State of Bombay vs Narothamdas Jethabai and another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 10 of 1950

Decision Date: 20 December 1950

Coram: Saiyid Fazal Ali, Mehr Chand Mahajan, B.K. Mukherjea

The judgment recorded under the title State of Bombay versus Narothamdas Jethabai and another was delivered by the Supreme Court of India on the twentieth day of December, 1950. The opinion was authored by Justice Saiyid Fazal Ali and the bench comprised Justices Saiyid Fazal Ali, Mehr Chand Mahajan and B.K. Mukherjea. The case is reported in the 1951 All India Reporter at page 69 and in the Supreme Court Reports at page 51, with subsequent citations including F 1951 SC 332 (330), F 1952 SC 252 (65), R 1957 SC 510 (8), R 1962 SC 1044 (8), E 1968 SC 888 (7), R 1970 SC 1453 (6), RF 1972 SC 1061 (80), RF 1973 SC 1461 (2100), R 1983 SC 1019 (52), RF 1986 SC 1323 (31), F 1986 SC 1783 (3). The legislation under consideration is the Bombay City Civil Court Act (XL of 1948), a provincial statute enacted by the Legislature of Bombay.

Section 3 of the Act authorized the Provincial Government, by means of a notification in the official Gazette, to establish in Greater Bombay a court to be known as the Bombay City Civil Court. The section further provided that, notwithstanding any other law, this court would have jurisdiction to receive, try and dispose of all civil suits and proceedings of a value not exceeding Rs 10,000 arising within Greater Bombay, except for those categories of suits specifically excluded by the provision. Section 4 stipulated that, subject to the exceptions enumerated in Section 3, the Provincial Government could, again by Gazette notification, invest the City Civil Court with jurisdiction to receive, try and dispose of all civil suits and proceedings arising within Greater Bombay and of a value not exceeding Rs 25,000, as may be designated in the notification. Section 12 expressly barred the jurisdiction of the Bombay High Court to try any suit or proceeding that fell within the jurisdiction of the City Civil Court.

In exercise of the powers conferred by Section 4, the Provincial Government issued a notification investing the City Civil Court with jurisdiction to receive, try and dispose of all civil suits and proceedings of a value not exceeding Rs 25,000. Subsequently, the first respondent instituted a suit in the High Court of Bombay seeking recovery of the sum of Rs 11,704 on the basis of a promissory note.

In the suit that arose from a promissory note, the plaintiff argued that the Provincial Legislature lacked authority to enact laws concerning the jurisdiction of courts over promissory-note actions, because such matters fell within item 53 of List I. Consequently, the plaintiff claimed that the Bombay City Civil Court Act of 1948 was ultra vires. The plaintiff further maintained that, irrespective of that claim, section 4 of the Act was invalid since it purported to delegate legislative power to the Provincial Government, and therefore the suit should remain within the jurisdiction of the High Court. The Full Court rejected these contentions and held three propositions. First, the Court found that the impugned Act dealt with a matter enumerated in List II and therefore was not ultra vires. Second, the Court observed that the legislature had exercised its discretion by fixing the pecuniary jurisdiction of the City Civil Court at up to Rs 9,5,000, leaving the Provincial Government only to specify the conditions for exercising the enhanced jurisdiction; consequently, section 4 did not amount to a delegation of legislative power but was merely conditional legislation and was valid. Third, the Court held that, since the substance of the Act was a law concerning a matter within List II, any incidental impact on suits involving promissory notes—subjects listed under items 28 and 53 of List I—did not impair the Act’s validity, and thus the suit was not cognisable by the High Court. The opinion was delivered by Justices Fazl Ali, Mehr Chand Mahajan and Mukherjee.

Justice Fazl Ali explained that the Provincial Legislature’s power to legislate on “administration of justice” and “constitution and organisation of all courts” under item 1 of List II is sufficiently broad to include authority over the jurisdiction of courts that the Legislature itself creates. He noted that the purpose of item 53 of List I, item 9 of List II and item 15 of List III is to give the Central and Provincial Legislatures special competence to enact laws dealing with court jurisdiction for the specific subjects enumerated in the respective lists. These provisions, he said, do not limit the Provincial Legislature’s power under item 1 of List II to define the jurisdiction of courts it establishes and to vest those courts with the authority to try any civil cause, subject only to any special provisions that the Central or Provincial Legislatures may enact for the matters listed. Justice Patanjali Sastri, joined by Justice Das, added that the terms “administration of justice” and “constitution and organisation of all courts” in item 1 of List II must be interpreted narrowly, excluding from their scope the “jurisdiction and powers of courts.” This interpretation, however, does not diminish the Legislature’s competence to legislate on the general jurisdiction of courts as affirmed by the earlier reasoning.

The Court observed that the matter of jurisdiction and powers of courts was specifically covered by item 2 of List II, and therefore item 1 of List II could not, by itself, authorize legislation concerning the jurisdiction and powers of courts. Consequently, the legislative authority granted under item 9 of List II with respect to “jurisdiction and powers of courts” could be lawfully exercised in relation to any subject enumerated in List II, including the administration of justice, which was one of the entries in that List. By this reasoning, the general jurisdiction of courts fell within the sphere of provincial legislative competence. The Court further explained that any apparent conflict with the central legislative power under item 53 of List I could be resolved by applying the doctrine of pith and substance together with the principle of incidental encroachment. The judgment also referred to the legislative practice that existed in India prior to the Government of India Act 1935, relying on it to support the view that provincial legislatures possessed, under the 1935 constitution, the authority to confer general pecuniary jurisdiction on courts established by them. The Court raised the question of whether, under the Government of India Act 1935, the legislatures of India were permitted to delegate their legislative powers to other agencies. In support of its analysis, the Court cited the case of Queen v. Burah (59 A 178), noted the distinction made in Jatindra Nath Gupta v. Province of Bihar (1949 F.C.R. 596), and referred to judgments such as 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).

The appellate jurisdiction in the present matter was a civil appeal numbered 10 of 1950, filed against a judgment of the High Court of Judicature at Bombay rendered on 29 March 1950 in Suit 24 of 1950. The appeal was heard on 20 December 1950. The Court noted that the judgment of the lower court had been delivered by Chief Justice Chagla and Justice Tendolkar. Justice Fazl Ali, after reviewing the opinion prepared by his brother Justice Mahajan, expressed general agreement with the conclusions and reasoning therein, but added a brief judgment of his own because of the significance of the issues raised. He identified three questions for determination: first, whether the Bombay City Civil Court Act, 1948 (Act XL of 1948), was beyond the legislative competence of the State Legislature of Bombay; second, whether section 4 of that Act, if the first question were answered affirmatively, was itself ultra vires the State Legislature; and third, whether the Bombay High Court possessed jurisdiction to try the suit. The High Court had answered the first and third questions in favor of the appellant and the second question in favor of the respondents. In the Supreme Court, the appellant challenged the High Court’s decision on the second question, while the first respondent contested the High Court’s rulings on the first and third questions.

The Act seeks to establish an additional civil court for Greater Bombay, giving it authority to try, receive and dispose of all civil suits and other proceedings whose monetary value does not exceed a prescribed limit, subject to certain exceptions that are not required to be detailed here. The respondents argued that the Act exceeds the powers of the State Legislature because it grants jurisdiction to the new court over matters that the Provincial Legislature may legislate on under List II of the Seventh Schedule to the Government of India Act 1935, as well as over matters that only the Central or Federal Legislature may legislate on under List I, such as promissory notes, which appear in entry 28 of List I. To analyse this claim, reference must be made to entry 53 of List I and entries 1 and 2 of List II, together with entry 15 of List III. Entry 53 of List I provides: “Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this List …”. Entries 1 and 2 of List II read respectively: “1 … the administration of justice; constitution and organisation of all courts except the Federal Court …” and “2. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this List …”. Entry 15 of List III states: “Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this List.” At first sight the respondents’ contention may appear reasonable, but in the view of the Court it is not supported by law. To decide the issue correctly, it is necessary first to interpret the words in entry 1 of List II, namely “administration of justice, constitution and organisation of all courts except the Federal Court”. A review of the three legislative lists shows that “administration of justice” is a matter fully within provincial competence, meaning that only the Provincial Legislature may enact laws on it. The same applies to “constitution and organisation of all courts except the Federal Court”. The phrase “administration of justice” has a broad meaning, encompassing both civil and criminal justice, and the quoted entry 1 of List II is a complete and self-contained provision. Within this entry there is no separate mention of the jurisdiction and powers of courts, because the terms “administration of justice” and “constitution and organisation of courts”, used without any limitation, are sufficiently wide to include the power and jurisdiction of courts; after all, justice cannot be administered if courts lack the power and jurisdiction to do so, and courts cannot function without such authority.

Once the principle that a court must possess both power and jurisdiction is clearly understood, the wording of entry 1 of List II authorises the Provincial Legislature to endow the courts it creates with the authority to adjudicate every cause or matter that falls within the competence of a civil or criminal court. Accordingly, the term “administration of justice” inevitably embraces the power to hear and determine suits and proceedings of both civil and criminal nature, regardless of who the parties are or what the subject-matter of the proceeding may be. This authority also includes the capacity to define, enlarge, alter, amend or diminish the jurisdiction of those courts, and to prescribe the territorial and pecuniary limits within which each court may operate.

The next issue concerns the precise meaning of entry 2 of List II and entry 53 of List I, which some argue oppose the foregoing construction. In the Court’s view, these provisions grant special powers to the Provincial and Central Legislatures that supplement the general power conferred by entry 1 of List II. These special powers arise logically from the legislatures’ authority to legislate on matters enumerated in their respective lists. Consequently, while enacting statutes on those matters, the two legislatures may also insert provisions concerning the jurisdiction and powers of the courts with respect to the subject-matter of the statutes, because without such provisions legislation would be incomplete or ineffective. The language of entry 2 of List II and entry 53 of List I is broad enough to permit the legislatures to legislate both affirmatively and negatively regarding court jurisdiction within their legislative spheres. In other words, they may exclude or bar court jurisdiction over certain matters, or they may confer special jurisdiction upon particular courts. Moreover, beyond the ordinary powers normally exercised by courts, the legislatures may empower courts to issue special orders, examples of which will be discussed later. In this context, section 9 of the Code of Civil Procedure states that “the Courts shall have jurisdiction to try all suits of a civil nature” except for suits whose cognizance is expressly or impliedly barred. This provision clearly anticipates that legislatures may restrict civil-court jurisdiction concerning specific classes of civil suits, and the statute-book contains numerous instances where Acts of the Central and Provincial Legislatures bar such jurisdiction. There are also many Acts providing that any suit or proceeding concerning the subject-matter of those Acts shall be

The judgment explained that many statutes contain provisions declaring that certain matters may be tried only by the court or courts expressly named in those statutes. Such provisions appear in numerous Acts that were passed both before and after the Government of India Act of 1935. The Court observed that the British Parliament, when it enacted that Act, was fully aware of the legislative practice already existing in India and also recognized that these specific provisions were sometimes required. Consequently, the Act authorised the Central and Provincial Legislatures to incorporate such provisions under entry 53 of List I and entry 2 of List II respectively. In the Court’s view, this is the true purpose of those entries and it also clarifies why a separate entry was needed so that the two Legislatures could legislate concerning both the power and the jurisdiction of courts over matters listed in the three Legislative Lists. The Court further noted that, without an express provision like the one contained in the cited entries, the Central and Provincial Legislatures would not have been able to grant special jurisdiction to courts over the subjects enumerated in the Lists, nor could they have barred the ordinary courts from exercising jurisdiction over those subjects, even if such a step seemed necessary or desirable at the time. The language used in those entries, the Court pointed out, is “jurisdiction and power.” The term “power” is broad and embraces every procedural and substantive authority that a court may exercise, but the full import of the word can be appreciated only by reviewing a large number of local and special statutes that confer on courts the authority to issue special and unusual orders. For illustration, the Court cited section 13 of the Indian Aircraft Act of 1934, which provides that when a person is convicted of an offence punishable under any rule made under the Act, the convicting court may order that the aircraft, article or substance involved in the offence be forfeited to His Majesty. The Court also referred to section 24 of the Indian Arms Act of 1878, which states that when a person is convicted of an offence under that Act involving arms, ammunition or military stores, the convicting court or magistrate may, at its discretion, order that the whole or any part of such arms, ammunition, military stores or any vessel be confiscated. In addition, the Court mentioned section 10 of the Central Excises and Salt Act of 1944 and section 13 of the Food Adulteration Act of 1919 (Bengal Act VI of 1919), which contain similar provisions, as well as various statutes relating to money-lenders and money-lending that bestow special powers on courts to reopen certain transactions for the benefit of debtors.

In this case, the Court observed that the term “power” had been added to the term “jurisdiction” in entry 53 of List I, entry 2 of List II, and entry 15 of List III. The purpose of this addition, the Court explained, was to allow the two Legislatures to grant special powers – similar to those mentioned earlier – to the courts that were created to deal with the subject-matter of any special legislation. The Court noted that a review of statutes enacted after the Government of India Act, 1935, revealed that many Central and provincial Acts continued to contain special provisions concerning the jurisdiction of courts. Focusing on statutes passed by the Bombay Legislature, because the matter before the Court involved one such Act, the Court identified several examples. In the Bombay Probation of Offenders Act, 1938 (Bombay Act No. XIX of 1938), section a authorised the High Court, a Court of Session, a District Magistrate, a Sub-Divisional Magistrate, and a salaried Magistrate to exercise powers under the Act. Likewise, the Bombay Agricultural Produce Markets Act, 1939, in section 23 stipulated that no offence under that Act could be tried by any court other than a Presidency Magistrate, a First-Class Magistrate, or a Second-Class Magistrate specially empowered for that purpose. Section 11 of the Bombay Cotton Control Act, 1942, provided that no criminal court inferior to a Presidency Magistrate or a Second-Class Magistrate could try any offence under the Act. The Court also cited section 19 of the Bombay Sales of Motor Spirit Taxation Act, 1946, and section 5 of the Bombay Harijan Temple Entry Act, 1947, as provisions that excluded the jurisdiction of certain courts under particular circumstances. The Court acknowledged that similar provisions could be found in statutes of the Central Legislature and other provincial legislatures, but it held that the examples it had listed were sufficient to demonstrate two points: first, that the practice existing before the Government of India Act, 1935, had continued after its enactment; and second, that the expressions “jurisdiction and powers” had consistently been interpreted in the sense attributed to them by the Court.

The Court then turned to the interpretation proposed by the respondent. It stated that the respondent’s construction raised several objections. First, it would narrow the meaning of the phrase “administration of justice” by removing its essential element – the jurisdiction and powers of the courts – without which justice could not be administered. Second, it would require reading entry 2 of List II as part of entry 1 of the same List, even though entry 2 had been numbered separately as an independent entry. This approach would conflict with the general scheme of the three Legislative Lists, which appears to intend that each entry relate to a distinct subject or group of cognate subjects, each independent of the others except for incidental overlap. The Court further warned that the respondent’s construction would exclude from the jurisdiction of provincial courts a large number of matters that ordinarily fall within civil or criminal jurisdiction. If accepted, the courts would be unable to function fully unless both the Provincial and Central Legislatures had, through piecemeal legislation or other means, exhausted their power to legislate on all subjects contained in Lists II and I respectively. Even after such exhaustion, the courts would still be unable to operate effectively under the respondent’s interpretation.

The Court explained that the entries in the legislative lists were intended to cover related subjects, each entry or group of entries being independent of the others except for any incidental overlap. It noted that the construction proposed by the respondents required assuming that, although according to their reasoning the words “jurisdiction and powers of courts, etc.” appearing in entry 2 of List II should have been placed in entry 1 of the same List because they were closely linked to the subject of “administration of justice and the constitution and organization of courts,” the wording was nevertheless numbered separately and treated as an independent entry without any clear justification. The Court further observed that this suggested interpretation would effectively remove from the jurisdiction of the Provincial Courts a great many matters that ordinarily come before courts exercising civil or criminal jurisdiction. Consequently, the courts would be unable to operate fully unless both the Provincial and Central Legislatures had, through incremental legislation or other means, exhausted their respective powers to legislate on all the subjects contained in Lists II and I. Even after such exhaustion, the courts would remain unable to deal with important matters such as contracts, transfer of property, arbitration, wills and succession, and criminal law—subjects listed in List III—until one of the two Legislatures enacted a law on those topics. This situation raised two significant questions: which of the two Legislatures must act first, and how any conflict between them could be avoided. The Court illustrated that the respondents’ construction would lead to anomalous results that could not have been foreseen by the British Parliament when it enacted the Government-of-India Act, 1935. For example, entry 26 of List I concerns “carriage of passengers and goods by sea or by air.” If goods carried by air were lost and a suit were filed, under the ordinary scheme the suit would be triable by the court having jurisdiction under the Civil Procedure Code, subject to any special legislation by the Central Legislature, despite the fact that carriage of goods by sea or air is mentioned in List I. However, under the respondents’ view, Provincial civil courts would lack competence to try such a suit unless specifically empowered by the Central Legislature. To demonstrate the absurdity that could follow from this doctrine, the Court considered an extreme example by stretching the argument to its furthest limit. Entry 13 in List I reads “the …,” a provision that, when read together with entry 53 of List I granting the Central Legislature power to legislate on the jurisdiction and powers of courts with respect to the subject-matter of entry 13, could be interpreted to mean that suits involving the Banaras Hindu University or the Aligarh Muslim University, whether as plaintiff or defendant, would be triable only by the particular court specified in any enactment and that no other court would have jurisdiction over such suits. The Court found it difficult to conceive that, until such legislation was enacted, the proper court would be stripped of jurisdiction to hear any suit in which one of these universities was a party, irrespective of the suit’s subject-matter. It concluded that the framers of the Government of India Act could not have intended such a result.

In the judgment, the Court observed that Banaras Hindu University and Aligarh Muslim University were listed under entry thirteen of List I. It noted that entry fifty-three of List I gave the Central Legislature authority to make laws concerning the jurisdiction and powers of courts with respect to the subject matter covered by entry thirteen. The Court therefore explained that, because the language of entry thirteen was broad, the Central Legislature could enact a provision stipulating that any suit in which either of those universities acted as plaintiff or defendant would be tried only by the specific court named in such a law, and that no other court would have jurisdiction over those suits. The Court found it difficult to accept that, in the absence of such a law, a court that would otherwise be the proper forum would be deprived of jurisdiction to hear a case involving one of the universities, regardless of the nature of the dispute. It further stated that the framers of the Government of India Act, 1935, had not intended to create such a result. The Court recalled that, at the time the 1935 Act was passed, a large number of provincial courts existed and that the administration of justice throughout the provinces was in the hands of those provincial courts. The civil courts in each province dealt with all civil suits and proceedings that were triable under section nine of the Civil Procedure Code, while the criminal courts dealt with all criminal matters triable under the Code of Criminal Procedure. The Court emphasized that the jurisdiction and power of these courts were not limited to cases concerning subjects enumerated in List II, nor were they barred from hearing matters assigned to List I. Instead, jurisdiction in civil cases depended on the existence of a cause of action giving rise to civil liability, and in criminal cases on the commission of an offence, together with the venue rules and other relevant provisions contained in the two procedural codes. The Court concluded that the Government of India Act, 1935, did not envisage a drastic alteration of the existing system of justice administration; rather, it envisaged that the system would continue, subject to future legislation by the appropriate legislature—central or provincial— which might, if necessary, bar the jurisdiction of existing courts or confer jurisdiction on special courts concerning matters placed in the respective legislative lists. Under the 1935 Act, each province became essentially an autonomous unit with a complete machinery for administering justice to the fullest extent, and there was nothing in the Act to indicate that the framers intended to fundamentally disrupt that machinery.

The Court observed that the question before it did not require limiting the administration of justice to a narrow or incomplete scope confined only to matters listed in List II. The learned Attorney-General, appearing for the appellant, supported the validity of the impugned Act and suggested that, for the purpose of deciding the appeal, the Court might also consider entry 4 of List III. He argued that because the impugned Act had received the assent of the Governor-General, it was appropriate to examine the powers that the Provincial Legislature could exercise when Lists II and III were taken together. According to his approach, the subjects on which the Provincial Legislature could legislate would include (1) the administration of justice, (2) the constitution and organization of courts, and (3) civil procedure, encompassing all matters that were part of the Code of Civil Procedure at the time the Government of India Act, 1935 was enacted. The Attorney-General pointed out that the Code of Civil Procedure contains provisions on the jurisdiction of courts, and that Section 9 of the Code states that courts shall have jurisdiction to try all suits of a civil nature except those whose cognizance is expressly or impliedly barred. He further noted that the Code also deals with territorial and pecuniary jurisdiction. He contended that these three entries would together cover precisely the field described in item 14 of section 92 of the Canadian Constitution, which includes “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.” The Court remarked that Canadian decisions have held that the words in that provision include the power and jurisdiction of courts, and that under that item a provincial legislature may confer the widest possible powers on the courts. Nevertheless, the Court found the Attorney-General’s suggested approach useful only as a test of whether entry 2 of List II was intended to be the sole source of the Provincial Legislature’s power to confer jurisdiction on provincial courts, and whether the British Parliament intended to limit that power to the narrow character described in entry 2 of List II if that entry were treated as self-sufficient. In the Court’s opinion, it was unnecessary to invoke either entry 4 of List III or any provision of the Canadian Constitution in the present case. The Court concluded that the expressions “administration of justice; constitution and organization of courts” are, by themselves, sufficient to empower the Provincial Legislature to give a new court all the powers conferred by the impugned Act. The Court also noted that the Central Legislature retained the authority to bar the jurisdiction of the new court by a special enactment concerning any matters in List I, but that, provided such a bar does not exist, the court created by the impugned Act would have jurisdiction to try all suits and proceedings of a civil nature as provided in that Act.

The Court observed that the Central Legislature retained the authority to prohibit the jurisdiction of the newly created court by passing a special enactment with respect to any matter that fell within List I, but so long as such prohibition was not made, the court would possess the power to try all civil suits and proceedings that were legislated for in the Act in question. It noted that, had the Provincial Legislature merely increased the pecuniary limits of an existing civil court, no objection would have arisen; therefore, it questioned why any objection should arise when, instead of enhancing an existing court’s jurisdiction, the Legislature chose to establish a new court and confer upon it the same authority to adjudicate civil suits of the prescribed value. The Court then turned to the third issue, namely whether the Bombay City Civil Court was competent to try a suit founded on a promissory note. In support of its position, the respondent cited entries 28 and 33 of List I. Entry 28 dealt with “cheques, bills of exchange, promissory notes and other like instruments,” while entry 53 (previously referred to as entry 33) concerned “jurisdiction and powers of courts with respect to any of the matters in List I.” The respondent argued that, read together, these entries implied that no court could entertain a suit concerning a promissory note unless the Central Legislature expressly conferred such jurisdiction through the power granted by entry 53 of List I. The Court indicated that this point was already addressed in its answer to the first question and added that the reasoning was supported by the earlier decision in Prafulla Kumar Mukherjee and Others v. Bank of Commerce Limited, Khulna. In that case, the respondents before the Privy Council had advanced identical arguments. The matter before the Privy Council concerned the validity of the Bengal Money-lenders’ Act, 1940, which limited the recoverable amount on loans and prohibited recovery of sums exceeding the statutory ceiling. The Bank challenged the Act in suits seeking repayment of loans and interest on promissory notes issued by the appellants-borrowers, as well as in actions by debtors claiming relief under the Act. The Bank contended that the Bengal Legislature, by enacting the impugned provision, had intruded upon subjects expressly reserved for the Federal Legislature—specifically, matters relating to promissory notes and banking—under entries 28 and 38 of List I.

The appellants argued that the impugned Act was, in its essential character, legislation dealing with money-lending, and that any reference to promissory notes or banking was merely incidental or ancillary, serving the legitimate use of the Provincial Legislature’s powers over money-lending. This line of argument was substantially accepted by the Privile Council. The respondent raised a second point concerning the validity of section 4 of the Act, which reads: “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.” The respondent contended that section 4 was invalid because it allegedly transferred the Legislative power of the Provincial Legislature to the Provincial Government, a delegation that the Legislature could not lawfully make. The Court found this contention unconvincing. The provision, it observed, demonstrates that the Provincial Legislature exercised its own judgment in deciding that a new court should be given jurisdiction over civil suits not exceeding Rs. 25,000, and then left to the Provincial Government the discretion to determine the time when the court would actually receive that larger jurisdiction, a limit that had already been fixed by the Legislature. It is clear that whenever the new court is to be vested with the larger jurisdiction, that authority ultimately derives from the Provincial Legislature itself, and the court would exercise such jurisdiction by virtue of the Act. Several learned colleagues pointed out that the case of Queen v. Burah (1), whose authority was not questioned, fully covers this issue, and that the impugned provision exemplifies what the Privy Council described as conditional legislation. Such conditional legislation does not delegate any legislative power; it merely prescribes the manner in which the Legislature’s own decision is to be effected. The Privile Council further noted that legislation which conditions the use of particular powers or the exercise of limited discretion entrusted to persons in whom the Legislature places confidence is a common and often desirable practice. Examples of similar legislation can be found in England, America and other jurisdictions. As some American judges have observed, “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

Counsel appearing for the appellant argued that, in this country, delegated legislation is permissible, citing the authorities (1) 3 A.C. 889 and (2) 143 U.S. 649. However, the counsel stated that it was unnecessary to explore that issue in depth because the principle set out in Queen v. Burrah (1) already settled the matter raised. The counsel further expressed the view that the present controversy lay well outside the scope of the decision of the Federal Court in Jitendranath Gupta v. The Province of Bihar (2), a view that was also expressed by two of the judges who formed the majority in that earlier case. On that basis, the counsel concluded that the appeal should be allowed. Justice Patanjali Sastri then observed that the appeal presented a significant question concerning the constitutional validity of the Bombay City Civil Court Act, 1948 (hereinafter “the Act”). While he agreed with the conclusion reached by the majority of his fellow judges, he indicated that he would set out in detail the reasons that led him to the same conclusion.

The first respondent had instituted a suit in the Bombay High Court on its original side, seeking recovery of Rs 11,704 from the second respondent on the basis of promissory notes. Although section 12 of the Act barred the High Court from trying suits that were cognizable by the City Civil Court, the pecuniary limit of the City Court’s jurisdiction had been raised from Rs 10,000 to Rs 25,000 by a notification issued by the Provincial Government under section 4 of the Act. The plaint nevertheless asserted that the High Court possessed jurisdiction because both the Act and the notification were ultra vires and void. Because of the constitutional issue thus raised, the State of Bombay, the appellant, entered the proceedings as a defendant of its own initiative. The High Court, presided over by Chief Justice Chagla and Justice Tendolkar, held two points: first, that the Act was intra vires; second, that section 4, which authorized the Provincial Government to increase the City Court’s jurisdiction to Rs 25,000, amounted to an unlawful delegation of legislative power and was therefore void and inoperative. Consequently, the suit, which exceeded Rs 10,000 and was not cognizable by the City Court apart from the impugned notification, was declared to remain within the jurisdiction of the High Court. Both findings were challenged before this Court – the first by the first respondent and the second by the appellant. Counsel for the first respondent argued 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, which use identical wording – “jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this List” – conferred on the legislatures of British India the authority to enact laws concerning the jurisdiction and powers of all courts covered by those entries.

The Court observed that the legislative power to define the jurisdiction of courts was limited to matters that fell within the specific legislative field of the authority exercising that power. Consequently, the expressions “administration of justice” and “constitution and organisation of courts” appearing in entry 1 of List II could not be read so broadly as to automatically include the subject of “jurisdiction and powers of courts.” If entry 1 were given such a comprehensive meaning, the limiting words in entry 2 would become meaningless, because entry 2 would then be redundant. Conversely, if entry 1 were confined to matters other than jurisdiction, entry 2 would retain its significance, as other aspects of administration of justice and the organisation of courts would still require legislative provision. The Court explained that the three identical entries found in List I, List II and List III were intended to create a scheme in which Provincial Legislatures could constitute courts and make provisions for the administration of justice, but the authority to assign jurisdiction to those courts was assigned to the Federal Legislature for matters listed in List I, to the Provincial Legislature for matters listed in List II, and to both Legislatures for matters listed in List III, subject to the conditions of section 107. On that basis, the appellant argued that section 3 of the Act, which declared that the City Civil Court established under the Act “shall have jurisdiction 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,” exceeded the powers of the Provincial Legislature. The argument asserted that this provision intruded directly into the Federal field defined by entry 53 of List I, and that because all three entries dealt with the same subject of jurisdiction and powers of courts, the doctrine of incidental encroachment could not be invoked to save the provision.

The Court noted that the argument possessed some merit. It referred to the Bombay High Court decision in Mulchand v Raman, which had been followed by the Judges hearing the present matter, and to the Attorney-General’s submission, both of which relied on the doctrine of pith and substance to counter the respondent’s position. While the doctrine of pith and substance often provides the key to resolving conflicts arising from overlapping legislative powers in a federal system, the Court found that it offered little assistance in this case. The difficulty lay in giving any practical effect to entry 2 if entry 1 were interpreted as granting the Provincial Legislature a general power to legislate on the jurisdiction and powers of courts. In such a situation the broader power in entry 1 would already encompass the subject matter of entry 2, leaving the latter without any distinct role. Therefore, the Court concluded that the greater power must include

The Court observed that the difficulty of a broader provision subsuming a narrower one also arose when interpreting entry 4 of List III together with entry 2 of List II in the case of Stewart v. Brojendra Kishore (2). In that case a Division Bench of the Calcutta High Court held that the expression “civil procedure” appearing in entry 4 must be understood in a limited sense so as to exclude the jurisdiction and powers of courts. The Court then referred to the decision of the Judicial Committee in In re Marriage Reference (3), where the words “marriage and divorce” in the Dominion List were held to exclude matters relating to the solemnisation of marriage in the province because the latter subject was expressly placed in the Provincial List. Relying on that precedent, the learned judges remarked: “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.” They added that to reach the opposite conclusion would effectively eliminate the second entry in the Provincial Legislative List. Counsel for the first respondent strongly relied on the In re Marriage Reference decision and suggested that, had that authority been brought to the attention of the judges in Mulchand v. Raman (1), the earlier decision might have been reached in the opposite direction. By contrast, the Attorney-General argued that there could be no conflict between two entries that lie in the same list and that the ordinary meaning of one entry should not be narrowed merely because another entry exists. To support this view he cited the observations of Gwyer C.J. in Aliqa Begum’s case (4), wherein it was held that it would be practically impossible to define each item in the Provincial List so as to make it exclusive of every other item, and that Parliament had elected to use broad, general terms to describe comprehensive categories. Gwyer C.J. further stated that none of the items should be read in a narrow or restricted sense and that each general word should extend to all ancillary or subsidiary matters that can fairly be said to be encompassed by it. The Court noted, however, that those observations were originally made to support the conclusion that the power to legislate on “collection of rents” under entry 21 of List II includes the authority to regulate any limitation on a landlord’s right to collect rents, including remission of rents, and therefore that the United Provinces Regularisation of Remissions Act, 1933, was within legislative competence. The Court further held that such general observations do not answer the objection that a wide construction of entry 1 would deprive entry 2 of any substantive content, thereby reducing it to “useless lumber.” Consequently, the Court expressed the view that the words “administration of justice”

The Court held that the expression “constitution and organisation of courts” found in entry 1 must be understood narrowly, so that it does not embrace the matters described by the expression “jurisdiction and powers of courts,” which entry 2 deals with specifically. This narrow reading, however, did not lead to the conclusion that a Provincial Legislature lacked the authority to grant general jurisdiction to courts that it created. The Court reasoned that even if entry 1 alone did not empower the legislature to do so, entry 2, when read together with entry 1, certainly did. It further observed that the argument for limiting provincial legislative power over jurisdiction often ignored the fact that “administration of justice” itself is one of the matters listed in List II. Consequently, the Provincial Legislature was competent, under entry 2, to enact legislation conferring jurisdiction on courts for the purpose of administering justice. In other words, the province could give courts general jurisdiction to adjudicate all matters brought before them, subject only to exclusions that were either expressly stated or implied by existing law that remained in force, or by statutes passed by the appropriate legislature under the entries in the three Lists that relate to jurisdiction and powers of courts. Thus, while “administration of justice” in entry 1 does not authorize legislation concerning jurisdiction and powers of courts, the power under entry 2 may be exercised with respect to any matter in List II, including administration of justice. As a result, the subject of general jurisdiction fell within the scope of provincial legislative authority, leaving a field where entry 2 could apply. Once the Provincial Legislature was found competent to legislate on the general jurisdiction of courts, any apparent conflict with the central power under entry 53 of List I could be resolved by applying the doctrine of pith and substance and the principle of incidental encroachment. Although that doctrine was not particularly helpful in construing entries 1 and 2, which are in the same List II, it was appropriate for determining the true character of an enactment and allocating it to the correct list where the Federal and Provincial Lists overlapped. Accordingly, if the Bombay Legislature, in granting jurisdiction to the City Civil Court to hear and determine all civil suits, was legislating on a matter within its competence, any intrusion into the field reserved to the Union by entry 53 of List I would be regarded as merely incidental. Even if such intrusion extended over the entire field, the Court noted that this was immaterial, as the Judicial Committee had observed in the Khulna Bank case (1).

In the case referred to, the judges asked themselves whether, once the essential character of a law was identified as money-lending, the degree to which the federal field was intruded upon had any material significance. They answered this question in the negative. The judges observed that the importance of the issue did not lie in judging the validity of the legislation by measuring how far it invaded the federal sphere, but rather in ascertaining the true substance of the impugned law. They explained that even if the provisions of the law extended deeply into the federal domain, the relevant question was not the magnitude of the trespass but whether that trespass, whatever its extent, altered the essential nature of the law from money-lending to something else such as promissory-notes or banking. They held that once the true substance was determined, the law would fall on one side of the constitutional line or the other and would be judged valid or invalid according to its actual content.

The judges then addressed an objection that their view failed to give proper effect to the wording of section 100 of the Government of India Act, which governs the relationship between the three legislative lists. They affirmed that, where the lists conflict, List I takes precedence over Lists III and II, and List III takes precedence over List II. However, they clarified that the real question was the scope of that precedence. They asked whether the supremacy of the Federal Legislature barred a Provincial Legislature from legislating on any matter that might incidentally affect an item in its own list, or whether each case required an examination of the true substance of the law, attributing it to the appropriate list based on its genuine character despite any ancillary effects. The judges expressed the opinion that the latter approach represented the correct view. They further illustrated the test for determining the proper list by citing a passage approved from Lefroy’s Treatise on Canadian Constitutional Law, as quoted in the Federal Court’s judgment in the Bank of Commerce case. The passage explained that an act might be intra vires of a provincial legislature when viewed from one aspect and simultaneously intra vires of the Dominion Parliament when viewed from another. The true subject-matter of an act depends on the genuine aspect or point of view of the legislator, including the object, purpose and scope of the legislation, a perspective that is subjective to the legislator rather than an objective assessment of the matter regulated. Applying that test, the judges concluded that there could be little doubt about the proper classification of the legislation.

There was no doubt that the impugned Act, in its true nature, had to be placed in List II because the legislators of Bombay were certainly not granting the newly created court any jurisdiction over matters that belong to List I. Their purpose, as set out in section 3, was to establish a new court called the Bombay City Civil Court and to give it a general power to try every civil suit that fell within prescribed monetary and territorial limits. If the legislature acted within the authority provided by entry 2 read with entry 1 of List II, it became irrelevant that one aspect of the jurisdiction—its very conferment—practically intruded upon the entire federal field described in entry 53 of List I. Even so, that intrusion would still leave sufficient space for the Centre to exercise its legislative power under entry 53 concerning other aspects of jurisdiction and the powers of courts. This conclusion was strongly supported by examining the legislative practice that existed in the country before the Government of India Act, 1935. It is well-recognised, as noted in high-authority decisions such as Croft v. Dunphy (1), that legislative practice may be taken into account when determining the scope of legislative powers. Historically, the practice in the country was to create and organise courts that possessed general jurisdiction over all persons and matters, limited only by certain monetary and territorial thresholds, while special jurisdiction for particular cases or matters could be granted either to ordinary courts in addition to their general jurisdiction or to tribunals set up exclusively for those matters. The various Provincial Civil Court Acts and the provisions of the Civil and Criminal Procedure Codes equipped both civil and criminal courts with general jurisdiction—that is, the authority to adjudicate any person and any matter except those expressly excluded or assigned to tribunals that have special or limited jurisdiction. Moreover, the hierarchical grading of courts was based on monetary and territorial limits rather than on the nature or kind of the subject-matter they were empowered to handle. It was reasonable to assume that the framers of the Government of India Act, 1935 were aware of this system of court organisation, and it could not be readily alleged that they intended to introduce a radical change whereby the power to constitute courts and provide for the administration of justice would reside with the provincial legislatures, while jurisdiction would have to be conferred piecemeal by both Federal and Provincial legislatures for specific matters (1) [1933] A.C. 156,165 British India.

The Court observed that the legislative fields of the provinces were not clearly defined, and that trying to determine whether a particular jurisdiction or power was validly conferred by the appropriate legislature required a careful examination of the relevant provisions of the Government of India Act. The Court noted that this situation created constitutional difficulties for both the legislatures and the courts, and for the public when a new court was created. After reviewing the language of the Act and the legislative practice that preceded it, the Court concluded that the provincial legislatures possessed an exclusive authority to constitute and organise courts, to provide for the administration of justice in their provinces, and also to invest those courts with general jurisdiction. Regarding the question of whether section 4 of the Act operated as a delegation of legislative power, the Court agreed with the reasoning of a fellow judge, Das, and stated that the judgment of that judge had been read with satisfaction. The Court also echoed the Attorney-General’s broader question about the extent to which legislatures could delegate their legislative powers to other agencies, but it held that resolving that issue was unnecessary in the present case. Consequently, the Court found that the High Court lacked jurisdiction to hear and determine the first respondent’s suit and affirmed that the appeal should be allowed.

The appeal was filed by Mahajan J., challenging a decision of the High Court of Judicature at Bombay dated 29 March 1950 in Suit No. 240 of 1950. The High Court had held that section 4 of the Bombay City Civil Court Act (Bombay Act XL of 1948) was ultra vires the Provincial Legislature. The factual matrix was that on 6 February 1950 the first respondent presented a plaint to the Prothonotary and Senior Master of the High Court, seeking a summary judgment against the second respondent for the recovery of Rs 11,704-24 alleged to be due under promissory notes. The plaint was filed in the High Court despite a notification dated 20 January 1950, issued under section 4 of the City Civil Court Act, which stipulated that suits up to a pecuniary limit of Rs 25,000 were to be heard exclusively by the City Civil Court and not by the High Court. Because the question of jurisdiction was material, the matter was referred to a sitting Judge in Chambers. On 23 February 1950 the learned Judge admitted the plaint, holding that section 4 of the Act was ultra vires the Provincial Legislature, rendering the notification ineffective and conferring jurisdiction on the High Court to hear the suit.

The Judge admitted the plaint and held that section four of the Bombay City Civil Court Act was beyond the authority of the Provincial Legislature, so that the notification issued under that section was ineffective. Consequently, the Judge concluded that the High Court retained jurisdiction to hear the suit. Following that finding, the first respondent issued summons for judgment against the second respondent. After the Advocate General applied, the State of Bombay was added as a defendant at that stage, and the case was transferred to a Division Bench of the High Court. The Division Bench affirmed the Judge’s view expressed in Chambers, and it sent the matter back to the Judge for determination on the merits of the claim. Dissatisfied with the Division Bench’s decision, the State of Bombay appealed the order. The appeal raised two principal questions. First, whether the City Civil Court Act exceeded the legislative power of the Province of Bombay insofar as it concerned the jurisdiction and powers of the High Court and the City Civil Court with respect to matters listed in List I of the Seventh Schedule of the Government of India Act, 1935. Second, whether section four of the Act was void because it attempted to delegate legislative authority to the Provincial Government for the purpose of granting the City Civil Court extended jurisdiction. The Bombay Act of 1948 had come into force on 10 May 1948, and it was considered desirable to create an additional civil court for Greater Bombay, apparently to relieve the congestion of work on the original side of the Bombay High Court.

The Act contains sections three, four and twelve, which read as follows. Section three provides: “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 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 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 debtors, 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 notification 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 intestate jurisdiction or for the relief of insolvent debtors.” Section four then states: “Subject to the exceptions specified in section a the State Government may by notification in the Official Gazette, invest the City Court with jurisdiction to receive, try and dispose of …” (the provision continues in the following portion of the judgment). These provisions formed the basis of the questions framed in the appeal.

The legislation provided that the City Court could entertain all suits and other civil proceedings arising within Greater Bombay whose monetary value did not exceed twenty-five thousand rupees, as may be specified in the applicable notification. Section 12 then declared that, notwithstanding any other law, the High Court would not have jurisdiction to try any suit or proceeding that was cognizable by the City Court, although the High Court retained, for any special reason and at any stage, the power to remove such a suit or proceeding from the City Court and try it itself. On the second question presented before it, the High Court held that section 4 of the Act was inoperative because it attempted to delegate the law-making powers of the legislature to an external authority; consequently the notification issued under that section had no legal effect and did not deprive the High Court of its jurisdiction to try the present suit. On the first question, the High Court relied on its earlier decision in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah and concluded that the Act was within the legislative competence of the Bombay Legislature. The appellant contested the correctness of the High Court’s reasoning on the second point while accepting its view on the first point. In contrast, the first respondent supported the High Court’s reasoning on the second question but challenged its correctness regarding the first question.

The learned Attorney-General argued that the High Court had misinterpreted sections 3 and 4 of the Act. He asserted that, when read together, the two sections indicated that the legislature had created the City Civil Court with an initial pecuniary jurisdiction of ten thousand rupees and had set an outer limit of twenty-five thousand rupees, leaving to the Provincial Government the discretion to determine the circumstances under which the jurisdiction could be extended from ten thousand to twenty-five thousand rupees. He described section 4 as conditional legislation that did not delegate any legislative function to the Provincial Government. The learned Chief Justice, addressing this contention, observed that an Act must be constructed so as to reconcile its different sections, yet he could not see how sections 3 and 4 could be read together to reach the Attorney-General’s conclusion. He found it evident that the Legislature had never considered whether the new court it was establishing should have a jurisdiction higher than ten thousand rupees, had never passed any judgment on that matter, and had not laid down any policy regarding it. Moreover, he noted that section 4 was not merely a provision directing the Provincial Government to implement a legislative policy.

The Court observed that section four of the Act did not merely instruct the Provincial Government to implement a policy devised by the Legislature. Instead, the provision actually granted the Provincial Government the authority to decide whether the newly created court should be given an enlarged pecuniary jurisdiction up to twenty-five thousand rupees. The Court found this interpretation difficult to accept. It reasoned that the Legislature could not have fixed a maximum jurisdiction of twenty-five thousand rupees in section four without first having considered, and thus having applied its mind to, the question of whether the new court should be permitted a jurisdiction higher than ten thousand rupees. The setting of the upper monetary limit was therefore an expression of legislative will; without such a determination the Legislature would have been unable to define the outer boundary of the court’s pecuniary jurisdiction. The legislative policy regarding the court’s pecuniary limits was articulated in sections three and four. Those sections declared that, at the outset, the court’s jurisdiction would be capped at ten thousand rupees, but that, should circumstances later render a higher limit desirable, the Provincial Government could, at its discretion, extend the jurisdiction to twenty-five thousand rupees. This possible extension was further subject to the exceptions specified in section three.

Consequently, the Court concluded that the learned Chief Justice erred in stating that the Legislature never contemplated the conditions and the amount up to which the new court could exercise pecuniary jurisdiction. The legislation left the Provincial Government only to determine the circumstances under which the enhanced jurisdiction would be applied, while the essential policy matters had already been settled by the Legislature. The execution of that policy was delegated to the Provincial Government, and such conditional legislation could not be said to delegate legislative power to that Government. The Court also noted that, in the earlier case of Queen v. Burah, section nine of Act XXII of 1869—an enactment comparable to section four of the City Civil Court Act—was upheld as intra vires. In that precedent, section nine empowered the Lieutenant Governor of Bengal to decide whether the Act or any part of it should apply to particular districts, thereby extending territorial limits. The Court held that, analogously, extending the pecuniary limits of a court’s jurisdiction falls within the same principle and is therefore valid.

The authority to extend the operation of the statute was placed in the hands of the Lieutenant Governor, and the effect of that extension was to remove the jurisdiction of the High Court over the affected areas and to vest jurisdiction over those areas in the commissioner. An objection was raised against the validity of section 9 on the ground that it amounted to legislation that delegated legislative power, and therefore should be considered void. The judges rejected this objection and concluded that section 9 was within the Governor-General’s power to make laws and that it represented a piece of conditional legislation. The earlier case concerned an extension of territorial limits within which a legislative act was to operate, whereas the matter before the Court involved an extension of the pecuniary limits of a court’s jurisdiction. In principle, the judges saw no material difference between the two situations, and they held that the present case fell within the rule established in Queen v. Burah(1). While holding section 9 to be intra vires, the judges observed that it is a mistake to regard the powers conferred on the Lieutenant Governor, however extensive, as effective because of any legislative authority other than that of the Governor General in Council. They explained that the entire operation of those powers is directly and immediately under, and by virtue of, the Act itself (XXII of 1869). The proper legislature had exercised its judgment in determining the place, the person, the laws and the powers involved, and the result of that judgment was to legislate conditionally with respect to all those elements. Once the stipulated conditions were satisfied, the legislation became absolute. The judges further noted that where plenary legislative powers exist over particular subjects, whether in an Imperial or a Provincial legislature, they may be exercised either absolutely or conditionally. Conditional legislation, which depends on the use of specific powers or on a limited discretion entrusted by the legislature to persons in whom confidence is placed, is not uncommon and is often highly convenient. The British Statute Book contains many examples, and it cannot be assumed that the Imperial Parliament, when constituting the Indian Legislature, excluded such conditional legislation from its legislative competence. The judges found that these observations applied aptly to the provision contained in section 4 of the impugned Act. They emphasized that the essential distinction lies between delegating the power to make law—a delegation that necessarily involves discretion as to the content of the law—and conferring authority or discretion to execute the law, which is to be exercised under and in pursuance of the law. An objection may be sustained against the former type of delegation but not against the latter. Reference in this connection may also be

In this case the Court referred to the decision of the Supreme Court of the United States in Field v. Clark (1). That decision, while discussing Locke’s case (2), observed that to claim a law is inferior merely because it depends on a future event or act would deprive the Legislature of the ability to act wisely for the public welfare when a law addresses a condition that has not yet developed or that is future and impossible to know fully. The Court explained the proper distinction as follows: the Legislature cannot delegate its power to make a law, but it may enact a law that delegates the power to determine a particular fact or state of affairs on which the law’s action will depend. To refuse such delegation would halt governmental functions because many sensible and useful statutes must rely on matters that the law-making body cannot know at the time of enactment, and therefore those matters must be examined and decided outside the legislative chambers. The High Court, supporting its view, relied heavily on the Federal Court’s judgment in Jatindra Nath Gupta v. The Province of Bihar (3) and held that the present case fell within the rule laid down in that decision. However, the Court in the present appeal disagreed, finding that the Bihar decision did not apply. The Federal Court in the Bihar case had considered an Act whose section 1, sub-section (3) provided that the Act would remain in force for one year from its commencement, and that the Provincial Government could, by notification, after a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, extend the Act for another year with any modifications specified in the notification. The Court noted that the power conferred there was far broader than the power given to the Lieutenant Governor in Queen v. Burah (1), because it authorised the Provincial Government both to modify and to re-enact the Act. The Court reaffirmed that a clear distinction exists between delegating legislative power, which inevitably involves discretion over the content of the law, and granting discretion or authority for the execution of the law, which must be exercised under and in accordance with the law. The observations made by the Court in the earlier judgment highlighted this distinction and concluded that the proviso under scrutiny, when judged by the established test, fell within the scope of delegated legislation.

The Court held that the provision in question constituted legislation and therefore was an improper piece of legislation that must be declared void. In the Court’s view, the provision not only represented an abdication of legislative authority by the Provincial Legislature, but it also effectively created a parallel legislature for the purpose of enacting a modified Bihar Maintenance of Public Order Act and for providing that the Act should continue for an additional year. A careful examination of the proviso confirmed this conclusion. The Court asked what the proviso intended to achieve in substance. It answered that the proviso authorised the Provincial Government to issue a notification stating that the Provincial Act would remain in force for a further year, with any modifications specified in that notification. The Court explained that modifying a statute is equivalent to partially re-enacting it. Such modification involves the power to declare that certain sections are no longer part of the law and that a statute previously containing X sections is now enacted with Y sections. This act of modification requires the exercise of legislative discretion to decide whether particular parts should continue to have legal effect or be removed, and it may even include the power to repeal portions of the statute. Consequently, a modified statute is not the same as the original statute; it constitutes a new Act and, logically, amounts to the enactment of new law.

The Court expressed an inability to see how the observations concerning the Bihar statute could be relied upon by the High Court to support its decision regarding the invalidity of section 4 of the Bombay City Civil Court Act. The Court noted that the two provisions were not analogous in any respect, and therefore the respondent could not draw any support from the earlier decision. In the concluding part of the judgment under appeal, the learned Chief Justice had observed that, when the same tests were applied to the City Civil Court Act, the Legislature, exercising its legislative power, had created a Civil Court with limited jurisdiction under section 5 of the Act, limiting its pecuniary jurisdiction to ten thousand rupees. The Legislature then granted the Provincial Government, through section 4, the power to raise that jurisdiction to twenty-five thousand rupees. The Court observed that such a power could only have been exercised by the Legislature itself. The Court further found that these observations were based on a construction of sections 3 and 4 of the Act that these sections could not legitimately bear, reaffirming that the Legislature had originally established a Civil Court for Greater Bombay with a defined jurisdictional limit.

The Bombay Legislature enacted the City Civil Court Act and provided, as an initial rule, that the City Civil Court would possess pecuniary jurisdiction up to ten thousand rupees. At the same time, the Legislature included a provision that the court could acquire an increased pecuniary jurisdiction up to twenty-five thousand rupees whenever the circumstances required such an increase, and that the Provincial Government would be the authority to determine when those circumstances existed. The precise limit of the higher jurisdiction was set out in unmistakable terms in section 4 of the Act. Section 4 did not give the Provincial Government unrestricted discretion to assign any amount of pecuniary jurisdiction it might wish; rather, the enhancement of jurisdiction could occur only by the operation of the legislative power contained in section 4 and only after the Provincial Government issued a formal notification. The effectiveness of the enhanced jurisdiction was therefore conditional solely upon the issuance of that notification. On the basis of this construction, the Court held that the High Court had erred in declaring section 4 of the City Civil Court Act to be void and beyond the power of the Provincial legislature. Accordingly, the notification issued under section 4 was to be regarded as valid and operative. Because the notification was effective, the Court found it unnecessary to address the Attorney-General’s argument that, even if section 4 represented a delegation of legislative power, it would still be valid.

The next issue for determination was whether the City Civil Court Act itself exceeded the powers of the Bombay Legislature. To evaluate the contention raised by counsel, the Court set out the relevant provisions of the Government of India Act, 1935, which formed the constitutional framework for the enquiry. These provisions were located in Section 100 of the Act and in the Seventh Schedule, specifically in entries 28 and 53 of List I, entries 1 and 2 of List II, and entries 4 and 15 of List III. The operative text of Section 109 was as follows: (1) notwithstanding anything in the next two subsections, the Federal Legislature has, and a Provincial Legislature does not have, power to make laws concerning any matter enumerated in List I of the Seventh Schedule (the “Federal Legislative List”); (2) notwithstanding anything in the next subsection, both the Federal Legislature and, subject to the preceding subsection, a Provincial Legislature have power to make laws concerning any matter enumerated in List III (the “Concurrent Legislative List”); (3) subject to the two preceding subsections, the Provincial Legislature has, and the Federal Legislature does not have, power to make laws for a Province or any part thereof with respect to any matter enumerated in List II (the “Provincial Legislative List”); and (4) the Federal Legislature has power to make laws concerning matters enumerated in the Provincial Legislative List, except as they apply to a particular Province or part thereof. The relevant entry in List I, for example, dealt with “Cheques, bills of exchange, promissory notes and other like instruments.”

The Act enumerated “notes and other like instruments” as part of entry fifty-five, which dealt with the jurisdiction and powers of all courts except the Federal Court, and, to the extent expressly authorized by Part IX of the Act, allowed an enlargement of the appellate jurisdiction of the Federal Court together with the conferring of supplemental powers. In List Two, entry one covered public order, expressly excluding the use of His Majesty’s naval, military or air forces in aid of the civil power; it also included the administration of justice, the constitution and organization of all courts except the Federal Court, and the fees taken therein, as well as preventive detention for reasons connected with the maintenance of public order and the persons subject to such detention. Entry two of List Two dealt with the jurisdiction and powers of all courts except the Federal Court with respect to any matters contained in that list, and it also addressed procedure in Rent and Revenue Courts. In List Three, entry four related to civil procedure, including the law of limitation and all matters included in the Code of Civil Procedure as it stood at the time of the passing of the Act, and it further provided for the recovery in a Governor’s Province or a Chief Commissioner’s Province of claims concerning taxes and other public demands, including arrears of land revenue and sums recoverable as such, arising outside that Province. Entry fifteen of List Three similarly concerned the jurisdiction and powers of all courts except the Federal Court with respect to any matters in that list. Mr. Seervat contended that section three of the impugned Act was void because it directly infringed the exclusive legislative powers of the Centre that were conferred by List One of the Seventh Schedule. He argued that the provision “confers jurisdiction on the new court in respect of all cases of a civil nature” brought within its scope suits concerning subjects that fell under List One. He further pointed out that three similar entries—namely entry fifty-three in List One, entry two in List Two and entry fifteen in List Three—demonstrated that Parliament had empowered each legislature, respectively, to make laws relating to the jurisdiction and powers of courts concerning the subjects allocated to them. Relying on section one hundred of the Constitution Act, he maintained that the Provincial Legislature possessed no authority to enact any law conferring jurisdiction on courts over subjects covered by List One. Consequently, only the Federal Legislature could legislate on the jurisdiction and powers of a court with respect to subjects in List One. By contrast, for subjects contained in the Provincial List, the jurisdiction and power of courts could be determined only by a law enacted by the Provincial Legislature, while for items contained in List Three, both the Federal and Provincial Legislatures could legislate on the jurisdiction and powers of courts. He also observed that the exceptions and the proviso to section three of the Act…

In the case before the Court, the City Civil Court Act was examined for the way it assigned jurisdiction to a newly created court. The Act disclosed that, even for subjects on which the Provincial Legislature lacked the authority to legislate, jurisdiction was nevertheless conferred on the new court. Section 12 of the same Act further removed from the High Court all jurisdiction over matters that fell within the jurisdiction of the City Civil Court, and this provision was challenged on similar constitutional grounds. Regarding the legislative power granted to the Provincial Legislature by entry I of List I, the argument was advanced that the broad authority it conferred was limited by the three entries previously discussed. It was contended that, under entry I, the Legislature could legislate only to the extent of establishing and organizing courts, and that it could not pass laws affecting the powers of those courts. On the opposite side, the learned Attorney-General maintained that the Act was within the competence of the Bombay Legislature because it fell under entry 1 of List II and also under entries 4 and 15 of List III, noting that the legislation had obtained the assent of the Governor-General. The Attorney-General further asserted that the Provincial Legislature possessed exclusive legislative power over the administration of justice, as well as over the constitution and organization of all courts, and that this exclusive power necessarily included the authority to legislate the jurisdiction of courts it created. Accordingly, he argued that the challenged legislation, being essentially concerned with the administration of justice, could not be held ultra vires even though it touched upon a field that the Federal Legislature also regulated. Concerning entry 53 of List I, entry 2 of List II and entry 15 of List II of the Schedule, it was submitted that these entries empowered the respective legislatures to grant special jurisdiction to already established courts with respect to particular subjects, but only when such a grant was deemed necessary. In other words, the argument was that the Provincial Government could establish a court of general jurisdiction by legislating under entry 1 of List II, after which both the Central and the Provincial Legislatures would be free to confer special jurisdiction on that court concerning specific matters covered by the respective lists. In the opinion of the Court, the contention of the Attorney-General that the Act was intra vires the Bombay Legislature under entry 1 of List I was sound, and the Court concurred with the view expressed by the Chief Justice of Bombay in Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah. The Chief Justice had observed that if an enactment deals with the administration of justice, creates a court for that purpose and confers ordinary civil jurisdiction upon it, the legislation clearly falls within the legislative competence of the Provincial Legislature and is covered by item 1 of List I of Schedule 7, which expressly confers upon the Provincial Legislature the power to legislate on such matters.

The Constitution, under List II, item 1, empowers the Provincial Legislature to enact laws relating to the administration of justice and to the constitution and organization of every court in the province except the Federal Court. It is difficult to conceive a court that exists without any jurisdiction, because a body without authority cannot perform its function. Consequently, when Parliament has assigned the entire subject of administration of justice to the Provincial Legislature, the power to create and organise courts necessarily includes the authority to grant those courts ordinary civil jurisdiction so that they can carry out their duties. Item 2 of List II, which deals with the jurisdiction and power of all courts except the Federal Court concerning matters enumerated in that list, was argued by counsel to limit item 1, contending that the Provincial Legislature may only create courts but may confer upon them jurisdiction strictly limited to the items contained in List II. This contention was rejected because each entry in List II is an independent provision that supplements the others and is not confined by any other entry.

Item 1 confers a general power on the Provincial Legislature over the administration of justice and the constitution and organization of all courts, and it also authorizes the Legislature to grant special jurisdiction or additional powers to those courts whenever such powers relate to any of the items listed in List II. It is therefore impossible to interpret item 2 as restricting the broad authority granted by item 1. By analogy, List I gives the Federal Legislature, under item 53, the power to confer jurisdiction and authority on any court with respect to matters falling within that list, so the Federal Legislature could validly assign special jurisdiction over suits on promissory notes or matters arising under the Negotiable Instruments Act. The language of item 1 of List II uses the widest possible terms—“administration of justice” and “constitution and organization of all courts”—and was never denied to encompass legislative power concerning the jurisdiction and authority of courts established for the purpose of delivering justice. Accordingly, the words are sufficient to vest the Provincial Legislature with the right to regulate and provide for the entire machinery connected with the administration of justice throughout the province.

In this case the Court observed that courts of justice would be ineffective and incomplete unless the courts created under a statute were given jurisdiction and the power to hear and determine cases. The Court found it difficult to imagine a statute concerning the administration of justice and the constitution and organization of courts that did not define the jurisdiction and powers of those courts, because without such definition the statute would be like a body without a soul and its enactment would be an idle formality. By its own nature a statute could not empower a court with any jurisdiction or power; it would have to rely on an external authority or another statute to become effective. The Court noted that, to the best of its knowledge, such a legislative practice had never been shown in history. It further held that when Parliament made administration of justice a provincial subject, it could not be said to have given the Provincial Legislature a power of legislation that was ineffective and useless. Following the argument advanced before the High Court of Bombay, the Court explained that counsel for the respondent vigorously contended that the only legislative power given to the Provincial Legislature by entry 1 of List II was to establish a court and to provide for its constitution, and that no power was conferred to make a law concerning the jurisdiction and powers of the court it created. The logical analysis of that argument was that a statute would specify the court’s name, the number of its judges, the method of their appointment and their salaries, and then stop short of defining the tribunal’s powers or any other jurisdiction, so that the court could acquire jurisdiction only when a law relating to its jurisdiction and powers was made by the Federal Legislature under entry 53 of List I, by the Provincial Legislature under entry 2 of List II, or by either Legislature under entry 15 of List III. The learned counsel argued that this result was a natural consequence of a federal constitution with divided powers, and that entries 53, 2 and 15 of the three lists limited and curtailed the wide power conferred on the Provincial Legislature by item 1 of List II. The Court found it difficult to accept this contention because it would mean that although the Provincial Legislature, under item 2 of List II, had been granted the broadest power to legislate on the administration of justice and the constitution and organization of courts, and although that field had been designated as its exclusive field of legislation, the only thing it could do within that field would be to establish a court without any competence to function, and that the court could become an effective instrument for administering justice only through laws enacted elsewhere.

The Court found that items 53 of List I, 2 of List II and 15 of List III could not be read as imposing limits on the legislative authority granted to the Province by item 1 of List II. Interpreting the Act in that way would contradict the clear wording of item 1 of List II and would be inconsistent with the scheme that made the administration of justice a provincial subject. The Court noted that no other legislature had been given the power to create a court, and a court that lacked powers and jurisdiction would be an anomaly because it would be unable to perform the function of administering justice; consequently, a statute establishing such a court could not be regarded as law on the subject of administration of justice. A fundamental principle of constitutional construction, the Court observed, is that everything necessary for the exercise of a power must be included in the grant of that power. Accordingly, everything required for the effective execution of legislative power must be deemed to be conferred by the constitution along with that power. The Court further observed that, in exercising the legislative power under item 1 of List II, a provincial legislature could modify the constitution of existing courts, abolish them, reorganise them and also establish new courts. If the construction advocated by the counsel for the respondent were accepted, the Court held, the existing courts that the provincial legislature might re-establish or re-organise would be unable to function until legislation under item 53 of List I, item 2 of List II or item 15 of List III was simultaneously enacted. The Court expressed that such a result was unlikely to have been contemplated by Parliament. The counsel for the respondent had argued with some force that giving full effect to the comprehensive language of item 1 of List II would render the provisions of item 2 of List II, item 53 of List I and item 15 of List III nugatory; in other words, if the provincial legislature could create a court of general jurisdiction that could hear all causes on subjects whose legislative power was divided among the three lists, then the legislative powers conferred on the Federal legislature under item 53 of List I, on the provincial legislature under item 2 of List II and jointly on both legislatures under item 15 of List III would become purposeless. The Court considered this argument to be unsound and concluded that the premises on which it rested were not valid. It observed that the three lists of subjects contained in Schedule 7 had not been drafted with scientific precision and that the various items overlapped. The purpose behind the drafting of the lists was to ensure that every possible legislative power fell within their ambit, and by making the administration of justice a provincial subject, Parliament intended to give the provincial legislature an effective power that included authority over the jurisdiction of courts.

By designating the administration of justice as a provincial matter and by granting the Provincial Legislature authority to legislate both on that matter and on the constitution and organization of courts, Parliament gave the Provincial Legislature a comprehensive power that included the ability to make laws concerning the jurisdiction of courts. Consequently, the Provincial Legislature was enabled to establish a court possessing general jurisdiction, capable of administering justice over all matters that came before it, provided that such jurisdiction fell within defined territorial and monetary limits and was subject to the possibility that other statutes might expressly or implicitly remove that general jurisdiction. Because Parliament had apportioned legislative responsibility between the two legislatures, it logically concluded that a complementary provision was required to give each legislature specific authority over the jurisdiction and powers of courts relating to subjects that lay within its exclusive legislative domain. In other words, whenever a legislature possessed exclusive power to legislate on a particular subject, it necessarily also acquired the power to determine the jurisdiction and authority of the courts that would adjudicate matters arising under that subject. This legislative capacity was expressly conveyed to the two legislatures by entries 53, 2 and 15 of the constitutional lists. Similar consequential authority is found in entries 42 and 99 of List I, entries 37 and 42 of List II, and entries 25 and 36 of List III. Accordingly, each legislature was competent to confer special powers on courts and to create specialised jurisdictions that operated within the fields of legislation assigned to it. Parliament had already demonstrated its willingness to allocate such powers and jurisdictions to courts for a variety of subjects, including testamentary and intestate matters, admiralty jurisdiction, provisions under the Indian Companies Act, the Succession Act, the Guardians and Wards Act, various Rent Acts, and statutes dealing with the relief of indebtedness. In view of the overall division of legislative powers among the subjects, Parliament, through item 53 of List I, item 2 of List II and item 15 of List III, authorised the respective legislatures not only to enact laws on those subjects but also to legislate on the jurisdiction and powers of the courts that would hear cases concerning them. This grant of legislative power to create special jurisdictions for particular subjects did not diminish the broader legislative competence given to the Provincial Legislature by item 1 of List II. Once the special legislative powers under items 53 of List I, 2 of List II and 15 of List III were exercised, the causes arising under those subjects would be tried exclusively within the newly created specialised jurisdictions, and they would no longer fall within the jurisdiction of the general courts that carried out the ordinary administration of justice.

In the view expressed, the language of section 9 of the Code of Civil Procedure means that once a statute creates a separate jurisdiction, the general courts lose the authority to hear those matters. Accordingly, the Court held that under item 1 of List II the Provincial Legislature possesses full authority not only to constitute courts for the administration of justice but also to assign to those courts the jurisdiction to determine every civil cause. That authority, the Court explained, is not limited or reduced by the legislative powers granted to the two other Legislatures under items 53, 2 and 15 of the three constitutional lists.

The Court further observed that items 53, 2 and 15 give the respective Legislatures the power to legislate within their exclusive fields for particular subjects, and that this power is confined to creating special jurisdictions for cases arising under those subjects. This construction aligns with the overall scheme of the constitutional statutes, harmonises the various entries in the lists and prevents any of them from becoming ineffective. The Court rejected the position put forward by counsel for the petitioner, which would have substantially diminished the competence of the Provincial Legislature under item 1. The essential question, the Court noted, was whether item 1 of List II should be interpreted narrowly so that it becomes ineffective, or whether a narrow reading should be applied to items 53, 2 and 15. Applying well-settled principles of statutory construction and legislative intent, the Court concluded that the latter approach was correct.

The Court also addressed the argument that section 12 of the Act was void because it removed the High Court’s jurisdiction over matters listed in List I of the Seventh Schedule. Based on the interpretation of item 1 of List II, the Court found that argument untenable. It held that if the Legislature can create a new court and grant it jurisdiction, it can also withdraw jurisdiction from existing courts. Moreover, the Bombay City Civil Court Act, in its first section, expressly excludes from the new court’s jurisdiction any case that the High Court may hear under a special law. “Special law” was defined as legislation applicable to a specific subject. Consequently, if the Federal Legislature, under List I of the Seventh Schedule, designates a case to be heard by the High Court, section 5 of the Act does not alter that jurisdiction. Therefore, the Bombay City Civil Court Act was held to be a valid statute wholly within the Provincial Legislature’s legislative field.

The Court observed that the provision concerned a matter within the jurisdiction of the Province under item 1 of List II, and that its validity could not be defeated even if it incidentally touched upon other legislative fields. It further noted that the enactment did not deal with any of the subjects enumerated in List I, and therefore the Provincial Legislature could not be said to have encroached upon powers reserved for the Centre. Accordingly, the Court found it unnecessary to address the additional points raised by the learned Attorney-General. On the basis of the foregoing reasoning, the Court allowed the appeal filed by the Government of Bombay and set aside the High Court’s judgment that declared section 4 of the City Civil Court Act (XL of 1948) void. In the circumstances, each party was ordered to bear its own costs of the appeal.

Justice Mukherjea then expressed his opinion that the appeal should be allowed and indicated substantial agreement with the reasoning of his brother Justice Mahajan. He stated that, given the constitutional significance of the issues, he would make some additional observations. He identified two principal questions for consideration. The first question was whether section 4 of the Bombay City Civil Court Act, 1948, was void and inoperative because it purported to delegate legislative authority from the Provincial Legislature to the Provincial Government of Bombay. The Bombay High Court had answered this question affirmatively, and the appeal against that decision rested entirely on this point.

The Court noted that the propriety of the High Court’s decision had been contested by the learned Attorney-General, who appeared on behalf of the State of Bombay in support of the appeal. Conversely, counsel for the respondents had not only sought to rebut the Attorney-General’s contentions but also had advanced a broader ground, arguing that if accepted, the entire Bombay City Civil Court Act would be void as an unlawful intrusion 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.

Regarding the first question, the Court agreed that the appellant’s contention was well-founded and should prevail. It held without hesitation that the Legislature, in empowering the Provincial Government to invest the City Court, by means of a notification, with jurisdiction not exceeding Rs 25,000 as may be specified in such notification, had not delegated its legislative power to the Provincial Government. The provision, the Court explained, merely effected the enforcement of a policy that the Legislature itself had established. The law was complete and final when it left the legislative chamber, permitting the Provincial Government to increase the pecuniary jurisdiction of the City Court up to the specified amount.

In this case, the Court observed that the statute itself fixed the maximum monetary limit, and that the Provincial Government was not empowered to create new law but was required simply to carry out the will of the Legislature by deciding when and how far, within the legislatively prescribed limits, the court’s jurisdiction should be expanded. The Court described this arrangement as a form of conditional legislation that directly follows the principle set out by the Judicial Committee in The Queen v. Burah (1), where the operation of a legal provision is made dependent on the determination of certain facts or conditions by an external authority. The Court noted that the Bombay High Court judges, in reaching their decision on this point, appeared to have been influenced, to some extent, by the Federal Court’s decision in Jatindranath Gupta v. Province of Bihar (2), and that the counsel for the respondents had naturally relied upon that precedent. The Court further explained that it had personally taken part in the majority judgment in that Bihar case and had expressed separate views in a distinct opinion. It stated that nothing in that earlier judgment supported the respondents’ contention. The Court reiterated, citing the well-known American decision in Locke’s appeal (3), that a legislature may not delegate its law-making power, but it may enact a law that delegates a power to ascertain certain facts or states of affairs on which the law itself depends; the prohibition on delegation does not apply to legislation that is complete in itself, even though its operation depends on contingencies whose determination is left to an outside body. The dispute in the Bihar case concerned the validity of a proviso added to section 1, subsection (3) of the Bihar Maintenance of Public Order Act. That subsection stipulated that the Act would remain in force for one year from its commencement, while the proviso provided that the Provincial Government could, by notification following a resolution of the Bihar Legislative Assembly and approval of the Bihar Legislative Council, extend the Act for a further year and specify any modifications in the notification. The Court explained that Mr Seervai would have been correct in relying on that decision if the proviso merely allowed the Provincial Government, upon meeting the prescribed conditions, to extend the duration of the Act for another year, the maximum period being fixed by the Legislature. However, the proviso went further by authorising the Provincial Government, at the end of the year, not only to decide whether the Act should continue for an additional year but also to determine whether the Act itself should be modified in any way.

The proviso allowed not only an extension of the Act for another year but also gave the Province power to modify the Act in any manner. Counsel for the Province conceded that permitting another body to alter a statute effectively vested that body with legislative authority. The counsel argued that the power to modify the statute could be separated from the power to extend its duration, and that invalidity of one part should not invalidate the other. The Court responded that the two provisions were so interlinked in the legislation that they could not be severed from each other. The Court observed that the factual context of the present case differed markedly from the earlier Jatindranath Gupta case, rendering the latter’s principle inapplicable. The Court further noted that the earlier case never addressed whether a Provincial Legislature, acting within the powers granted by the Government of India Act, 1935, could delegate any of its legislative functions to an external authority. Since the Attorney-General had not specifically invited a definitive ruling on that broader question, the Court declined to give an opinion on it. Accordingly, the Court limited its discussion to the specific provisions before it and refrained from expanding the judgment beyond those points.

The second issue presented considerable complexity and had been decided by the Bombay High Court against the respondents, relying on an earlier decision of the same court in Mulchand v. Raman. Counsel for the petitioner, Mr. Seervai, sought to overturn that earlier ruling, contending that the precedent should not bind the court in the present matter. The core of Mr. Seervai’s argument was that the Bombay City Civil Court Act, a piece of provincial legislation, exceeded the legislature’s authority by granting the newly created City Court jurisdiction over “all suits and other proceedings of a civil nature” with only limited exceptions. It was submitted that the phrase “all suits of a civil nature” was sufficiently broad to encompass matters listed in List I of the Seventh Schedule of the Constitution, which are exclusively within the competence of the Central Legislature under entry 53. According to the petitioner, while a Provincial Legislature may confer jurisdiction on any court, except the Federal Court, over matters falling in the Provincial List, it cannot authorize jurisdiction over matters reserved to the Centre. The Attorney-General countered that the Provincial List expressly includes “the administration of justice and constitution and organization of all courts except the Federal Court,” and that this provision authorizes the province to grant general jurisdiction to courts it creates. However, the Court observed that Section 3 of the Bombay City Civil Court Act was not limited to subjects falling within Lists II or III and its language could also embrace subjects that belong to List I, making the provision over-broad. The Court further noted that the various subjects within and outside the provincial and concurrent fields addressed by Section 3 were so intertwined that they could not be separated or demarcated without affecting the whole legislation. Consequently, the Court concluded that the Bombay City Civil Court Act, in its present form, exceeded the powers of the Provincial Legislature and was therefore ultra vires.

The Court observed that the Bombay City Civil Court Act authorises the exercise of powers similar to those that may be exercised with respect to subjects placed in the Concurrent List, as provided for in article 15 of List III and subject to the conditions laid down in section 107 of the Act. However, the Court noted that the language of section 3 of the Bombay City Civil Court Act is not confined merely to matters falling within Lists II and III; it is capable of embracing subjects that belong to List I as well. Moreover, the Court stressed that the various subjects dealt with by section 3, whether they lie within provincial or concurrent fields, are so closely intertwined that they cannot be separated, severed, or clearly demarcated. Because of this inseparable character, the Court concluded that the entire Act exceeds the legislative competence of the province and therefore must be held ultra vires.

In response, counsel for the State, the learned Attorney-General, argued that Item 1 of the Provincial List contains the expression “the administration of justice and constitution and organization of all courts except the Federal Court.” The Attorney-General contended that this wording clearly includes the power to confer general jurisdiction on courts established by the Provincial Legislature, without which such courts could not function. It was further submitted that Item 2 of the Provincial List, which provides for “jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this List,” does not limit or diminish the ordinary meaning of the expressions found in Item 1. The Court agreed that the words “administration of justice” in Item 1, unless restricted, have sufficient breadth to empower the Provincial Legislature to regulate the entire machinery of justice. The Court also examined Section 92 of the North America Act, where clause (14) refers to “the administration of justice in the Provinces” as encompassing “the constitution, maintenance and organization of Provincial Courts.” Judicial interpretation of that provision has held that the terms “constitution, maintenance and organization of courts” include the authority to define the territorial and other aspects of the jurisdiction of those courts. Counsel for the petitioner, Mr Seervai, suggested that this might be the ordinary meaning of the words when read in isolation. Nevertheless, when Items 1 and 2 of the Provincial List are read together, the Court found that the expressions “administration of justice and constitution of courts” do not cover “jurisdiction and powers of courts,” which are dealt with separately in Item 2. Consequently, to ascertain the scope of the Provincial Legislature’s power to confer jurisdiction on courts, the Court held that Item 2, rather than Item 1, is the relevant provision. The Court deemed the contention based solely on Item 1 to be untenable.

The Court considered the argument to be plainly unacceptable and agreed with counsel for the respondent that different topics listed in the same Legislative List should not be interpreted as mutually exclusive. Referring to the observation of Sir Maurice Gwyer in The United Provinces v. Atiqa Begum (1), the Court noted that the subjects covered by the three Legislative Lists are not always defined with scientific precision. It would be practically impossible to define each item in the Provincial List so as to make it exclusive of every other item, and Parliament appeared satisfied with using a number of comprehensive categories described by broad and general words. Accordingly, none of the items in the List should be read narrowly or restrictively; each general word must be held to include all ancillary or subsidiary matters that can fairly and reasonably be said to fall within its scope. Because there can be no conflict between two items that belong to the same List, there is no justification for limiting the natural meaning of one item merely because the same subject might, in some aspect, fall within the purview of another item.

The difficulty, however, arises on examination of entry 53 of List I. Under that entry, the Central Legislature has been given the power to legislate on the jurisdiction and powers of all courts except the Federal Court in respect of any matter in List I. The problem is that if Item 1 of the Provincial List were taken to empower the Provincial Legislature to confer jurisdiction on a court with respect to all subjects, regardless of the List in which those subjects appear, a clear conflict would emerge between Item 1 of the Provincial List and Item 53 of the Central List. A Provincial law encroaching upon the exclusive field of the Centre would be void and inoperative under section 100 of the Constitution Act. Consequently, a method must be found to avoid such a conflict. As the Privy Council observed in 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 one interpreted and, where necessary, modified by the other.” Counsel for the petitioner suggested that the proper reconciliation would be to read the words “administration of justice and constitution of courts” in entry 1 of the Provincial List as excluding any matter relating to the jurisdiction of courts. Under that view, the Provincial Legislature could only create or constitute courts, but could not assign to them jurisdiction over matters that fall within the competence of the Central Legislature.

The Court observed that the authority to decide cases must originate either from the Central Legislature or from the Provincial Legislature, depending on the subject matter to which the jurisdiction relates. The Provincial Legislature is empowered to confer jurisdiction on a court over any matter that falls within List II, while the Central Legislature may do the same for subjects enumerated in List I. Regarding matters that appear in the Concurrent List, either Legislature may legislate, provided that the conditions laid down in section 107 of the Constitution Act are satisfied. The Court considered the argument advanced, which suggested that the power to decide cases should be derived from the appropriate Legislature in accordance with the subject matter, as apparently plausible. However, the Court rejected this view as unsound. It noted that the exclusive right to establish courts and to provide for the entire machinery of the administration of justice has been vested solely in the Provincial Legislature. Although section 101 of the North America Act reserves to the Parliament of Canada the power to create additional courts for the better administration of Canadian law, the Indian Constitution of 1935 does not confer any comparable power on the Central Legislature; under the Indian scheme, only Provincial Legislatures may create courts. The Court clarified that the term “court” denotes a forum where justice is judicially administered; merely appointing judges or designating a venue for their meetings does not, by itself, constitute a court. A court must possess jurisdiction to decide cases, and the very constitution of a court necessarily includes that jurisdiction. Accepting Mr Seervai’s contention would lead to the result that a civil court established by a Provincial Legislature could exercise jurisdiction only over matters listed in the Provincial List, and would lack authority to decide cases involving subjects in List I unless the appropriate Legislature expressly conferred such power. Consequently, an ordinary provincial civil court could entertain all monetary claims except a claim on a promissory note or a suit for recovery of corporation tax, since negotiable instruments and corporation tax are matters of the Central List. The Court held that this outcome would be contrary to the scheme of the Constitution. To avoid the conflict, the Court proposed that entry 1 of the Provincial List, which alone addresses the constitution of courts and the administration of justice, should be read together with the three entries it appears to conflict with—entry 53 of List I, entry 2 of List II, and entry 15 of List III—and that the language of each should be interpreted in relation to the others. This approach, the Court indicated, would reconcile the apparently contradictory provisions.

The expression “administration of justice and constitution of all courts” was framed in a wholly general way. No specific subject matter was mentioned that the administration of justice might pertain to, nor was any particular type of case identified for which a court should be created. Consequently, the phrase can be correctly understood to confer a general jurisdiction, enabling a court to hear any case that is not confined to a specific subject matter. By contrast, the three remaining entries in the list each deal with particular matters that appear in the three separate legislative Lists, and each of those entries contemplates granting jurisdiction to courts only over those distinct items. In one instance the jurisdiction is “general,” as implied by the term “administration of justice,” whereas in the other three instances the jurisdiction is “particular,” limited to specific matters and therefore exclusive. I concur with my learned brother Patanjali Sastri J. that a reliable method for ascertaining the scope of a legislative topic is to examine what has traditionally been regarded as falling within that topic in the legislative practice of this country; applying that test makes the interpretation set out above entirely reasonable. The distinction between general and particular jurisdiction has long been recognized in the legislative practice of this country, both before and after the Constitution Act of 1935. Historically the country has maintained civil courts of various classes and categories, graded according to their pecuniary jurisdiction, and empowered to entertain and determine all civil suits arising within defined localities. At the same time, particular jurisdiction has been conferred on some of these courts to try cases involving specified matters. Accordingly, special jurisdictions have been created for insolvency, probate or guardianship proceedings, for disputes concerning compulsory acquisition of land, and for matters arising under the Rent Acts or other recent statutes, as noted in Croft v. Dunphy [1933] A.C. 156, which dealt with curbing excessive interest rates and providing relief to rural debtors. Similar examples exist where special jurisdiction has been granted in criminal matters. If the distinction between general and special jurisdiction is kept in mind, there is no difficulty in interpreting the various entries in the Legislative Lists referred to above. The whole scheme of the Constitution Act of 1935 places the authority to establish courts in the Provincial Legislature. That Legislature may endow the courts it creates with a general jurisdiction to try any case that, under the law of the land, is triable in a court of law, and such powers are exercisable under entry I of List II. Where either the Central Legislature or the Provincial Legislature wishes to grant special jurisdiction to particular courts over matters enumerated in their respective legislative lists, they may do so under the three specified entries. However, the exercise of

Any power exercised by the Central Government would not, in any manner, conflict with the authority that the Provincial Legislature may exercise under entry 1 of List II. The term “general” must always be understood as being opposite to “special” or exclusive. When the Central Legislature assigns a particular jurisdiction to a court with respect to a Central subject, that subject ceases to be a general matter; consequently, a court that possesses general jurisdiction will no longer hear that matter, although its overall general jurisdiction remains unchanged. The scope of general jurisdiction is inherently indeterminate and cannot be exhaustively listed.

In this respect, it is unnecessary to invoke the doctrine of “pith and substance” to prevent any incidental encroachment by the Provincial Legislature on Central subjects when conferring jurisdiction on courts. If the word “jurisdiction” in entry 53 of List I denotes only special jurisdiction, then the Provincial Legislature’s grant of general jurisdiction under entry 1 of List II cannot even incidentally intrude upon that special jurisdiction. As previously stated, once a matter is made “special,” it automatically falls outside the category of “general,” and therefore no conflict can arise.

The same principle can be observed in the Canadian Constitution, where the prevailing scheme is to administer justice throughout the country through provincial courts. Subject to the residuary power retained by the Dominion Parliament under section 101 of the North America Act, the Constitution grants the provinces exclusive authority over the administration of justice, including the maintenance, constitution, and organization of courts. Provincial courts are not constrained by any division that distinguishes matters within the legislative competence of the Dominion Parliament from those of the Provincial Legislatures. Although the Canadian Constitution does not contain an entry 53 in List I, judicial decisions have recognized that the Dominion Parliament may impose jurisdiction on provincial courts over Dominion matters.

It may be that the British Parliament, when drafting the Government of India Act 1935, intended to emulate the Canadian model for the administration of justice and the jurisdiction of courts, adapting it as they deemed appropriate. However, speculation about those intentions is irrelevant to the present question. For the reasons set out above, the Court is of the opinion that the Bombay High Court’s decision in Mulchand v. Raman (3) is correct, and the argument presented by the counsel must fail. Accordingly, the appeal is allowed and the judgment of the High Court is set aside.

Given 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, and (3) 51 Bom. L.R. 86, the Court considered it appropriate to set out the reasons for its conclusion. The salient facts, as to which there is no dispute, are as follows. On 10 May 1948 the Provincial Legislature of Bombay passed Act No. XL of 1948, known as the Bombay City Civil Court Act, 1948, with the purpose of establishing an additional civil court for Greater Bombay. The provisions of that Act that are relevant to the present appeal are set out below. Section 2 provides that the Act shall come into force on such date as the Provincial Government may, by notification in the Official Gazette, appoint. Section 3 empowers the Provincial Government, by notification in the Official Gazette, to establish for Greater Bombay a court to be called the Bombay City Civil Court. Notwithstanding anything contained in any law, that 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 Greater Bombay, except suits or proceedings which are cognizable (a) by the High Court as a Court of Admiralty, Vice-Admiralty, Colonial Court of Admiralty, or a court having testamentary, intestate or matrimonial jurisdiction; (b) by the High Court for the relief of insolvent debtors; (c) by the High Court under any special law other than the Letters Patent; or (d) by the Small Cause Court. The provision further provides that the Provincial Government may, after consultation with the High Court, extend the jurisdiction of the City Court to any suits or proceedings of the nature specified in clauses (a) and (b) by a similar notification. Section 4, subject to the exceptions in section 3, permits the Provincial Government, by notification in the Official Gazette, to invest the City Court with jurisdiction to receive, try and dispose of all suits and other civil proceedings arising within Greater Bombay and valued not exceeding twenty-five thousand rupees, as specified in the notification. Section 12 declares that, notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court, but provides that the High Court may, for any special reason and at any stage, remove any suit or proceeding from the City Court for trial by itself. The Act received the assent of the Governor-General at approximately the same time and came into force on 16 August 1948 by a notification issued by the Provincial Government and published in the Official Gazette. Simultaneously with the passage of the Bombay City Civil Court Act, the Bombay Legislature enacted Act XLI of 1948, called the Bombay High Court Letters Patent Amendment Act, 1948. By section 3 of that …

In this case the Court explained that Clause 12 of the Bombay High Court Letters Patent had been altered by inserting the words “Except that the said High Court shall not have such Original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay or the Bombay City Civil Court.” Soon after the enactment of the Bombay City Civil Court Act (Act XL of 1948), the validity of that Act was contested in the suit Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah, a suit involving promissory notes that had been filed in the Original side of the High Court. A Division Bench consisting of Chief Justice Chagla and Justice Bhagwati, sitting on 2 September 1948, held that the Act fell within the legislative competence of the Provincial Legislature and was therefore not ultra vires. The plaintiff was granted leave under section 205 of the Government of India Act, 1935, to appeal to the Federal Court, although no appeal was subsequently filed. Later, on 20 January 1950, the Provincial Government of Bombay issued Notification No. 2346/5 in the Official Gazette. The notification, made under the authority of section 4 of the Bombay City Civil Court Act, declared that with immediate effect the City Court was invested with jurisdiction to receive, try and dispose of all civil suits and proceedings whose value did not exceed twenty-five thousand rupees and which arose within Greater Bombay, subject to the exceptions specified in section a of the Act. On 6 February 1950, the first respondent, Narothamdas Jethabhai, presented a plaint before the Prothonotary of the Bombay High Court seeking recovery of Rs 11,704-5-4, together with further interest, from the second respondent, Aloysious Pinto Phillips, on three separate promissory notes. In paragraph 4 of the plaint it was expressly pleaded that the High Court possessed jurisdiction to hear the suit because (1) the Bombay City Civil Court Act, 1948, was ultra vires, and (2) at least section 4 of that Act and the notification issued pursuant to it were ultra vires. Because of uncertainty as to whether, in view of the government notification under section 4, the plaint could be admitted in the High Court, the Prothonotary placed the matter before the Court Rules and referred it to Justice Bhagwati, who was then the Judge in Chambers. By his judgment dated 23 February 1950, Justice Bhagwati held that both section 4 of the Act and the accompanying notification were ultra vires and consequently void, and therefore the High Court retained jurisdiction to entertain the suit. Accordingly, the plaint was received and admitted. Following the admission, the first respondent issued a summons under the Court Rules seeking leave to pass judgment against the second respondent. Meanwhile, the State of Bombay, on its own application, entered the proceeding as an additional party.

The State of Bombay entered the suit as an additional party by filing its own application. The matter was then placed before a Division Bench composed of Chief Justice Chagla and Justice Tendolkar for determination of four specific questions. The first question asked whether Act XL of 1948 was beyond the legislative authority of the State of Bombay. The second question concerned whether section 4 of the same Act was, in any event, beyond the legislature’s power. The third question examined whether the Government of Bombay notification numbered 2346/5 dated 20 January 1950 was ultra vires, void and legally ineffective. The fourth question sought a declaration of this Court’s jurisdiction to try the suit.

The larger issue raised in question 1 had already been decided by an earlier Division Bench in the case of Mulchand Kundanmal Jagtiani v. Raman Hiralal Shah. That earlier decision had answered the issue in the negative without hearing argument, but it reserved the right of the first respondent to challenge the correctness of that earlier ruling before this Court. The present Division Bench, agreeing with the view expressed by Judge Bhagwati, held that section 4 of the Act did not constitute a legislative enactment by the Provincial Legislature but rather delegated legislative power to the Provincial Government, a delegation that the legislature was not authorized to make. Consequently, the Bench declared both section 4 and the notification No. 2346/5 issued under it to be ultra vires, void and inoperative.

Based on that conclusion, the Bench answered questions 2, 3 and 4 in the affirmative, meaning it held that the notification was invalid and that this Court possessed jurisdiction to hear the case. The Bench then returned the summons for judgment to the learned Judge, directing that the remaining miscellaneous matters be decided on their merits.

The State of Bombay subsequently appealed this decision to the Supreme Court. The Advocate-General of Madras intervened in support of the appeal, urging the Court to uphold the validity of the Madras City Civil Court Act (VII of 1892). He noted that section 3A of that Act, as amended in 1935, contains language identical to section 4 of the Bombay Act, the only difference being the monetary limit—Rs 10,000 in the Madras provision versus Rs 25,000 in the Bombay provision.

The distinction between conditional legislation and the delegation of legislative power has been well established since the Privy Council decision in R. v. Burah and related cases cited by the High Court. It is firmly settled that conditional legislation is permissible and often necessary. The difficulty for courts lies in determining whether a particular statutory provision amounts to conditional legislation as explained in those Privy Council decisions. In the present case, the High Court, construing section 4 of the Bombay City Civil Court Act, concluded that it did not represent conditional legislation. The Court gave particular importance to the word “invest” used in section 4 and noted a marked difference between the language of section 3 and that of section 4. According to the High Court, while section 3 showed the legislature itself establishing a court with a specific pecuniary jurisdiction, section 4 left the task of conferring a higher jurisdiction to the Provincial Government, a function that the Government of India Act required to be exercised by the Provincial Legislature. The learned Chief Justice observed that the legislature never considered whether the new court it was creating should have jurisdiction exceeding Rs 10,000, and that section 4 was not merely a directive for the Provincial Government to implement legislative policy but rather a grant of power to the Government to confer jurisdiction upon the court.

The Court observed that the wording used in section 3 of the Act and that used in section 4 were markedly different and strikingly distinct. According to the High Court, while section a of the statute expressly authorized the Legislature to create a civil court with a specified pecuniary jurisdiction, section 4 did not directly empower the Legislature to give that court any higher jurisdiction. Instead, the High Court held that section 4 left the power to assign a higher jurisdiction to the Provincial Government, which was required to exercise a function that the Government of India Act prescribed for the Provincial Legislature. The learned Chief Justice expressed the view that the Legislature had never considered whether the newly created court should possess a jurisdiction exceeding ten thousand rupees. He further stated that section 4 was not merely a directive for the Provincial Government to implement a policy already set by the Legislature; rather, it was a provision that conferred upon the Provincial Government the authority to grant jurisdiction to the court. After referring to R.V. Baruha(1) and several other authorities and attempting to apply the tests laid down in those decisions, the Chief Justice concluded that the Legislature, in exercising its legislative power, had established a civil court with a limited jurisdiction under section a of the Act and had not created a court with a jurisdiction greater than ten thousand rupees. He added that, having created a court of limited jurisdiction, the Legislature had empowered the Provincial Government, under section 4, to elevate that jurisdiction up to twenty-five thousand rupees. According to the Chief Justice, the authority to increase the jurisdiction in this manner was a power that could only have been exercised by the Legislature itself.

The Court was unable to accept the construction of sections 3 and 4 advanced by the High Court. It noted that the High Court’s conclusions were principally based on the observations of the Privy Council in R. v. Burah(1) and on other Privy Council authorities. Consequently, the Court found it necessary to analyse the Privy Council decision in R. v. Burah(1). In 1869 the Indian Legislature enacted Act No. XXII of 1869, which aimed first to remove the district known as Garo Hills from the jurisdiction of the existing civil and criminal courts and from the legal regime prescribed for those courts by existing regulations and statutes. Second, the Act intended to vest the administration of civil and criminal justice in that territory in officers appointed by the Lieutenant-Governor of Bengal for the purpose of establishing tribunals of first instance, reference, or appeal, as deemed appropriate from time to time. The Act stipulated that it would become operative on a day specified by a notification of the Lieutenant-Governor of Bengal in the Calcutta Gazette. Section 8 of the Act authorised the Lieutenant-Governor, by such a Gazette notification, to extend to the designated territory any law or any portion of any law then in force in other territories under his government, or any law that might later be enacted by the Council of the Governor-General or by himself. Section 9 provided that the Lieutenant-Governor could, from time to time, by notification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of the Act to the Jaintia Hills, the Naga Hills, and to such portions of the Khasi Hills that formed part of British India, with each notification specifying the boundaries of the territories to which it applied. On 14 October 1871 the Lieutenant-Governor of Bengal issued a notification exercising the powers conferred by section 9, thereby extending the provisions of the 1869 Act to the Khasi and Jaintia Hills and excluding those territories from the jurisdiction of the civil and criminal courts.

The Act authorized the Lieutenant-Governor to apply, by notice in the Calcutta Gazette, any law or any part of a law that was then in force in other territories under his government, or any law that might later be enacted by the Governor-General in Council or by the Lieutenant-Governor himself. Section nine of the Act expressly stated that the Lieutenant-Governor could, from time to time, by such Gazette notification, extend mutatis mutandis all or any of the provisions contained in the other sections of the Act to the Jaintia Hills, the Naga Hills, and to that portion of the Khasi Hills which at that time formed part of British India. Each notification was required to specify the boundaries of the territories to which it applied.

On 14 October 1871 the Lieutenant-Governor of Bengal exercised the power granted by section nine and issued a Gazette notification extending the provisions of the Act to the territory known as the Khasi and Jaintia Hills. The notification also removed from those hills the jurisdiction of the ordinary civil and criminal courts. Subsequently, the respondent Burah and another individual were tried before the Deputy Commissioner of the Khasi and Jaintia Hills, found guilty of murder, and sentenced to death; the death sentence was later commuted to transportation for life. While imprisoned, they filed a petition of appeal against their convictions.

The extension of Act XXII of 1869 to the Khasi and Jaintia Hills by the Gazette notification raised the question of whether the High Court possessed jurisdiction to entertain the appeal. The High Court could entertain the appeal only if section nine and the accompanying notification were invalid as ultra vires. The full bench that examined the issue held that section nine did not constitute legislation but was an instance of a delegation of legislative power. The Crown obtained special leave to appeal the matter to the Privy Council.

In summarising the effect of sections one to eight of the Act on the Garo Hills, Lord Selborne, delivering the Privy Council’s judgment, observed that the Governor-General in Council had, in the ordinary course of legislation, decided to remove a particular district from the jurisdiction of the ordinary courts and offices and to place it under new courts and offices appointed by and answerable to the Lieutenant-Governor of Bengal. The legislation left to the Lieutenant-Governor the discretion to determine the timing of that change. Furthermore, the Legislature had decided that, while a change should occur, it was expedient to entrust the Lieutenant-Governor with the discretion as to when and how the change would be implemented, and also to decide which laws, existing or future, from other territories under the same government might be suitably applied to the district, recognizing that it might not be practical to apply every law or every part of every law with equal convenience.

In this matter, the Court analysed the true meaning and effect of the provisions contained in section nine. The Court first noted that the legislature had previously removed the Garo Hills from the jurisdiction of the existing courts and had placed that district under a new judicial regime. The question then arose as to what had been done regarding the adjoining districts of the Khasi and Jaintia Hills. According to the statutory language, the legislature decided that it was fit and proper for those adjoining districts to be removed from the jurisdiction of the existing courts in the same manner as the Garo Hills, but not necessarily at the present moment or in every circumstance. The removal was to occur only if and when the Lieutenant-Governor thought it desirable to do so. Moreover, the legislation allowed that only some of the provisions applied to the Garo Hills might be extended to the Khasi and Jaintia Hills, rather than the full set of provisions. Consequently, the legislature expressly entrusted a discretionary power to the Lieutenant-Governor to determine the timing and the extent of application of those provisions. The Court then concluded that it would be erroneous to regard the powers conferred upon the Lieutenant-Governor as deriving their efficacy from any authority other than the Governor-General in Council. The entire operation, the Court held, was carried out directly and immediately under the authority of Act XXII of 1869. The legislature had exercised its judgment concerning the place, the persons, the laws and the powers involved, and had legislated conditionally with respect to all of those matters. Once the stipulated conditions were fulfilled, the legislation became absolute. The Court observed that where plenary legislative powers exist over particular subjects, whether in an imperial or a provincial legislature, such powers may be exercised either absolutely or conditionally. Conditional legislation that entrusts a limited discretion to persons trusted by the legislature is a common and often convenient practice.

The Court then turned to the reasoning presented by the Bombay High Court and considered its implications for the decision in Burah’s case. The Bombay High Court had argued that, while sections one through eight of the act showed that the legislature had deliberately contemplated and articulated a policy of excluding the Garo Hills from the jurisdiction of the existing courts, the same level of deliberation and policy formulation had not been applied to the Khasi and Jaintia Hills. According to that view, the legislature had left the exclusion of the Khasi and Jaintia Hills entirely to the discretion of the Lieutenant-Governor. The Court noted that this construction was rejected by the Privy Council. By a careful reading of the language of section nine, the Privy Council concluded that the legislature itself had decided that it was fit and proper for the Khasi and Jaintia Hills to be removed from the jurisdiction of the existing courts, just as had been done with the Garo Hills. The Privy Council’s interpretation therefore contradicted the view that the legislature had omitted any policy for the Khasi and Jaintia Hills and had merely delegated the decision to the Lieutenant-Governor. This clarification affirmed that the statutory scheme was intended to apply uniformly, subject to the discretionary timing and partial application authorized to the Lieutenant-Governor, rather than leaving the matter wholly to his unilateral judgment.

In this case the Court observed that the Legislature had expressly decided that the Khasi and Jaintia Hills should be placed under the same jurisdictional scheme as the Garo Hills, but only if and when the Lieutenant-Governor considered it desirable. By inserting this provision the Legislature therefore entrusted a discretionary power to the Lieutenant-Governor to determine the appropriate moment for such a transfer.

Applying the same method of construction and adopting the language used by Lord Selborne, the Court explained that when the Legislature enacted section 3 it had, in the ordinary course of legislation, decided to create an additional civil court with jurisdiction to hear suits and other proceedings arising within Greater Bombay where the value of the claim did not exceed ten thousand rupees. However, the Legislature left it to the Provincial Government, under section 1(2), to specify the time at which this new jurisdiction would take effect. In a similar way, the Court held that by enacting section 4 the Legislature had determined that it was appropriate to extend the pecuniary jurisdiction of the new court, but not necessarily at once or in all cases. The extension was to occur only if and when the Provincial Government thought it desirable, and consequently a discretionary power was placed in the hands of the Provincial Government.

The Court rejected the argument that the Legislature had failed to apply its mind or to lay down any policy. It pointed out that the very fact that the extension of jurisdiction was capped at twenty-five thousand rupees and that the extension was subject to the exceptions specified in section 3 demonstrated that the Legislature had deliberately set the parameters of the extension. The extension was to be made not automatically or at every occasion, but only when the Provincial Government considered it appropriate. By granting the Provincial Government the discretion to determine the timing of the extended jurisdiction, the Legislature also prescribed the limits within which that discretion could be exercised. The Court stressed that the efficacy of the act effecting the extension derived solely from the legislative authority of the Legislature itself.

Regarding the expression “invest,” the Court held that it did not possess any special significance; it merely indicated the result of the condition that the Legislature had laid down. Using Lord Selborne’s language, the Court explained that the extension of jurisdiction operated directly and immediately under the Act itself. There was therefore no relinquishment or abdication of legislative power. On the contrary, the Legislature had exercised its judgment in anticipating a possible need to extend the pecuniary jurisdiction of the new court, had legislated conditionally to that effect, and once the condition—namely the issuance of a notification by the Provincial Government—was satisfied, the legislation became absolute. Consequently, the Court concluded that the construction applied by the High Court to sections 3 and 4 was erroneous and could not be supported by principle or authority.

The Court observed that the High Court’s interpretation of sections three and four of the Bombay City Civil Court Act, 1948 was mistaken and could not be sustained either on doctrinal grounds or on the basis of authority. When the language of those provisions is read in the light of the observations and the decision of the Privy Council in R. v. Burah, the Court held that section four does not constitute a delegation of legislative power. Instead, the provision represents what is described as conditional legislation, meaning that the law operates subject to a condition that, once satisfied, makes the provision effective without granting additional legislative authority.

The High Court had relied upon the decision of the Federal Court of India in Jatindra Nath Gupta v. Province of Bihar to support its conclusions. That case examined the validity of a proviso attached to section 1(3) of the Bihar Maintenance of Public Order Act, 1947. Under that Act, section 1(a) stipulated that the legislation would remain in force for one year from the date of its commencement. The proviso provided that the Provincial Government, by way of a notification issued after a resolution had been passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, could extend the Act for an additional year and could incorporate any modifications specified in the notification. Three of the learned Judges of the Federal Court ruled that the proviso and any subsequent notification were ultra vires and void, placing particular emphasis on the power granted to the Provincial Government to make any modifications when extending the Act’s duration, characterising that power as an impermissible delegation of legislative authority. A fourth Judge did not address the delegation issue but set aside a detention order on a separate ground that is not relevant to the present appeal. The remaining Judge interpreted the proviso as a form of conditional legislation consistent with the principle articulated in R. v. Burah.

The Court noted that it was unnecessary to express a definitive view on whether the Federal Court’s decision in Jatindra Nath Gupta was correct for the purposes of the present appeal. Assuming, without deciding, that vesting the Provincial Government with the authority to extend the life of an Act and to make any modifications it deemed appropriate amounted to a delegation of legislative power, the Court observed that no comparable power of modification was conferred upon the Provincial Government by section four of the Bombay City Civil Court Act, 1948. Consequently, the reasoning of the Federal Court could not be applied to the matter before this Court.

The Attorney-General contended further that, under the Government of India Act, 1935, the Central or Provincial Legislatures were permitted to delegate their legislative powers while acting within their respective fields of competence. The Court, however, reaffirmed its earlier conclusion that section four does not involve any delegation of legislative authority. Therefore, the Court found it unnecessary to examine that broader question at this stage and indicated that it reserves the right to consider and decide that issue, including the correctness of the Federal Court’s ruling in Jatindra Nath Gupta, if and when the matter arises in future proceedings.

The Judge observed that section 4 of the Bombay City Civil Court Act, 1948 did not constitute a delegation of legislative authority. Consequently, the Judge stated that it was unnecessary to examine that issue at the present stage and reserved the right to address the question, including the correctness of the Federal Court’s decision in Jatindra Nath Gupta’s case (1) A.I.R. 1949 F.C. 175, should the matter arise in the future. Counsel for the first respondent then raised a broader issue, questioning whether the Bombay City Civil Court Act, 1948 as a whole fell within the legislative competence of the Provincial Legislature of Bombay.

Section 100 of the Government of India Act, 1935 allocated legislative powers between the Federal and Provincial Legislatures. Under that provision, the Federal Legislature possessed exclusive authority to enact laws on matters listed in List I of the Seventh Schedule, while the Provincial Legislature held exclusive authority over matters enumerated in List II. The wording of the section explicitly granted each legislature power over its respective list and simultaneously excluded the other legislature from legislating on those subjects. Additionally, section 100 granted both the Federal and Provincial Legislatures concurrent authority to legislate on matters contained in List III. To resolve any conflict that might arise between a Provincial law and a Federal law, or between a Provincial law and existing Indian law concerning items in the Concurrent List, section 107 of the Act provided a mechanism for adjudicating such inconsistencies.

The Court then examined the specific entries in the three lists that related to courts. In List I, entry 53 allotted jurisdiction and powers of all courts, except the Federal Court, concerning matters in that list. In List II, entry 1 dealt with the administration of justice, the constitution and organisation of all courts except the Federal Court, and the fees charged therein; entry 2 concerned jurisdiction and powers of all courts, except the Federal Court; and entry 3 addressed procedure in Rent and Revenue Courts. In List III, Part 1, entry 2 covered criminal procedure, including all matters incorporated in the Code of Criminal Procedure at the time the Act was passed; entry 4 dealt with civil procedure, including the law of limitation and all matters contained in the Code of Civil Procedure at that time; and entry 15 assigned jurisdiction and powers of all courts, except the Federal Court, with respect to matters in the Concurrent List. The Attorney-General argued that entry 1 in List II clearly demonstrated that the administration of justice was a provincial subject, thereby granting the Provincial Legislature exclusive power to legislate on that matter.

It was observed that the term “administration of justice” had been expressly designated as a matter falling within provincial jurisdiction, and consequently only the Provincial Legislature possessed the authority to enact legislation concerning the administration of justice. The argument then proceeded to assert that the administration of justice could not exist in the absence of courts that were properly constituted and organized. Moreover, the mere constitution and organization of courts would constitute a futile exercise for the Provincial Legislature unless those courts were given effect by being endowed with jurisdiction and powers to receive, try, and determine suits and other proceedings. Accordingly, the contention was that entry 1 in List II, by itself, conferred upon the Provincial Legislature the power not merely to constitute and organize courts but also to grant them jurisdiction and authority. The learned Attorney-General relied upon the decision in Jagtiani’s case (1) and emphasized that, under entry 1, the administration of justice was wholly a provincial responsibility, and the Provincial Legislature was authorized to make laws relating to that administration. The argument further maintained that the concept of administration of justice was inseparable from the existence of courts, and courts without jurisdiction represented an incomprehensible notion. The conclusion that the Attorney-General sought to establish was that, based solely on entry 1 of List II, the Provincial Legislature possessed the power to enact a law that not only created a new court but also invested that court with general jurisdiction and powers to receive, try, and determine all suits and other proceedings. It was noted that, had entry 1 in List II stood alone, without the accompaniment of entry 53 in List I, entry 2 in List II, and entry 15 in List I, the argument would have been indefensible. Reference was made to Section 92 of the British North America Act, 1867, which contained no separate provision authorizing legislation on the jurisdiction and powers of courts; therefore, the authority to legislate on such matters necessarily had to be derived from the words “administration of justice” appearing in section 92(14) of that Act. However, the Court expressed that there was no compelling necessity to assign such an expansive and all-encompassing meaning to the phrase “administration of justice” in entry 1 of List II. The expression could be understood as a broad term that, in the absence of any indication to the contrary, ordinarily encompassed several components, namely the constitution and organization of courts, the jurisdiction and powers of those courts, and the laws to be administered by the courts. Nevertheless, the legislative practice in England as well as in India had traditionally dealt with these topics separately in statutes, as illustrated by examples such as the Indian High Courts Act 1861 (24 and 25 Vic., c. 104) sections 2 and 19, the Government of India Act 1935 sections 220 and 223, and the Letters Patent.

The Bombay High Court’s Letter Patent of 1865 and the various Civil Courts Acts were cited, and among the matters covered one particular subject—constitution and organization of Courts—was expressly placed in entry 1 of List II together with the phrase “administration of justice.” This placement is of some importance, yet the Court observed that merely inserting the words “constitution and organization of all Courts” into entry 1, without any further qualification, does not diminish the broad meaning of the preceding expression “administration of justice.” To construe it that way would run contrary to the principle articulated by the Privy Council in Meghraj v. Allah Rakhia. The Court further noted that entry 2 in List II would have been entirely superfluous if entry 1 were to be given the expansive interpretation urged by the learned Attorney-General. Under such a wide construction, the Provincial Legislature would possess plenary authority to enact laws that confer on, or withdraw from, any Court—whether existing or newly created—jurisdiction and powers of the widest description. That overarching power would automatically include the more limited authority to confer jurisdiction and powers regarding any of the specific matters enumerated in List II, which is what entry 2 contemplates. The greater power would certainly encompass the lesser. However, the Court did not assert that the existence of entry 2 by itself narrows the ambit of “administration of justice” in entry 1. It observed that, if only entries 1 and 2 existed in List II and there were no entries such as entry 53 in List I or entry 15 in List III, one could plausibly argue that the drafter did not take great care to prevent overlap, and because both entries in the same list vested legislative power in the same legislature, any overlap caused no confusion or inconvenience. Consequently, there would be no necessity to construe entry 1 as being limited by entry 2. The crucial point, the Court emphasized, is that the topic “jurisdiction and powers of Courts” was not included in entry 1 alongside “constitution and organization of Courts.” Instead, the authority to legislate on jurisdiction and powers was deliberately allocated among the Federal and Provincial Legislatures as set out in entry 53 of List I, entry 2 of List II, and entry 15 of List III. The deliberate inclusion of “constitution and organization of Courts” as a separate item in entry 1 of List II, the omission of “jurisdiction and powers of Courts” from that entry, and the purposeful distribution of legislative powers reflect this intentional legislative design.

The Court observed that the distribution of powers to enact legislation concerning the jurisdiction and powers of Courts, as set out in the three separate lists, makes it clear that Parliament did not intend entry 1 of List II, standing alone, to empower a Provincial Legislature to enact any law dealing with the jurisdiction and powers of Courts. In the Court’s view, entry 1 of List II must not be interpreted as granting any authority to a Provincial Legislature to assign jurisdiction or powers to any Court that it might create or organise under that entry. Accordingly, the expressions “administration of justice” and “constitution and organisation of Courts” that appear in entry 1 of List II should be read as expressly excluding “the jurisdiction and powers of Courts”, matters whose legislative authority was allocated to the Federal and Provincial Legislatures by entry 53 of List I, entry 2 of List II and entry 15 of List III. This method of construction conforms to the principle of interpretation laid down by the Privy Council in the case of In re Marriage Legislation in Canada. The Court also considered the argument that entry 1 of List II gave the Provincial Legislature a general power to make laws conferring general jurisdiction and powers on Courts constituted under that entry, while entry 53 of List I, entry 2 of List II and entry 15 of List III bestowed 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. The Court pointed out that if entry 1 of List II were to confer plenary authority on a Provincial Legislature to legislate on the jurisdiction and powers of Courts in the broadest sense, then entry 2 of List II would become wholly redundant, because the broader power would already encompass the narrower one. Moreover, the very acknowledgement that entry 53 of List I, entry 2 of List II and entry 15 of List III grant special powers to legislate on special jurisdiction and powers necessarily implies that the authority given to a Provincial Legislature by entry 1 of List II is exclusive of the powers conferred by those other entries. If entry 1 of List II authorised the Provincial Legislature to make laws providing the most extensive general jurisdiction—including jurisdiction and powers over all matters listed in every list—then the purpose of entry 53 of List I, entry 2 of List II and entry 15 of List III, which is to confer special powers for special jurisdiction, would be nullified. A special power to confer special jurisdiction would be meaningless if it were already subsumed within a general power. This circumstance, the Court held, is sufficient by itself to require that the Court assign a limited scope and ambit to the power conferred on the Provincial Legislature under entry 1 of List II.

The Court examined the scope of authority that entry 1 of List II granted to the Provincial Legislature for legislative action. After reviewing the material, the Court returned to its earlier view that entry 1 of List II must be interpreted as giving the Provincial Legislature every power relating to the administration of justice. It also conferred authority over the constitution and the organization of courts, except for the power to enact statutes concerning the jurisdiction and powers of those courts. The Court observed that entry 1 of List II alone authorised the Provincial Legislature to create and organise a new court. It further held that if this provision did not also permit the Legislature to invest the newly created court with general jurisdiction, the court would lack the authority to receive, try and dispose of suits. Consequently, without such jurisdiction, a court of general jurisdiction could never be established. The Court then noted that, as will be seen later, entry 2 of List II already gives the Provincial Legislature the authority to enact laws that confer general jurisdiction and powers upon a newly constituted court. Accordingly, the Court held that a forced or strained construction of entry 1 of List II was unnecessary. Some counsel argued that entry 1 of List II did not itself empower the Legislature to assign jurisdiction to a court created under that entry. They said the Legislature would therefore have been forced to pass one law under entry 1 to establish the court without any jurisdiction. After that, a separate law would have been required to define the jurisdiction and powers of that court.

The Court found no merit in that proposition, because the Legislature could, in a single piece of legislation, both establish the court under entry 1. It could also simultaneously vest in that court jurisdiction and powers concerning any matters listed in List II and, subject to section 107 of the Act, any matters enumerated in List III. The Court also rejected the assumption that the Legislature could not at the same time make a law relying on both entry 1 and entry 2 of List II and entry 15 of List III. Extensive argument was presented before the Court concerning the applicability of the doctrine of pith and substance. The decision of the Bombay High Court in the Jagtiani case had also been extensively discussed in relation to that doctrine. In brief, the argument submitted was that entry 1 of List II granted the Provincial Legislature power to legislate on the administration of justice. Consequently, the Legislature could, under that same entry, enact statutes that conferred general jurisdiction and powers on courts that it created and organised under entry 1. It was further contended that if, in doing so, the Legislature incidentally intruded into the legislative field allocated to the Federal Legislature by entry 58 of List I, the law would still be valid. The intrusion would be merely incidental. with respect to the

In this case, the Court observed that when a law gives a court jurisdiction over matters listed in List I, such incidental intrusion does not nullify the law if, in its essential character, the law falls within the legislative authority of the body that enacted it. The Court explained that this line of reasoning merely restates the question without resolving it. According to the doctrine of pith and substance, a statute is valid when it is substantially within the competence of the legislature that passed it, even though it may incidentally touch upon the field of another legislature. The doctrine therefore preserves the incidental intrusion only when the law’s main purpose lies within the proper legislative field. Consequently, if the Provincial Legislature could, under entry 1 of List II, vest a newly created court with general jurisdiction, then a law that incidentally granted that court jurisdiction over matters specified in List I would raise the issue of whether the doctrine of pith and substance applies. The Court had already determined, however, that a correct interpretation of entry 1 of List II does not authorize the Provincial Legislature to confer any jurisdiction or powers on a court; the phrase “administration of justice” must be read as referring to matters concerning the administration of justice other than the jurisdiction and powers of courts. Because of that interpretation, the discussion of the pith-and-substance doctrine becomes unnecessary. The Court expressed difficulty in endorsing the reasoning adopted by the Bombay High Court in Jagtiani’s case. Nevertheless, the Court acknowledged that a revised argument concerning the applicability of the doctrine could be stated as follows: under entry 2 of List II, the Provincial Legislature may enact laws dealing with the jurisdiction and powers of courts with respect to any matters enumerated in List II; since “administration of justice” is one of the matters in List II, the Legislature consequently possesses authority to grant the widest possible general jurisdiction to a new court or to remove the entire jurisdiction from an existing court, and in that circumstance the doctrine of pith and substance would be relevant. It was further noted that this line of reasoning cannot be sustained because of the wording of entry 2 in List II. Entry 2 treats “any of the matters in this List” as the subject-matter “with respect to” which, that is, “over” which the court may be authorised to exercise jurisdiction and powers. The Court held that such a construction is manifestly erroneous, for the idea of a court having jurisdiction “over” the administration of justice is nonsensical, and entry 2 cannot be read in conjunction with entry 1. This observation alone demonstrates that the words “with respect to” appearing in entry 2 of List II, when applied to entry 1, do not convey the meaning “over” but rather signify “relating to,” “touching,” “concerning,” or “for” the administration of justice.

In this case, the Court explained that the phrase “touching”, “concerning” or “for” administration of justice in entry 2 of List II, when read together with entry 1, clearly authorized the Provincial Legislature to enact a law that either conferred upon a Court or removed from it a general jurisdiction and powers that relate to the administration of justice. The Court noted that my brother Sastri J. had already examined this line of reasoning in great detail and that I had nothing further to add, and therefore I adopted his reasoning and his conclusion on the matter. According to this reasoning, all difficulties were resolved by placing in the Provincial Legislature the power to grant general jurisdiction to courts that it constituted and organized, so that they could effectively administer justice, which was designated as their special responsibility. Any argument that the Proviso to section 3 of the Act, which enabled the Provincial Government to give the City Court even Admiralty jurisdiction—a matter listed in List I—constituted a deliberate encroachment was settled by the amendment of that Proviso by Bombay Act XXVI of 1950. In my judgment, the impugned Bombay Act was validly enacted by the Provincial Legislature under entry 2 read with entry 1 in List II, and I therefore affirmed the order allowing the appeal. In reaching this view, I found it unnecessary to address the learned Attorney-General’s contention that the Bombay City Civil Court Act could be supported as legislation made by the Provincial Legislature under entry 4 read with entry 15 in Part I of List III, and I expressed no opinion on that point. The appeal was therefore allowed. The agent for the appellant was P.A. Mehta and the agent for the respondents was Rajinder Narain.