come to entry 53 of List I. Under this entry, it is the Central (1)  Re County Courts of British, Columbia--21 S.C.R. 446. (2) [1940] F.C.R. 110 at p. 134. 102 Legislature that has been given the power of legislating  in regard  to jurisdiction and powers of all courts except  the Federal Court in respect to any of the matters in List L The difficulty that one is confronted with, is that if Item 1 of the  Provincial  List  is taken to  empower  the  Provincial Legislature to invest a court with jurisdiction with respect to all subjects no matter in whichever List it might  occur, a  clear  conflict is bound to arise between Item 1  of  the Provincial  List  and  Item 53 of the Central  List;  and  a Provincial  legislation  trespassing   upon  the   exclusive field  of  the Centre  would be void and  inoperative  under section 100 of the  Constitution Act.  This being the  posi- tion,  a  way  would have to  be found out  to   avoid   the conflict.  As  the Privy Council observed in the case of the Citizens Insurance Company of Canada v. Parsons(2) "it could not have been the intention that a conflict should exist and in  order to prevent such a result the two sections must  be read  together and the language of the one interpreted   and where  necessary  modified  by the other."     Mr. Seervai suggests that the proper way of  reconciling this apparent conflict would be to read the words  "adminis- tration of justice and constitution of courts" occurring  in entry  1 of the Provincial List as exclusive of  any  matter relating to jurisdiction of courts.  The Provincial Legisla- ture  can only set up or constitute courts but their  juris- diction or power of deciding cases must be derived from  the Central  or  the Provincial Legislature or, from  either  of them  in accordance with  the subjects to which such  juris- diction  relates.  The Provincial Legislature can endow  the court with jurisdiction in respect to any matter in List  II and  the Central Legislature can do the same with regard  to subjects  specified  in List I.  So far as  matters  in  the Concurrent  List are concerned, either of  the  Legislatures can make provisions in respect of them subject to the condi- tions laid down in section 107 the Constitution Act. (2).A.C. ,96 at p. 109. 103     This  argument, though apparently plausible, cannot,  in my  opinion, be accepted as sound.  It is to be  noted  that the  right  to set up courts and to provide  for  the  whole machinery of administration of justice has been given exclu-

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sively  to the Provincial Legislature. Under section 101  of the  North America Act, the Parliament of Canada has  a  re- serve of power to create additional courts for better admin- istration of the laws of Canada but the Indian  Constitution Act  of  1935 does not give any such power  to  the  Central Legislature.  Courts are to be established by the Provincial Legislature alone.  The word ’court’ certainly means a place where  justice is judicially administered,  The  appointment of Judges and officers or the mere setting apart of  a place where-the Judges are to meet, are not sufficient to  consti- tute a  court.  A court cannot administer justice unless  it is vested with jurisdiction to decide cases and "the consti- tution    of   a   court    necessarily     includes     its jurisdiction."(1)  If Mr. Seervai’s contention is  accepted, the result will be that when a Provincial Legislature estab- lishes a civil court, it can only be invested with jurisdic- tion to decide cases in respect to matters coming within the Provincial  List.   Such court can have no power  to  decide cases  relating to any matter which is enumerated in List  I so long as the appropriate Legislature does not confer  upon it  the  requisite authority.  Thus an  ordinary  Provincial Court established to decide civil suits would be entitled to entertain  all money claims but not a claim on a  promissory note; nor could it entertain a suit for recovery of corpora- tion tax, for Negotiable Instruments and corporation tax are subjects  of the Central List.  This certainly was  not  the scheme  of the Constitution Act.  In my opinion, the  proper way  to  avoid a conflict would be to read entry  1  of  the Provincial List, which contains the only provision  relating to  constitution  of courts and administration  of  justice, along  with  the group of three entries, viz., entry  53  of List  I,  entry 2 of List II and entry 15 of List  III  with which it is supposed to be in conflict, (1)  Vide Clement’s Canadian Consitution, 3rd Edn., p. 527, 104 and  to interpret the language of one by that of the  other. Entry  1 of List II uses the expressions "administration  of justice  and  constitution  of all courts"  in  a  perfectly general manner.  No particular subject is specified to which the  administration of justice might relate or for  which  a court  might  be  constituted.  It   can,   therefore,    be legitimately  interpreted to refer to a general jurisdiction to decide cases not limited to any particular subject.   The other  three items  on the other hand relate  to  particular matters  appearing in the three Lists and what they  contem- plate  is the vesting of jurisdiction in courts with  regard to  such specific items only.  In one case the  jurisdiction is ’general’ as is implied in the expression "administration of  justice", while in the other three the  jurisdiction  is ’particular’  as  limited to particular  matters  and  hence exclusive.  I agree with my learned brother Patanjali Sastri J.  that  one  approved way of determining the  scope  of  a legislative  topic is to have regard to what has been  ordi- narily treated as embraced within that topic in the legisla- tive  practice  of the country(2); and if that test  is  ap- plied, the interpretation suggested above would appear to be perfectly  legitimate.  The distinction between general  and particular  jurisdiction has always been recognised  in  the legislative   practice of this country prior to the  passing of  the  Constitution  Act of 1935 and   also  after   that. There  have  been always in  this  country civil  courts  of certain   classes and categories graded in a certain  manner according to their pecuniary jurisdiction  and  empowered to entertain  and  decide all suits of a  civil  nature  within particular localities.  Particular  jurisdiction again  have

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been  conferred on some one or the other of these courts  to try cases relating to certain specified matters. Thus  there have  been  special jurisdictions  created  for  insolvency, probate  or guardianship proceedings, for deciding  disputes relating  to compulsory acquisition of land and for  dealing with  cases  arising under the Rent Acts  or  the  different legislations passed in recent years (2) vide Croft v. Dunphy. [1933] A.C. 156. 105 for  scaling  down exorbitant rates of  interest  or  giving relief to rural debtors. Similar instances may be cited with regard  to  conferring of special jurisdiction  in  criminal cases.     There will be no difficulty in interpreting in a  proper manner  the different entries in the Legislative  Lists  re- ferred  to  above if this distinction  between  general  and special jurisdiction is kept in view.  The entire scheme  of the Constitution Act of 1935 is to vest the power of  estab- lishing courts upon the Provincial Legislature.  The Provin- cial Legislature can endow the courts which it sets up  with general jurisdiction to decide all cases which, according to the law of the land, are triable in a court of law, and  all these powers can be exercised under entry I of List II.   If the  Central  Legislature  or  the  Provincial   Legislature chooses to confer special jurisdiction on certain courts  in respect to matters enumerated in their appropriate  legisla- tive  lists, they can exercise such powers under  the  three entries specified above. But the exercise of any such powers by the Central Government would not m any way conflict  with the  powers exercisable by the Provincial Legislature  under entry 1 of List II. The expression ’general’ must always  be understood  as being opposed to what is ’special’ or  exclu- sive. If the Central Legislature vests any particular juris- diction  upon a court in respect to a Central  matter,  that matter  would cease to be a general matter and  consequently the  court having general jurisdiction would no longer  deal with that, but the general jurisdiction of such courts would not be affected thereby.  The contents of general  jurisdic- tion are always indeterminate and are not susceptible of any specific enumeration.  In this view, I do not think that  it would be at all necessary to invoke ’the pith and substance’ doctrine in avoiding the possibility of incidental encroach- ment by the Provincial Legislature upon Central subjects  in regard  to  conferring  jurisdiction upon  courts.   If  the expression  ’jurisdiction’ in entry 53 of List I  means  and refers  to special jurisdiction only, there cannot  be  even an incidental encroachment upon such special jurisdiction 14 106 by  reason  of the conferring of general  jurisdiction  upon courts by the Provincial  Legislature  under entry 1 of List II.   As I have said already what is ’special’ or  made  so, will  automatically cease to be in the category of  what  is ’general’ and no question of a conflict would at all arise.     It  may  be pointed out in this connection that  in  the Canadian  Constitution also, the general scheme is to  carry on  administration of justice throughout Canada through  the medium of provincial courts.  Subject to the residuary power reserved to the Dominion Parliament under section 101 of the North  America  Act, the Constitution has  assigned  to  the provinces the exclusive power in relation to  administration of  justice  including  the  maintenance,  constitution  and organization   of  courts.  There is no limitation  in   any provincial  court  along the line of  division  that  exists between  matters within the legislative  competence of   the

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Dominion  Parliament  and   of  the  Provincial  Legislative Assemblies  (1).  There  is indeed  no  such thing as  Entry 53 in List I of the Indian Act in the Canadian Constitution, but there are judicial pronouncements to the effect that the Dominion  Parliament can impose jurisdiction  on  provincial courts  over  Dominion  subjects (2).  It may  be  that  the British Parliament in framing the legislative topics in  the Government of India Act of 1935 in regard to  administration of  justice and jurisdiction of courts wanted to  adopt  the Canadian  model with such modifications as  they  considered necessary. It is, however, immaterial to speculate on  these matters.  For the reasons given above, I am of  the  opinion that the decision of the Bombay High  Court  in Mulchand  v. Raman(3)  is  correct,  and the contention  of  Mr.  Seervai should fail.     In the result, the appeal is allowed and the judgment of the High Court is set aside.     DAS  J:--I agree that this appeal should be allowed.  In view of the importance of the questions raised in  (1) Vide Clement’s Canadian Constitution p. 526.  (2)  Vide Lefroy’s Canada’s Federal system p. 541,  (3)  51 Bom. L.R. 86 107 this  appeal, I consider it right to state ’my  reasons  for coming to that conclusion.     The salient facts, as to which there is no dispute,  are as  follows: On May 10, 1948, the Provincial Legislature  of Bombay  passed  Act No. XL of 1948, called the  Bombay  City Civil Court Act, 1948. It was passed with a view "to  estab- lish  an  additional Civil Court for  Greater  Bombay."  The provisions  of that Act which will be relevant for the  pur- poses of the present appeal may now be set out:     "1.  (2)  It shall come into force on such date  as  the Provincial  Government may, by notification in the  Official Gazette, appoint in this behalf.     3. The Provincial Government may, by notification in the Official  Gazette,   establish  for  the  Greater  Bombay  a Court,  to be called the Bombay City Civil Court.   Notwith- standing  anything  contained in any law, such  Court  shall have  jurisdiction to receive, try and dispose of all  suits and  other proceedings of a civil nature not  exceeding  ten thousand  rupees  in value, and arising within  the  Greater Bombay, except suits or proceedings which are cognizable-     (a)  by the High Court as a Court of Admiralty or  Vice- Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial  jurisdiction, or     (b) by the High Court for the relief of insolvent  debt- ors, or    (c) by the High Court under any special   law other than the Letters Patent, or    (d) by the Small Cause Court:     Provided that the Provincial Government  may, from  time to  time, after consultation with the High Court, by a  like notification  extend the jurisdiction of the City  Court  to any suits or proceedings of the nature specified in  Clauses (a) and (b).     4.   Subject to the exceptions specified in  section  3, the Provincial Government may, by notification in the  Offi- cial  Gazette,  invest the City Court with  jurisdiction  to receive, try and dispose of all suits and 108 other  proceedings  of  a civil nature  arising  within  the Greater  Bombay and of such value not exceeding  twenty-five thousand rupees as may be specified in the notification.

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   12.  Notwithstanding anything contained in any law,  the High  Court  shall not have jurisdiction to  try  suits  and proceedings cognizable by the City Court:     Provided  that the High Court may, for any special  rea- son,  and at any stage, remove for trial by itself any  suit or proceeding from the City Court."     The  Act  received the assent  of  the  Governor-General about the same time.  It came into force on August 16, 1948, by  a notification issued by the Provincial  Government  and published  in the Official Gazette. Simultaneously with  the passing of the above Act the Bombay Legislature also enacted Act  (XLI  of  1948) called the Bombay  High  Court  Letters Patent Amendment Act, 1948.  By section3 of that Act  Clause 12 of the Letters Patent was amended by adding the following words:     "Except  that  the said High Court shall not  have  such Original jurisdiction in cases falling within the  jurisdic- tion  of the Small Cause Court at Bombay or the Bombay  City Civil Court."     Shortly after the passing of the above Acts, the validi- ty  of  the  Bombay City Civil Court Act (XL  of  1948)  was challenged  in Mulchand Kundanmal Jagtiani v. Raman  Hiralal Shah(1),  a suit on promissory notes filed in  the  Original side of the High Court. A Division Bench of the Bombay  High Court  (Chagla C.J. and Bhagwati J.), on September 2,  1948, held that the Act was well within the legislative competence of the Provincial Legislature and was not ultra vires. Leave was given to the plaintiff in that suit under section 205 of the Government of India Act, 1935, to appeal to the  Federal Court but no such appeal appears to have been filed.     On January 20, 1950, the Provincial Government of Bombay issued the following notification No. 2346/5 in the Official Gazette: (1) A,I.R. 1949 Bom. 197; 51 Bom. L.R.86 109     "In exercise of the powers conferred by section 4 of the Bombay City Civil Court Act, 1948 (Bombay, Act XL of  1948), the  Government of Bombay is pleased to invest, with  effect from  and on the date of this notification, the  City  Court with  jurisdiction to receive, try and dispose of all  suits and other proceedings of a civil nature not exceeding  twen- ty-five  thousand  rupees in value, and arising  within  the Greater Bombay subject, however, to the exceptions specified in section a of the said Act."     On  February 6, 1950, the first  respondent  Narothamdas Jethabhai  presented a plaint  before  the  Prothonotary  of the  Bombay High Court for recovery of Rs.  11,704-5-4  with further  interest  due by the  second  respondent  Aloysious Pinto  Phillips  upon  three several  promissory  notes.  In paragraph 4 of this plaint it was expressly pleaded that the High  Court had jurisdiction to receive, try and dispose  of that suit because (1)the Bombay City Civil Court Act,  1048, was  ultra vires and (2) at least section 4 of that Act  and the notification issued thereunder were ultra vires.  Having some doubts as to whether in view of the notification issued 1  by  the Provincial Government under section 4 of the  Act the plaint could be admitted in the High Court, the Prothon- otary placed the matter under the rules of the Court  before Bhagwati  J.  who  was then the Judge in  Chambers.  By  his judgment  delivered on February  23, 1950, Bhagwati J.  held that section 4 of the Act and the notification issued there- under  were  ultra vires and void and that the  High  Court, therefore,  had  jurisdiction to entertain  the  suit.   The plaint was accordingly received and admitted.     The first respondent thereupon took out a summons  under

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the  rules of the Court for leave to sign  judgment  against the second respondent.  The State of Bombay was, on its  own application,  added as a party to the suit.  The matter  was put  up before a Division Bench (Chagla C.J.  and  Tendolkar J.) for trial of the following issues: 110     "(1) Whether Act XL of 1948 is ultra vires of the Legis- lature of the State of Bombay.     (2) Whether,Section 4 of Act XL of 1948 is in any  event ultra rites of the Legislature of the State of Bombay.     (3)  Whether the Government of Bombay Notification  ’No. 2346/5  dated 20th January, i1950, is ultra vires, void  and inoperative in law.     (4) Whether this Court has jurisdiction to try the suit.     The  larger  point involved in issue No. 1  having  been concluded  by the earlier decision of the Division Bench  in Mulchand  Kundanmal Jagtiani v. Raman Hiralal  Shah(1)  that issue  was answered  in  the negative without  any  argument but  leave was reserved to the first respondent  to  contest the correctness of that earlier decision in this Court.  The Division  Bench in agreement with Bhagwati J. held  that  by section  4  of the Act the Provincial  Legislature  did  not itself  legislate but delegated the power of legislation  to the  Provincial Government which it had no power to do  and, therefore,   section 4 and along with it  the   notification No.  2346/5  issued thereunder were ultra  vires,  void  and inoperative. Accordingly they answered issues Nos. (2),  (3) and (4)in the affirmative and sent the summons for  judgment back  to the learned Judge taking miscellaneous  matters  to dispose  it of on merits.  The State of Bombay has now  come up before us in appeal from this decision of the High Court.     The Advocate-General of Madras has intervened in support of  this  appeal  and for maintaining the  validity  of  the Madras  City  Civil Court Act (VII of 1892)  section  3A  of which  inserted in 1935 by way of amendment is in  identical terms  with  section 4 of  the Bombay Act  except  that  the amount of the value was fixed at Rs. 10,000 in section 3A of the  Madras Act instead of Rs. 25,000 fixed in section 4  of the Bombay Act.     The  distinction  between  conditional  legislation  and delegation of legislative power has been well-known (1) 51 Bom L R.86 111 ever  since  the  decision  of the  Privy  Council  in  R.v. Burah(1)  and  the other Privy Council cases cited  in   the judgments of the High Court.  It is firmly established  that conditional  legislation  is  not only  permissible  but  is indeed in many cases convenient and necessary. The difficul- ty  which confronts the Courts is in ascertaining whether  a particular provision of a Statute constitutes a  conditional legislation  as  explained  in the decisions  of  the  Privy Council.  In the present case the High Court, on a construc- tion  of section 4 of the Bombay City Civil Court Act,  came to the conclusion that it was not an instance of conditional legislation at all.  The use of the word "invest" in section 4  was considered by the High Court to be  very  significant and  the  difference between the language in section  3  and that  in  section 4 appeared to them to be very  marked  and striking.   According to the High Court while by  section  a the  Legislature  itself set up a Court  with  a  particular pecuniary  jurisdiction,  under section  4  the  Legislature itself did not invest the Court with any higher jurisdiction but  left  it to the Provincial Government to  exercise  the function which the Government of India Act laid down  should be  exercised  by the Provincial Legislature.   The  learned

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Chief Justice expressed the view that the Legislature  never applied its mind to the question as to whether the new Court which  it was setting up should have a  jurisdiction  higher than  that of Rs. 10,000, and that section 4 was not a  sec- tion  which  merely directed the  Provincial  Government  to carry out the policy laid down by the Legislature, but  that it was a section which conferred upon the Provincial Govern- ment the power to confer jurisdiction upon the Court.  Then, after  referring            to R.V. Baruha(1)  and-  several other  cases and purporting to apply the tests laid down  in the decisions to the Act the learned Chief Justice concluded that  the  Legislature in the exercise  of  its  legislative power  had set up a Civil Court with a limited  jurisdiction under  section a of the Act, that it had not set up a  Court with a jurisdiction higher than ten thousand rupees and (1) L.R 5 I. A.   178. 112     that, having set up a Court of, limited jurisdiction, it had  given to the Provincial Government under section 4  the power to confer upon that Court a higher jurisdiction up  to twenty-five  thousand  rupees.  This power, which  was  con- ferred  upon the Provincial Government was according to  the Chief Justice, a power which could only have been  exercised by  the  Legislature  itself.  I am  unable  to  accept  the afore-mentioned construction of sections 3 and 4 of the Act.     As  I  have already said, the High Court  rounded  their conclusions  principally on the observations of their  Lord- ships  of  the Privy Council in R.v.  Burah(1)  and  certain other Privy Council cases.  It will be useful, therefore, to analyse the Privy Council decision in R.v. Burah(1). In 1869 the  Indian  Legislature passed an Act (No.  XXII  of  1869) purporting,  first, to remove a district called  Garo  Hills from  the jurisdiction of the Courts of civil  and  criminal jurisdiction and from the law prescribed for such Courts  by Regulations and Acts and, secondly, to vest the  administra- tion of civil and criminal justice, within the same territo- ry,  in such officers as the Lieutenant-Governor  of  Bengal might, for the purpose of tribunals of first instance, or of reference  and appeal, from time to time appoint.   The  Act was  to come into operation on such day as  the  Lieutenant- Governor  of Bengal should, by notification in the  Calcutta Gazette,  direct.   The 8th section authorised the  Lieuten- ant-Governor  of  Bengal  by notification  in  the  Calcutta Gazette  to  extend to the said territory, any  law  or  any portion  of any law then in force in other territories  sub- ject to his government or which may thereafter be enacted by the Council of the Governor-General or of himself.  The  9th section of that Act provided:     "The said Lieutenant-Governor may from time to time,  by notification in the Calcutta Gazette, extend mutatis  mutan- dis  all  or any of the provisions contained  in  the  other sections  of this Act to the Jaintia Hills, the Naga  Hills, and  to  such portion of the Khasi Hills, as  for  the  time being forms part of British India, (1) L.R. 5 I.A. 178. 113      Every such notification shall specify the boundaries of the territories to which it applies."      On October 14, 1871, the Lieutenant-Governor of  Bengal issued a notification in exercise of the powers conferred on him by section 9 extending the provisions of that Act to the territory known as the Khasi and Jaintia Hills and  excluded therefrom the jurisdiction of the Courts of civil and crimi- nal justice.  The respondent Burah and another person having been  convicted by the Deputy Commissioner of the Khasi  and

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Jaintia  Hills of murder and sentenced to death,  which  was later on commuted to transportation for life, they from jail sent  a  petition of appeal against their  conviction.   The provisions  of  Act XXII of 1869 having  been  extended,  by notification  under  section  9, to the  Khasi  and  Jaintia Hills,  the High Court would have no jurisdiction to  enter- tain the appeal, unless section 9 and the notification  were ultra rites and void. The majority of the Judges of the Full Bench constituted for considering the question took the view that  section  9 was really not legislation but was  an  in- stance  of  delegation of legislative power. The  Crown  ob- tained  special  leave to appeal to the  Privy  Council.  In summarising the effect of the provisions of sections 1 to  8 of  that Act on Garo Hills Lord Selborne who  delivered  the judgment of the Privy Council observed at page 194 that  the Governor-General  in council had determined, in the due  and ordinary  course  of  legislation, to  remove  a  particular district  from the jurisdiction of the ordinary  Courts  and offices, and to place it under new Courts and offices, to be appointed  by and responsible to the Lieutenant-Governor  of Bengal  leaving  it to   the Lieutenant-Governor to  say  at what  time that change should take place, that the  Legisla- ture   had  determined  that,  so  far,  a  certain   change should,take  place, but that it was expedient to  leave  the time,  and  the manner, of carrying it into  effect  to  the discretion  of the  Lieutenant-Governor and also,  that  the laws  which were or might be in force in the other  territo- ries subject to the same  Government  were such as it  might be fit and proper to apply to this 15 114 district  also,  but that, as it was not  certain  that  all those laws, and every part of them, could with equal conven- ience  be so applied, it was expedient, on that point  also, to  entrust  a discretion to  the  LieutenantGovernor.   His Lordship then proceeded to state the true meaning and effect of the provisions of section 9:     "This  having been done as to the Garo Hills,  what  was done  as  to the Khasi and Jaintia Hills?   The  Legislature decided  that it was fit and proper that the adjoining  dis- trict of the Khasi and Jaintia  Hills should also be removed from  the jurisdiction of the existing Courts,  and  brought under  the same provisions with the Garo Hills,  not  neces- sarily and at all events, but if and when  the   Lieutenant- Governor should think it desirable to do so; and that it was also  possible that it might be expedient that not all,  but some  only,  of those provisions should be applied  to  that adjoining  district.   And accordingly the  Legislature  en- trusted  for these purposes also, a discretionary  power  to the Lieutenant-Governor." Finally, his Lordship concluded at p. 195:     "Their Lordships think that it is a fallacy to speak  of the powers thus conferred upon the LieutenantGovernor (large as  they undoubtedly are) as if, when they  were  exercised, the efficacy of the acts done under them would be due to any other  legislative  authority than- that  of  the  Governor- General in Council.  Their whole operation is, directly  and immediately,  under and by virtue of this Act XXII  of  1869 itself.   The proper Legislature has exercised its  judgment as  to place, person, laws, powers; and the result  of  that judgment has been to legislate conditionally as to all these things.  The conditions having been fulfilled, the  legisla- tion  is now absolute. Where plenary powers  of  legislation exist  as to particular subjects, whether in an imperial  or in a provinciall  Legislature, they may, in their Lordships’

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judgment be well exercised, either absolutely or  condition- ally.   Legislation,  conditional on the use  of  particular powers, or on the exercise of a limited discretion, entrust- ed  by  the Legislature to persons in whom it places  confi- dence, 115 is no uncommon thing; and, in many circumstances, it may  be highly convenient."     If  the reasonings underlying the observations  of  the’ Bombay High Court were correct then on those very reasonings it  could be held in Burah’s case(1) that while in  enacting sections  1  to 8 the Legislature had applied its  mind  and laid  down its policy as to the exclusion of the Garo  Hills from the jurisdiction of the Courts the Legislature did  not apply  its  mind and did not lay down any policy as  to  the exclusion  of the Khasi and Jaintia Hills rom the  jurisdic- tion of the Courts but had left it to the  Lieutenant-Gover- nor  to do what it alone could do.  This construction  quite clearly  did  not find favour with the  Privy  Council.  The Privy Council by construction spelt out of the very language section  9 that the Legislature itself had decided  that  it was  fit and proper that the Khasi and Jaintia Hills  should also be removed from the jurisdiction of the existing Courts and brought under the same provisions as applied to the Garo Hills, not necessarily and at all events but if and when the LieutenantGovernor  should think it desirable to do  so  and accordingly   entrusted   a  discretionary   power  to   the Lieutenant-Governor.  Adopting the same method of  construc- tion and adopting the language of Lord Selborne it may  well be  said that in enacting section 3 the  Legislature  itself has determined, in  the due and ordinary course of  legisla- tion, to establish an additional Court of civil jurisdiction with  jurisdiction to entertain suits and other  proceedings arising  within  the Greater Bombay of the value up  to  Rs. 10,000  leaving  it,  by section 1 (2),  to  the  Provincial Government  to  say  at what time that  change  should  take place.  Likewise, it may be said that in enacting section  4 the  Legislature  itself  has decided that it  is  fit,  and proper  to  extend  the pecuniary jurisdiction  of  the  new Court, not necessarily and at all events or all at once  but if  and when the Provincial Government should think  it  de- sirable  to do so and accordingly entrusted a  discretionary power to the Provincial Government.  It is entirely wrong to say that the (1) L.R.  5 I.A. 178. 116 Legislature has not applied its mind or laid down any  poli- cy.   Indeed, the very fact that the extension of  pecuniary jurisdiction should not exceed twenty-five thousand  rupees, that  the  extension  should be subject  to  the  exceptions specified in section 3 clearly indicate that the Legislature itself  has  decided that the extension  of   the  pecuniary jurisdiction   of   the new  Court  should   be   made,  not necessarily   or at all events or all at  any one  time  but when the Provincial Government may consider. it desirable to do  so and while entrusting a discretionary power  with  the Provincial  Government to determine the time  for  investing such extended jurisdiction on the new Court, the Legislature itself has also prescribed the limits of such extension. The efficacy of the Act of extension of jurisdiction is,  there- fore,  not due to any other legislative authority than  that of  the Legislature itself.  The expression  "invest"   does not appear to me to have any special significance.  It  only implies  or  indicates the result of the fulfilment  of  the condition  which the Legislature itself laid down.   To  use

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the language of Lord Selborne the extension of  jurisdiction is directly and immediately under and by virtue of this very Act itself.  Here there is no effacement of the Legislature, no  abdication of the legislative power.  On  the  contrary, the proper Legislature has exercised its judgment as to  the possible necessity for the extension of the pecuniary juris- diction of the new Court and the result of that judgment has been  to  legislate conditionally as to such  extension  and that the condition having been fulfilled by the issue of the notification  by the Provincial Government  the  legislation has  now become absolute.  In my judgment  the  construction put  upon sections 3 and 4 by the High Court  was  erroneous and cannot be supported either on principle or on authority. When properly construed in the light of the observations and decision   of  the  Privy CounCil in R.v. Burah(1) as  indi- cated  above  section 4 does not amount to a  delegation  of legislative  power at all but constitutes what is  known  as conditional legislation. (1) L.R. 5 I.A 178. 117     Reliance was placed by the High Court on the decision of the  Federal Court of India in Jatindra Nath Gupta v.  Prov- ince of Bihar (1) in support of their conclusions. That case was  concerned  with  the question of the  validity  of  the proviso  to section 1 (3)of the Bihar Maintenance of  Public Order  Act (V of 1947). Section 1 (a) provided that the  Act should  remain  in force for a period of one year  from  the date of its commencement.  The relevant part of the  proviso was in the following terms:     "Provided that the Provincial Government may, by notifi- cation,  on  a resolution passed by  the  Bihar  Legislative Assembly  and  agreed to by the Bihar  Legislative  Council, direct  that  this Act shall remain in force for  a  further period  of one year with such modifications, if any, as  may be specified in the notification."     Three  of the learned Judges held that the  proviso  and the notification thereunder were ultra vires and void-  They laid  particular emphasis on the power given to the  Provin- cial  Government  to make any modification in the  Act  when extending its life as indicating that it was a delegation of legislative power. Another learned Judge did not decide this point  but  agreed to set aside the order  of  detention  on another ground not material for our present purpose and  the remaining learned Judge took a different view of the  effect of  the proviso and held that it was a conditional  legisla- tion within the meaning  of the decision in R., v. Burah(2). I do not find it necessary, for the purposes of the  present appeal,  to  express any view as to the correctness  of  the decision  of the Federal Court in that case.  Assuming,  but without  deciding, that the entrustment with the  Provincial Government  of the power to extend the life of an  Act  with such  modifications  as  the Provincial  Government  in  its unfettered discretion thought fit to make was nothing but  a delegation of legislative powers, there is no such power  of modification given to the Provincial Government by section 4 of the Bombay City Civil Court (1)  A.I.R.  1949 F.C. 175,               (.2) L.R.  5  I.A. 178. 118 Act. 1948 and, therefore, that decision of the Federal Court can have no application to the case before us.     The  learned  Attorney-General wants to go  further  and contend that under the Government of India Act, 1935, it was permissible  for  the Legislatures, Central  or  Provincial, while acting within their respective legislative fields,  to

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delegate  their legislative powers. In the view I  have  ex- pressed  above,  namely, that section 4 of the  Bombay  City Civil  Court Act, 1948, does not involve any  delegation  of legislative  power, I do not consider it necessary, on  this occasion, to go into that question and I reserve my right to consider and decide that question including the question  of the  correctness  of the decision of the  Federal  Court  in Jatindra  Nath  Gupta’s case(1) on that point  as  and  when occasion may arise in future.     Learned  counsel  for the first respondent  then  raises before us the larger question as to whether the Bombay  City Civil Court Act, 1948, as a whole was or was not within  the legislative  competence  of the  Provincial  Legislature  of Bombay.  Legislative powers were by section 100 of the  Gov- ernment of India Act, 1935, distributed amongst the  Federal and  the  Provincial Legislatures.  Under that  section  the Federal Legislature had, and the Provincial Legislature  had not,  power to make laws with respect to any of the  matters enumerated  in List I in the Seventh Schedule to  that  Act. Likewise,  the Provincial Legislature had, and  the  Federal Legislature  had not, power to make laws the  Province  with respect  to my of the matters enumerated in List II in  that Schedule.   It will be noticed that’the section,  while  af- firmatively giving legislative power with respect to certain matters to one Legislature, expressly excluded the  legisla- tive  power of the other Legislature with respect  to  those matters. Lastly, section 100 gave concurrent power of legis- lation to the Federal as well as to the Provincial  Legisla- ture with respect to matters enumerated in List III in  that Schedule. Section 107 of that Act made provision for resolv- ing the inconsistency, if any, between a Provincial law  and a Federal law or the existing Indian (1) A.I.R. 1949 F.C. 175 119 law  with respect to  any of the matters in  the  Concurrent List  (i.e., List III).  Turning now to the three  lists  we find  several entries relating to Courts, the relevant  por- tions of which are as follows :                       List I.     Entry 53: Jurisdiction and powers of all Courts,  except the  Federal  Court, with respect to any of the  matters  in this list  ......               List II.     Entry 1:  ............  the administration of   justice, constitution  and  organisation of all  Courts,  except  the Federal Court, and fees taken therein;  ......     Entry  2: Jurisdiction and powers of all Courts,  except the  Federal  Court, with respect to any of the  matters  in this list; procedure in Rent and Revenue Courts. List III. PART 1.     Entry  2:  Criminal  Procedure,  including  all  matters included  in the Code of the Criminal Procedure at the  date of the passing of this Act.     Entry 4: Civil Procedure, including the law  of  Limita- tion and all matters included in the Code of Civil Procedure at the date of the passing of this     Entry 15: Jurisdiction and powers of all Courts,  except the  Federal  Court, with respect to any of the  matters  in this list.     Learned  Attorney-General urges that entry 1 in List  II clearly  indicates that administration of justice  had  been expressly made a provincial subject and that it was only the Provincial Legislature which could make laws with respect to administration  of justice.  The next steps in the  argument

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are that there could be no administration of justice  unless Courts were constituted and organised, that the constitution and organisation of Courts would be  meaningless enterprises for  the Provincial Legislatures to indulge in,  unless  the Courts so constituted and organised were 120 vitalised by being invested  with jurisdiction and powers to receive, try and determine suits and other proceedings.  The argument,  therefore, is that entry 1 in List II  by  itself gave power to the Provincial Legislature not only to consti- tute and organise Courts but also to confer jurisdiction and powers  on  them.  The learned  Attorney-General  relies  on Jagtiani’s case(1) and points out that under entry 1  admin- istration of justice was entirely a provincial responsibili- ty  and  the Provincial Legislature was authorised  to  make laws with respect to administration of justice.  Administra- tion  of justice, so the argument’ proceeds, is  inseparable from Courts and Courts without jurisdiction is an  incompre- hensible  notion. The conclusion sought to  be  established. therefore,  is  that  under entry 1 alone  of  List  II  the Provincial Legislature had  power to make a law  not  merely constituting a new Court but, investing such new Court  with general  jurisdiction and powers to receive, try and  deter- mine   all suits and other proceedings.  If entry 1 in  List II  stood alone and entry 53 in List I, entry 2 in  List  II and  entry 15 in List HI were not in the  Seventh  Schedule, the argument would have been unanswerable. In Section 92  of the  British North America Act, 1867, there was no  separate provision  authorising  the making of laws with  respect  to jurisdiction  and powers of Courts and, therefore,  the  au- thority  to make laws with  respect to the jurisdiction  and powers  of Courts had of necessity to be found in and  spelt out  of the words’ ’administration of justice" occurring  in section  92  (14) of that Act. There is,  however,  no  such pressing  or compelling necessity for giving such  wide  and all  embracing meaning to the words "administration of  jus- tice" in entry 1 of List 11. The expression  "administration of  justice"  may be an expression of wide  import  and  may ordinarily,  and in the absence of anything  indicating  any contrary  intention,  cover  and include  within  its  ambit several things as component parts of it, namely, the consti- tution  and organisation of Courts, jurisdiction and  powers of the Courts and the laws to be administered by the Courts. But the legislative (1) 51 Bom. L.B. 86. 121 practice  in  England as well as in India has been  to  deal With these topics separately in legislative enactments:  see for example Indian High Courts Act 1861. (24 and 25 Vic., c. 104)  sections  2  and 19; Government of  India  Act,  1935, sections  220  and 223, the Letters i Patent of  the  Bombay High Court, 1865, and also the different Civil Courts  Acts. Of  these,  one  topic, namely, "constitution and  organisa- tion  of Courts" had been expressly included in entry  1  of List  II in addition to "administration of justice", a  fact of  some significance which must be noted although I do  not say that the inclusion of the words "constitution and organ- isation  of all Courts" in entry 1 of List II by itself  and in  the absence of anything else cut down the generality  of the  meaning of the expression "administration  of  justice" which  preceded  those words, for such  a  construction  may militate against the principle laid down by the Privy  Coun- cil in Meghraj v. Allah Rakhia(1). Further, entry 2 in  List II  would  have been wholly unnecessary  if  the  expression "administration of justice" in entry 1 in List II were to be

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given  the wide meaning contended for by the learned  Attor- neyGeneral, for if under entry 1’ in List II the  Provincial Legislature  had plenary powers to make laws conferring  on, or taking away from, Courts, existing or newly  constituted, 0jurisdiction  and  powers of the widest  description,  such power  would  also include the lesser  power  of  conferring jurisdiction  and powers with respect to any of the  matters enumerated in List II, such as is contemplated by entry 2 in List  II.  The greater power would certainly  have  included the  lesser.  I do not say that the presence of entry  2  in List  II  by  itself cut down the ambit  of  the  expression "administration  of justice" in entry 1, for if  there  were only  entries 1 and 2 in List II and there were  no  entries like  entry 53 in List I and entry 15 in List III, it  might have been argued with some plausibility that in framing  the two  entries in the same list not much care was bestowed  by the draftsman to prevent overlapping and that as  (1) L.R. 74 I.A. 12, at p.20 16 16 122 both  the entries in one and the same list gave  legislative power  to  the same Legislature the  overlapping  caused  no confusion  or inconvenience and that it was  not  necessary, therefore,  to  construe entry 1 of List II as cut  down  by entry  2 in the same List. The important thing to notice  is that  the topic of "jUrisdiction and powers of  Courts"  had not  been  included in entry  1 in List II  along  with  the topic of "constitUtion and organization of Courts", but  the legislative  powers with respect to the topic of  "jurisdic- tion and powers of the Courts" had been distributed  between the  Federal and the Provincial Legislatures in  the  manner set  forth  in entry 53 in List I, entry 2 in  List  II  and entry  15 in List III.  The inclusion of "constitution   and organisation  of  Courts" as a separate item in entry  1  in List  II,  the omission of the topic  of  "jurisdiction  and powers of Courts" from entry 1 and the deliberate  distribu- tion of powers to make laws with respect to jurisdiction and powers of  Courts with respect to the several matters speci- fied in the three lists clearly indicate to my mind that the intention  of Parliament was not, by entry 1 in List  II  by itself, to authorise the Provincial Legislature  to make any law with respect to the jurisdiction  and powers of  Courts. In my judgment, entry 1 in List II cannot be read as at  all giving any power to the Provincial Legislature to confer any jurisdiction  or power on any Court it might  constitute  or organise  under that  entry and that the expressions "admin- istration of justice" and "constitution and organisation  of Courts"  occurring in entry 1 in List II should be  read  as exclusive  of  "the jurisdiction and powers of  Courts"  the powers of legislation with respect to which were distributed under entry 53 in List I, entry 2 in List II and entry 15 in List  III.  Such a construction will be consonant  with  the principle of construction laid down by, the Privy Council in the case of In re Marriage Legislation in Canada(1).     It  is  next said that entry 1 in List II  gave  general powers to the Provincial Legislature to make laws  (1) [1912] A.C. 880 123 conferring general jurisdiction and powers on Courts consti- tuted by it under that entry while entry 53 in List I, entry 2  in  List II and entry 15 in List  III  conferred  special powers  on the Federal and Provincial Legislatures  to  make laws conferring special jurisdiction and powers with respect to  matters specified in their respective Lists.  As I  have already pointed out, if entry 1 in List II conferred plenary

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powers  on  the  Provincial Legislature to  make  laws  with respect  to  jurisdiction  and powers of  Courts  in  widest terms, entry 2 in List II would be wholly redundant, for the wider    power    itself   would    include    the    lesser power.Further,the  very concession that entry 53 in List  1, entry  2  in List II and entry 15 in List III  gave  special powers to the Legislature to confer special jurisdiction and powers  necessarily amounts to an admission that the  powers conferred  on the Provincial Legislature by entry 1 in  List II were exclusive of the powers conferred under entry 53  in List I, entry 2 in List II and entry 15 in List III, for  if entry 1 in List II gave power to the Provincial  Legislature to  make laws conferring general jurisdiction of the  widest kind which included jurisdiction and powers with respect  to all matters specified in all the Lists, then the utility  of entry 53 in List I, entry 2 in List II and entry 15 in  List III as giving special powers to make laws conferring special jurisdiction  would  vanish altogether.   Special  power  to confer special jurisdiction would be meaningless if it  were included  in the general power also.  This  circumstance  by itself should be sufficient to induce the Court to assign  a limited  scope and ambit to the power conferred on the  Pro- vincial  Legislature under entry 1 in List II.   We,  there- fore, come back to the same conclusion that entry 1 in  List II should be construed and read as conferring on the Provin- cial  Legislature all powers with respect to  administration of justice and constitution and organisation of Courts minus the power to make laws with respect to the jurisdiction  and powers of Courts.     It  is pointed out that under entry 1 in List II it  was only the Provincial Legislature which alone could 124 constitute  and organise a new Court and if that  entry  did not empower the Provincial Legislature to vest in such  new  Court the-general jurisdiction and power  to  re- ceive,  try  and  dispose of all kinds of  suits  and  other proceedings, then no new Court of general jurisdiction could be  established  at  all.  As will be  seen  hereafter,  the Provincial   Legislature   has, under entry 2  in  List  II, power to make laws conferring wide general jurisdiction  and powers  on  a  newly constituted Court  and  consequently  a forced  construction need not be placed on entry 1  in  List II.   It  is said that if the Provincial  Legislature  could not, under entry 1  in List II, confer jurisdiction on a new Court set up by     under that entry, the result would  have been  that the Provincial Legislature would have had to  set up  a  new Court by one law made under entry 1  of  List  II without conferring on it any jurisdiction whatever and would have had to make another law with respect to ’ the jurisdic- tion and powers of such Court.  I see no force in this,  for the  Provincial  Legislature could by one and the  same  law have  set up a Court under entry 1 in List II and vested  in the  Court jurisdiction  and powers with respect to  any  of the matters specified in List II and, subject to section 107 of the Act, with respect to any of the matters enumerated in List III. It is wrong to assume that the Provincial Legisla- ture  could not make one law under both entry 1 and entry  2 in  List  II and entry 15 in List III at one  and  the  same time.     A good deal of argument was advanced before us as to the applicability  of  the doctrine of pith and  substance  and, indeed, the decision of the Bombay High Court in  Jagtiani’s case was practically rounded on that doctrine. Shortly  put, the argument, as advanced, is that under entry 1 in List  II the  Provincial  Legislature had power to  make  laws   with

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respect  to administration of justice; that, therefore,  the Provincial  Legislature had power, under entry 1 itself,  to make  laws  conferring general  jurisdiction and  powers  on Courts  constituted and organised by it under  that   entry; that  if in  making such law 125 the   Provincial  Legislature  incidentally  enroached  upon the   legislative field assigned to the Federal  Legislature under  entry 58 in List I with respect to  the  jurisdiction and  powers  of Court with respect to any   of  the  matters specified  in List I,  such incidental encrochment  did  not invalidate  the law, as in pith and substance it was  a  law within  the legislative powers.  In my judgment, this  argu- ment  really  begs the question.  The doctrine of  pith  and substance postulates, for its application, that the impugned law  is substantially within the legislative  competence  of the  particular Legislature that made it, but only  inciden- tally  encroached  upon  the legislative  field  of  another Legislature.    The   doctrine saves  this   incidental  en- croachment  if only the law is in pith and substance  within the  legislative field of the particular  Legislature  which made  it.  Therefore, if the  Provincial  Legislature  under entry  1 had power to vest general jurisdiction on  a  newly constituted  Court, then if the law made by it  incidentally gave  jurisdiction  to  the Court with  respect  to  matters specified in List I the question of the applicability of the doctrine  of pith and substance might have arisen.   I  have already pointed out that, on a proper construction, entry  1 of  List  II did not empower the Provincial  Legislature  to confer  any jurisdiction or power on the Court and  the  ex- pression  "administration  of  justice" had to  be  read  as covering matters relating to administration of justice other than jurisdiction and powers of Court and, if that were  so, the  discussion of the doctrine of pith and  substance  does not  arise at all.  I find it difficult to support the  rea- sonings adopted by the Bombay High Court in Jagtiani’s case.     The argument as to the applicability of the doctrine  of pith and substance to the impugned Act can, however, be well maintained in the following modified form:  Under entry 2 in List  II the Provincial Legislature had power to  make  laws with  respect to the jurisdiction and powers of Courts  with respect  to any of the matters enumerated in List  II;  that "administration of justice" in entry 1 is one of the matters in 126 List  II;  that, therefore, the Provincial  Legislature  had power  to confer the widest general jurisdiction on any  new Court or take away the entire jurisdiction from any existing Court  and there being this power, the doctrine of pith  and substance applies. It is suggested that this argument cannot be  formulated  in view of the language used in entry  2  in List II.  It is pointed out that entry 2 treats "any of  the matters  in this List" as subject-matter "with  respect  to" which,  i.e.,  "over" which the Court may be  authorised  to exercise jurisdiction and power. This construction of  entry 2  is obviously fallacious, because jurisdiction and  powers of the Court "over" administration of justice as a  subject- matter  is meaningless and entry 2  can never be read   with entry  1.  This circumstance alone shows  that  the words  ’ ’with  respect  to"  occurring in entry 2 in  List  11  when applied  to  entry 1 did not mean "over"  but  really  meant "relating to" or "touching" or "concerning" or "for"  admin- istration  of justice, and so read and understood, entry  2, read with entry 1 in List 11, clearly authorised the Provin- cial Legislature to make a law conferring on or taking  away

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from a Court general jurisdiction and powers relating to  or touching  or  concerning or for administration  of  justice. This  line of reasoning has been so very fully  and  lucidly dealt  with by my brother Sastri J. that I have  nothing  to add  thereto  and I respectfully adopt  his  reasonings  and conclusion  on  the point.  This argument,  in  my  opinion, resolves all difficulties by vesting power in the Provincial Legislature to confer general jurisdiction on Courts consti- tuted  and organised by it for effective  administration  of justice  which  was made its  special  responsibility.   Any argument as to deliberate encroachment that might have  been rounded  on the  Proviso to section 3 of the Act which  ena- bled  the  Provincial Government to give to the  City  Court even Admiralty jurisdiction which was a matter in List I has been set at rest by the amendment of the Proviso by   Bombay Act XXVI of 1950.  The impugned Bombay Act may, in my  judg- ment,  be  well supported as a law made  by  the  Provincial Legislature under 127 entry 2 read with entry 1 in List II and I hold accordingly. I,  therefore, concur in the order that this appeal  be  al- lowed.     In the view I have taken, it is not necessary to discuss the  contention  of the learned  Attorney-General  that  the Bombay  City Civil Court Act may be supported as a piece  of legislation  made  by the Provincial Legislature  of  Bombay under entry 4  read with entry 15 in Part I of List III  and I express no opinion on that point. Appeal allowed. Agent for the appellant: P.A. Mehta. Agent for the respondents: Rajinder Narain.